Jharkhand High Court
Nilay Kumar vs The State Of Jharkhand on 9 May, 2025
Author: Sanjay Prasad
Bench: Sanjay Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 139 of 2025
Nilay Kumar, aged about 28 years, Son of Sitaram Sahu, resident
of Kuru Bazar Tand, P.O., P.S.- Kuru & District- Lohardaga.
..... Appellant
Versus
1. The State of Jharkhand
2. Victim X ..... Respondents
.....
For the Appellants : Mr. Ajit Kumar, Sr. Advocate
: Mr. Sameer Ranjan, Advocate
For the Respondent : Mrs. Amrita Kumari, A.P.P.
For the Resp. No. 2 : Mr. Dharmendra Kr. Tiwari, Advocate
.....
CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
ORDER
C.A.V.on 06.05.2025 Pronounced on : 09.05.2025
1. This Criminal Appeal has been filed on behalf of the
appellant by challenging the order dated 25.11.2024 passed
in Misc. Cr. Application No. 2828 of 2024 by learned
Additional Judicial Commissioner-II-Cum-Special Judge
SC/ST Act, Ranchi in connection with SC/ST P.S. Case No.
13 of 2024 corresponding to SC/ST Case No. 98 of 2024
instituted for the offences under Sections 376, 323, 341,
379, 387, 420, 504, 506 of the Indian Penal Code and
Section 3(1),(g)(r)(w)(f) of SC/ST (Prevention of Atrocities)
Act, 1989, by which the learned Additional Judicial
Commissioner-II-Cum-Special Judge SC/ST Act, Ranchi
has rejected bail of the appellant.
2. As per FIR, it is alleged that on 04.10.2016, Nilay
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(appellant) took the victim at Pahari Mandir, Ranchi where
he applied Vermillion (Sindoor) on her forehead and places
the Mangalsutra around her neck, a symbolizing marital
commitment and thereafter, they established a physical
relationship and lived as a couple but after some years,
Nilay (appellant) and his family started to harass and
humiliate her due to tribal background and in the year 2023,
appellant refused to formalize the marriage and exploited
her emotionally, physically and financially. Appellant has
also threatened to post their intimate photos and videos on
the social media.
3. Heard, learned senior counsel for the appellant Mr. Ajit
Kumar and learned APP for the State Mrs. Amrita Kumari
and learned counsel for the Respondent no. 2
Mr. Dharmendra Kr. Tiwari.
4. Learned counsel for the appellant has submitted that
appellant is innocent and has not committed any offence and
has been falsely implicated in the present case. It is further
submitted that allegations leveled against the appellant are
false and frivolous.
5. It is submitted that the informant's allegations are a
retaliatory response to the demand of the appellant for
payment of loan amount taken by her. The informant had
borrowed money from the appellant over a substantial
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period, which is evident from the financial records and
communications of the Informant and her complaint is not
driven by genuine grievances, but to grab financial
obligations and harass the appellant.
6. It is further submitted that the appellant had refused to
marry the complainant citing caste differences which
reflects a personal and cultural choice rather than evidence
of deceit or fraudulent intent.
7. It is further submitted that the physical relationship between
the parties was consensual for last around 7-8 years, based
on the complainant's admission that she believed she was in
a marital relationship.
8. It is further submitted that the complainant has alleged that
the appellant demanded Rs.8,55,314/- as repayment for
financial assistance provided. However, the complainant
herself admits for giving money to the appellant on several
occasions, which indicate mutual financial exchanges and
this fact reflects one-sided exploitation as well as financial
dispute rather than evidence of harassment or abuse.
9. It is further submitted that the alleged threats and blackmail
are vague and general in nature and they have long
consensual relationship and the complainant had never
raised any objection.
10. In support of his contention, learned counsel for the
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appellant has placed reliance upon judgments rendered by
the Hon'ble Supreme Court in the case of Manish Yadav
Versus State of Uttar Pradesh & Another reported in 2025
INSC 151 and in the case of Mahesh Damu Khare Versus
The State of Maharashtra & Another reported in 2024 INSC
897.
11. It is submitted that the appellant that appellant is in judicial
custody since 19.10.2024 and hence, the appellant may be
enlarged on bail.
