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2017 DIGILAW 952 (JK)

Yash Pal v. State of J&K

2017-10-23

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : Dhiraj Singh Thakur, J. 1. This is a petition under Section 561-A of the Code of Criminal Procedure for quashing FIR No. 71 of 2015 for offences under Section 376/417 RPC registered with Police Station Arnia District Jammu. 2. Briefly stated the material facts are as under. 3. Respondent filed a complaint before the learned Chief Judicial Magistrate, Jammu under Section 156(3) of Cr.P.C. for a direction to the SHO concerned for lodging an FIR under Section 376, 420 RPC. The material particulars of the complaint as reflected in the First Information Report read as under: "That the complainant has been teaching the children in a private school at Village Talhar Tehsil R.S. Pura and thus the complainant and the accused had intimacy with each other since 2008. That about six years ago, the accused offered that he wished to marry the complainant and with this assurance, he tried to have sexual intercourse with the complainant but the complainant refused this every time. That one day, the accused put sindoor in the forehead of the complainant in front of the Puja Room and admitted that he marries the complainant and will perform and solemnize the religious ceremonies as soon as possible. The accused one day took her to the house of his friend, Parveen Kumar in Ward No. 7, R.S. Pura and forcibly committed rape with the complainant but when the complainant resisted all this and said that she will report it to the police, the accused said that he will solemnize the marriage with the complainant as early as possible. That the complainant asked the accused as to when he will solemnize the marriage, he said that at the earliest in the near future, he will solemnize the marriage with the complainant. That on 27.7.2015, the accused came at village Talhar and with the same assurance, by force, committed the sexual intercourse with the complainant. The accused has been committing sexual intercourse for the last so many years against the wishes of the complainant under the garb of marriage but now the accused has refused to marry the complainant. Hence this complaint. That on 15.9.2015, the accused started the same procedure with one Mst. The accused has been committing sexual intercourse for the last so many years against the wishes of the complainant under the garb of marriage but now the accused has refused to marry the complainant. Hence this complaint. That on 15.9.2015, the accused started the same procedure with one Mst. Neetu, who told the complainant that he has to marry her, not the complainant and the complainant asked the accused about this fact and he refused to say anything and said that he will not marry the complainant. That the accused has committed offence and is liable to be prosecuted and punished under law. It is, therefore, prayed that the complaint/application be forwarded to the Police Station, Arnia under Section 156(3) of the Cr.P.C. with a direction to lodge an FIR." 4. It appears that the application was forwarded to the concerned police Station by the court, based whereupon, FIR No. 71/2015 was registered under Section 376/417 RPC and investigation commenced thereafter. Statement of the complainant was recorded under Section 164-A of Cr.P.C. on 10.11.2015, a translated version whereof, has been produced on record, which reads as under: "For the last 15 years, I have been running a tuition centre in village Talhar. The house of accused Yash Pal S/o Nathu Ram, who is employed in the Army, is situate close to my tuition centre. In the year 2008, accused started writing letters to me and started sending marriage proposals. He even wrote letters to me while on duty. After sometime, I made the accused as my friend, which friendship went on for almost two years. Thereafter the accused expressed his desire to marry me and also stated that he had been refusing the proposals suggested by his parents. He swore before the complainant that he would very soon marry her. One day, he came to my tuition centre and there in the temple, he put sindoor on my forehead and started telling me in front of god that you are my wife. He picked up a photograph from the temple, kept it on the table, caught hold of my hand and took seven feras around the table. Next day, the accused took me for shopping for his sister's wedding. On that pretext, he brought me to Jammu where it got late. He, on that day, also took me to Bahu Temple. He picked up a photograph from the temple, kept it on the table, caught hold of my hand and took seven feras around the table. Next day, the accused took me for shopping for his sister's wedding. On that pretext, he brought me to Jammu where it got late. He, on that day, also took me to Bahu Temple. In the evening, he told me that it had got very late and that it would not be possible for me to take her to home and therefore, he took me to his friend, Parveen Kumar's house, where for the first time, he developed physical relations with me by telling me that they were husband and wife and that there was nothing wrong in developing physical relations between the two. Thereafter, whenever, the accused came home on leave from duty, he used to enjoy personal relations with me and used me like his wife. The last time he developed relations with me was on 27.7.2015 in a room in the tuition centre itself. Now, the accused is hell bent upon marrying somebody else and has deceived me. He has used me physically as his wife. My consent was obtained on promise of marriage and by marrying me in the temple before god. Had the accused not pretended to marry me, I would not have allowed him to come near me neither would have trusted him. The accused has committed accesses on me by this act. He did not permit me to marry with anybody else and having spoiled my life, he is ready to marry a different girl. Strict action should be taken against the accused." 5. It is in the background of the aforementioned facts that the present petition has been filed. 6. Learned counsel for the petitioner urged that the petition deserves to succeed inasmuch as the allegations made in the FIR even if taken at their face value and accepted in their entirety, could not lead to a conclusion that offence under Section 376/417 RPC was made out. 7. 