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2022 DIGILAW 600 (JK)

Sahil Kumar v. UT of J&K

2022-10-29

MOHAN LAL

body2022
JUDGMENT : MOHAN LAL, J. 1. JUDGMENT : MOHAN LAL, J. 1. Applicant in terms of Section 439(1) Cr.P.C. seeks his release on bail on the grounds that he is lying in custody since January 2021 for the last more than 1 & ½ years in District Jail Kathua for commission of offence punishable under sections 376/420/201 IPC registered with Police Station (Women Cell) Kathua in a false and frivolous case; challan has been presented against applicant in the court of learned Sessions Judge, Kathua on 06.02.2021 which was transferred to the court of learned Additional Sessions Judge, Kathua; on 05.03.2021, charges have been framed against applicant by the court of learned Additional Sessions Judge, Kathua; on 29.03.2021, the statement of Respondent No. 2 (prosecutrix) was recorded in the court of Additional Sessions Judge, Kathua wherein, she has stated that she was deeply in love with the applicant since 2016, she and applicant promised to marry each other and their relationship started in the year 2016; applicant was 17 years of age when he first met Respondent No. 2 through social media platform “Facebook” on 12.03.2016; marriage between the applicant and Respondent No. 2 was fixed in the year 2020 by the family members of the applicant and Respondent No. 2 but due to extortion demands and other contingent conditions set by Respondent No. 2 and her family members, the mother of the applicant decided to postpone the marriage where after baseless allegations against applicant of refusal to marry with the prosecutrix were set forth; applicant and Respondent No. 2 were both minors at the time when they started dating each other and persuade their relationship to another level; the medical examination of Respondent No. 2 was conducted and the doctor has opined that there is no presence of semen of the applicant and further no mark of any violence committed by the applicant; there is no iota of evidence which can be relied upon; according to statement of Respondent No. 2 (prosecutrix) recorded in the court, she has categorically stated that she willfully started meeting the applicant and exchanged her contact number with him and also exchanged her social media account password, her relation with the applicant was purely consensual, Respondent No. 2 in her statement has further stated that she was forced for physical relation by the applicant at the first floor of a shop owned by the father of the applicant and also stated that the incident took place in the year 2016 when both were minors; applicant is the only son of his family comprising of his ill aged father, mother and three elder sisters and is the only bread earner of the family; there is no criminal history of the applicant as he has never been involved in any criminal activity and no other criminal case is pending against him; that the liberty of the person is great importance and most important fundamental rights guaranteed under the Indian Constitution; grant or refusal of bail has to be handled with caution and efficiency; “Bail is rule” and “jail is an exception”; detention of an individual infringes his right to life and liberty as guaranteed under Article 21 of the Constitution of India; applicant undertakes to abide by all the terms and conditions imposed by this Court, if granted bail. 2. Respondent No. 1 has opposed the bail by filing objections contending therein, that applicant has committed offences under sections 376/420/201 IPC in case FIR No. 12/2020 registered at Women Police Station, Kathua and from his date of arrest is lying in District Jail Kathua; it is contended that Respondent No. 2 (prosecutrix) at the time of occurrence on 12.03.2016 was 16 years and 07 months of age and was minor with whom applicant/accused has committed offence of rape by making fake commitments and taking advantage of her minor age; applicant/accused kept raping her with false promise of marriage and when Respondent No. 2 became adult in October 2019, she asked him to marry her but the applicant refused; the Investigation of the case has been closed as his challan was produced before the trial court; the crime committed by the applicant is serious in nature and against society; there is possibility that applicant/accused would temper with the prosecution evidence if released on bail. 3. Mr. Ankur Sharma, learned counsel for the applicant/accused while seeking bail in favour of the applicant/accused has vehemently argued, that for more than 1 & 2, years applicant/accused is languishing in District Jail Kathua, applicant/accused and Respondent No. 2 (prosecutrix) came into contact with each other through social media platform “Facebook” whereby, they developed love affair with each other, from the statement of