Robin Sethi vs State Of Nct Of Delhi And Ors
2013 Latest Caselaw 4136 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI
+                           CRL.M.C. 3846/2013

                                                       Decided on 13.09.2013
IN THE MATTER OF :
ROBIN SETHI                                                   ..... Petitioner
                               Through: Mr. Raj Kamal, Advocate

                          versus


STATE OF NCT OF DELHI AND ORS                         ..... Respondents
                         Through: Mr. Rajat Katyal, APP for the State
                         with SI Jitender Rana, CAW Cell, North Distt.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner under Section 482

Cr.PC praying inter alia for quashing of the charge-sheet dated 12.01.2013

filed in case FIR No.95/2012 dated 15.03.2012, under Sections

376/312/506/34 IPC at Police Station: Sarai Rohilla, Delhi. The petitioner

also seeks quashing of the order dated 31.08.2013 whereby, charges have

been framed against him by the learned ASJ under Sections 376/506 IPC.

2. Counsel for the petitioner states that while framing the order on

charge, the Sessions Court had erred inasmuch as it had failed to take into

consideration the fact that there was no evidence on record to show that the

petitioner had indulged in any act that could result in holding him guilty for

the offence under Sections 376/506 IPC. Rather, a perusal of the entire

allegations levelled against the petitioner would reveal that the complainant

is a mature lady and she was not under any misconception of facts and nor

had the petitioner extended any false promise of marriage to her. He

submits that the physical relationship that had blossomed between the

parties was voluntary in nature and now the prosecutrix is trying to wreak a

revenge on the petitioner for a failed romance. In support of his submission

that there was no misconception in the mind of the prosecutrix as

contemplated under Section 90 of the IPC and a mere belief that the

promise of marriage was going to be fulfilled, cannot be treated as a

misconception of fact, learned counsel relies on the decision of the Supreme

Court in the case of Uday vs. State of Karnataka reported as (2003) 4 SCC

46. He also refers to the decision in the case of Shri Goutam Prasadi vs.

State of Tripura reported as 2012(3) GLD 626 (Gau.) to contend that in

the absence of any deception or misrepresentation or allurement at the time

of committing sexual intercourse, it cannot be urged that the consent was

given by the prosecutrix under any misconception of facts.

3. Learned APP for the State opposes the present petition and supports

the impugned order on charge by submitting that the Sessions Court had

carefully examined the case set up by the prosecution on the basis of a

complaint lodged by the prosecutrix and the material gathered in the course

of the investigation. He states that though the prosecution had named six

persons as accused and the said list had included the petitioner, his parents,

two brothers and a sister-in-law, the trial court had found that there was no

evidence available against the accused No.2 to 6 for allegedly aiding the

petitioner herein (accused No.1) in establishing a physical relationship with

the prosecutrix on a false pretext of marriage and as a result, the said

accused No.2 to 6 had been discharged. However, upon considering the

material placed on record by the State, the Sessions Court was of the

opinion that the petitioner ought to be charged for the offence punishable

under Sections 376/506 IPC. Learned APP urges that at the stage of

framing of charge, the Court is only required to take a preliminary view on

the basis of the evidence placed before it and since there was enough

material brought on record against the petitioner, the learned ASJ had

proceeded to pass an order on charge against him.

4. Coming to the facts of the present case as set out in the charge sheet

dated 12.1.2013, the prosecutrix is twenty one years old and studying in the

Delhi University. The case of the prosecution is that on 29.09.2009, the

prosecutrix had come in contact with the petitioner at a function and they

had developed friendship. As per the prosecutrix, the petitioner had taken

her to his parents and expressed his willingness to marry her in the presence

of his family members. He had assured her that they would soon become

husband and wife. Thereafter, the petitioner had taken her out of town to

various places and had exploited her on the representation that they would

soon solemnize their marriage. In October 2009, when the petitioner had

visited the residence of the prosecutrix and found her alone at home, he had

established a physical relation with her and compelled her not to disclose the

same to anyone. The petitioner had taken the complainant out of town and

both of them had stayed at Shimla for almost a week. Thereafter, in the

year 2010, the petitioner had taken the complainant to Manali and had again

allegedly established a physical relationship with her.

5. As per the prosecutrix, she had become pregnant in March, 2010 and

when she informed the petitioner about the said development, he had failed

to pay any heed and had asked her to terminate the pregnancy to avoid any

disrepute to his family. In July 2010, the petitioner had taken the

prosecutrix to Dalhousie and had again forcibly established a physical

relationship with her on the pretext of marrying her. Finally, when the date

of the marriage of the parties was not fixed, the complainant became

suspicious and informed her parents, whereafter the parents of both the

sides had met with each other and they had agreed to perform a Roka

ceremony of the parties. But immediately after the Roka ceremony was

performed, the prosecutrix discovered that she had become pregnant and

the said pregnancy was again got terminated upon the petitioner exerting

pressure on her. The aforesaid affair had continued upto July 2011 but

finally, the complainant was allegedly threatened with dire consequences

and was told by the petitioner and his family members in so many words

that they had performed the Roka ceremony only to avoid any legal action

against them. When the parents of the complainant had tried to contact the

petitioner and his family members, they were also threatened. As a result,

the subject FIR came to be registered.

