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2023 DIGILAW 330 (UTT)

Harsh Mehrotra v. State of Uttarakhand

2023-05-22

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J To deal with the articulated arguments, certain facts are required to be placed on record. These would be the facts, which are not in dispute qua the respondent, as these were the facts, which have been narrated by him during the course of argument, as well as in the written arguments as it has been submitted by him. (1) On 04.11.2019, there was a proposal of marriage between the applicant no.1, and respondent no.2. (2) On 25.11.2019, the said proposal was further entangled by getting the “Kundli” compared of the two parties to the marriage i.e. applicant no.1, and the respondent no.2. (3) Upon the “Kundli” being compared, it is further not in dispute that the engagement between the applicant no.1, and the respondent no.2, was held on 23.08.2020. 2. It is further submitted by learned counsel for the respondent, that respondent no.2 had voluntarily travelled with the present applicant no.1, to Nainital; on 10.07.2020, they travelled together, and reached Nainital, and thereafter even on 11.08.2021, 13.08.2021 and 17.08.2021, they have voluntarily established the physical relationship without there being any retaliation by the complainant respondent No.2. 3. Learned counsel for the complainant, in order to denounce the act, on the part of the present applicant no.1, that establishment of the physical relationship on 11.08.2021, and henceforth, as described above, was not with the consent, hence he has referred to, certain observations, which was orally made by the respondent no.2, where it said that she mildly retaliated the act of the establishment of the physical relationship, but ultimately, she acceded to it, and relationship was established on 11.08.2021, 13.08.2021 and 17.08.2021. There is no specific document on record to show that ever since 17.08.2021, when the last sexual interaction took place between the applicant no.1, and the respondent no.2, she had ever, at any point of time, before any authority has written the complaint, that sexual interaction between the complainant/respondent no.2 and the present applicant no.1, had been without her consent. 4. “Retaliation” would mean an actual retaliation in the eyes of law, which could be acceptable and be read in evidence. An oral retaliation is quite a common acclaimed feature, and that oral retaliation would be a retaliation which takes place in a secluded place, where the two persons, male and female, are getting together. 4. “Retaliation” would mean an actual retaliation in the eyes of law, which could be acceptable and be read in evidence. An oral retaliation is quite a common acclaimed feature, and that oral retaliation would be a retaliation which takes place in a secluded place, where the two persons, male and female, are getting together. That retaliation cannot be established by way of any reliable evidence, though it has been attempted to be narrated in the FIR, as registered by the respondent. It was alleged to be on the occasion of the “Grahpravesh” on 08.05.2021, that the present applicants have participated in the function, and it was thereafter that when they came together, once again the physical relationship was established, though the said date as referred to by the learned counsel for the respondent is in much contradistinction to the dates, which has been referred to in the FIR which rather happens to be of 11.08.2020 onwards. 5. In order to make out an offence under section 376 of IPC, the learned counsel for the respondent has submitted, that if the FIR is taken into consideration, the complainant is said to have objected to the act of the establishment of the physical relationship by an oral objection, but in the eyes of law, the said oral objection cannot be read as to be an actual established objection in practicality, without there being any material acceptable credible evidence being placed on record before this Court to show that there had been an actual retaliation by registering the complaint, and that too when the physical relationship was established between them on a number of occasions. That itself would be an inference to be drawn, that there was a consent which was extended by the respondent no.2, by her an act of non-retaliation, though there might have been an oral stray objection, as it has been observed in the FIR. That stray objection cannot be taken as to be an objection in reality, and it cannot be ruled out, that in a personal relationship, such type of a minor oral retaliation is a common feature, which cannot be read for the purposes of taking it as to be an objection or an opposition extended by the complainant against an act of the establishment of the relationship for the purposes of criminally prosecuting a person. 6. 