Reserved On: 16.10.2023 vs State Of Himachal Pradesh
2023 Latest Caselaw 16959 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.2462 of 2023 Reserved on: 16.10.2023 Date of Decision: 20.10.2023 _________________________________________________ Tenzin Palden ....Petitioner Versus State of Himachal Pradesh ...Respondent _________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ________________________________________________ For the petitioner : Mr. Dibender Ghosh, Advocate. For the respondent: Mr. B.N.Sharma, Additional Advocate General.

________________________________________________ Sushil Kukreja, Judge

The present petition has been filed by the

petitioner under Section 439 of the Code of Criminal

Procedure (Cr.P.C.), seeking bail in case FIR No.149/2023

dated 22.09.2023, registered at Police Station Manali, District

Kullu, H.P., under Section 376 of the Indian Penal Code (for

short, 'IPC').

1. Whether reporters of Local Papers may be allowed to see the judgment?

2. Brief facts of the case, as per the status report

filed by the State, are that on 22.09.2023, the complainant,

i.e., the prosecutrix, came to police station alongwith her

mother and got her statement recorded under Section 154,

Cr. P.C., wherein she stated that on 02.10.2022, she met a

person namely Tenzin Palden (petitioner herein) at Hotel

Piccadly in night club 'Explosion', who proposed her for

friendship and said that he was working in the Indian Army and

had come to Manali on leave these days, but she rejected his

proposal. He again asked her for friendship twice with the

proposal that he wanted to marry her and on 03.10.2022, he

introduced her to his parents, then she accepted his proposal

for friendship and after that they started talking on phone. On

04.10.2022, the petitioner for the first time made physical

relation with her on the pretext of marriage in the rented

room of their friend, where she stayed with him till

08.10.2022 and during the said period, he made physical

relations with her several times. On 09.10.2022, he went to

join his duties and after that they used to talk on phone and

thereafter on 04.02.2023, when he again came on leave,

they started living together in the room of the petitioner

situated at Gompa Road and he went back to join his duties

on 25.02.2023 and during the aforesaid period also, he made

physical relations with her several times on the pretext of

marriage. On 05.02.2023, they went to Beed Billing and

stayed there for a day and even there, he made physical

relations with her, but after that, he gradually stopped talking

to her and ultimately he refused to marry her. On the basis of

this complaint, the FIR in question was registered against the

petitioner.

3. During the course of investigation, the medical

examination of the prosecutrix was got conducted at Civil

Hospital Manali, her samples were preserved and MLC was

obtained. The petitioner-accused was arrested on

22.09.2023, his medical examination was also got conducted

and samples were preserved. Thereafter, the statement of

the prosecutrix under Section 164 Cr.P.C. was got recorded

and the samples preserved were sent to RFSL, Mandi and

the statements of the witnesses were recorded.

4. The instant petition has been filed by the

petitioner on the ground that he is innocent and he has been

falsely implicated in the present case. Learned counsel for

the petitioner contended that since the investigation of the

case is complete and no recovery is to be effected from the

petitioner, therefore, no fruitful purpose will be served by

keeping the petitioner behind the bars for an unlimited

period.

5. Conversely, the learned Additional Advocate

General has opposed the bail application on the ground that

the petitioner is involved in a serious offence of rape and

keeping in view the gravity of the offence, he is not entitled to

be released on bail. He further contended that if the

petitioner is enlarged on bail, he will try to influence the

witnesses and may also tamper with the prosecution

evidence.

6. I have given my considered thought to the rival

contentions raised and also gone through the police file as

well as the status report filed by the prosecution. The perusal

of the record reveals that the investigation of the case is

complete and the petitioner is in custody since

22.09.2023.

7. The allegations levelled by the prosecutrix in the

FIR are that the petitioner had made physical relations with

her on the pretext of marriage since 04.10.2022, which

continued till the month of February 2023, but thereafter he

refused to marry her.

8. The Hon'ble Apex Court in Deepak Gulati Vs.

State of Haryana, (2013) 7 SCC 675 has held that there is a

clear distinction between rape and consensual sex. There is

also distinction between breach of promise and not fulfilling a

false promise. In the case like this, the Court is required to

see whether there is adequate evidence to show that at the

very beginning itself the accused had no intention

whatsoever of keeping his promise to marry the victim. It has

also been said that there may be a case where the

prosecutrix agrees to have sexual intercourse on account of

her love and passion for the accused, and not solely on

account of misrepresentation made to her by the accused.

