S K Panigrahi, J. - The Present Application seeks to challenge the order dated 11.12.2019 passed by the Ld. Sessions Judge-cum-Special Judge, Koraput-Jeypore in G.R.Case No.1013 of 2019 wherein the prayer for bail was rejected. The Appellant herein is the accused in connection with alleged commission of offences punishable under Sections 493/376 of I.P.C. read with Section 3 (2)(v) of SC & ST (PoA) Act, 2015 which, subsequently, turned to be a case under Sections 493/313/376 of I.P.C. read with Section 3 (2)(v) of SC & ST (PoA) Act, 2015.
2. The allegations in the F.I.R. are summarized below:
(a) The complainant victim Ms. X, aged about 19, belongs to ST community lodged a complaint on 27.11.2019 before the Police Station Patangi, District-Koraput. The content of the complaint as set out implicates the accused for committing the offences punishable under Sections 493/313/376 of I.P.C. read with Section 3 (2)(v) of SC & ST (PoA) Act, 2015.
(b)According to her complaint, the appellant and the victim are the resident of the same village and known to each other. The Appellant had given her a mobile phone for facilitating regular communication and he had taken her for outing on a few occasions.
(c)Appellant promised to marry the victim and taking advantage of her innocence, he established sexual relationship with her. In the meanwhile, the victim got pregnant twice and the accused got the pregnancy terminated by administering some medicine. These facts are appropriately reflected in the statement recorded under Section 161 of Cr. P.C.
3. Heard Sri D.P. Dhal, Ld. Sr Counsel appearing for appellant and Sri Mr. Sangram Keshari Mishra, Addl. Standing Counsel for respondent and perused the case records.
4. According to the learned counsel for the accused-appellant, the accused has never been involved in any manner in any criminal case and his antecedents are crystal clear. He further, contended that, assuming for the sake of argument but not conceding, the victim is a major and a consenting party in the sexual relationship, if at all her version of love relationship was existing for the last four years, the offence under Section 376 of I.P.C. cannot be made out. It is a very serious matter that a victim just by making a false statement can book somebody in offence under Section 376 of I.P.C. read with Sections 493/313 of I.P.C. which is serious in nature and invites a harsh punishment. The probability of love relationship between the victim and the accused is slim and she is only a prisoner of imagination. He also stated that the allegation of administering medicines for termination of pregnancy is out and out a false allegation and he has never done so. The appellant being a young boy and having a bright future has unnecessarily been entangled in the present case and has been languishing in the custody since 19.11.2019. Since the investigation of the case has substantially been completed and most of the material witnesses have already been examined, releasing him on bail is not going to put spoke in the wheel of investigation.
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7. Per Contra, Ld. Additional Standing Counsel for the State, vehemently opposed the instant bail application on the ground that the statement of the victim recorded under statement U/s 161, Cr.P.C. reveals that both victim and the accused had acquaintance since long and they were having intimate relationship. The Appellant herein, taking advantage of her innocence and under the pretext of promise to marry established physical relationship with her which resulted in pregnancy twice in the past. However, she was coerced by the accused to terminate her pregnancy with the help of some medicines. Thus, the appellant has committed an offence punishable under Section 376 of I.P.C. Hence, he contends that the accused is not entitled for bail and seeks for rejection of the Application.
8. Perused the L.C.R. and up to date case diary material on record more specifically the F.I.R. lodged by the victim and her statement U/s 161, Cr.P.C. It, prima facie, reveals from the record that both the victim and the accused had acquaintance with each other and had love affairs for the last four years which is affirmed by the victim. There is also a prima facie belief that the appellant had given a false promise to the victim to marry. The allegation of keeping physical relationship which resulted in her pregnancy twice and subsequently being coerced by the accused to abort by making her taking some pills for the said termination of pregnancy which seems to be cloudy and sans a proper trial. Even the factum of sign or symptom of recent sexual intercourse does not properly emanate from the medical report. However, the factum of sexual intercourse in the past is not completely ruled out looking at the genital status of the victim.There is no injury detected on her body.The prima facie look of the medical report suggests that there was no forcible sexual intercourse though it is a matter of trial. Similarly, medical report suggests that the victim-girl was not pregnant at the time of her medical examination nor previous abortion is clear from the report. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage which warrants a trial to establish.
9. The factual position narrated above would enable this Court to draw some inferences on the assertion made by the complainant/victim -against the appellant-accused. As the facts unfold, the victim being a major girl with sound mind, there seems to be no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. There could be a possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy. It is an undenying fact that our society is still largely conservative when it comes to matters of sex and sexuality. The virginity is a prized element. Even if such relationship existed, though it is unequivocally denied by the appellant, a consensual relationship without even any assurance, obviously will not attract the offence under Section 376 of the Indian Penal Code.
10. Based on the factors canvassed in the foregoing paragraphs, it shows, it is yet another case which occupies the legal landscape of intriguing nature, and calls for seizing the instant opportunity to delve into the issue. Questions are often raised as to how this kind of cases are addressed by the statute and judicial pronouncements and whether this type of false-promise-to-marry induced sexual intercourse is a rape or not.The definition of rapeas codified in Section 375 of the Indian Penal Code wherein rape has been defined as certain sexual acts when committed on a victim, falling under any of the seven descriptions:
First; against her will; second; without her consent; third; with her consent, when consent has been obtained under fear of death or hurt, fourth; where consent has been given by the victim in the wrong belief that the man is her husband, fifth; when the consent is given when she is of unsound mind or intoxicated and unable to understand the nature of consequences of what she is consenting to, sixth; consent from a girl under the age of 18 years; and seventh; when she is not in position to communicate the consent. The septette ingredients mentioned hereinabove does not cover the false-promise-of-marriage induced sexual intercourse.
