Amarjeet Pradhan vs State Of Odisha And Another
2023 Latest Caselaw 2321 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                          CRLMC No.2974 of 2021

         Amarjeet Pradhan                        ....            Petitioner
                                     Mr. Susanta Kumar Mishra, Advocate


                                      -Versus-


         State of Odisha and Another         ....       Opposite Parties
                                Mr. Priyabrata Tripathy, ASC, OP No.1
                   Mr. Sanjib Kumar Bhanjadeo, Advocate for OP No.2

                   CORAM:
                   JUSTICE R.K. PATTANAIK

                      DATE OF JUDGMENT:21.03.2023

       1.

The petitioner by invoking the extra-ordinary jurisdiction of this Court has challenged the criminal proceeding in connection with C.T. Case No.206 of 2021 pending in the file of learned J.M.F.C., G.Udaygiri, Kandhamal corresponding to Raikia P.S. Case No.69 of 2021 registered under Sections 417, 493, 376(2)(n), 294 and 500 read with 34 IPC on the grounds inter alia that no prima facie case is made out especially with regard to the charge of rape.

2. The prosecution was launched against the petitioner after Raikia P.S. Case No.69 dated 14th July, 2021 was registered under the alleged offences. The details of the allegation are contained in the FIR as at Annexure-2 which is to the effect that the petitioner had approached her nearly 7 years before with a proposal of marriage which though did not materialize and was declined by the informant's family for the reason stated therein but thereafter, the relationship was developed and both got involved emotionally and physically which ultimately led to a situation lodging of the said report.

Amarjeet Pradhan Vrs. State of Odisha and Another

3. Heard Mr. Mishra, learned counsel for the petitioner, Mr. Tripathy, learned ASC for the State and Mr. Bhanjadeo, learned counsel for opposite party No.2.

4. Mr. Mishra, learned counsel for the petitioner submits that the parties had been in a consensual relationship and therefore, an offence of rape is prima facie not made out even by a plain reading of Annexure-2. While claiming so, Mr. Mishra refers to the decision of the Apex Court in Pramod Suryabhan Pawar Vrs. State of Maharashtra and Another AIR 2019 SC 4010 and contends that in view of the established relationship between the petitioner and opposite party No.2 and the fact that no bad faith or intention to deceive the latter is apparent from Annxure-2 besides the conduct of the parties, the criminal proceeding is required to be quashed. It is further submitted that the petitioner is also not guilty of any false promise to marry opposite party No.2 from the inception and during the relationship between the two and therefore, an offence of rape under Section 376(2)(n) IPC and the chargesheet for the said offence is not tenable in law and in that respect, one more decision in Sonu @ Subhash Kumar Vrs. State of U.P. and Another (2021) 82 OCR (SC) 419 is placed reliance on which is again a case of consensual relationship. Another decision in (Dr.) Dhruvaram Muralidhar Sonar Vrs. State of Maharashtra and Others (2019) 73 OCR (SC) 717 was cited by Mr. Mishra where the Apex Court discussed about the distinction between rape and consensual sex, if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts. The decision of the Apex Court in Deelip Singh @ Dilip Kumar Vrs. State of Bihar (2005) 1 SCC 88 is also referred to by Mr.Mishra to contend that there was consent on the part of opposite party No.2 which does not fall under any of the exceptions of Section 90 IPC.

Amarjeet Pradhan Vrs. State of Odisha and Another

5. On the other hand, Mr.Tripathy, learned ASC and Mr. Bhanjadeo, learned counsel for opposite party No.2 submit that there was no consent of the victim which was obtained with a false promise of marriage and therefore, it can be said that under a misconception, the latter engaged herself sexually with the petitioner, who had made the false assurance to marry her. In other words, according to the learned counsel for the respective parties, it was no consent in the eye of law as opposite party No.2 under a false belief and misconception swayed away by the promise of marriage developed sexual relationship with the petitioner, who is, therefore, guilty of rape.

6. In so far as the petitioner is concerned, the Court has to glance through the FIR (Annexure-2) to find out the nature of allegations made against the petitioner. The major plank of argument is confined to the charge of rape with the contention that a consensual relationship cannot be a case of sexual abuse as has been alleged for which the petitioner stands chargesheeted. If under a misconception or with a false promise consent is obtained from the victim, it can be said to be not a willful submission and would fall within the expression 'without her consent' where from the very inspection, the accused never really intended to marry and the promise was a mere hoax which is what has been held by the Apex Court in Deelip Singh (supra). In Pramod Suryabhan Pawar (supra), the Supreme Court had the occasion to hold that consent of a woman with reference to Section 375 IPC must involve an active and reasoned deliberation towards the proposed act and to establish, whether, the consent was vitiated by misconception of fact arising out of promise to marry, two propositions are to be established, such as, the promise of marriage is a falsehood given in bad faith and with no intention of being adhered to at the time it was made and that the false

Amarjeet Pradhan Vrs. State of Odisha and Another

promise itself must be of immediate relevance or bear a direct nexus to the woman's decision to engage in the sexual acts. It is further held therein that when the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to convince the victim to engage in a sexual relation, there is a misconception of fact and that vitiates the woman's consent. However, a breach of promise cannot be said to be a false promise. So to say, a consensual relationship with no falsehood in the promise to marry from the beginning cannot be a case of rape as there is a distinction between mere breach of promise and not fulfilling a false promise.