6. Learned counsel for the applicants had submitted, that after the establishment of the physical relationship on the dates as already given above, the applicant, herein, is said to have resiled away to solemnize the marriage; after the alleged engagement made on 23.08.2020. Even if the engagement was held on 23.08.2020, and the complainant was assured of the marriage and she had established physical relationship on 11.08.2021, 13.08.2021 and 17.08.2021, it will be deemed to be establishment of the relationship under the pretext of the marriage, and if later on, for any stray reasons, the marriage could not be solemnized, it cannot be said, that it would be an offence of rape as defined under section 375 of IPC for the reason being that the ingredients of the section 375 of IPC, are taken into consideration, which is extracted hereunder:- “375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 7. The same was also relied on by the learned counsel for the respondent. The basic essential ingredients for the purposes of bringing an act within an offence of rape under section 375 of IPC or the first ingredient which is required to be established by the victim or the complainant is, that the penetrative action made by the accused was without her consent. The consent could be inferred from the act of the participants to the sexual relationship, and it could also be culled out when, despite of there being an oral retaliation, if there has been physical relationship established thereafter on a number of occasions. The consent could be inferred from the act of the participants to the sexual relationship, and it could also be culled out when, despite of there being an oral retaliation, if there has been physical relationship established thereafter on a number of occasions. It would be deemed that despite the oral objection, there was a tacit consent when it was permitted to be established, without any actual retaliation on the part of the complainant/respondent no.2, and hence it would amount to be a consent, as per the definition of the rape given under section 375 of IPC, and in that eventuality if there is any subsequent resistance by the applicant no.1, to solemnize the marriage after the engagement on 23.08.2022, it cannot be said that the offence committed by the applicant was that of a rape, it could be a case of breach of trust, for which the applicant could be independently tried, it at all permissible under law. 8. In all the exception clauses of the definition of section 375 of IPC, as extracted above, the basic feature which plays a pivotal role to determine an act of commission of offence of rape, is a consent which has been determined, based upon the different features, that is, when the consent is obtained by putting a person in any fear of death or hurt, which admittedly is not the case at hand nor is it pleaded nor stated anywhere in the proceedings before the Court. Hence, it will not be falling under the 3rd clause of exception under section 375 of IPC. 9. With regard to the first and the second clause of the Section 375 of IPC, as observed above, this Court is of the view, that when there was a proposal of the establishment of the sexual relationship and there was a mild oral opposition but eventually an acceding to establish the physical relationship the rape will not be an offence falling under the first clause to be treated as to be an offence against her will, because the mild opposition and that too oral in nature will bring an act under the second clause of section 375 of IPC. Hence, it will not be a rape as defined under section 375 of IPC. 10. Hence, it will not be a rape as defined under section 375 of IPC. 10. The said view has been recently taken by the Hon’ble Apex Court in the Bench of three judges in a judgment reported in 2021 SCC Online SC 181, “Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and another” wherein, this element of consent was held to be an important pre-existing aspect considered by the Bench in its paragraph no.7, 8, 9, 10 and 11, wherein, the Court has observed that if a physical relationship is established, on the assurance of the marriage or on the pretext of the marriage, which would be a case at hand, because of the engagement ceremony held on 23.08.2020, it would be presumed that the physical relationship was established under an assurance of the marriage may be that it had later on proved to be false, and if there is a subsequent denial to marriage, the offence already committed under the pretext of the marriage will not be a rape, but rather it could be at the most brought within an ambit of a breach of the trust and not otherwise. Relevant paras 7, 8, 9, 10 and 11 are extracted hereunder:- “7. On the basis of the rival submissions and with the assistance of the counsel, we have perused the FIR. The FIR specifically records that the second respondent had developed a friendship with the appellant and that he had assured that he would marry her. The FIR then records that the appellant and the second respondent developed a physical relationship which spread over a period of one and a half years, during the course of which the second respondent conversed with the parents and sister of the appellant. It has been alleged in the FIR that the parents of the appellant were agreeable to the couple getting married. As a matter of fact, the appellant returned to his home town at Jhansi on 5 January 2018 when he had made a phone call to her stating that she should come and visit him so that they can get married. On travelling to Jhansi at the behest of the appellant, the second respondent was informed by the father of the appellant that the appellant did not wish to marry her. On travelling to Jhansi at the behest of the appellant, the second respondent was informed by the father of the appellant that the appellant did not wish to marry her. The contents of the statement under Section 164 of CrPC also indicate that the second respondent had “voluntarily developed relationship of husband-wife with him”. The second respondent has then stated that “now, he and his family members are refusing to marry with me”. The second respondent has then stated that “now, he and his family members are refusing to marry with me”. The second respondent has further stated that “my sole grievance is that Sonu is refusing to marry with me”. 