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2022 DIGILAW 323 (UTT)

Vivek Chandra v. State of Uttarakhand

2022-09-26

SHARAD KUMAR SHARMA

body2022
JUDGMENT : Sharad Kumar Sharma, J. An FIR, being an FIR No. 206 dated 29th August 2020, which was got registered at Police Station, Raipur, District Dehradun, in which the present applicant is shown to be the named accused person, who is said to be allegedly involved in the commission of the offences under Section 376 and 506 of the IPC. 2. Apparently, as per the set of allegations which has been leveled against the present applicant, in the FIR, it is an admitted case of the complainant respondent No. 2 herein, that she had eloped from her principle place of residence i.e. Shivaji Ward, Gopeshwar, Chamoli, as back in May 2012. She contends that she has eloped from her principle place of residence under a false assurances, extended by the present applicant that he would be solemnizing marriage with her; but yet again the fact which cannot be ignored to be considered is that this assurance of marriage, which was extended in 2012, which was taken as to be the basis for eloping her from Gopeshwar, its that ever since 2012 till 30th November 2019, i.e. for almost 7 years, no grievances or any hue and cry was ever raised by the complainant respondent No. 2, as such of any nature whatsoever against the present applicant and it is admitted by her that since 2012 till 2019 i.e. almost for about more than seven years, she willingly continued to reside with the present applicant and had ventured into a consensual sexual relationship several times ever since 2012 till 2019. It was contended, that the wrath of misunderstanding between them started emanating between them when in 2020, the present applicant is said to have completely denied to solemnize the marriage with the complainant and had also threatened, that in case if she registers any complaints, he may be making public his videos and the MMS, which had been prepared by him. 3. The matter was investigated upon, and after the investigation, a chargesheet has been submitted by the Investigating Officer, being Chargesheet No. 1 dated 20th September 2020, whereby the offences under Section 376 and 506 of the IPC, are said to have been made out against the present applicant. 3. The matter was investigated upon, and after the investigation, a chargesheet has been submitted by the Investigating Officer, being Chargesheet No. 1 dated 20th September 2020, whereby the offences under Section 376 and 506 of the IPC, are said to have been made out against the present applicant. It is relevant to extract the entire contents of para 16 of the chargesheet, which is extracted hereunder :- Brif fact of the case ¼ekeys ls lacaf/kr laf{kIr rF;½ % Jheku th fnukad 29@08@2020 dks okfnuh fofurk jMoky }kjk Fkkuk gktk ij vfHk;qDr fofod ds fo#) 'kknh dk >kalk nsdj 'kkjfjd lEca/k cukus ds lEcU/k esa eqdnek v0l0 206@2020 /kkjk 376@506 Hkknfo cuke foods iathd`r djk;k x;k mijksDr foospuk eq> m0fu0 }kjk lEifnr dh xbZ nkSjkus foospuk eqdnek mijksDr esa c;ku ihfM+rk c;ku 164lh vkjihlh ihfM+r c;ku ,QvkbZvkj ys[k c;ku xokg] xokg c;ku esfMdy tkapdrkZ fy;s x;sA xokgksa us fouhrk ,oa food ds edku ekfydksa ds c;ku vafdr fd;s x;sA rFkk food ds nksLr us c;ku vafdr fd;s x;sA edku ekfyd ,oa foosd ds nksLrksa ds c;kuksa ls Li"V gksrs gS fd fofod ,oa fofurk nksauksa 2013 ls Live in relition f'ki esa Fks foods fofurk dks viuh nksLrh vius girl friend crkrk Fkk rFkk 'kqjohj ds edku nksauksa HkkbZ cgu cudj lkFk jgrs FksA blls Li"V gS fd foods }kjk fofurk dks 'kknh dk >kalk nsdj 'kkjfjd lEca/k cukrk jgkA vfHk;qDr foods pUnz iq= Lo0 Jh d`iky yky fuoklh lqHkk"kuxj xksis'oj peksyh ij /kkjk&378@506 Hkknfo0 dk tqeZ ck[kwch lkfcr gksrk gS vr% ekuuh; U;k;ky; ds vuqjks/k gS fd vfHk;qDr mijksDr lcwr Qjekdj mfpr n.M ls nf.Mr djus dh d`ik djsaA mijksDr eqdnekrs esa vkjksi esa vkjksi i= lknj Ásf"kr gS foospuk lekr dh tkrh gS m0fu0 Fkkuk jk;iqj nsgjknwu fn0 19-09-2020** 4. The Investigating Officer in the chargesheet thus submitted by him, it has been observed that on the pretext of establishment of friendly relationship, the complainant had resided with the present applicant in a live-in relationship, as his girlfriend, and both have voluntarily entered into a sexual relationship ever since 2012 till lodging of the FIR on 29.08.2020. On the basis of the aforesaid chargesheet, the cognizance had been taken against the applicant and the applicant had been summoned by the learned trial Court of Chief Judicial Magistrate, Dehradun. 5. On the basis of the aforesaid chargesheet, the cognizance had been taken against the applicant and the applicant had been summoned by the learned trial Court of Chief Judicial Magistrate, Dehradun. 5. The learned counsel for the applicant has argued the matter from the prospective that for the purposes of carving out an offence under Section 376 of IPC, which is a penal provision, the basic ingredients of rape, as defined under Section 375 of IPC, has had to be mandatorily established before accusing an applicant for having involved in commission of offence under Section 376 of IPC. 6. The provisions contained under Section 375 of the IPC, the foundational terminology used therein, to bring an offence within the definition of ‘rape’, there has had to be an absence of “consent”. The absence of consent plays a pivotal role, in order to decide as to whether the offence of forceful sexual relationship, which is said to have been committed to, before it’s brought within the ambit of Section 376 of IPC, whether at all the ingredients of Section 375 of IPC, is made out or not. Apparently, as per the contents of the FIR, when