Nitin Sharma Alias Nitin Kapil vs State Of Uttarakhand And Another
2021 Latest Caselaw 4558 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

      Criminal Misc. Application No. 674 of 2020

Nitin Sharma Alias Nitin Kapil                   ....Petitioner

                             Versus

State of Uttarakhand and another             .....Respondents

Present:-
            Mr. Raj Kumar Singh Advocate for the petitioner.
            Mr. Pratiroop Pandey, A.G.A. for the State.
            Mr. Hari Mohan Bhatia, Advocate for the respondent
            no.2.


                               JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The instant petition has been filed challenging

the impugned summoning/cognizance order dated

13.10.2020, passed in Special Sessions Trial No. 19 of

2020, State Vs. Nitin Sharma, pending in the court of

District and Sessions Judge, Haridwar (for short, "the

case") as well as the entire proceedings of the case.

2. Facts necessary to decide the controversy,

briefly stated, are as follows:-

The respondent no.2 is the prosecutrix ("the

prosecutrix), who filed an FIR on 16.06.2020 against the

petitioner under Section 376 and 506 IPC. According to it,

the prosecutrix had been working for the last 3 years

since then, in a company in Human Resource

Department. She was staying in Haridwar. She had also

joined a Gym, where she met the petitioner. They both

used to exercise together. During that period, the

petitioner proposed the prosecutrix for friendship. They

became friends and in due course of time, their friendship

deepened. The petitioner proposed the prosecutrix for

marriage, he visited the residence of the prosecutrix and

established physical relations with her. The prosecutrix

was also happy that the petitioner would marry her. But,

subsequently, the petitioner stopped talking to the

prosecutrix. When the prosecutrix questioned the

petitioner to marry her, according to the FIR, the

petitioner declined to marry and threatened her to life. It

is this FIR, in which, after investigation, charge sheet

under Sections 376 (2) (n), 506 IPC and Section 3 (1)(w)(ii)

and 3 (2) (v) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (for short, "the

Act") was submitted against the petitioner. Based on it,

cognizance was taken It is impugned herein.

3. The State as well as the prosecutrix has filed

their counter affidavits.

4. Heard learned counsel for the parties and

perused the record.

5. Learned counsel for the petitioner would

submit that the offences under the Act are not made out.

There is no averment of any offence committed under the

Act in the FIR. It is not also the case of the prosecution

that only for the reason of the prosecutrix belonging to

the scheduled caste category, the offence was committed.

6. Learned counsel referred to the averments

made in the charge sheet to argue that, in fact, the

Investigating Officer (for short, "the IO"), added the

offence under the Act, merely on the basis of production

of the caste certificate by the prosecutrix. Learned

counsel raised the following points as well in his

submission:-

(i) The relationship between the petitioner

and the prosecutrix was consensual.

(ii) The petitioner never made any false

promise to marry. He wanted to marry the

prosecutrix, but it was the parents of the

prosecutrix, who were against the

marriage, as is evident from the

statements of the witnesses.

(iii) The prosecutrix had consented to the act

voluntarily. She was under no

misconception. Her consent is not vitiated

by "misconception of fact". Therefore, it is

argued that no offence, even, prima facie,

is made out against the petitioner and

proceedings of the case deserves to be

quashed.

7. In support of his contention, learned counsel

placed reliance upon the principles of law, as laid down in

the case of Pramod Suryabhan Pawar Vs. State of

Maharashtra and another, (2019) 9 SCC 608, Hitesh

Verma Vs. State of Uttarakhand and another, (2020) 10

SCC 710, Maheshwar Tigga Vs. State of Jharkhand,

(2020) 10 SCC 108 and Uday Vs. State of Karnataka,

(2003) 4 SCC 46.

8. In the case of Pramod Suryabhan Pawar

(supra), the Hon'ble Supreme Court, discussed the law on

the question of consent and in paragraph 18 summarized

the legal position has hereunder:-

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception 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 adhered 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 decision to engage in the sexual act."

9. In the case of Hitesh Verma (supra), the Hon'ble

Supreme Court with approval, referred to the judgment in

the case of Khuman Singh Vs. State of Madya Pradesh,

2019 SCC OnLine SC 1104. In the case of Khuman Singh

(supra), the Hon'ble Supreme Court, inter alia, held that

in order to attract the provisions of the Act, it has to be

shown that that the offence had been committed against

the person on the ground that such person is a member

of scheduled caste and scheduled tribes. In paragraph 15,

the Hon'ble Supreme Court observed as hereunder:-

"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 2(2) (v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar" -Scheduled Caste is not

disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."

10. In the case of Uday (supra), the Hon'ble

Supreme Court, inter alia, observed "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."

