Sunil Kumar Yadav vs The State Of Chhattisgarh
2023 Latest Caselaw 306 Chatt

Order Reserved on 16.12.2022 Order Pronounced on 16.01.2023 NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

MCRC No.10090 of 2022

Sunil Kumar Yadav S/o Shri Ramlala, aged about 20 years, Caste - Ahir, R/o Village - Malgo, Post Bhakrohar, District - Singroli (M.P.)

---- Applicant Versus

The State Of Chhattisgarh, P.S. -Kotadol, District - M.C.B., (C.G.)

----Non-Applicant ____________________________________________________________ ________ For Applicant: Shri Hemant Kumar Agrawal, Advocate

For Non-Applicant/State: Shri G.P. Kurrey, Panel lawyer

CAV Order

Hon'ble Shri Justice Sachin Singh Rajput

The applicant has been arrested in connection with Crime No.39/2022, registered at Police Station - Kotadol, District - M.C.B. (C.G.) for offence punishable under section 376 (2) (n) of Indian Penal Code, 1860.

2. Case of the prosecution, in brief, is that the applicant committed sexual intercourse with the prosecutrix on several occasion on false pretext of marriage thereby committed the said offence.

3. Shri Hemant Kumar Agrawal learned counsel for the applicant submits that the applicant is innocent and he has not committed the aforesaid crime and has been falsely implicated. It is submitted that prosecutrix at present is a major lady and capable of understanding of her well being. Applicant and prosecutrix were in love relationship for last so many months. There is a delay in lodging the FIR, the first alleged incident took place on in the month of February 2020 and it allegedly continued thereafter. He further submits that prosecutrix never made any complaint for almost more than two and half years hence her statement cannot be believed. Investigation is complete, charge sheet has been filed. The applicant is in jail since 01.10.2022 and trial is likely to take time. It is further submitted it has come on

record that the applicant refused to marry in the month of March 2022 and the FIR was lodged in the month of September 2022 hence prosecutrix appears to be a consenting party. Looking to the evidence collected by the prosecution it can not be said from the very inception the applicant gave false promise to marry to the prosecutrix. Hence it is not a case of obtaining consent by fraud or misconception of fact. He goes on to submit that age of the prosecutrix is 23 years and the applicant according to arrest memo is less than 21 years, hence he is less than marriageable age, therefore giving false promise of marriage cannot be accepted. The Medico Legal Report does not support the case of prosecution story. Therefore the application may be allowed and the applicant may be released on regular bail. In order to buttress his submissions he placed reliance on the Judgment of Hon'ble Supreme Court in case of Maheshwar Tigga Vs. State of Jharkhand reported in (2020) 10 SCC 108, Pramod Suryabhan Pawar Vs. State of Maharashtra and another reported in (2019) 9 SCC 608, AIROnline 2021 Chh 365 Om Prakash Rathore Vs. State of Chhattisgarh, order passed by this court in case of Javed @ Raja Vs. State of Chhattisgarh M.Cr.C. No. 8519 of 2022 dated 22.11.2022 and order passed by the coordinate bench of this court in case of Hari Shankar Tiwari @ Vishal Tiwari Vs. State of Chhattisgarh M.Cr.C.A. No. 1388 of 2022 order dated 21.10.2022.

4. Refuting to the submissions made by learned counsel for the applicant, Shri G.P. Kurrey learned panel lawyer for the non-applicant/state vehemently argued that from the evidence collected by the prosecution case is made out against the applicant. He further submits that from the statement of the prosecutrix it is aptly clear that the applicant committed sexual intercourse with the prosecutrix with false pretext of marriage and her consent was obtained by fraud and misconception of fact hence it cannot be said that the prosecutrix was a consenting party. Even otherwise the factum of consent can be determined at the time of trial and at this stage it cannot be looked into by this court. He further submits that at the time of first incident the prosecutrix was less than 18 years hence her consent is immaterial. He goes on submit that prima facie the case has been established against the applicant. In view of the above submissions he prays that the application of the applicant may be rejected.

5. I have heard learned counsel for the parties, considered their rival submissions made herein above and also perused the case diary.

6. Hon'ble Supreme Court in case of Pramod Suryabhan Pawar (Supra) in paragraph 18 observed as under:-

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve and active and reasoned de- liberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

In this judgment Hon'ble Supreme Court observed that appellant's failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false. Hon'ble Supreme Court in case of Maheshwar Tigga (Supra) in paragraph 14 held as under:-

"14. Under Section 90 IPC, a consent given under a mis- conception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the con- sent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a con- scious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her."

(emphasis supplied)

The Hon'ble Supreme Court has categorically held in this judgment that misconception of fact has to be in proximity of time to the occur-

rence and cannot be spread over a period of four years.

7. In light of the above pronouncement and after examination of the material collected by the prosecution it appears that the relationship between applicant and prosecutrix began in the year 2020 and continued till 2022. True it is that whether a consent was voluntary or

obtained by fraud or misconception of fact is to be determined at the time of trial but at the same time it is to bee seen from the evidence collected a case of grant of bail made out or not. Therefore, looking to facts circumstances of the case, material collected by the prosecution, investigation is complete, charge sheet is filed, trial is likely to take some time, detention period of the applicant i.e. from 01.10.2022 and after giving thoughtful consideration on the submissions made by the counsel for the parties, this court is inclined to allow the application of the applicant. The application for grant of bail is allowed and he shall be released on bail on him furnishing personal bond of Rs.50,000/- with one surety of the like sum to the satisfaction of the learned trial court on the following conditions:-

        A)     He will attend each and every hearing of the case before the
        trial court    unless exempted.

        B)     He will not influence any prosecution witnesses or temper
        with the evidence.

8. It is made clear that the observation made herein above is only for the purpose of decision making of the bail applications of the applicant and to appreciate the arguments advanced by the learned counsel for the parties. It will not have any bearing on the merits of the case. The learned trial court will decide the case on it own merits without being influenced by any observation made herein above. If the applicant violates any of the conditions stated above, state would be free to move for cancellation of bail.

9. Certified copy as per rules.

Sd/-

(Sachin Singh Rajput) Judge

Pawan