Research › Search › Judgment

Delhi High Court · body

2021 DIGILAW 7 (DEL)

Sachin Singh v. State NCT Of Delhi

2021-01-04

ANU MALHOTRA

body2021
JUDGMENT Anu Malhotra, J. - The applicant vide the present application has sought the grant of bail in relation to FIR No. 157/2020, PS Anand Parbat registered under Section 376 of the Indian Penal Code, 1860 submitting to the effect that the relations between the petitioner and the complainant were wholly consensual and that the allegations levelled against the applicant of having had any forcible intercourse with the complainant are false. 2. The status report dated 12.11.2020 of the State under signatures of Inspector Mukesh Kumar is on the record. 3. Submissions have been made on behalf of the applicant and on behalf of the State and on behalf of the complainant by the learned counsel for the applicant, the learned APP for the State and the learned counsel for the complainant respectively. 4. Reliance is sought to be placed on behalf of the petitioner on the contents of the charge sheet also to indicate to the effect that relations between the applicant and the prosecutrix have been wholly consensual at all times and that the relations between the parties turned foul only after the prosecutrix was unable to produce documents in relation to her divorce from the previous marriage which documents as per the whatsapp chats between her and the petitioner are stated to have been burnt by her. It has however, been submitted on behalf of the applicant that even thereafter the applicant and the prosecutrix continued to have relations inter se and that the applicant had even thereafter had a bona fide intent to marry the prosecutrix. 5. On behalf of the prosecutrix it has been sought to be submitted through the contents of the charge sheet to the effect that there is video recording that had been made of the intimate relationship between the prosecutrix and the petitioner by the applicant and it is submitted on behalf of the prosecutrix that the same would not have been made if there had been a bona fide intent of the applicant. On behalf of the applicant it has been submitted that despite a notice under Section 91 of the Cr.P.C. having been issued to the prosecutrix to produce her mobile phone in relation to the alleged whatsapp chats and documentary evidence in relation to the videograph prepared by the applicant of the prosecutrix, the prosecutrix did not produce the same despite the notice issued and did not deposit her mobile phone nor any other documentary proofs nor any other information in relation to the case. 6. On behalf of the State the learned APP for the State submits that the contention that has been raised on behalf of the applicant placing reliance on the aspect that despite a notice under Section 91 of the Cr.P.C. having been issued to the prosecutrix to produce her mobile and other documents she did not produce the same and that the same is an aspect in relation to which on behalf of the State the submissions made on behalf of the petitioner are sought to accepted submitting to the effect that the investigation in relation thereto has thus not proceeded appropriately. 7. Learned counsel for the applicant submits that the prosecutrix was unable to handover her mobile phone to the Investigating Officer in as much as the Investigating Officer had stated that the contents thereof could be leaked, the same as submitted by the State is an unlikely submission and cannot be made by any public servant. It is indicated vide the status report dated 12.11.2020 that the CDR of the applicant was obtained and analyzed and it revealed that the applicant and the prosecutrix were in regular touch with each other till 14.4.2020. The prosecutrix has not yet been examined before the learned Trial Court and it is submitted that she had not chosen to put in appearance on the last date of hearing. 8. On behalf of the applicant, learned counsel for the applicant seeks to place reliance on a catena of verdicts; 1. Pramod Suryabhan Pawar Vs. State of Maharashtra & Ors., (2019) 9 SCC 608 ; 2. Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675 ; 3. State Vs. Sandeep Crl.L.P. 532/2019; 4. Shailender Kumar Yadav V. State; Bail Appln No. 3012/2019 and; 5. Sandeep Kumar Vs. State of NCT of Delhi; Bail Appln. No. 1182/2017, with specific reliance placed on the observations in verdict Pramod Suryabhan Pawar Vs. Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675 ; 3. State Vs. Sandeep Crl.L.P. 532/2019; 4. Shailender Kumar Yadav V. State; Bail Appln No. 3012/2019 and; 5. Sandeep Kumar Vs. State of NCT of Delhi; Bail Appln. No. 1182/2017, with specific reliance placed on the observations in verdict Pramod Suryabhan Pawar Vs. State of Maharashtra & Ors, (2019) 9 SCC 608 , at paragraphs 16 and 17 which read to the effect: 16. Where the promise to marry is false and the 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 the basis for her choosing to engage in the said act. In Deepak Gulati". this Court observed: (SCC pp. 682-84, paras 21 & 24) 21 . ... 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; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. 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 misrepresentation made to her by the 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 so. Such cases must be treated differently. 24. Hence, it is evident that there must be adequate evidence to show. that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. Such cases must be treated differently. 24. Hence, it is evident that there must be adequate evidence to show. that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her-." (emphasis supplied) 17. In Uday v. State of Karnataka. the complainant was a college-going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The Court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors: (SCC p. 58, para 25) "25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belie" based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married." (emphasis supplied), submitting to the effect that there is a difference between a false promise to marry and breach of a promise to marry and that the breach a promise to marry does not make a person equally culpable as one who makes a false promise to marry especially when relations between the parties were consensual. 9. It has been brought forth in replies to a specific Court queries that at the time of the first relationship entered into between the petitioner and the prosecutrix the age of the prosecutrix is stated to be 28 years with both the petitioner and the prosecutrix being Physiotherapists and thus being well educated. 10. 9. It has been brought forth in replies to a specific Court queries that at the time of the first relationship entered into between the petitioner and the prosecutrix the age of the prosecutrix is stated to be 28 years with both the petitioner and the prosecutrix being Physiotherapists and thus being well educated. 10. Without any observations on the merits or the demerits of the trial that is in progress, taking into account the age of the prosecutrix, her level of education, the factum that she was also previously married and the factum that she does not seek to produce her mobile phone to the Investigating Officer are aspects which cannot be overlooked and taking the same into consideration, it is considered appropriate to allow the petitioner to be released on bail during trial subject to his furnishing a personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the Trial Court with the conditions that:- * he shall not leave the country under any circumstances, * he shall keep his mobile phone on at all times and drop a pin on the Google map to ensure that his location is available to the Investigating Officer, * the petitioner shall appear before the Trial Court on every date directed by the Trial Court whether physically or through video conferencing as directed by the Trial Court and furthermore, * he shall make no contact with the complainant in any manner nor attempt to influence the prosecution witnesses neither himself nor through any associates. The application is disposed of.