11. In paragraph 21, in the case of Uday (supra),

the Hon'ble Supreme Court laid down the guidelines, as

to what should be the factors relevant for determining the

nature of consent and observed "..............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."

12. In the case of Maheshwar Tigga (supra), the

Hon'ble Supreme Court referred to the judgment in the

case of Uday (supra) and observed that "But the

misconception of fact has to be in proximity of time

to the occurrence and cannot spread over a period of

four years".

13. On the other hand, learned counsel for the

prosecutrix would submit that the consent given by the

prosecutrix is vitiated by "misconception of fact". Learned

counsel would submit that the petitioner knew since

inception that he could not marry the prosecutrix because

they both belonged to different castes. Despite that, it is

argued, that the petitioner persuaded the prosecutrix to

establish physical relationship under the false promise of

marriage, which vitiates the consent and offences are

made out. It is submitted that the prosecutrix is a

member of scheduled caste, therefore, offence under the

Act are also made out and the petition is devoid of merit.

14. Learned State counsel would submit that there

is a presumption of no consent under Section 114 A of

the Indian Evidence Act. It is submitted that in the

instant case, the charge sheet has been submitted under

Section 376 (2) IPC, therefore, the provision of Section

114 A of the Indian Evidence Act would come in operation

and it shall be presumed that the prosecutrix did not

consent to the act. Hence, it is argued that the case is

made out. Learned State counsel also submitted that, in

fact, it is the petitioner, who convinced the prosecutrix to

establish physical relations under the false promise of

marriage.

15. The charge sheet has been submitted against

the petitioner for the offence under Section 376 (2) IPC as

well as under the Act. In order to attract the provision of

Section 376 IPC, first and foremost, consent has a big

role. This offence is made out only if the prosecutrix did

not consent for it. Consent under the fear or

misconception is no consent in the eyes of law. Section 90

IPC makes provision in this regard, which is as

hereunder:-

"90. Consent known to be given under fear or misconception.--A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."

16. The consent for a sexual act and submission

for it are two distinct concepts. Each submission may not

be based on consent. Under misconception, fear and

other extraneous circumstances may compel a person to

submit for the act. In the case of Rao Harnarain Singh

and others Vs the State, AIR 1958 Punjab & Haryana

123, the Hon'ble Supreme Court has categorically made a

distinction in between these two nature of participation,

as hereunder:-

"7. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has wished as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.

A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former........................."

(emphasis supplied)

17. In the case of Dr. Dhruvaram Murlidhar Sonar

Vs. State of Maharashtra and others, 2018 SCC OnLine

SC 3100, the Hon'ble Supreme Court further made a

distinction between rape and consensual sex. In

paragraph 23, it has been observed as hereunder:-

"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 latter 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 IPC."

18. In view of the settled position, what is crucial is

to determine is the nature of the consent that was given

by the prosecutrix for establishing physical relations with

the petitioner. If the consent was under some

misconception of facts, it vitiates the consent. As also, as

held in the case of Uday (supra), and quoted in the case of

Maheshwar Tigga (supra), it is also required to be seen as

to whether the prosecutrix willingly consented to the act

with the petitioner with whom she was deeply in

friendship, not because he promised to marry her, but

because she also desired it.

19. Reference has been made to the statement of

the prosecutrix recorded under Sections 161 and 164 of

the Code of Criminal Procedure, 1973 (for short, "the

Code"). Admittedly, the FIR does not make any mention to

the caste of the prosecutrix. According to the FIR, a year

prior to the lodging of the FIR (FIR was lodged on

16.06.2020), both the petitioner and the prosecutrix met

and they became friends. The FIR records "the friendship

deepened further". They visited their respective places of

residence. The petitioner established physical relations

with the prosecutrix on multiple occasions. The FIR

records that the prosecutrix was happy, because she was

to marry the petitioner.

20. It may be noted at this stage alone that the

prosecutrix was 26 years of age, when the FIR was lodged.

It means, she was 25 years of age when she and the

petitioner became friends and established relations. The

prosecutrix was already working in a company in its HR

Department. She was a mature woman, able to

understand right and wrong and consequences of her

acts. According to the petition, the petitioner was 33 years

of age in the year 2021, when the petitioner was filed. It

means, he was 32 years of age, when he for the first time,

according to the FIR, met the prosecutrix. This is the

background in which the matter has to proceed.