11. High Courts have taken divergent views on this subject. Calcutta High Court in Jayanti Rani Panda vs. State of West Bengal and Ors, (1984) CriLJ 1535(Calcutta HC) has held that the consent of full-grown girl to the act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact which has been quite similar to the view taken in later decisions in Hari Majhi vs. The State., (1990) CriLJ 650(Calcutta HC) The Patna High Court has also taken similar view in MirWali Mohammad vs. The State of Bihar, (1990) 2 PLJR 375 (Patna HC). Judgments on this subject are in unison support of the view that even applying Section 90 of I.P.C. which states that consent obtained on a misconception of fact is no consent, a promise to marry, not being a fact would not vitiate the consent so obtained. In yet another decision in Arak Sk. vs. State of West Bengal, (2001) CriLJ 416 Calcutta HC) the Calcutta High Court held that though the act of the accused in abandoning the girl he promised to marry on her becoming pregnant is highly reprehensible, such conduct by itself did not become a ground for holding the accused guilty of a charge of rape under Section 376 of I.P.C. However, in Saleha Khatoon vs. State of Bihar, (1989) CriLJ 202 ( Patna HC) the Patna High Court as it appears have taken a contrary view.
12. The Supreme Court of Indiain Uday vs. State of Karnataka, (2003) 4 SCC 46 had the occasion to scan thorough the conflicting views of different High Courts. The Apex Court has examined general concept of consent to arrive at the conclusion that consent given on false promise to marry would amount to consent under a misconception of fact and therefore, such a consent would be vitiated. The said judgment derived strength from English case of Holman vs. The Queen,1970 WAR 2 which held that the consent to intercourse may be hesitant, reluctant or grudging, if it is consciously permitted, it is consent. The apex court also cited Stephen, J. in Queen vs. Clarence,1888 22 QBD 23 (WH)
"It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true."
Wills, J.observed:
"the consent obtained by fraud is not consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent."
13. The Supreme Court in Yedla Srinibas vs. State of Andhra Pradesh, (2006) 11 SCC 615 held that the voluntary consent depends on facts of each case and factors such as age of the girl, her education, her social status and likewise the social status for the boy. Though the version of the victim also commands great respect and acceptability in rape cases, if there are circumstances which cast some doubt in the mind of the court about the veracity of the victim's evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape.Apex court in Vinod Kumar vs. State of Kerala, (2014) 5 SCC 678 held that it is not possible to convict a person, who did not hold out the promise and not present in the false scenario which had the consequence of other party inducing commission of an act. In such cases, the accused cannot be held to be culpable. In fact, such cases are on rise, where both the persons, out of their own sweet will and choice, develop consensual physical relationship but when the relationship gets sour for some reasons, the women use the law as a lethal weapon for vengeance and personal vendetta. They, out of anger or frustration, tend to convert such consensual acts as incidents of rape. This misuse defeats the very purpose of the provision of law.
14. In the recent case of Anurag Soni vs. State of Chhattisgarh, (2019) 6 Scale 211 the Apex Court, has attempted to make adistinction between a promise which is unfulfilled and a promise which is false from the very beginning. The natural corollary that flows from it is that if a man can prove that he intended to marry the woman but changed his mind later, then it's not rape. It's only considered rape if it's established that he had dubious intentions from the beginning of the relationship. The consent obtained on a false promise to marry has been succinctly articulated in Pramod Suryabhan Pawar vs. The State of Mashrashtra and Ors, (2019) 9 SCC 608 wherein the court held as follows:
"To summarize 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 sexual act."
15. The intention of the law makers is clear on this issue. The rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice. It is also equally disturbing, many of the complaints come from socially disadvantaged and poor segment of the society, rural areas, who are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. The rape law often fails to capture their plight. Nonetheless, it radiates from the above discussion that the law is well settled that consent obtained on a false promise to marry is not a valid consent. Hence, the automatic extension of provisions of Section 90 of I.P.C. to determine the effect of a consent under Section 375 of I.P.C. deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous. The authoritative commentary on Criminal Law by Glanville William corroborates this proposition of law. (Glanville Williams, Criminal Law, Second Edition, Universal Law Publishing, at page 559-560.) Since the framers of law have specifically provided the circumstances when 'consent' amounts to 'no consent' in terms of Section 375 of I.P.C., hence consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of I.P.C.
16. The alleged conduct of the appellant, may not be a generally approved social conduct but the instant case is riddled with some visible contradiction of facts. The law on this issue, at this stage, as discussed above, has potency to come to the rescue of the appellant. The factual matrix of the case is based on a prima facie view based on records, as so many aspects of the matter are hungry for a thorough trial and till that time the benefit of bail deserves to be passed on to the appellant. Having considered the matter in the aforesaid perspective and guided by the precedents cited hereinabove, this Court sets aside the order dated 11.12.2019 passed by the Ld. Sessions Judge-cum-Special Judge, Koraput-Jeypore in G.R. Case No.1013 of 2019 and allows the prayer of the appellant. Accordingly, the Court in seisin over the matter will enlarge him on bail imposing some terms and conditions as deems fit and proper with further condition that he will cooperate the investigation and shall not threaten the victim or misutilise the liberty granted to him. However, it is made clear that any of the observation made hereinabove with respect to the fact of the case, shall not come in the way or prejudicially affect the fair trial of the present case.
For the aforesaid reasons, the present CRLA is allowed.
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