admittedly the complainant had admitted the fact, that she has with her own will, eloped with the applicant from Gopeshwar in 2012, and ever since then till 30th November 2019, when she has not raised any objection to the physical relation or any allegations against the present applicant of forceful establishment of sexual relationship and since it was only when at a belated stage on 29th August 2020, when the FIR was registered, being FIR No. 206 of 2020, it would be deemed that ever since 2012 till 2020, the physical relationship, which was established between the complainant and the present applicant, who has been observed in the FIR and Charge Sheet to be living in a live-in relationship, there was a tacit and admitted consent of the complainant and hence Section 376 of the IPC, would not be apparently said to be made out, on which the summons have been issued by the learned trial Court, summoning the present applicant for being tried for the offence under Sections 376 to be read with Section 506 of the IPC. 7. In response to the arguments of the learned counsel for the applicant, the learned counsel for the private respondent No. 2, Mr. 7. In response to the arguments of the learned counsel for the applicant, the learned counsel for the private respondent No. 2, Mr. Mukesh Kumar Kapruwan, Advocate, had drawn the attention to this Court to the contents of the FIR, with regard to the segment contained in it of allegation in the FIR, which pertains to a threat perception, which was extended by the applicant to the complainant respondent No. 2 herein. 8. The argument of the learned counsel for the private respondent No. 2, that the establishment of the physical relationship was under a threat perception, is yet a fact, which is not acceptable by this Court, because there is no such plea which had been ever raised in the complaint as registered on 29th August 2020, and that ever since 2012 till 2019 or till the date of registration of the FIR on 29th August 2020, there was any threat which had been allegedly ever exerted by the applicant, rather it is admitted that she had voluntarily established physical relationship with the present applicant since 2012 till 2019, and which is a fact which stands established by submission of the chargesheet, on which the cognizance has been taken, where it has been observed that the applicant and the complainant were shown to have been established to be living in a live-in relationship, the consent of sexual relationship is implicit in it. 9. In that eventuality, this Court is of the view that when the element of “consent” is present, as per the provisions contained under Section 375 of the IPC and both parties to consensual relationship are major, the offence allegedly complained of in the FIR, will not fall to be an offence within the ambit under Section 376 of IPC, because it was a voluntarily act of the freewill of the complainant respondent No. 2, which continued to persist for the last 8 years, as observed in the records, which are placed along with this C482 Application. 10. 10. Thus the argument of the learned counsel for the respondent No. 2, that the establishment of physical relationship was under a threat, is not acceptable by this Court, for the reason being, that the allegation of threat, which has been now allegedly leveled against the present applicant is only with effect from 2019, but there is an absolute vacuum prevailing in the contents of FIR or the pleadings, with regard to any allegation of threat from 2012 till 30th November 2019, till she admitted the fact that there continued a physical relationship between them, with their consent. 11. Even otherwise also for the time being, if the argument of the learned counsel for the respondent No. 2, is taken into consideration, that there was a threat perception, no cognizance could be taken by this Court at this stage in the exercise of its powers under Section 482 of the Code of Criminal Procedure, because the plea of threat perception, would be beyond the scope of consideration in the jurisdiction under Section 482 CrPC, particularly, when it had never constituted as to be an independent offence contained in the FIR, or even its establishment at the stage of submission of the chargesheet by introducing therein, that a threat was ever exerted upon by the present applicant. Hence, the scope of Section 482 of the CrPC cannot be permitted to be widened and enlarged in its consideration merely on the pretext of the arguments extended by the learned counsel for the respondent No. 2, which is evidently contrary to the records, that there was a threat exerted, because no cognizance has been taken by the Court on the set of allegation of the FIR, based on the so-called theory of threat, which was said to have been exerted by the present applicant. 12. There is another reason for this Court for not to accept the argument of the learned counsel for the respondent No. 2, about the so-called philosophy of threat, for the purposes of bringing the act complained of within the ambit of Section 376 of the IPC. 13. 12. There is another reason for this Court for not to accept the argument of the learned counsel for the respondent No. 2, about the so-called philosophy of threat, for the purposes of bringing the act complained of within the ambit of Section 376 of the IPC. 13. The Hon’ble Apex Court has recently observed that such type of offence is quite prevalent now-a-days in this modernized society of today, when normally the males and females, who are grown-up, they voluntarily moved around with one another according to their own wishes and they often entered into a live-in relationship and consequently to a consensual physical relationship. 