7. In the case at hand, the petitioner had approached the family of the opposite party No.2 and had offered the proposal for marriage but due to the reason stated, it failed to materialize. But, thereafter, according to Annexure-2, there was emotional and sexual exploitation in the name of marriage and as a consequence, the relationship was developed. The opposite party No.2 said to have given many gifts to the petitioner and also cash as relationship between her and the petitioner seemed bonafide and not only that during that time, she became pregnant. The petitioner is alleged of forcing the victim to had abortion. The statements of the victim and others revealed the nature of relationship between the parties. As it further appears, the family of the petitioner said to have ill-treated the victim's parents and she was also defamed by them.

8. The opposite party No.2 during the relevant period was working as a Staff Nurse in a private hospital and she said to be in a relation with the petitioner and both of them developed physical intimacy and even stayed like normal spouses for some time in the year 2017. As per the statement of opposite party No.2 under Section 161 Cr.P.C., she got a job at Kalinga Hospital,

Amarjeet Pradhan Vrs. State of Odisha and Another

Bhubaneswar as a Staff Nurse in 2015-16 and in course developed friendship with the petitioner and thereafter, both continued to have sexual relationship for nearly 2 to 3 years and even joined and stayed together at Rasulgarh, Bhubaneswar like married couple for about 7 to 8 months. No doubt, the marriage between the parties failed to materialize and the relationship did worsen and finally opposite party No.2's family was ill-treated. The proposal was offered by the petitioner and directly to the family of the victim and since there was objection from the former's family, the marriage could not happen. On the consideration of the FIR i.e. Annexure-2, the Court finds that the friendship between petitioner and the victim was developed under the circumstances narrated therein. As early stated, the petitioner had been to the house of the informant with a proposal of marriage but because of difference in opinion on family status and wealth, it could not be successful. Despite the fact that the marriage proposal did not work out, the parties remained in touch and in due course of time, both developed a relationship during which they have had sexual intimacy as a result of which the informant became pregnant which the petitioner suggested to abort. Though from the FIR and the statement of the informant recorded under Section 161 Cr.P.C., it is made to suggest that she alleged fake and malafide intention against the petitioner but nothing is revealed as to what was the reason for the latter to force the former to abort the pregnancy. It means that the petitioner, as according to the informant, though kept physical relationship but was not in favour of having a child born out of their wedlock. Due to the alleged conduct of the petitioner, the informant suspected his intention and thereafter lodged the report.

9. During the time of relation, it is claimed by the informant that she had spent money on the petitioner and gifted him a pair of

Amarjeet Pradhan Vrs. State of Odisha and Another

gold ear ring and a chain of gold. It does appear to be a relationship with love and affection between the parties during the initial years, however, it soured towards the end. It is made to understand that the petitioner had been to the house of the informant with the proposal of marriage and thereafter, even though, it did not fructify, both got engaged in a committed relationship and came to be connected emotionally. During that time, according to the informant, she was exploited on the promise of marriage by the petitioner, who even went to the extent by stating that their relationship would be accepted by both the families once she bears a child. In course of events, the informant became pregnant and by the time the report was lodged, her pregnancy was already four months old. After the informant became pregnant, it was made known to the petitioner, who said to have suggested for abortion and thereafter, the ties between the two snapped. Since there was objection from the side of the petitioner after the informant's pregnancy, the former stayed away from the latter. It is further made to appear from the record that the informant did not receive any help even from the family of the petitioner. So to say, as per the allegation, after the informant was found to be pregnant, the petitioner, who was not inclined to have a child born, distanced himself from the relationship. Whether it was due to the objection of the petitioner's family that the relationship between the parties ended is not revealed from the material on record. What is more prominent is that the petitioner simply stayed away from the victim after she became pregnant. As per Annexure-1, the informant's family had gone to the house of the petitioner on 10th July, 2021 to discuss about the matter but it did not yield any result, rather, her character was assassinated and she was defamed. The petitioner appears to have maintained silence and remained away and did not respond to the situation which is

Amarjeet Pradhan Vrs. State of Odisha and Another

alleged in Annexure-1 and the victim's statement under Section 161 Cr.P.C. For the said conduct, as earlier mentioned, the informant doubted the intention of the petitioner, who was initially connected to her and thereafter, for reasons best known to him, stayed away and left her alone.