Respondent No. 2 (prosecutrix) recorded before the trial court during the evidence led by the prosecution Respondent No. 2 has categorically stated that she was in deep love with the applicant who refused to marry her. It is argued, that the occurrence as per prosecution case in the year 2016 whereas FIR 12/2020 was lodged against applicant/accused on 01.02.2020 after the delay of about 04 years which has not been satisfactorily explained by Respondent No. 2 (prosecutrix), there is distinction between 'breach of promise' and not fulfilling a false promise, the applicant/accused and prosecutrix knew each other since 2016 and were intimate since then where they established their sexual relations, the allegations in the FIR and the statement made by Respondent No. 2 (prosecutrix) do not on their face indicate that the promise by the applicant/accused was false, or that the prosecutrix engaged in sexual relations on the basis of the said promise, there is no allegations in FIR that when accused promised to marry the victim/prosecutrix it was done in bad faith or with intention to deceive, applicant's/accused's failure in 2020 to fulfill his promise made in 2016-17 cannot be construed that the promise was false, even if the facts set out in the FIR and in the statement of prosecutrix recorded under section 164 Cr.P.C accepted in totality, no offence under section 375 of the IPC has occurred, therefore, offence of rape is not established against the appellant and the strong case for bail is made out by applicant. 4. Mr. Dewakar Sharma, learned Dy. AG for Respondent No. 1 along with Mr. Deepak Sharma, learned counsel for Respondent No. 2- (prosecutrix) per contra, have vehemently opposed the bail by portraying arguments, that the delay in lodging the FIR cannot be used as ritualistic formula for doubting the prosecution case and discarding the same on grounds of delay in lodging the first information report, the delay is not fatal for prosecution as the courts cannot overlook the fact that in sexual offences delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which surely concerns the reputation of the prosecutrix and the honor of her family which could be a blot/stigma on her face, and therefore, only after giving it a cool thought, the complaint of sexual offences is generally lodged. It is argued, that applicant/accused has committed sexual intercourse with the prosecutrix on false promise of marriage by deceitful means and he obtained the consent of the prosecutrix, the relationship of accused with the prosecutrix was not consensual but obtained by exercising deceit and it is only on refusal of accused to marry the prosecutrix the question of making criminal complaint arose, and as long as commitment of marriage subsisted relationship between parties could not be describes as offence of rape. It is strenuously argued, that the offence of rape is grave and heinous offence and is against the society, the general interest of society outweighs the individual interest of the applicant/accused, therefore, the bail to the accused may be rejected. 5. Heard and considered. 6. Record reveals that applicant/accused since his arrest in January 2020 for the last more than 1 & ½ years is lying in District Jail Kathua for alleged commission of offences under sections 376/420/201 IPC in FIR 12/2020; charge-sheet has been laid in the court of Principal Sessions Judge Kathua which stood transferred to the court of Additional Sessions Judge Kathua who vide his order dated 21.05.2021refused bail to applicant/accused on the grounds that applicant/accused committed rape upon Respondent No. 2 (prosecutrix) when she was minor. Bail averments depict that charges against applicant/accused have been framed on 05.03.2021. PW-1 (prosecutrix) has got recorded her statement before the trial court in the form of prosecution evidence, a copy of which has been appended with the bail application by learned counsel for the applicant. Bail averments depict that charges against applicant/accused have been framed on 05.03.2021. PW-1 (prosecutrix) has got recorded her statement before the trial court in the form of prosecution evidence, a copy of which has been appended with the bail application by learned counsel for the applicant. PW-1 (prosecutrix) while leading her evidence before the trial court has categorically put forth evidence “that in the year 2016 she developed intimacy with applicant/accused through social media platform “Facebook” whereafter, she and applicant/accused started dating each other whereby, applicant used to take care of her and told her that he wants to marry her, she started relying upon the assurances given by applicant/accused and in the month of October, 2016, applicant/accused took her in the shop of his father and in one room, she was taken inside by applicant/accused who locked the