21. In her statement recorded under Section 161 of

the Code, the prosecutrix told it to the IO that after

friendship, when the petitioner proposed her to marry,

she declined on the ground that she belongs to scheduled

caste category. According to the prosecutrix, her parents

were also not agreeable for marriage, but on persuasion

they agreed for it. Thereafter, the petitioner, according to

the prosecutrix, forced her to establish physical relations

under the promise of marriage and it was so done in the

month of April, 2019 and thereafter continued on various

occasions. In the month of April, 2020, according to the

statement of the prosecutrix recorded under Section 161

of the Code, the petitioner declined to marry, on the

ground that her maternal aunt and uncle are not

agreeable to the marriage. This is what the other

witnesses have told to the IO. In her statement recorded

under Section 164 of the Code, the prosecutrix broadly

reiterated her statement recorded under Section 161 of

the Code and has reiterated that under the promise of

marriage, for the first time, the petitioner forcibly

established relations with her and continued this act on

multiple occasions. She became pregnant also, but the

foetus was aborted by the petitioner and in the month of

April 2020, the petitioner declined to marry her saying

that the prosecutrix is chamar, they cannot marry. She

was used by him as time-pass.

22. According to the prosecurix, she and the

petitioner met for the first time in the month of February,

2019. In the month of March, 2019, the petitioner

proposed the prosecutrix for marriage, which the

prosecutrix declined. The petitioner persuaded and when

the parents of the prosecutrix were agreeable, thereafter,

physical relations were established. It was not a single

act, it was on multiple occasions. The prosecutrix

definitely had in her mind that their marriage may be in

dispute, because it is she, who on her statement given to

the IO or in the court, under Section 164 of the Code has

stated that initially, she and her parents had declined for

marriage. The physical relations continued on multiple

occasions. In her statement given under Section 161 of

the Code, the prosecutrix has told it to the IO that lastly,

the petitioner declined to marry her on the ground that

his maternal aunt and uncle are not agreeable to it. Does

it mean that the petitioner was initially agreeable to the

marriage, but could not perform the marriage? Since

inception, can it be said that the petitioner had design to

establish physical relations with the prosecutrix without

any intention to marry? He did not establish relations

immediately when they befriended in the month of

February, 2019. They met in the month of February, 2019

and according to the prosecutrix, for the first time, she

was proposed in the month of March, 2019. When the

prosecutrix and her parents declined, according to the

prosecutrix, it is the petitioner, who with the help of a

Pradeep (whom the prosecutrix treats as her brother)

persuaded them to agree for marriage and thereafter, they

established relations.

23. It is stated on behalf of the petitioner that the

petitioner was also working on some private job. Both the

petitioner and the prosecutrix were young, working

independently, befriended each other and established

physical relations, not once, but on multiple occasions.

These circumstances makes this Court to believe that, in

fact, the circumstances does not indicate that the

petitioner since inception, did not have any intention to

marry the prosecutrix, therefore, his promise to marry

and consent of the prosecutrix cannot be said to have

been given under misconception of fact. The

circumstances in totality indicate that the prosecutrix

had freely consented to the act. It was her conscious

decision, after weighing the circumstances and

consequences. She was freely in the position of the

physical and mental faculty when she consented to the

sexual act. It was a consensual act and it does not attract

the provisions of Section 375 IPC. Therefore, this Court is

of the view that, prima facie, no case under Section 376

(2) IPC is not made out against the petitioner.

24. Insofar as, applicability of the offences under

the Act is concerned, FIR does not record that the

prosecutrix belong to the scheduled caste category. The

FIR does not record that the offence was committed

merely because the prosecutrix belongs to scheduled

caste category. Even otherwise, according to the FIR, in a

Gym, both the petitioner and the prosecutrix introduced

to each other. They became friends and their friendship

deepened. There was no question of caste up till then. In

her statement given during investigation, the prosecutrix

has stated that when the petitioner proposed to marry

her, she declined, saying that she belong to scheduled

caste. Up till then also, it cannot be said that the

petitioner was approaching the prosecutrix merely

because she belonged to scheduled caste category. This

Court had already recorded a finding that the consent

which was given by the prosecutrix for the act, is not

vitiated by any misconception. The consent was free and

voluntarily given.

25. In the case of Hitesh Verma (supra), the Hon'ble

Supreme Court had referred with the approval to the

observation made in the case of Khuman Singh (supra),

wherein the Hon'ble Supreme Court has observed that in

order to attract the provisions of the Act the offences

must have been committed against the person on the

ground that such person is member of the scheduled

caste and scheduled tribes. This is not also the case in

the present matter. Therefore, this Court is of the view

that even, prima facie, the offences under the Act are also

not made out.

26. In view of the foregoing discussion, this Court

is of the view that even if allegations are accepted as

such, they do not make out any, prima facie case against

the petitioner and the petition deserves to be allowed.

27. The petition is allowed.

28. The impugned summoning/cognizance order

dated 13.10.2020, passed in Special Sessions Trial No. 19

of 2020, State Vs. Nitin Sharma, pending in the court of

District and Sessions Judge, Haridwar as well as the

entire proceedings of the case is hereby quashed.

(Ravindra Maithani, J.) 15.11.2021 Jitendra