NITIN SHARMA ALIAS NITIN KAPIL v. STATE OF UTTARAKHAND
2021-11-15
RAVINDRA MAITHANI
body2021
DigiLaw.ai
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.
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.
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.
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.
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.
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").
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 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.
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.
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.