Manish Tamta Alias Manish vs State Of Uttarakhand And Others
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     HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Misc. Application No. 1926 of 2022

Manish Tamta alias Manish                              .....Applicant.
                           Versus
State of Uttarakhand and others                        .... Respondents

Present :
Mr. R.S. Sammal, Advocate, for the applicant.
Mr. T.C. Agarwal, Deputy A.G., for the State of Uttarakhand.


                               JUDGMENT

Hon'ble Sharad Kumar Sharma, J.

A very interesting exception is required to be dealt with by this Court, as it has been sought to be attracted by the learned counsel for the applicant, wherein, an attempt has been made by the counsel for the applicant to bring his case within the framework of the ratio of the judgment of the Hon'ble Apex Court in the matter Sonu alias Subhash Kumar Vs. State of U.P. and another, as reported in 2021 SCC OnLine SC 181, , which has been relied by this Court in a number of other subsequent judgments.

2. The attempt made by the learned counsel for the applicant was to portray, that this was a case of consensual relationship established, under a false pretext of marriage, hence would not be an offence under Section 376 of the IPC.

3. If principally, the ratio as propounded by the Hon'ble Apex Court in the judgment of Sonu (Supra), is considered to oust an offence under Section 376 of the IPC, the governing circumstances as provided therein, is given in

the para 8 of the said judgment, which is extracted hereunder:-

"8 The contents of the FIR as well as the statement under Section 164 of CrPC leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge:

(i) The relationship between the appellant and the second respondent was of a consensual nature;

(ii) The parties were in the relationship for about a period of one and a half years; and

(iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR."

4. In the judgment of Sonu (Supra), the prime elements were :-

i. Establishment of a consensual relationship. ii. The parties were in relationship for a sufficient long period.

iii. That there was a denial to marry.

5. Factually, as far as the instant C-482 Application is concerned, which emanates from chargesheet No.66 of 2022, as submitted on 8th August, 2022, as a consequence of the culmination of the investigation to the allegation in the FIR No. 35 of 2022, on which, the cognizance has been taken by an order dated 22nd September, 2022, and the summoning order, which has issued on 7th October, 2022, had resulted into the registration of a Criminal Case No. 733 of 2022, State Vs. Manish Tamta @ Manish Kumar, for the offences under Sections 376 and 417 of the IPC and Section ¾ of the

Dowry Prohibition Act, which is being sought to be brought within the aforesaid ambit of the judgment of the Hon'ble Apex Court of Sonu (Supra) to take the benefit to contend that it was not an offence under Section 376 of the IPC.

6. In order to deal with the argument extended by the learned counsel for the applicant, this Court has to ensure as to whether as per the FIR No. 35 of 2022, dated 16th April, 2022, whether, it at all, satisfied the three conditions provided in para 8 of the said judgment of Sonu (Supra). On a simplicitor narration of the facts in the "FIR" are, that the victim, had contacted the present applicant in year 2020, and they continuously talked on phone. It is not a case of the complainant, that in any of the conversation made on a telephone, there was an assurance of marriage.

7. The cordial relationship between a major male and a major female, in this modern world, may not be always construed to be thought of, that it was a relationship intended to establish a physical relationship. Getting together of a major male and female is quite a regular phenomena in this world, and now society too, and which cannot be looked into from a very narrow perspective, that it is always intended to establish a physical relationship. It is not the case of the complainant in the FIR, that after entering into a conversation in 2020, she was ever given an assurance by the applicant to get married.

8. That as per FIR, for the first time, it is said that when she has visited on an occasion of marriage of her

friend, she met with the present applicant, and on 25th April, 2021, there was an establishment of the physical relationship (which was the first and only establishment of physical relationship). It is not a case, that the relationship as established on 23rd April, 2021, was a consensual.

9. The term "consensual", herein, would mean a consent, which is not forcefully obtained or solicited, which is a voluntary act emerging out of affection and emotion attached to an individual, due to which, the closeness gradually matures resulting into establishment of physical relationship. The relevant introduction to the word "consensual" would require various parameters to be considered, which itself has been dealt with in the context of provisions contained under Section 375 of the IPC, in the extract of a literature published by P.H. Pendharkar, Associate Professor, N.B.T. Law College, Nasik, as to how the word "consensual" would be interpreted in the context of Section 375 of the IPC. The relevant extract is extracted hereunder :-

"CONSENT, ESPECIALLY in sexual offences, is a burning topic of discussion amongst the academicians, law makers and implementers. Consent is difficult to define, but very easy to understand, Nigam, therefore, rightly states: "You understand what "consent" means, so do I.

The legal meaning of "consent" is not materially different from what we understand." But when the issue of consent comes with reference to rape, many times, it becomes more a matter of sentiment than sense. On the issue of 'consent in sexual matters', like the Jataka tale of an elephant seven blind men, various persons hold different opinions. Some of such opinions are full of fantasies and myths, such as, 'consent means active will in the mind of a person to permit the doing of the act'; 'consent presupposes moral power of acting'; 'consent requires voluntary participation on the part of woman'; 'consent requires knowledge of significance and moral quality of the

act'; 'consent requires mind weighing, as in a balance, the good and evil on each side'; so on and so forth. The definition of 'consent' in section 375 of the Indian Penal Code, 1860, (hereinafter IPC) is a culmination of such views. Explanation 2 to section 375 IPC defines consent as follows:

Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by reason only of that fact, be regarded as consenting to the sexual activity.

