Sonia vs Nitin Saini
2022 Latest Caselaw 1439 UK

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                        Criminal Appeal No. 532 of 2013

Sonia                                                                ..............Appellant

                                            Versus

Nitin Saini
and another.                                                  ................Respondents

                                  With
                      Government Appeal No. 14 of 2014

State of Uttarakhand.                                                  ............Appellant

                                            Versus

Nitin Saini.                                                       ............Respondent

Present:
Mr.DaveshBishnoi, learned Amicus Curiae for the appellant.
Mr. J.S. Virk, learned Deputy Advocate General with Mr.Rakesh Kumar Joshi, learned Brief Holder for
the State.
Ms. ShrutiJoshi, learned Amicus Curiae for the respondent.


                    Date of Hearing and Judgment: 10.05.2022

Coram:-
Sri Sanjaya Kumar Mishra, ACJ.
Sri Ramesh Chandra Khulbe, J.

Upon hearing the learned counsel for the parties, the Court made the following judgment:- (Per Sri, S.K. Mishra, ACJ)

1. These two appeals are filed against the judgment of acquittal, one is preferred by the victim girl (name withheld) and another is preferred by the State of Uttarakhand. The appellants have challenged judgment and order dated 17.10.2013 passed by the learned Additional Sessions Judge, Roorkee, District - Haridwar in Session Trial No. 150 of 2012 acquitting the respondent of the charges of offences punishable under Section

420, 376 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as "the Penal Code" for brevity).

2. The case of the prosecution, in short, is that on 07.03.2012 at about 8:30 am, the prosecutrix appeared before the S.H.O, Police Station - Gangnahar, Roorkee District - Haridwar and presented an F.I.R. to the effect that she was acquainted with the respondent

- Nitin Saini since 2010 whose mobile number is 9058546051. She further stated that he was keeping illicit relationship with her giving false assurance for marriage. Though, the prosecutrix was distressed by such relationship, she never told about it to anybody about her relationship but after two years of such relationship, she lodged the F.I.R. under compulsion, as the respondent did not fulfil his promise that he made to her. She further alleged that the respondent threatened her that if she discloses it to anybody, he will kill her. From the perusal of the FIR, it is also apparent that they met outside the Patanjali Yog Peeth where she was going to get treatment and the respondent was working there.

3. On receipt of such an F.I.R., a case crime no. 96 of 2012 under Sections 420, 376 and 506 of the Penal Code was initiated by S.H.O. Police Station - Gangnahar, Roorkee and the matter was taken up for investigation. In course of investigation, the Investigating Officer examined the complainant and other witnesses. The Investigating Officer got the complainant / prosecutrix medically examined. After completion of investigation, she submitted a charge sheet for the aforesaid offences. During the course of investigation, statement of the victim girl was recorded under Section 164 of Criminal Procedure Code (hereinafter referred to as "the Code" for brevity) by the

learned jurisdictional Magistrate. The defence during the course of trial took a plea of denial.

4. In order to establish its case, the prosecution examined five witnesses including the victim-prosecutrix as PW1, PW2 is her father (name withheld), PW3 Constable Anand Pal Singh has prepared the chik F.I.R., PW4 Dr. Deepa has medically examined the prosecutrix on the requisition by the Police; PW5 Sub Inspector Nirmala Bhatt is the Investigating Officer of the case. Besides examining these five witnesses, the prosecution has also relied upon seven exhibits. The defence has neither produced any witness nor led any documentary evidence in order to defend its case.

5. After taking into consideration, the evidence available on record and mainly relying upon the facts that the prosecutrix was a major at the time of the occurrence, as established by the tests conducted by PW4 Dr. Deepa and other circumstances like not mentioning the time, date and month of the occurrence and late lodging of the F.I.R.; incorrect statement regarding cell phone number of the respondent, the learned Additional Sessions Judge came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Such an order of acquittal of the respondent is challenged in both the appeals.

6. Mr. Davesh Bishnoi, learned Amicus Curiae appearing for the appellant / complainant would argue that since the prosecutrix stated in her examination-in-chief that she had not given consent at the time of the act and that her consent was obtained by misconception, the learned Additional Sessions Judge committed an error on record by holding that the prosecution has not proved its case beyond reasonable doubt.

7. Mr. J.S. Virk, learned Deputy Advocate General also supports the learned Amicus Curiae appearing for the prosecutrix and submits that since the victim girl has deposed about the occurrence, then it was not proper, on the part of the learned Additional Sessions Judge to disbelieve her version and acquit the respondent.

8. Ms. Shruti Joshi, learned Amicus Curiae appearing for the respondent in both the cases would argue that this is not a fit case for overturning the judgment of acquittal, as there is no compelling and substantial circumstance for doing so. She relying upon the judgment in the case of "Pramod Suryabhan Pawar vs. State of Maharashtra and another (2019) 9 SCC 608" would submit that misconception of fact, alleged by the complainant about the respondent's promise to marry her, has to be established that from the very inception, the respondent, who allegedly gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such assurance by the respondent. She would also draw the attention of this Court to paragraph no. 35 of the impugned judgment wherein the learned Additional Sessions Judge has held that the prosecution failed to prove its case beyond reasonable doubt by giving the reasons. Thus, on considering the arguments advanced by the learned counsel appearing for the parties, this Court is of the opinion that following two essential questions arise for determination in this case:-

"(i). Whether the respondent, by giving false assurance to marry without having any intention to marry, had sexual intercourse with the prosecutrix?