room from inside and after having some conversation with her, applicant/accused established forcible physical relation with her, whereby for 2/3 years she and applicant/accused remained in close contact with each other, but in the year 2019 the behavior of applicant/accused changed as he started using filthy abuses to her, for 2/3 years accused used to behave with her as husband and wife but thereafter when she started refusing then applicant/accused started abusing her as characterless, accused used to introduce her with his family members and relatives as his wife but thereafter accused refused to marry her.” Bare reading of the contents of the FIR and the deposition made by Respondent No. 2 (prosecutrix) before the trial court depict that there is not an iota of whisper that applicant/accused has made false promise or the applicant/accused engaged in sexual relations with the victim on the basis of the false promise. There is also no allegation in FIR that when applicant/accused promised to marry the complainant/victim, it was done in bad faith or with intention to deceive her. From the contents of FIR, it appears that there is a failure on the part of applicant/accused to fulfill his promise of marriage made in the year 2016 which he could not fulfill in 2019/2020. From the contents of FIR, it appears that there is a failure on the part of applicant/accused to fulfill his promise of marriage made in the year 2016 which he could not fulfill in 2019/2020. In the case law reported in AIR 2019 SC 4010 , Pramod Suryabhan Pawar v. State of Maharashtra and another, Hon'ble Apex Court while setting aside impugned judgment and the order of the High Court of Judicature at Bombay dated 07 February, 2019 and quashing the FIR, in Para 20 of the judgment at Page 11 observed as under: “The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the IFR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie in the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under section 375 of the IPC has occurred.” Ratio of the judgment (supra) makes the legal proposition abundantly clear, that when there is no allegation in the FIR that the promise made by the accused was false and only on the pretext that promise to marry did not mature into marriage, the physical relationship of the accused with the victim does not amount to offence of rape within the meaning of Section 375 of IPC. In another case law relied by learned counsel for applicant/accused titled Sonu @ Subhash Kumar v. State of Uttar Pradesh and another in Criminal Appeal No. 233/021 (arising out of SLP (Crl) No. 11218 of 2019), Hon'ble the Supreme Court while quashing the charge sheet and setting aside the impugned judgment and order of the High Court of Judicature at Allahabad dated 26th September, 2019, in paras 08 & 11 of the judgment held as under: “........8. The contents of the FIR as well as the statement under section 164 of Cr.P.C 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 FIR. ......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 Cr.P.C., 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 Cr.P.C. on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.” Ratio of the judgment (supra) further makes a legal proposition abundantly clear, that when there is no allegation that the promise to marry was given by the accused to the respondent was forced at the inception, no offence can be made out where the relationship between the parties are of consensual nature for years together and even the accused has not expressed his inclination to marry the prosecutrix. In 2018 (2) CRIMES (J&K) 264 titled Tanveer Iqbal v. State and others, Hon'ble High Court of J&K while quashing the FIR registered under section 376 IPC on the pretext that the accused was alleged to have been committing sexual intercourse with prosecutrix under the pretext to marry her and finally refused, in Para 08 of the judgment held as under: “.......... 8. Clearly, the allegation in the complaint filed by the prosecutrix is not that of forcible commission of sexual intercourse with the prosecutrix by the petitioner. Going by the statement in the complaint, there was rather a long duration consensual physical relation between the two. The allegation, however, is that the petitioner committed repeated sexual intercourse with the prosecutrix for 4 to 5 years under the pretext or promise that he will marry her but has now backed out. It has not been alleged by the prosecutrix even that the false promise of marriage was made by the petitioner only with the purpose of establishing physical relation with her.” Ratio of the judgment (supra) further makes the legal proposition abundantly clear that when there is a long duration of consensual physical relation between the two under the pretext or promise that the accused will marry her but now backed out and it