6. Learned counsel for the petitioner urged that the petition deserves to succeed inasmuch as the allegations made in the FIR even if taken at their face value and accepted in their entirety, could not lead to a conclusion that offence under Section 376/417 RPC was made out. 7. It was urged that assuming though denying that there was any physical relation between the two, the same, as per the FIR, was obtained with the consent of respondent No. 2, which was neither given under fear nor any misconception of fact in terms of Section 90 of the Jammu & Kashmir State Ranbir Penal code, which reads as under:- "90. Consent known to be given under fear of 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......................." 8. From a reading of the statement made by the complainant/respondent under Section 164-A of Cr.P.C. it can be seen that not only is the same self contradictory, but even contradicts her stand as expressed by her in the complaint and reflected in the FIR. 9. In her statement under Section 164-A, the complainant/respondent asserts that her consent was obtained on promise of marriage and by marrying her in the temple before God. She then proceeds to state that had the accused not pretended to marry her, she would not have allowed him to come near her and further that he did not permit her to marry anybody else and thus spoiled her life and was ready to marry a different girl. She also states in her statement that the petitioner used to enjoy personal relations with her and used her like his wife. 10. Assuming her statement to the extent that the petitioner had put sindoor on her forehead and took 7 feras around the table on which it was kept a photograph picked up from the temple was indeed a marriage between the two, there would have been no occasion for her to claim in her statement that the accused had only pretended to marry her. Indeed, if the complainant/respondent had believed her to be the petitioner's lawfully wedded wife, there would have been no occasion for her to stay separately for all these years, instead of asserting her rights as a lawfully wedded wife. Even this statement contradicts her stand, as is reflected in the FIR, where the complainant/respondent alleged that after putting sindoor on the forehead of the complainant/respondent, the petitioner one day took her to the house of his friend, Parveen Kumar in Ward No. 7, R.S. Pura and forcibly committed rape with her and when the complainant/respondent threatened the registration of the criminal case against the petitioner, he assured her that he would solemnize the marriage with the complainant/respondent as early as possible. 11. From a reading of the FIR, it thus becomes clear that the respondent/complaint knew what had happened in the temple was not marriage, despite which the petitioner had proceeded to have physical relations with the complainant/respondent and the accused had thereafter assured her of solemnizing the marriage as soon as possible. 12. The complainant/respondent statement under Section 164-A to the extent that she permitted the petitioner to have physical relations believing that they were married was, therefore, full of contradictions. 13. The issue as to whether 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 came to be considered by the Apex Court in Uday vs. State of Karnataka, (2003) 4 SCC 46 , wherein it was held that such a consent could not be said to be given under a misconception of fact. Their lordships in the said judgment held as under:- "It therefore appears that 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. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket 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." 14. From the material on record, it appears that there was a close intimacy between the petitioner and the complainant/respondent since 2008. The complainant/respondent had even accompanied the petitioner to the house of his friend, Parveen Kumar and stayed there for a night even when she fully understood that she was not his wife. 15. The complainant/respondent, who is a teacher and running a tuition centre, is of a mature age of 38 years, as is reflected in her statement. She would have certainly been aware of the consequences of accompanying the petitioner to her friend's house and staying the night with him at R.S. Pura, understanding fully well that she was not his legally wedded wife. It cannot be said that the complainant/respondent suffered any misconception of fact but on the other hand can be said to be an act of promiscuity on her part. 16. Insofar as, the offence of cheating punishable under Section 417 of the Ranbir Penal Code is concerned, the following ingredients must exist as per the definition of cheating as defined under Section 415 of the Ranbir Penal Code: "(1) deception of any person and thereby. (2) (a) fraudulently or dishonestly inducing that person:- (i) to deliver any property to any person. (ii) to consent that any person shall remain any property. (2) (a) fraudulently or dishonestly inducing that person:- (i) to deliver any property to any person. (ii) to consent that any person shall remain any property. (2) (b) intentionally inducing that person to do or omit to do anything which if he were not so deceived and which act or omission causes or is likely to cause harm to that person in body, mind reputation or property." 17. In the present case, there is no element of deception existing, inasmuch as, according to the FIR when for the first time, petitioner had made sexual relations with the complainant/respondent at R.S. Pura in the house of Parveen Kumar, the complainant/ respondent after the act had threatened the petitioner with registration of a criminal case. It was thus clear that the factum of putting sindoor in the forehead of the complainant/ respondent or for that matter taking 7 feras around the table containing the picture of a Goddess did not convince even the complainant/respondent that she was the legally wedded wife of the petitioner. 18. Having considered the entire material on record and having heard learned counsel for the parties, I am of the opinion that no case is made out, which would constitute offences under Section 376 of the Ranbir Penal Code, or for that matter under Section 417 of the Ranbir Penal Code. 19. The continuance of the criminal proceedings against the petitioner, in my opinion, constitutes an abuse of the process of law. Consequently FIR No. 71/2015 for offences under Section 376/417 RPC registered with Police Station Arnia, Tehsil Bishnah, District Jammu and the proceedings initiated thereupon are hereby quashed.