12. On the other hand, learned APP has opposed the prayer for
bail of the appellant. It is submitted that there is a direct
allegations leveled against the appellant for committing
rape upon the victim girl for last several years.
13. It is further submitted that the appellant had moved with
the Respondent No.2 at several places such as Shimla,
Manali, Darjeeling and Jammu & Kashmir and various
others places and the appellant had promised the victim to
marry with her. However, he failed to keep his promise.
14. It is further submitted that appellant had established
physical relationship with the victim girl on the pretext of
marriage. Hence, the prayer for regular bail of the appellant
may be rejected.
15. Learned counsel for the Informant-Respondent No.2 after
adopting the submission of learned APP has further
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submitted that the appellant had promised the respondent
No. 2 to marry with her. The appellant and respondent
No.2 were moving together at several places e.g. Shimla,
Manali, Darjeeling and Jammu & Kashmir, Hyderabad,
Dehradoon, Mansoori, Puri, Kolkata, Patna Aurangabad
and lastly at Ranchi like husband and wife.
16. It is further submitted by the learned counsel for the
Respondent No. 2 that there are several photographs,
WhatsApp chats which clearly reveal that the appellant has
induced the Informant-Respondent No. 2 to live with him
as a husband and wife and he had exploited the Informant
emotionally in the name of promise of marriage with her.
17. It is submitted that the appellant is languishing in judicial
custody for the offence committed by him and is not
entitled to be released on bail because after getting the bail
the appellant again may do criminal activities against the
respondent no.2 and also induce other girls of the society.
18. It is submitted that if the appellant solemnizes marriage
with the Respondent no.2 without taking any dowry (as
stated earlier) with consent of his other family members
and accepts the respondent no.2 as his wife and will
maintain her with full dignity, respect, regard in the
society, then in such situation the Respondent no.2 has no
objection towards granting bail to the appellant.
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19. It is submitted that this is not a case of breach of promise
rather the case of clear cut maligning the image of victim
girl and hence, the prayer for bail of the appellant may be
rejected.
20. Having heard the learned counsel for the appellant and
learned APP for the State as well as learned counsel for the
respondent no. 2, it appears that there is a long consensus
relationship between the parties for a long period, the
appellant and the respondent no. 2, they are in relationship
from the year 2016 till July 2023 i.e. for around seven (07)
years.
21. It also appear that the respondent no. 2 had gone with the
appellant in several places such as Shimla, Manali,
Darjeeling and Jammu & Kashmir, Hyderabad, Dehradoon,
Mansoori, Puri, Kolkata, Patna Aurangabad and lastly at
Ranchi without having any objection and resistance.
22. It has been held in the case of Manish Yadav Versus State
of Uttar Pradesh & Another reported in 2025 INSC 151 in
paragraphs no.15 to 18 which read as follows:-
"Para:-15 The criminal jurisprudence on the scope of
'consent' in cases where sexual intercourse took place on
the promise of marriage has been well established through
a catena of judgments by this Court. In Uday v. State of
Karnataka8, this Court acquitted the accused based on the
reasoning that the prosecutrix, a mature college student,
consented to sexual intercourse with the accused of her
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own free will. The Court found that she was fully aware of
the consequences of her actions and held that her consent
was not based on any misconception of
fact. In Uday(supra), the Court noted that:
"21. It therefore appears 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 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 straitjacket formula for
determining whether consent given by the prosecutrix to
sexual intercourse is voluntary, or whether it is given
under a misconception of fact. In the ultimate analysis,
the tests laid down by the courts provide at best
guidance to the judicial mind while considering a
question of consent, but the court must, in each case,
consider the evidence before it and the surrounding
circumstances, before reaching 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 offence, absence of
consent being one of them."
"Para:-16 This Court, in the case of Deepak Gulati v.
State of Haryana9, while discussing the nature of the
'consent' in cases where sexual intercourse occurs on the
promise of marriage, distinguished between a mere 'breach of
promise' and 'not fulfilling a false promise'. The Court held as
follows:
"21. Consent may be express or implied, coerced or
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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
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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."