(ii). Whether the acts of the respondent in giving promise to marry and then having sexual intercourse with the prosecutrix amount to rape?"

9. Coming to the first question, it is seen that the prosecutrix has been examined as PW1 in this case. She has stated that she and respondent developed intimacy, as she was going to Patanjali Yog Peeth where she was taking treatment and respondent was working there. During such relationship, they had sexual intercourse in a hotel, which is situated in front of Patanjali Yog Peeth. However, in the register of such hotel, no entry has been made about their stay in the hotel and there is no corroborative evidence in this regard to the version of the prosecutrix.

10. It is also apparent from the record that prosecutrix has not mentioned any specific date, time and month of such incident when she had sexual intercourse with the respondent. She alleged that under misconception of fact that respondent will marry her in future, she consented for sexual intercourse with the respondent. Learned Additional Sessions Judge in paragraph 35 of the judgment has very elaborately dealt with the different aspects of the case especially in respect of the evidence of the prosecutrix and has come to the conclusion that the evidence of the prosecutrix is suspicious and not a clear one. Learned Additional Sessions Judge has further found that even if the prosecutrix has any sexual relation with the respondent, then it appears that it was with her own consent. He has also disbelieved the prosecutrix's version that her consent was obtained by the respondent with a false promise of marriage.

11. In order to appreciate the arguments advanced by the learned counsel for the parties, we take into consideration the principles laid down by the Hon'ble Supreme Court to overrule

or otherwise disturb the trial court's acquittal in case of Ghurey Lal vs. State of U.P. (2008) 10 SCC 450. In the case of Ghurey Lal the Hon'ble Supreme Court has dealt with the scope of appellate Court's query in the case of acquittal and has laid down the following principles:

"70. xxxx

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

(i) The trial court's conclusion with regard to the facts is palpably wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive."

12. The presumption of innocence of the accused arraigned in the offence becomes stronger in the case of acquittal by the trial court. The appellate court should not interfere in the findings of the facts given by the trial Judge unless there are compelling and substantial reasons for the same. To find out whether there are compelling reasons for overturning the findings of facts, then the Court has to examine - whether the learned trial Judge has ignored any evidence; whether the trial Judge erred in interpreting the evidence in a most unreasonable way which can

be termed as perverse; whether the trial Judge's judgment is likely to miscarriage of justice.

13. In this case, neither Shri Davesh Bishnoi nor Shri J. S. Virk, learned Deputy Advocate General could point out any facets of the case, which will bring the present case within the four corners of the principles enunciated by Hon'ble Supreme Court in the case of Ghurey Lal (supra). Thus, we are of the opinion that this is not a fit case where we should overturn the finding of fact recorded by the learned Additional Sessions Judge. We are of the opinion that learned Additional Sessions Judge did not ignore any evidence while appreciating the same. In fact, he has taken into consideration all the facts that have been stated before him on oath and discussed in the judgment while appreciating the evidence. The appreciation of evidence cannot be termed as perverse or unreasonable. Hence, there is no substantial and compelling reason to overturn the finding of fact recorded by the trial Judge.

14. The next question is about the consent to have sexual intercourse on the false promise of marriage. In this regard, we take note of the ratio decided by the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar (supra) wherein the Hon'ble Supreme Court has held that there is a distinction between false promise given on understanding by maker that it will be broken, and breach of promise, which is made in good faith but subsequently not fulfilled. Relying upon the judgment in the case of Anurag Soni Vs. State of Chhattisgarh (2019) 13 SCC 1, the Hon'ble Supreme Court has held that the sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any

intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact, as per Section 90 of the Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the Penal Code and can be convicted for the offence under Section 376 of the Penal Code.

15. In the case of Deepak Gulati Vs. State of Haryana (2013) 7 SCC 675 wherein the Hon'ble Supreme Court has reiterated that 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. In the case of Pramod Suryabhan Pawar (supra), the Hon'ble Supreme Court has held that where promise to marry is false and intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was basis for her choosing to engage in the said act.

16. Of late, the Hon'ble Supreme Court in the case of Sonu alias Subhash Kumar Vs. State of Uttar Pradesh 2021 SCC Online SC 181, arising out of the proceedings under Section 482 of the Code, has reiterated the aforesaid principles.

17. Applying the said principles in the case in hand, we see it is not a case of the prosecution that from the very inception, the respondent had any intention of not keeping his promise that he allegedly made. Rather the only statement that prosecutrix has given is that they had sexual intercourse in a hotel and after having sexual intercourse, when she started crying the respondent tried to pacify her and expressed his love toward her and then, he made promise to marry her.

18. We are of the opinion that there is no cogent evidence on record that alleged promise made by the respondent to the prosecutrix was with an intention not to keep it and was made only to obtain consent of the prosecutrix for sexual activity. Moreover, there was ongoing relationship between both the parties for more than two years and thereafter, the FIR was lodged.

19. In the above conspectus, we are of the view that this is not a fit case to hold that prosecution has proved its case beyond reasonable doubt overturning the judgment of acquittal of the respondent by Additional Sessions Judge. In the result, both the appeals are dismissed being devoid of merit.

20. Registry is directed to send back the Trial Court Records.

(Ramesh Chandra Khulbe J.) (Sanjaya Kumar Mishra) Acting Chief Justice.

SKS