10. At times, it is difficult to understand human relationships. Someone could fall in love and offer to marry and for certain reasons, marriage fails to take place and during that time, for any such relationship and sexual intimacy, rape is alleged. In some cases, proposal of marriage is offered and thereafter, before it could be materialized, the parties develop sexual relationship and again when the marriage failed to take place, similar allegation of rape is claimed. But such offence is said to have been committed provided the intention is shown to be malafide from the very inception which depends on the conduct of the accused. In a plain and simple relationship between the partners without any mischief or bad intention shared between the two, for anything happened later, it would be unfair to allege sexual abuse. In Sonu @ Subash Kumar (supra), the Apex Court held that if the promise to marry was false from the very beginning or it was done in bad faith or with an intention to deceive the victim, an offence of rape is made out. In the aforesaid case, similar to the present one, the parties were in a consensual relationship and there was assurance of marriage but after a lapse of one and half years, when the victim had been to the house of the accused, who wished to have a court marriage, at that time, she was informed by the latter's family that such marriage cannot take place and that the accused is also not inclined and in course of events, she was asked to take money and leave and was also assaulted by his sister. In the instant case, the conduct of the petitioner does not appear to be malafide or fake from the beginning and such

Amarjeet Pradhan Vrs. State of Odisha and Another

relationship was developed with the informant merely to obtain her consent which is revealed from the fact that he himself had been to the house of the victim and had offered proposal for the marriage which though failed to materialize. It is further made to suggest that due to such initial proposal and the friendship which developed later, the parties fell for each other and the relationship started leading to sexual intimacy. During the time when the parties had been in a committed relationship, the petitioner even suggested the informant to become pregnant so that their families would accept them. It has been alleged that the petitioner some time during the relationship assured the informant to marry her in future. Only after the victim got pregnant, as it seems, the bond between the two disappeared and it is not known as to why, when the petitioner himself was inclined and in favour of her becoming pregnant so that their relationship would be accepted by the families. Merely for the reason that there was breach of promise by the petitioner and he distanced himself from the informant after she became pregnant by itself would not be a ground or reason to suspect the former's intention from day one. It would be unfair to allege that the petitioner to be guilty of bad intention not to marry the informant and it was from the very inception and he falsely promised to induce her in sexual relation. For many reasons, marriage between two adults do not materialize despite being in a committed relationship and when the male partner is alleged to be responsible for the breakaway, he cannot be alleged of having committed rape when the relationship was consensual. If a promise is made with the sole intention to seduce the victim to indulge in sexual act, it would amount to an offence of rape since the consent was obtained deceitfully. In the case herein, the informant was well aware of the consequence for being in a relationship with the petitioner, whose marriage proposal failed

Amarjeet Pradhan Vrs. State of Odisha and Another

to work out. Despite the fact that the marriage did not happen or there was objection against it, the parties went ahead and developed a relationship and even stayed together under one roof for about seven to eight months and continued to cohabite during their subsequent encounters. Even if there was promise of marriage, as according to the informant, the petitioner himself was in favour of and if such promise could not be fulfilled for whatever reason, it would be incorrect to allege rape despite the fact that he expressed disinclination later to marry her. The petitioner for having distanced himself and did not agree for marriage nor his family approved it of by itself does not mean that his conduct was tainted with malafide from the initial days. It is not such a case where the promise to marry the informant can be alleged to be a false one and the latter's consent was obtained by fraud to convince her to engage in sexual relation. In a similar situation, when the accused declined to marry the victim, who even received a cold response and was assaulted, considering the relation to be consensual, which was about one and half years old, the Apex Court in Sonu @ Subash Kumar (supra) held that the offence of rape was not established and overruled the view expressed by the Allahabad High Court which had declined to exercise jurisdiction under Section 482 Cr.P.C. on the basis that it was only the evidence at the trial would lead to a determination as to if any such offence to have been committed. The case of the present petitioner and informant is no different than the above as both initially developed friendship even after the former's proposal for marriage failed to show colour and their relationship blossomed and remained for about seven years and in between both lived together like spouses for some months and under such circumstances, in the humble view of the Court, it would not be justified to hold that an offence of rape is made out. Such a

Amarjeet Pradhan Vrs. State of Odisha and Another

conclusion has been reached at keeping in view the settled legal position enunciated in the decisions (supra).

11. The Court is quite conscious of the predicament of the victim informant who is at the receiving end and even became pregnant. It is unfortunate that a relationship built on friendship or affinity towards each other with love and affection reached a tragic end. For having been in a relationship and not culminating in marriage between the partners leads to miseries for both and at times, it is more difficult for the female partner to stay stable and meet the challenges of life. The Court is not oblivious of the above ground realities. But, at the same time, it cannot be unmindful of the fact that in case of breach of promise, which does not have immediate relevance and nexus with the consent of the victim, it would be highly unjustified to allege the male partner with the charge of rape. Notwithstanding the disinclination of the petitioner to marry the informant, considering the peculiar facts and circumstances of the case and having regard to the settled position of law as discussed herein above, the Court reaches at a definite conclusion that the offence of rape under Section 376(2)(n) IPC cannot be said to have been made out and hence, therefore, the prosecution shall have to be interfered with to the above extent leaving him to face the enquiry and trial for rest of the offences.

12. Hence, it is ordered.

13. In the result, the CRLMC stands allowed in part and to the extent as aforesaid for the reasons discussed herein above.

(R.K. Pattanaik) Judge TUDU