6. After arguments were addressed by both sides, the learned ASJ

arrived at the conclusion that upon going through the complaint, the

statements of the prosecutrix recorded under Sections 161 and 164 Cr.PC

and having regard to the fact that she had categorically alleged that the

petitioner had established a physical relationship with her on several

occasions from the year 2009 onwards and he had continued to assure her

that he would marry her, it is a case that would require trial to determine as

to whether the prosecutrix, while succumbing to the physical advances of

the accused, was kept under any misconception of facts to the effect that he

would eventually marry her whereas he never had any such intention since

the very inception of the relationship. It was further observed by the

Sessions Court that on the basis of the material brought on record, it was

difficult to determine with certainty as to whether the petitioner had never

intended to marry the prosecutrix and limited to the aforesaid aspect, trial

was required to be conducted. Lastly, it was observed that though the

allegations levelled by the prosecutrix in her statement recorded under

Section 161 Cr.PC that the petitioner had threatened her by showing her

some photographs or videos was not established by way of any recovery, yet

at that stage, her statement could not be entirely discarded.

7. The Court has perused the aforesaid observations made by the learned

ASJ in the impugned order. It has also carefully considered the arguments

advanced by the counsels for the parties and the decisions cited by the

counsel for the petitioner in support of his submission.

8. The law on the aspect of appreciation of evidence at the stage of

framing of charge is well settled. For the purpose of framing of charge, the

Court is required to judicially consider whether on consideration of the

materials on record, it can be said that the accused has been reasonably

connected with the offence alleged to have been committed and that on the

basis of the said materials, there is a reasonable probability or chance of the

accused being found guility of the offence alleged. [Ref.: Sati Kanta Guha

and Anr. vs. State of West Bengal, 1911 Cri.LJ 1644]. At the stage of the

framing of charge, the court is required to peruse the evidence on record

without going into the deep probative value and conclude if there exists a

ground for presuming that the offence has been committed and not

necessarily to determine that there exists a ground for convicting the

accused.

9. In the case of Uday (supra), after examining the law on the issue of

rape without consent, the Supreme Court had observed that the consensus

of judicial opinion is in favour of the view that the consent given by the

prosecutrix to sexual 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 facts and a false promise is not a fact

within the meaning of Section 90 IPC. The Supreme Court had noted that

there is no straitjacket formula for determining as to whether the consent

given by the prosecutrix to sexual intercourse is voluntary or whether it is

given under misconception of facts and held that in the ultimate analysis,

the tests laid down by the courts can only provide guidance to the judicial

mind when considering the question of consent. However, in each case, the

Court must consider the evidence before it and the surrounding

circumstances before arriving at a conclusion for the reason that each case

is based on its own peculiar facts and circumstances, which may have a

bearing on the question whether the consent was voluntary in nature or was

given under a misconception of facts.

10. No doubt, the decision in the case of Uday (supra) does examine the

effect of consent obtained by fraud and discusses the test to be conducted

so as to discover as to whether the consent in a particular case is voluntary

in nature or whether it is vitiated so as not to be a legal consent. However, a

perusal of the aforesaid decision reveals that the Supreme Court was

examining a case where evidence had been duly adduced by the prosecution

and upon perusing the said evidence, it had embarked on a discussion as to

whether it was reasonably possible in the given facts and circumstances, to

infer lack of consent on the part of the prosecutrix therein.

11. In the present case, when the materials placed on record were sifted

by the Sessions Court to examine if there is a reasonable probability of the

petitioner being found guilty of the offence alleged, it had arrived at a fair

conclusion that though no case was made out against the accused No.2 to 6,

there is sufficient evidence available to frame charges against the petitioner

and thereafter decide as to whether the prosecution could prove each and

every ingredient of the offence, the absence of consent being one of them.

The court finds merit in the submission made by the learned APP for the

State that some evidence would have to be led to establish as to whether at

the relevant time, the petitioner did not have any intention of keeping his

promise to marry the prosecutrix.

12. As a result, this Court is of the opinion that in the given facts and

circumstances of the present case, there appears no justification for

interfering with the impugned order on charge framed by the learned

Sessions Court as the same does not suffer from any irregularity. It is only

after the evidence comes to be recorded in the case that it can be

determined with certainty as to whether there was actually any absence of

deception or misrepresentation or extension of any allurement by the

petitioner at the time of committing sexual intercourse with the prosecutrix.

It would therefore be premature to conclude that the consent given by the

prosecutrix was not under any misconception of facts as alleged by the

petitioner and the order on charge ought to be set aside. The present

petition is accordingly dismissed as being devoid of merits.

13. Needless to state that the observations made hereinabove are prima

facie in nature and are limited to examining the correctness of the impugned

order on charge and the same shall not be treated as a finding returned on

the merits of the case, which shall be tried and decided by the trial court

uninfluenced by this order.

                                                               (HIMA KOHLI)
SEPTEMBER 13, 2013                                                 JUDGE
rkb/mk