Consent obtained on false promises of marriage does not constitute valid consent under Section 375 of the IPC.

JUDGMENT

S.K. Panigrahi,J. - The petitioner has filed the instant application under Section 439 of Cr. P.C. seeking bail in connection with Chandaka P.S. Case No.76 of 2020 corresponding to G.R. Case No.306 of 2020 pending in the Court of the learned Judicial Magistrate First Class (O), Bhubaneswar. The petitioner herein is the accused in connection with alleged commission of offences punishable under Sections 376(1)/313/294/506 of the Indian Penal Code and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008.

2. The case of the prosecution is that the petitioner met the complainant in the house of the latter's relative and thereafter contacted her over phone and lured her to fall in love with him. Thereby they developed a romantic relationship and the petitioner kept physical relationship with her promising her to marry. Due to physical relationship, the complainant became pregnant twice, which the petitioner aborted by giving medicine to her. On 22.01.2020, the complainant asked the petitioner to marry her, but he denied and thereafter the family members of the complainant contacted petitioner's family members to get their consent for such marriage. However, they denied the marriage proposal as well. Having no alternative, the complainant's family fixed her marriage elsewhere. However, on 26.04.2020, the petitioner posted personal photographs of the complainant along with him using fake Facebook IDs created in her name and used a caption stating that the character of the complainant is not good. The petitioner further mentioned that the complainant had relationship with him but was marrying someone else. As a result of this, the complainant's marriage was broken and she was defamed in the society. Additionally, the petitioner has threatened to viral the obscene photographs in the Facebook and also threatened to kidnap her and kill her. Thereafter, the complainant lodged an FIR and the accused was forwarded on 27.06.2020.

3. Heard Mr. N. Mishra, learned counsel appearing for the petitioner, Mr. S.S. Pradhan, learned Additional Standing Counsel for the State and Mr. T.K. Mohanty, learned counsel appearing for the informant and perused the case records.

4. Mr. N. Mishra, learned counsel for the petitioner, has submitted that the medical report does not reveal that the rape has been committed although the matter was reported for such purposes on 02.05.2020. Additionally, no prima facie case is established against the petitioner. Further, he has submitted that the petitioner is in no way connected with the case rather he has fallen prey to a conspiracy. The complainant being in rival terms has tried to victimise the petitioner. The present case has been foisted in a fabricated manner to harass the present petitioner. Hence, the petitioner should be granted bail. The facts of the case and the conduct of the petitioner require a brief analysis especially, this being a sensitive issue concerning the plight of the victim. The Hon'ble Apex Court has dealt with such issues in so many cases.

5. In the case of Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 this Court has explained the essentials and parameters of the offence of rape. In the said decision, the Court observed and held as under:

"12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of r