Chattisgarh High Court
Nitesh Kumar Karma vs State Of Chhattisgarh on 20 January, 2023
Order Reserved on 03.01.2023
Order Pronounced on 20.01.2023
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No.10273 of 2022
Nitesh Kumar Karma S/o Late Hirma Ram, aged about 27 years, R/o Village -
Farasgaon, District - Dantewada (C.G.)
---- Applicant
Versus
State Of Chhattisgarh, Through: The Police Station Kotwali District Bastar
(C.G.)
----Non-Applicant
___________________________________________________________________
For Applicant: Shri Pravin Kumar Tulsyan, Advocate
For Non-Applicant/State: Ms. Smriti Shrivastava, Panel lawyer
____________________________________________________________________
CAV Order
Hon'ble Shri Justice Sachin Singh Rajput
1.
The applicant has been arrested in connection with Crime No.383/2022, regis-
tered at Police Station - Kotwali, District - Bastar (C.G.) for offence punish-
able under section 376 of Indian Penal Code, 1860.
2. Case of the prosecution, in brief, is that the applicant committed sexual inter-
course with the prosecutrix on several occasion on false pretext of marriage
thereby committed the said offence.
3. Shri Pravin Kumar Tulsyan 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 April 2021 and
it allegedly continued thereafter. He further submits that prosecutrix never
made any complaint for almost more than one and half years hence her
statement cannot be believed. Investigation is complete, charge sheet has
been filed. The applicant is in jail since 02.11.2022 and trial is likely to take
time. It is further submitted looking to the 164 Cr.P.C. statement of prosecutrix
she 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 about 26 years. 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, order passed by this court in case of
Domendra Dewan Vs. State of Chhattisgarh Cr.A. No. 907 of 2022
dated 18.07.2022 and order passed by the coordinate bench of this court in
case of Gajendra Kumar Diwan Vs. State of Chhattisgarh Cr.A. No. 1231
of 2022 order dated 17.11.2022.
4. Refuting to the submissions made by learned counsel for the applicant, Ms.
Smriti Shrivastava, Panel lawyer for the non-applicant/state vehemently
argued that from the evidence collected by the prosecution case is made out
against the applicant. She 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. In view of the above submissions she 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 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."
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."
7. In light of the above pronouncement and after examination of the material col-
lected by the prosecution it appears that the relationship between applicant
and prosecutrix began in the year 2021 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 02.11.2022 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.
Sd/-
Sachin Singh Rajput
Judge
Kamde
