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ORISSA HIGH COURT
Dr. S.K. Panigrahi, J.
Santosh Kumar Nayak – Petitioner
versus
State of Odisha – Opp. Party
BLAPL No.2818 of 2021
Decided on 23.12.2022
(A) Criminal Procedure Code, 1973 – Section 439 – Indian Penal Code, 1860 – Sections 344/376(2)(n)/506/109 read with Section 90 – Bail application – Misconception of fact – Sexual intercourse on false promise of marriage – Failure to keep promise on a future uncertain date does not always amount to misconception of fact at inception of act itself – Victim and accused had acquaintance with each other and had love affairs which is affirmed by victim – There is also a prima facie belief that petitioner had given a false promise to victim to marry and based on such assurances, victim had accompanied Petitioner – Allegation that petitioner committed sexual intercourse with victim and captured photos of victim’s naked body and subsequently, abandoned her seems to be cloudy without a proper trial – Prima facie look of medical report suggests that there was no forcible sexual intercourse though it is a matter of trial – Victim being a major girl with sound mind, there seems to be no question of anyone being in a position to induce her into physical relationship under assurance of marriage – There could be possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy. (Paras 7, 8 and 10)
(B) Indian Penal Code, 1860 – Sections 344/376(2)(n)/506/109 read with Section 90 – Criminal Procedure Code, 1973 – Section 439 – Bail application – Misconception of fact – Sexual intercourse on false promise of marriage – Rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice – Consent obtained on a false promise to marry is not a valid consent – Automatic extension of provisions of Section 90 of I.P.C. to determine effect of a consent under Section 375 of I.P.C. deserves a serious relook – Law holding that false promise to marriage amounts to rape appears to be erroneous – Consent for sexual act on pretext of marriage is not one of circumstances mentioned under Section 375 of I.P.C. – Alleged conduct of Petitioner may not be a generally approved social conduct but instant case is riddled with some visible contradiction of facts – Bail granted. (Paras 13, 14 and 16)
Result: Application allowed. Bail granted.
ORDER
This matter is taken up through hybrid mode.
2. The Petitioner has filed this application under Section 439 of Cr.P.C. seeking for bail in connection with Nimapara P.S Case No.29 of 2020 under Section 344/376(2)(n)/506/109 of the I.P.C corresponding to G.R Case No. 85 (A) of 2020 pending before the court of Learned J.M.F.C Nimapara.
I. Case of the Prosecution
3. The case of the prosecution, in brief, is that on 12.01.20, at about 10A.M, the present petitioner took the victim from her house to Bhubaneswar with a promise to marry her. The present petitioner maintained physical relationship with the victim for several days and later, abandoned her. After getting information from the victim, her father and brother proceeded to Bhubaneswar and rescued her. It is further alleged that on 03.02.2020 when the father of the informant brought such fact to the notice of the father of the present petitioner, the latter abused them and also threatened with dire consequences in case such fact is reported to the local police.
II. Submissions on behalf of the Petitioner
4. It is submitted by Learned Counsel for the Petitioner that admittedly, the victim in the present case is a major and accompanied the present petitioner to Bhubaneswar according to her sweet will. Moreover, the victim has not stated the exact date of alleged incident in the F.I.R. Therefore, taking into account the age of the victim and other surrounding circumstances, there is no legal bar to release the present petitioner on bail.
5. It is contended by Learned Counsel for the Petitioner that the medical examination report negatives the allegations of forceful sexual assault. In view of such medical evidence the liability of the present petitioner cannot be attracted in a case u/s 376(2)(n) of I.P.C.
III. Submission on behalf of the Opposite Party
6. Per Contra, Learned Addl. PP raised objection to Petitioner’s bail application considering the nature of allegations and offences committed by the Petitioner. It was alleged that the Petitioner with assurance of marriage took the victim with him and repeatedly committed sexual intercourse with the victim and took photos of her naked body. Thereafter, he absconded after abandoning the victim. Therefore, the facts and circumstances of this case establishes a prima facie case u/s 376 of the I.P.C along with other offences against the Petitioner.
IV. Court’s Analysis and Reasons
7. Perused the up to date case diary and material on record, more specifically, the F.I.R. lodged by the victim and her statement U/s 161, Cr.PC. It. prima facie, reveals from the record that both the victim and the accused had acquaintance with each other and had love affairs which is affirmed by the victim. There is also a prima facie belief that the petitioner had given a false promise to the victim to marry and based on such assurances, the victim had accompanied the Petitioner to Bhubaneswar on 12.01.20, at about 10 A.M. However, it is alleged that the Petitioner abandoned the victim due to which the victim had to starve for two days. The allegation that the petitioner committed sexual intercourse with the victim and captured photos of victim’s naked body and subsequently, abandoned her seems to be cloudy without a proper trial. 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 victimgirl was not pregnant at the time of her medical examination. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage which warrants a trial to establish.
8. The factual position narrated above would enable this Court to draw some inferences on the assertion made by the complainant/victim-against the Petitioner. As the facts unfold, the victim being a major girl with sound mind, there seems to be no question of anyone being in a position to indu
(1) Misconception of fact – Failure to keep promise on a future uncertain date does not always amount to misconception of fact at inception of act itself.(2) Law holding that false promise to marriag....
The main legal point established in the judgment is that consent obtained on a false promise to marry is not a valid consent, and the validity of such consent must be determined based on the immediat....
The legal principle established is that consent given under a false promise of marriage must involve an active and reasoned deliberation, and the promise of marriage must have been a false promise gi....
The distinction between a false promise to marry and breach of a promise to marry, and the relevance of consent and intention at the time of making the promise.
Consent given under a false promise to marry must be proven as knowingly false from the outset for an accusation of rape to succeed; consensual relationships later turning sour do not invoke criminal....
Misconception of fact – Merely because physical relations were established on a promise to marry, it would not, by itself, amount to rape.
Rape - Conviction confirmed and Bail rejected - Accused who gave promise to prosecutrix to marry, did not have any intention to marry and prosecutrix gave consent for sexual intercourse on such an a....
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