Dhanu Thakur vs State Of Chhattisgarh
2023 Latest Caselaw 309 Chatt

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                                                    Order Reserved on 15.12.2022
                                                  Order Pronounced on 16.01.2023
                                                                            AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                             MCRC No.9897 of 2022

     Dhanu Thakur Son of Jayatu Thakur @ Nehtu, aged about 24 years Resident
     of Awaspara, Village - Vankomar, Police Station - Karpavand, District -
     Bastar (C.G.)

                                                                        ---- Applicant
                                      Versus

     State Of Chhattisgarh, Through the Station House Officer - P.S. - Karpavand,
     District Bastar, Chhattisgarh

                                                                   ----Non-Applicant

____________________________________________________________________
For Applicant:             Shri Manish Nigam, Advocate

For Non-Applicant/State:   Shri Roshan Dubey, Panel lawyer
____________________________________________________________________

                                   CAV ORDER

                   Hon'ble Shri Justice Sachin Singh Rajput

1.

The applicant has been arrested in connection with Crime No. 42/2022, registered at Police Station Karpavand, District - Bastar (C.G.) for offence punishable under section 376 of Indian Penal Code, 1860.

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

3. Shri Manish Nigam, learned counsel for the applicant submits that the applicant is an innocent and he has not committed the aforesaid crime and has been falsely implicated. It is submitted that prosecutrix is a major lady and capable of understanding of her well being. Applicant and prosecutrix were in love relationship for last so many years. There is a delay in lodging the FIR, from reading of entire charge sheet, no offence under section 376 of IPC is made out. Investigation is complete, charge-sheet has been filed, that the applicant is in jail since 29.08.2022 and trial is likely to take time. He further submits that the alleged relationship is said to be continued from 2016 and the

FIR was lodged in the year 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 that 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. 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 and Pramod Suryabhan Pawar Vs. State of Maharashtra and another reported in (2019) 9 SCC 608.

4. Refuting to the submissions made by learned counsel for the applicant, Shri Roshan Dubey, learned panel lawyer for the non-applicant/state vehemently argued that from the evidence collected by the prosecution, the 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 ob- tained 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 goes on to 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 Uday Vs. State of Karnataka reported in AIR 2003 SC 1639 in paragraph 21 & 25 held as under:

"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sex- ual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for de- termining whether consent given by the prosecutrix to sexual inter- course is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts pro- vide at best guidance to the judicial mind while considering a ques-

tion of consent, but the Court must, in each case, consider the evi- dence before it and the surrounding circumstances, before reach- ing a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the of- fence, absence of consent being one of them."

"25.There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual inter- course with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stif op- position from members of both families. There was therefore a dis- tinct possibility, of which she was clearly conscious, that the mar- riage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the con- trary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usu- ally happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appel- lant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the pros- ecutrix willingly consented to having sexual intercourse with the ap- pellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these cir- cumstances it would be very difficult to impute to the appellant

knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more rea- sons than one for her to consent."

(emphasis supplied)

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 deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "miscon- ception 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 ad- hered 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 deci - sion 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 misconception 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 consent 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 conscious 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 occurrence 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 2016 and continued till 2022. It also appears from the record that prosecutrix lived with the applicant in a rented premises and in his home also for a considerable period of time. It is true 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 be seen from the evidence collected a case of grant of bail made out or not. Looking to facts and 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 29.08.2022 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 his 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 hereinabove 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 hereinabove. 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 Parul