14. The Hon’ble Apex Court has observed, that if establishment of a relationship is backed with consent, it will be excluded from the domain of Section 375 of the IPC, to make an accused person liable for being tried and consequently punished for an offence under Section 376 of the IPC, may it be even under the pretext of a false assurance of marriage. 15. The Hon’ble Apex Court has drawn a fine line of distinction, that in case if there is a breach of trust and particularly, in relation to a female, who is major, a breach of trust is a different criminal act contemplated under criminal law, than that of the act of Section 376 of the IPC. Accusing a person of a breach of trust, has to be meted out under a different pedestal and the circumstances as contemplated under the penal provision of criminal law for the breach of trust and that cannot be equated or be intermingled to be read for implicating a person under Section 376 of the IPC. 16. In that eventuality, and particularly, in the present case, which happens to be peculiar in its own nature that despite there being any allegation of threat in the FIR, there is no such offence, on which the cognizance has been taken by the trial Court nor even the chargesheet which has been submitted, apart from the offence Section 376 and 506 of the IPC any other offence has been added. 17. In that eventuality, the argument extended by the learned counsel for the respondent No. 2, on the ground of threat, is not a scope, which could be at all permitted to be ventured into by the learned counsel for the respondent No. 2. 18. 17. In that eventuality, the argument extended by the learned counsel for the respondent No. 2, on the ground of threat, is not a scope, which could be at all permitted to be ventured into by the learned counsel for the respondent No. 2. 18. The Hon’ble Apex Court, in a judgement as reported in 2021 SCC OnLine SC 181, Sonu alias Subhash Kumar Vs. State of Uttar Pradesh and Another, was almost dealing with a similar situation, where a victim, who was of 25 years of age, in her statement which was recorded under Section 164 of the CrPC, had admitted the fact, that she was in a relationship with the applicant therein, and which persisted to continue in that case, for a period of about one and half year, which happens to be much lesser period than the period which is involved in the instant case. 19. In that case too, the continuous physical relationship by a major girl, with a major boy for about one and half year, was under the pretext of a false assurance of getting married in future. Getting influenced on the pretext of probable future marriage and entering into a relationship, there could be an act of breach of trust, but that act of breach of trust on the ground of which the physical relationship was established, cannot be extracted for substituting it as to be a consent under Section 375 of the IPC, as an act of breach of trust, under criminal law, relates to prosecution under different provision, which cannot be equated to Section 376 of the IPC. 20. In that eventuality, where the element of consent is available, and apparently established from her own case of the complainant, in accordance with the FIR and as per the contents of the chargesheet itself, the offence cannot be said to be established to have been committed under Section 376 of the IPC. This is what has been observed by the Hon’ble Apex Court in para 8, 9, 10 and 11 of the said judgment of Sonu alias Subhash Kumar (supra), which was based upon yet another judgement of the Hon’ble Apex Court as rendered in Pramod Suryabhan Pawar Vs. State of Maharashtra, (2019) 9 SCC 608 . The relevant paragraphs 8 to 11 of the said judgment are extracted hereunder :- “8. State of Maharashtra, (2019) 9 SCC 608 . The relevant paragraphs 8 to 11 of the said judgment are 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. 9. In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations : “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...” 10. Further, the Court has observed: “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. 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.” 11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.” 21. In that case too, the establishment of physical sexual relationship with a major woman was established to have been commissioned with the consent of her, and the aspect of consent has been quite elaborately dealt with by the Hon’ble Apex Court therein in para 10 of the said judgment, which is extracted above, as to what would be the actual interpretation, which could be given to the term ‘consent’, as contained under Section 375 of the IPC, which defines the rape to bring an offence punishable under Section 376 of the IPC. 22. In yet another judgment, as reported in 2019 (13) SCC 1 , Anurag Soni Vs. State of Chhattisgarh, the Hon’ble Apex Court has observed that even if the prosecution is able to prove beyond doubt, that there was an assurance of marriage, which was basis of physical relationship between two major opposite six, but has failed to establish that there was an absence of consent, merely because of a false promise to marry, the Court should presume under Section 114A of the Indian Evidence Act, that the absence of the consent of the prosecutrix, when sexual intercourse is proved, the victim’s state in her evidence before the Court that she had consented upon, upon the misconception of a false theory or promise cannot bring an act to be punishable under Section 376 of the IPC. This is what has been contemplated by the Hon’ble Apex Court in its paragraphs 13 to 19, which