has not been alleged even by the prosecutrix that false promise of marriage was made for establishing physical relation, it is thus simply a case of courtship and consensual physical relation between the two grownup which even did not end up tying nuptial knot is not a case of commission of rape. From the ratios of the judgments (supra) relied by learned counsel for the applicant/accused, the law is well settled that promise to marriage whereby the two adults engaged in physical sexual relationship is a case of courtship and love affair, and by no stretch of imagination would come within the definition of Section 375 of IPC, and only when there is a case of false promise made with the purpose of obtaining consent of woman for sexual favor, the same amounts to misrepresentation and consent so obtained cannot exonerate a person from criminal liability for commission of rape. While applying the ratios of judgments (supra) to the facts of the case in hand, it is discernable that from the contents of FIR it does not depict that applicant/accused made false promise to marriage to complainant/prosecutrix and obtained her consent for the purpose of committing sexual intercourse with her. Contents of FIR demonstrates that applicant/accused though has agreed to marry the prosecutrix and both of them were involved in physical sexual relations and it is thus simply a case of courtship and consensual physical relation which in my considered view does not amount to commission of rape. In AIR 2013 SC 1497 titled Rajesh Patel v. State of Jharkhand, Hon'ble Supreme Court set aside conviction of accused for commission of offence under sections 376 IPC on the ground that there was delay of 11 days in lodging FIR and no satisfactory explanation for such delay was tendered by the prosecutrix/victim. In the case in hand, as per the prosecution case, the crime has allegedly committed by the applicant/accused in the year 2016 whereas, FIR 12/2020 has been lodged by the complainant/victim/prosecutrix on 01.01.2020 after the delay of about 04 years which has remained unexplained. 7. Applying the ratios of the judgments (supra) to the facts of the case in hand, it is apt to reiterate here that FIR 12/2020 for commission of offence under sections 376/420/201 IPC has been lodged by the Respondent No. 2 (prosecutrix) against applicant/accused after the delay of about 04 years which has remained unexplained. For the last more than 1 & ½ years, applicant/accused is languishing in District Jail Kathua. Right to live and personal liberty is of paramount importance guaranteed under Article 21 of Constitution of India as no accused can be kept for indefinite period of detention without the offence being proved against him. It is cardinal principle of criminal jurisprudence that “grant of bail is rule and jail is exception”. Keeping of applicant/accused in further incarceration would amount to inflicting pre-trial punishment which would be against the mandate of criminal jurisprudence as the accused can only be kept in detention after he is found guilty. Applicant is resident of Kathua, has deep roots in society and therefore there is no possibility of his giving slip to law after admitted to bail. Applicant is resident of Kathua, has deep roots in society and therefore there is no possibility of his giving slip to law after admitted to bail. Since the material witness of the prosecution PW-1 (prosecutrix) has been examined, there is no apprehension that applicant/accused would be in a position to temper the prosecution witness or threaten the prosecution witnesses or dissuade them from deposing before the court of law. Viewed thus, applicant/accused has carved out a strong case of bail in his favour. Bail Application is allowed and the applicant/accused is admitted to bail subject to furnishing of one solvent surety in the sum of Rs. 50,000/- before the Registrar Judicial of this Court alongwith personal recognizance of the like amount before Incharge District Jail Kathua where the accused is presently lodged in judicial custody. However, before parting, the following conditions are imposed upon the applicant/accused: (i) that the applicant/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before the trial court; (ii) that the applicant/accused shall appear before the trial court on each and every date of hearing except for special circumstances beyond their control, in which contingency they shall be represented by their counsel; (iii) that in case prosecution collects any material during the period the applicant/accused is on bail that they have influenced the witnesses or tried to intimidate them, the prosecution would be well within its right to move an application before this Court for cancellation of his bail. 8. The instant bail application, is accordingly, disposed of along with connected applications.