"Para:-17 Moreover, in Deelip Singh v. State of
Bihar,10 the Court acquitted and set aside the conviction of
the accused while holding that while there was a breach of
promise to marry, it was not a case of false promise to
marry. The relevant extract is produced hereinunder:
"35. The remaining question is whether on the basis of
the evidence on record, it is reasonably possible to
hold that the accused with the fraudulent intention of
inducing her to sexual intercourse, made a false
promise to marry. We have no doubt that the accused
did hold out the promise to marry her and that was the
predominant reason for the victim girl to agree to the
sexual intimacy with him. PW 12 was also too keen to
marry him as she said so specifically. But we find no
evidence which gives rise to an inference beyond
reasonable doubt that the accused had no intention to
marry her at all from the inception and that the
promise he made was false to his knowledge. No
circumstances emerging from the prosecution
evidence establish this fact. On the other hand, the
statement of PW 12 that "later on", the accused
became ready to marry her but his father and others
took him away from the village would indicate that
the accused might have been prompted by a genuine
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intention to marry which did not materialise on
account of the pressure exerted by his family elders. It
seems to be a case of breach of promise to marry
rather than a case of false promise to marry. On this
aspect also, the observations of this Court
in Uday case[(2003) 4 SCC 46 : 2003 SCC (Cri) 775 :
(2003) 2 Scale 329] at Para 24 come to the aid of the
appellant."
"Para:-18 Applying the above principle to the case at
hand, it is clearly discernible that in the present case, the
complainant had agreed to indulge in intimate relations
with the appellant on the accord of her own desires and not
on the basis of any false promise of marriage made by the
appellant. Therefore, while the present case may involve a
breach of promise, it does not constitute a case of an
inherently false promise to marry. Based on the
circumstances, it cannot be concluded that the appellant
obtained the complainant's consent to engage in a physical
relationship under the pretext of a false promise of
marriage."
23. It has been held in the case of Mahesh Damu Khare Versus
The State of Maharashtra & Another reported in 2024 INSC
897 In paragraph 22,25,30,31,32 and 34 which read as
follows:-
"Para:-22 In our view, if a man is accused of having
sexual relationship by making a false promise of
marriage and if he is to be held criminally liable, any such
physical relationship must be traceable directly to the false
promise made and not qualified by other circumstances or
consideration. A woman may have reasons to have
physical relationship other than the promise of marriage
made by the man, such as personal liking for the male
partner without insisting upon formal marital ties. Thus, in
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a situation where physical relationship is maintained for a
prolonged period knowingly by the woman, it cannot be
said with certainty that the said physical relationship was
purely because of the alleged promise made by the
appellant to marry her. Thus, unless it can be shown that
the physical relationship was purely because of the
promise of marriage, thereby having a direct nexus with
the physical relationship without being influenced by any
other consideration, it cannot be said that there was
vitiation of consent under misconception of fact."
"Para:-25 In the present case, even assuming that the
appellant had made the promise since 2008 when they met
for the first time, the fact that they remained unmarried for
a long period till 2017 without there being any protest or
objection by the complainant, does not indicate the
intention at the initial stage itself to make the promise
falsely to marry the complainant. Making an allegation of
non-fulfillment of promise to marry without undue delay
by the promise would, on the other hand, be an indicator of
a false promise being made from the initial stage. In the
present case, what is not in dispute is that the physical
relationship between the appellant and the complainant
continued for a long period of about a decade and as such
it is difficult to infer that the appellant had made a false
promise since the initial stage and continued to make false
promises to marry her on the basis of which she also
continued to have physical relationship with him."
"Para:-30 Further, it appears that discontinuance of
financial support to the complainant, rather than the
alleged resiling from the promise to marry by the appellant
appears to be the triggering point for making the allegation
by the complainant after a long consensual relationship for
about nine years."
"Para:-31 In our view if criminality is to be attached to
such prolonged physical relationship at a very belated
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stage, it can lead to serious consequences. It will open the
scope for imputing criminality to such long term
relationships after turning sour, as such an allegation can
be made even at a belated stage to drag a person in the
juggernaut of stringent criminal process. There is always a
danger of attributing criminal intent to an otherwise
disturbed civil relationship of which the Court must also be
mindful."