are extracted hereunder:- “13. This is what has been contemplated by the Hon’ble Apex Court in its paragraphs 13 to 19, which are extracted hereunder:- “13. Applying the law laid down by this Court in the aforesaid decisions, the following facts emerging from the evidence on record are required to be considered : (i) That the family of the prosecutrix and the Accused were known to each other and, therefore, even the prosecutrix and the Accused were known to each other; (ii) That though the Accused was to marry another girl- Priyanka Soni, the Accused continued to talk of marriage with the prosecutrix and continued to give the promise that he will marry the prosecutrix; (iii) That on 28.04.2013 the Appellant expressed his wish telephonically to meet with the prosecutrix and responding to that the prosecutrix went to the place of the Accused on 29.04.2013 by train, where the Accused received her at the railway station Sakti and took her to his place of residence in Malkharauda; (iv) That during her stay at the house of the Accused from 2.00 pm on 29.04.2013 to 3.00 pm on 30.04.2013, they had physical relation thrice; (v) That as per the case of the prosecutrix, the prosecutrix initially refused to have physical relation, but then the Appellant allured her with a promise to marry and had physical relation with her; (vi) That, thereafter the prosecutrix called the Accused number of times asking him about the marriage, however, the Accused did not reply positively; (vii) That thereafter the prosecutrix informed about the incident to her family members on 06.05.2013; (viii) That the family members of the prosecutrix negotiated with the family members of the accused; (ix) That on 23.05.2013, the Appellant expressed his willingness to marry the prosecutrix and a social function was scheduled on 30.05.2013, which did not take place; (x) That, again the family members of both the parties had talks, in which the marriage was negotiated and a social function was scheduled on 10.06.2013, which was again not held and further, the social event was fixed for 20.06.2013; (xi) That on 20.06.2013, the Appellant telephonically informed the prosecutrix that he has already married; (xii) That, Priyanka Soni PW-13, who is the wife of the Accused stated that one year prior to the marriage that took place on 10.06.2013, the negotiations were going on; and (xiii) That the Accused married Priyanka Soni on 10.06.2013 in Arya Samaj, even prior to the social function for the marriage of the Accused the prosecutrix was scheduled on 10.06.2013 and even thereafter the social event was fixed for 20.06.2013. 14. Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the Accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the Accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the Indian Penal Code and such a consent shall not excuse the Accused from the charge of rape and offence Under Section 375 IPC. 15. Though, in Section 313 statement, the Accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the Accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that Appellant's marriage is fixed with another lady-Priyanka Soni, she and her family members would continue to pressurise the Accused to marry and the prosecutrix will give the consent for physical relation. 16. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the Appellant's promise that he would marry her and relying upon such promise, she consented for physical relationship with the Appellant-accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the Accused relying upon the promise by the Accused that he will marry her. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the Accused relying upon the promise by the Accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the Accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the Accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. 17. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the Accused for the charge of rape as defined Under Section 375 of the Indian Penal Code. Both the Courts below have rightly convicted the Accused for the offence Under Section 376 of the Indian Penal Code. 18. Now, so far as the submission on behalf of the accused-Appellant that the Accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the Accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the Accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the Accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception. 19. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. It was a clear case of cheating and deception. 19. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the Accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the Appellant-accused for the offence punishable Under Section 376 of the Indian Penal Code. The Appellant-accused must face the consequences of the crime committed by him.” 23. Owing to the aforesaid reasons, and particularly in the settled ratio as of now, which has been necessitated by the Hon’ble Apex Court to venture upon this aspect, particularly owing to the modernized era, in which the society is gradually venturing into, the offence which apparently seems to be akin to offence under Section 376 of the IPC, where the consent is available, it will not be a rape under Section 375 of the IPC, though it might be a breach of trust for which a different prosecution, could be conducted but not under Section 376 of the IPC. 24. In that eventuality, C482 Application is allowed. The proceedings of Criminal Case No. 1110 of 2021, State Vs. Vivek Chandra, which is presently pending consideration before the Court of Chief Judicial Magistrate, district Dehradun, is hereby quashed.