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. 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. 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.” 11. Learned counsel for the applicant has referred to a judgment as reported in AIR 2019 SC 187 , “H.K. Singla Vs. Avtar Singh Saini and others” the said judgment, since being prior in time to the judgment of the Hon’ble Apex Court as rendered in the matters of Sonu @ Subhash Kumar (supra), in which one of the Hon’ble Judges was also a Member. Though the Bench was of an equal strength it has taken a view, which has been attempted to be read by the learned counsel for the applicants, that establishment of the physical relationship with the minor altercations, will still amount to be an offence under section 375 of IPC, because it will amount to be the presumption of absence of consent and the same has had to be drawn as per the parameters laid down under section 114A of the Evidence Act. The presumption of the absence of consent in certain prosecutions could be only when the basic parameters given thereunder are rationally construed to be interpreted in the context of the consent referred to under section 375 of IPC, as it relates to each of the cases, and circumstances in which it has to be construed. 12. The reference made in paragraph no.9, of the said judgment, particularly, which has been, in the light of the provisions contained under section 90, on which the learned counsel for the respondent has harped upon to deal with an aspect about the consent known to be given under fear or the misconception already observed, this is not a case at anywhere, which has been developed by the learned counsel for the respondent, that it was a physical relationship which was ever at all established under a fear or the misconception. This Court is of the view, that the basic principles laid down in the judgment of “Anurag Soni Vs. The State of Chandigarh”, (Citation) will have no contextual value so far it relates to the circumstances of the present case for the purposes of dealing with the issue as to what would amount to be an offence under section 375 of IPC, and there would be marginally a difference, that the Hon’ble Apex Court in the said judgment was dealing with an issue emanating from the final appellate judgment in the criminal appeal. The parameters of which has had to be tested on different pedestal, then that as the stage when the proceedings of the criminal case is being initially tested while exercising powers under section 482 of Cr.P.C. The stage which was being dealt with by the Hon’ble Apex Court in the matters of Anurag Soni (Supra) was on an ultimate adjudication of the commission of the offence in the context of the consent extended by the victim. 13. In that eventuality, this Court is of the view that the ratio laid down, therein, has to be differently and distinctly construed, because it was factually based upon a different aspect altogether and upon an appreciation of evidence, because there the Hon’ble Apex Court was dealing with the matter, where the prosecutrix has consistently pressed upon the accused person to solemnize the marriage. That may not be the case, herein, because admittedly after the registration of the FIR on 28.10.2021, and during the course of the investigation, the complainant/respondent no.2, has already married on 12.02.2022 with one Mr. Rishi Gusain. 14. In that eventuality, once she has already married with another male, this case would not be falling under the same pedestal as that of the judgment of Anurag Soni (Supra), as referred to by the learned counsel for the applicants, and more particularly, and the exception which is to be drawn in the instant case is that when it has come on record, as observed by the Investigating Officer in the chargesheet, that the complainant has refused to get herself medically examined in order to scientifically establish the commission of the offence against her wishes, that very act of the denial to get herself medically examined would yet again be a basis of the non-establishment of the offence as defined under section 375 of IPC. 15. As such, so far as the criminal proceedings drawn by way of the Criminal Case No.268 of 2022, “State Vs. Harsh Mehrotra and another” for trying the present applicant no.1, for the commission of the offences under section 376 (2) (n) and 504 of IPC, the offences are not made out for the reason being that there is no act of criminal intimidation, and any established act of forceful commission of the sexual offence as against her wishes as already observed. Hence, section 376 (2) (n) and 504 of IPC, would not be made out, but so far as the offence under section ¾ of the Dowry Prohibition Act is concerned, the said offence would still be required to be established by adducing of the evidence by the parties before the court of Additional Chief Judicial Magistrate, Ramnagar, Nainital. 16. Hence, for the aforesaid reasons, the C482 application partly succeeds, so far as it relates to the taking of the cognizance of the offence under section 376 (2) (n) and 504 of IPC, but so far as the offence under sections ¾ of the Dowry Prohibition Act, is concerned, since the allegation is pertaining to the exchange of dowry, articles prior to the engagement as solemnized on 23.08.2020, that would still be a subject matter open to be tried by the court of Additional Chief Judicial Magistrate, Ramnagar, Nainital. 17. 17. For the reasons aforesaid, the C482 application partly succeeds.