Usman Ali vs Union Territory Of J&K And Others

Dhiraj Singh Thakur, J

This is an application for grant of bail for offences under Section 376 of RPC in connection with FIR No. 226/2013, which is pending trial in the Court of learned 3rd Additional Sessions Judge, Jammu.

Briefly stated the material facts are as under:-

An FIR bearing No. 226/2013 was registered at the behest of the mother of the prosecutrix, in which it was alleged that the petitioner had been raping her daughter constantly on the pretext and promise that he would marry her. The first incident is stated to have occurred on 22.03.2013. It was alleged that on 24.10.2013, the petitioner finally refused to marry her. After which refusal, the prosecutrix narrated the entire sequence of events to her mother.

Objections have not been filed despite repeated opportunities.

According to Mr. Aseem Sawhney, learned AAG, the petitioner has been in custody for approximately six years. It is also stated that prosecution evidence is over and that the matter is pending for the defence evidence.

Learned counsel for the petitioner stated that a false and frivolous case had been thrusted upon the petitioner and that ultimately his innocence would be proved at the conclusion of the trial. It was further stated that notwithstanding the false nature of accusation made against the petitioner, the evidence on record suggested that there was close intimacy between the petitioner and the prosecutrix and further that assuming though denying that there was any sexual intimacy between the two, based upon the consent given by the prosecutrix on the promise of marriage in future by the accused-petitioner, would not amount to a 'misconception of fact' and thus rigors of Section 376 would not be applicable or attracted in the present case.

Reliance was also placed upon Section 90 of the Jammu & Kashmir State Ranbir Penal Code, which reads as under:-

"90. Consent known to be given under fear of misconception

A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of facts and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or ......................... "

The issue as to whether the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date came to be considered by the Apex Court in "Uday Vs State of Karnataka" reported in (2003) 4 SCC 46, wherein it was held that such a consent could not be stated to be given under a misconception of fact. Their lordships in the said judgment held as under:-

"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."

The issue as to whether there was any consent given by the prosecutrix to sexual intercourse was voluntary or whether it was given under misconception of fact would be a matter to be decided by the Trial Court, keeping in view the ratio of various judgments on the issue.

Without going into the merits of the case, lest it affects the outcome of the trial, it would suffice to say that the petitioner has been in custody for approximately six years till date. The prosecution evidence is since over and the matter is pending for the defence evidence. In case the petitioner is released at this stage, there would be no possibility of the petitioner either intimidating or influencing the prosecution witnesses in any manner. Releasing the petitioner on bail at this stage would infact help him in supporting his defence and prove his innocence.

Be that as it may, this application is allowed. The petitioner is directed to be released subject to furnishing a personal bond in the sum of `50,000/-with one surety of the like amount to the satisfaction of the Trial Court, subject to the condition that the petitioner shall remain present on each and every date of hearing before the Trial Court and shall not leave the territorial jurisdiction of the Court without the express permission of the said Court.

Bail application is, accordingly, disposed of.