"Para:-32 It is evident from the large number of cases
decided by this Court dealing with similar matters as
discussed above that there is a worrying trend that
consensual relationships going on for prolonged period,
upon turning sour, have been sought to be criminalised by
invoking criminal jurisprudence."
"Para:-34 In light of the aforesaid facts and circumstances
and for the reasons discussed above, we are of the opinion
that in the present case no prima facie case has been made
out about commission of an offence of rape punishable
under Section 376 IPC. Further, on perusal of the FIR it is
also noted that no allegations of cheating have been made
against the appellant to fall within the scope of Section
420 IPC nor of any of the offences under Sections
504 and 506 of the IPC."
24. It appears that the complainant lodged complainant case
No.24 of 2023 after delay of more than seven (07) years
against the appellant and his entire family members (total
five persons) before learned Special Judge, SC/ST Act in
the month of September 2023 under Section
376,323,341,379,387,420 and 504 of IPC and Section
3(1)(g)(w)(s) SC/ST (Prevention of Atrocities) Act and to
lodge the FIR against them and the then P.O. i.e. learned
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Addl. Judicial Commissioner-II, Ranchi vide memo dated
28.11.2023 sent the same to the Officer-In-charge P.S.
SC/ST Ranchi and a direction to submit the report after
proper investigation.
25. Thereafter, the police had instituted the FIR against the
appellant an also few other family members under Section
376,323,341,379,387,420 and 504 of IPC and Section
3(1)(g)(w)(s) SC/ST (Prevention of Atrocities) Act on
22.02.2024 against the appellant.
26. It reveals from the FIR arising out of complaint case that
the appellant and the respondent were have friendly
relationship while they were students in Class-ninth and
class-eight respectively and they became very close friend.
27. It further appears from the complaint that in the first week
of October 2016 i.e. 04.10.2016 the appellant is said to
have put vermillion on the head of the complainant-
Respondent No.2 and given Mangalsutra to Respondent
No.2 and lived like husband and wife. He is also said to
have established physical relationship with the
complainant-Respondent no.2 and made her to believe that
she is wife of the appellant.
28. It appears from the complaint both the appellant and the
Respondent No.2 were living together like husband and
wife at several places including Shimla, Manali, Darjeeling
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and Jammu & Kashmir, Hyderabad, Dehradoon, Mansoori,
Puri, Kolkata, Patna Aurangabad and lastly at Ranchi
without any objection.
29. It also appears from the several photographs of both
appellant and Respondent No.2 that they were having
cordial relationship with each other. Therefore, it is clear
that both the appellant and Respondent No.2 remained in
physical relationship from 2016 till the month of July 2023
i.e. for more than seven (07) years and the Respondent
No.2 is a matured lady.
30. In view of the law laid down by the Hon'ble Supreme
Court, it would appear that the Hon'ble Supreme Court has
held that the case under Section 376 of IPC will not be
proper if the parties are living together for last several years
in a consensual relationship.
31. It also appears that both the appellant and Respondent No.2
have remained in long relationship and the appellant
appears to have helped her economically also time to time.
32. In view of the law laid down on the Hon'ble Supreme
Court and in view of the fact that this is a case of long
consensual relationship between the appellant and
respondent no. 2 and under the facts and circumstances of
this case, the appellant is entitled to be released on bail.
33. Under the circumstances, the order dated 25.11.2024
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passed in Misc. Cr. Application No. 2828 of 2024 by
learned Additional Judicial Commissioner-II-Cum-Special
Judge SC/ST Act, Ranchi is set aside and the appellant,
namely Nilay Kumar is directed to be released on bail
Rs.15,000/- (Rupees Fifteen Thousand) with two sureties
of the like amount each, to the satisfaction of learned
Additional Judicial Commissioner-II-Cum-Special Judge
SC/ST Act, Ranchi or his successor Court in connection
with SC/ST P.S. Case No. 13 of 2024 corresponding to
SC/ST Case No. 98 of 2024.
34. Accordingly, the Criminal Appeal (S.J.) No. 139 of 2025 is
allowed.
(Sanjay Prasad, J.)
Jharkhand High Court, Ranchi
Dated:- 09/05/2025
Simran/N.A.F.R.
