HIGH COURT OF ORISSA: CUTTACK.
CRLA NO. 940 OF 2019
- ACHYUT KUMAR Appellant
Versus
STATE OF ODISHA Respondent
BRIEF FACTS OF THE CASE.
The appellant herein challenged the order dated 11.12.2019 wherein the prayer for bail was rejected bu special Judge. The Appellant in connection with offences punishable under Sections 493/376 of I.P.C. read with Section 3 2 (2)(v) of SC & ST (PoA) Act, 2015 which, subsequently, turned to be a case under Sections 493/313/376 of I.P.C. read with Section 3 (2)(v) of SC & ST (PoA) Act, 2015.
The allegations in the F.I.R against Appellant/ accused as filed by the victim is as follows-
- Complaint by a victim, aged 19, belonging to ST community was lodged and implicates the accused for committing the offences punishable under Sections 493/313/376 of I.P.C. read with Section 3 (2)(v) of SC & ST (PoA) Act, 2015.
- According to her complaint, the appellant and the victim are the resident of the same village and known to each other. The Appellant had given her a mobile phone for facilitating regular communication and he had taken her for an outing on a few occasions.
- Appellant promised to marry the victim and taking advantage of her innocence, he established a sexual relationship with her. In the meanwhile, the victim got pregnant twice and the accused got the pregnancy terminated by administering some medicine.
ACCUSED SUBMISSION
The counsel for the accused vehemently argued that the accused has never been involved in any manner in any criminal case and his antecedents are crystal clear. He further, contended that, assuming for the sake of argument but not conceding, the victim is a major and a consenting party in the sexual relationship, if at all her version of love relationship was existing for the last four years, the offence under Section 376 of I.P.C. cannot be made out. It is a very serious matter that a victim just by making a false statement can book somebody in offence under Section 376 of I.P.C. read with Sections 493/313 of I.P.C. which is serious in nature and invites a harsh punishment. The probability of love relationship between the victim and the accused is slim and she is only a prisoner of imagination. He also stated that the allegation of administering medicines for termination of pregnancy is out and out a false allegation and he has never done so.
OPPOSED BY THE STATE COUNSEL
Ld. Additional Standing Counsel for the State, vehemently opposed the bail application on the ground that the statement of the victim recorded under statement U/s 161, Cr.P.C. reveals that both victim and the accused had acquaintance since long and they were having intimate relationship. The Appellant herein, taking advantage of her innocence and under the pretext of promise to marry established physical relationship with her which resulted in pregnancy twice in the past and they both knew each other.
ANALYSIS OF MEDICAL REPORT
In the medical report it is clearly stated that both the victim and the accused had acquaintance with each other and had love affairs for the last four years which is affirmed by the victim. Even the factum of sign or symptom of recent sexual intercourse does not properly emanate from the medical report. However, the factum of sexual intercourse in the past is not completely ruled out looking at the genital status of the victim. There is no injury detected on her body. The prima facie look of the medical report suggests that there was no forcible sexual intercourse though it is a matter of trial. Similarly, medical report suggests that the victim-girl was not pregnant at the time of her medical examination nor previous abortion is clear from the report.
ISSUE AROSE
whether this type of falsepromise-to-marry induced sexual intercourse is a rape or not?
ISSUE SOLVED BY THE HON’BLE HIGH COURT.
The definition of rapes codified in Section 375 of the Indian Penal Code wherein rape has been defined as certain sexual acts when committed on a victim, falling under any of the seven descriptions:
First; against her will; second; without her consent; third; with her consent, when consent has been obtained under fear of death or hurt, fourth; where consent has been given by the victim in the wrong belief that the man is her husband, fifth; when the consent is given when she is of unsound mind or intoxicated and unable to understand the nature of consequences of what she is consenting to, sixth; consent from a girl under the age of 18 years; and seventh; when she is not in position to communicate the consent. The septette ingredients mentioned hereinabove does not cover the false-promise-of-marriage induced sexual intercourse.
REFRENCE OF SOME JUDGMENT TAKEN BY THE HC.
in Jayanti Rani Panda vs. State of West Bengal and Ors1 has held that the consent of full-grown girl to the act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact which has been quite similar to the view taken in later decisions in Hari Majhi vs. The State. 2 The Patna High Court has also taken similar view in MirWali Mohammad vs. The State of Bihar3. Judgments on this subject are in unison support of the view that even applying Section 90 of I.P.C. which states that consent obtained on a misconception of fact is no consent, a promise to marry, not being a fact would not vitiate the consent so obtained. In yet another decision in Arak Sk. vs. State of West Bengal4 the Calcutta High Court held that though the act of the accused in abandoning the girl he promised to marry on her becoming pregnant is highly reprehensible, such conduct by itself did not become a ground for holding the accused guilty of a charge of rape under Section 376 of I.P.C
Decision BY APEX COURT in recent judgement
In the recent case of Anurag Soni vs. State of Chhattisgarh, 2019 (6) SCALE 211, the Apex Court, has attempted to make a distinction between a promise which is unfulfilled and a promise which is false from the very beginning.
The natural corollary that flows from it is that if a man can prove that he intended to marry the woman but changed his mind later, then it’s not rape. It’s only considered rape if it’s established that he had dubious intentions from the beginning of the relationship.
OBSERVATIONS OF HON’BLE COURT.
Hon’ble High Court observed that the definition of rape under Section 375 of the IPC does not cover sexual intercourse on false promise of marriage.
Hon’ble High Court Further held that the consensual relationship without even any assurance obviously will not attract the offence under Section 376 of the IPC (rape)
Hon’ble High Court also observed that the rape laws often fail to address the plight of socially-disadvantaged and poor victims, who get lured into sex by men on false promise of marriage.
Order
Having considered the matter in the aforesaid perspective and guided by the precedents cited hereinabove, this Court sets aside the order dated 11.12.2019 passed by the Ld. Sessions Judge-cumSpecial Judge, Koraput-Jeypore in G.R. Case No.1013 of 2019 and allows the prayer of the appellant. Accordingly, the Court in seisin over the matter will enlarge him on bail imposing some terms and conditions as deems fit and proper with further condition that he will cooperate the investigation and shall not threaten the victim or misutilise the liberty granted to him.
CONCLUSION
The act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact.
The act of the accused in abandoning the girl he promised to marry on her becoming pregnant is highly reprehensible; such conduct by itself did not become a ground for holding the accused guilty of a charge of rape under Section 376 of I.P.C because the essential conditions to constitute rape namely free consent and free will which existed at the time of engaging in sexual intercourse. It is only due to change in circumstances an individual may breach the promise to marry which may make the defaulter for an offence of breach of promise but doesn’t amount to rape.
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