Plain reading of the definition makes it clear that, consent must be "unequivocal", "voluntary", and "willing"; and the willingness must be "communicated". The definition, therefore, gives birth to various questions of vital importance like, whether consent means 'willing agreement'; is there any relation between 'will' and 'consent'; whether consent means 'voluntary agreement'; what is the meaning of the expression 'voluntary'; whether consent means 'unequivocal agreement'; whether the 'unequivocal' aspect of section 375 IPC is different from 'mistake of fact' under section 90 IPC; whether 'communication of agreement' is must in every consent; what is 'capacity to consent'; is it different from 'ability to communicate consent'; etc. The present paper attempt to answer these questions; it is an attempt to analyse the definition of consent under section 375 IPC, and to understand the core concept of consent. The paper also attempts to analyse the newly incorporated clause seventhly under section 375 IPC. The clause runs: "when she is unable to communicate her consent". And it concludes that, the definition is not only self-contradictory, but also contradictory to the basic concept of consent. So also, it is contradictory to the legislative policy under clause thirdly and fourthly of section 375, 376C and 493 IPC. So far as clause seventhly is concerned, this paper concludes that, the same is technically unsound and practically unnecessary.

At the outset, it must be kept in mind that, there is some difference between the concept of consent in civil law and in criminal law. The scope of the present paper, therefore, is limited to the consent in criminal law, especially the consent in offences affecting human body."

10. Since, it has been a consistent case of the victim, that when on 25th April, 2021, the applicant has made an attempt to establish the sexual relationship, she has retaliated

and when he attempted to do that, she was forced to keep quite and her mouth was shut. She objected to it, but still, the physical relationship was established by the applicant. This particular conduct of the victim has been a consistent stand taken by her in the statement recorded under Section 161 and under Section 164 of the Cr.P.C., where she has maintained the plea, that the relationship was not with consent because an act and element of retaliation was always there at the behest of the victim.

11. It is not her case at any point of time, till the establishment of the physical relationship on 25th April, 2021, that at any point of time prior to 25th April, 2021, the applicant has assured to get marriage, which was later on denied resulting into the registration of the FIR.

12. Once, there was no assurance of marriage and the physical relationship was established against the consent as observed, it will be an offence under Section 376 of the IPC, and it will not be falling under exception provided in para 8 of the judgment of Sonu (Supra).

13. In the statement under Section 161 of the Cr.P.C. about the incident which has chanced on 25th April, 2021, is yet again, is an improbability, which could not be believed with, that it was a consensual relationship, which had a prior premeditated intention for commission of an offence because, on 25th April, 2021, the bride and bridegroom, along with the victim and accused were sitting in a room, from where on account of certain marriage ceremony, the bride and

bridegroom had to leave the room, and there the physical relationship was established, which was objected by the victim, and the similar sexual assault, which was retaliated would be an offence under Section 376 of the IPC, and the element of consent cannot be said to have been established in an affirmative to attract the principles laid down by the Hon'ble Apex Court in para 8 of the judgment of Sonu (Supra).

14. Apart from it, the learned counsel for the applicant has argued, that the aspect of an assurance of marriage, could be culled out from the statement recorded by the mother of the accused. This Court is of the view, that for the purposes of establishment of a fact of assurance of marriage, it would not be the mother, who would be the appropriate person to decipher the said versions until and unless it is stated to have been made by the victim at any point of time, which is lacking in the FIR, in the statement under Section 161 and the statement recorded by her under Section 164 of the Cr.P.C., and in all the cases, the victim has maintained a consistent stand about there being an objection raised by her, and as such, the consent for commission of an offence under Section 376 of the IPC was not present.

15. Lastly, it was argued by the learned counsel for the applicant, that there is a delayed FIR, because the incident has chanced on 25th April, 2021, and the FIR was registered on 16th April, 2022.

16. This Court is of the view, that in a conservative society, a girl, who finds herself in such a precarious situation, having faced with the sexual assault, and even her family, has to give a multiple thought before registering an FIR, apprehending the wider social repercussion to the said act upon being brought to the knowledge of the society. Thus, delay in the registration of the FIR will not be so fatal to not to bring the act committed by the applicant to be an offence under Section 376 of the IPC.

17. One of another elements, which requires to be satisfied in accordance with the judgment of Sonu (Supra), is the period of relationship. The period of relationship, herein, will not mean, that relationship on an electronic media. The relationship, herein, would mean a close relationship where there has been a constant touch with each other. Merely because they were in touch on telephone, that will not satisfy the first parameter about establishment of relationship for a long period to oust the applicant from commission of offence under Section 376 of the IPC

18. For the aforesaid reasons, I do not find any merit in this C-482 Application. The same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 03.08.2023 Shiv