The relevant portions of the aforesaid judgement are

extracted herein below:-

"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

----- ----- ----- ------

----- ----- ----- ------

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always

amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

9. Similar view has also been expressed by the

Hon'ble Apex Court reported in Dr. Dhruvaram Murlidhar

Sonar Versus State of Maharashtra and others, (2019) 18

SCC 191. Para 23 of the judgment is extracted herein

below:-

"23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."

10. Thus, whether the petitioner had any intention

from the very beginning to marry the prosecutrix and whether

only to satisfy his lust, he obtained her consent on

misrepresentation are the questions to be determined after

leading evidence. At the stage of granting bail, the Court has

to look into the conduct of the parties. Both prosecutrix as well

as the petitioner-accused had acquaintance with each other

and prima facie, it appears that the prosecutrix had made

physical relations with the petitioner with her own consent.

The prosecutrix being a major girl with sound mind, who was

running a Dhaba, there seems to be no question of anyone

being in a position to induce her into physical relations under

an assurance of marriage. There is no explanation given by

the prosecutrix as to why she kept silent for about one year

and at this stage, no plausible reason for the delay in lodging

the FIR has been given by her. Since the prosecutrix is a

major girl of 21 years of age and was running a Dhaba, it

would be presumed that she would know the consequence of

her action. Keeping in view the facts and circumstances of the

case and substance of allegations against the petitioner, I am

of the firm opinion that the petitioner deserves to be released

on bail as, prima facie, it appears to be a case of consensual

relationship between two adult persons. Moreover, the

prosecution has failed to produce any material on record to

suggest that the petitioner will tamper with the prosecution

evidence on being enlarged on bail and there is also nothing

to suggest that he will abscond and flee from justice, if

released on bail.

11. Considering the overall facts and circumstances

of the case, this Court finds that the present is a fit case where

judicial discretion to admit the petitioner on bail is required to

be exercised in his favour. Accordingly, the bail application is

allowed and it is ordered that the petitioner, who has been

arrested by the police, in case FIR No.149/2023, dated

22.09.2023, registered at Police Station Manali, District Kullu,

H.P., under Section 376 of IPC and presently lodged in District

Jail, Kullu, District Kullu, H.P., shall forthwith be released on

bail, subject to his furnishing personal bond to the tune of

Rs.25,000/- (Rupees twenty five thousand) with one surety in

the like amount to the satisfaction of learned trial Court. The

bail order is, however, subject to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the prosecution witnesses or terrorise them in any manner;

(iv) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(v) that he will not leave India without prior permission of the Court.

12. Needless to say that the Investigating agency

shall be at liberty to move this Court for cancellation of the

bail, if any of the aforesaid conditions is violated by the

petitioner.

13. Be it stated that any expression of opinion given

in this order does not mean an expression of opinion on the

merits of the case and the trial Court will not be influenced by

any observations made therein.

14. The Registry is directed to forward a soft copy of

the bail order to the Superintendent, District Jail, Kullu,

District Kullu, H.P., through e-mail, with a direction to enter

the date of grant of bail in the e-prison software.

15. In case, the petitioner is not released within a

period of seven days from the date of grant of bail, the

Superintendent, District Jail, Kullu, is directed to inform this

fact to the Secretary, DLSA, Kullu. The Superintendent,

District Jail, Kullu, HP, is further directed that if the petitioner

fails to furnish the bail bonds, as per the order passed by this

Court, within a period of one month from today, then, the said

fact be submitted to this Court.

( Sushil Kukreja ) Judge October 20, 2023 (VH)

VIRENDE Digitally signed by VIRENDER BAHADUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=

R 3c5f9e29e91dda973d928ffd06d59832d2dd97 b9e2898117bfa738990a0ea7ba, PostalCode =171001, S=Himachal Pradesh, SERIALNUMBER= fed3018c26866cd3d598cb3749b3fb29d4abef

BAHADU 4b84983689d027cb645c9bb134, CN= VIRENDER BAHADUR Reason: I am approving this document Location:

    R          Date: 2023.10.20 21:30:58+05'30'
               Foxit PDF Reader Version: 2023.2.0