Vikram Singh And Anr vs State Of Jammu & Kashmir Anr

Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) petitioners seek quashment of FIR No. 26/2016 dated 01.11.2016 registered at Police Station, Basantgarh for commission of offences under Sections 376, 506, 109 RPC.

The case of the petitioners is that respondent No.2-X (NAME WITHELD) D/o Rattan Chand filed a complaint with police station Basantgarh. Thereafter, on 24.10.2016 she submitted an application under section 156 (3) Cr.P.C before learned CJM Udhampur, who transferred the same to the District Mobile Magistrate Udhampur which came to be dismissed by the Magistrate and thereafter on 29.10.2016 she approached the Police Station and FIR No. 26/2016 under Sections 376, 506, 109 RPC came to be registered against petitioner Nos.1 and 2 and against one Shakti Devi, shown to be the wife of Bikram Singh. It is stated that the said F.I.R. bearing No.26/2016 under Sections 376, 508,109RPC which has been registered in police station Basantgarh is based on false and frivolous grounds and the petitioners are respectable and reputed citizens of the society. But the fact remained that the alleged accused persons have not committed any offence as contained in the aforesaid FIR. It is stated that the reason of registration of FIR is against the mandate of law for the reason that in the FIR the prosecutrix has herself mentioned that she was residing with petitioner No.1 and on the pretext of both having love affair were living as husband and wife, and when she came to know that petitioner No.1 has married to another girl, namely, Shakti Devi as such she filed the application against the petitioners for registration of FIR before the police.

Learned counsel for the petitioner contended that the FIR registered by the Police Station Basantgarh is not sustainable in the eyes of law as the same has been registered as a tool to harass the petitioner No.1 and his family as such requires to be quashed. It is further stated that when the FIR was lodged the petitioner No.1 was out of station. It is stated that after the investigation of the case, none of the witnesses has deposed anything against the petitioners and furthermore the FIR was lodged with the motive to teach lesson to the petitioner No.1 and his family members. It is further stated that the third accused, namely, Shakti Devi Thakur has already approached the Hon'ble High Court by way of petition under Section 561-A Cr.P.C bearing No. 619/2016 and in the said petition this Court has stayed the investigation in FIR No 26/2016 registered at police station Basantgarh.

Respondent No. 1-State has filed objections/detailed report. In the objections it is averred that the petitioners and one Shakti Devi have deliberately and intentionally committed the crime under Sections 376, 506 and 109 RPC which has been proved by the investigating agency on the basis of the site plan, statement of witnesses under Section 161-A Cr.Р.С., statement of prosecutrix under Section 164-A Cr.P.C. and medical report against (1) Bikram Singh S/o Mela Ram, (2) Kansi Ram S/o Mela Ram and (3) Shakti Devi W/o Bikram Singh, R/o Jakhed, Tehsil Latti Marothi, District Udhampur. The investigation of the case has not been completed because accused No.1 is working in the army as a constable and till date has not been arrested.

Respondent No.2 has also filed objections. In the objections it is averred that in the year 2011 petitioner No.2 herein came to the residence of answering respondent and influenced the parents of the answering respondent with regard to marriage of answering respondent with petitioner No.1. Petitioner No.2 introduced the answering respondent with petitioner No.l and thereafter petitioner No.l got the admission of answering respondent for undergoing a medical course at Ramnagar. The petitioner No. l also arranged rental accommodation for respondent no.2 at Ramnagar. All the expenses of medical course were incurred by petitioner No.1 and petitioner No.l also gave his ATM card to respondent No.2 but on 21.09.2016 petitioner No.l ignoring respondent No.2 entered into marriage wedlock with some other lady. During the period spread over five years petitioner No.l used to commit bad activities with respondent No.2 on the promise that petitioner No.1 will marry her. The petitioner No.1 as also his newly wedded wife had extended threats to respondent No.2 and had asked her even telephonically to keep mum and some job will be arranged for her. It is submitted that at the relevant time respondent No.2 was under immense pressure from her parents, relatives and the members of the community and respondent was not in a sound state of mind but the police agency took respondent No.2 to the concerned court for recording her statement under Section 164-A Cr.P.C. and she deposed in her statement whatever her parents relatives and the members of the community asked her.

I have considered the rival contentions.

The translated version of police report reads as under:-

"Complainant -X, D/o Rattan Chand (Thakkar) R/o Jakhed, Tehsil Latti Marothi, District Udhampur, presented a written complaint against 1/ Vikram Singh 2/ Kansi Ram sons of Mela Ram, 3/ Mst. Shakti Devi wife of Vikram Singh (Thakkar) R/o Basantgarh, District Udhampur (non-applicants) before police station stating; That about 5 years ago , the non-applicant no.2 had told that he will get her marriage conducted with the real brother non-applicant No.1, so applicant became familiar with the non-applicant No.1 and the non-applicant No.1 also assured to the applicant that he will marry with the applicant. The non-applicant No.1 for the purpose of physical relations, got the room on rent at Ramnagar Tehsil Ramnagar for her, the non-applicant No.1 got her admitted in multipurpose Training programme at Ramnagar and one year has passed; the non-applicant No.1 used to pay all the expenses to the applicant, and also the non-applicant No.1 has handed over his ATM Card of J&K Bank Ltd., to the applicant. The applicant used to withdraw money from his ATM. That the non-applicant No.1 used to assure to the applicant that he will marry with her. The applicant was on holiday. The applicant went to her house at Jakhed Tehsil Latti Marothi. The non-applicant No.1 on 08/09/2016 came to Jakhed Tehsil Latti Marothi District Udhampur and resided with the applicant. The non-applicant conducted forcibly intercourse with the applicant at the night and then refused to marry with her. After that the applicant came to know that the non-applicant no.1 has married with the non-applicant no.3 on 21/9/2016; the non-applicant no.1 has ruined the life of the applicant. The non-applicant no.3 many times passed threats to the applicant on phone, that if the applicant would take any action against the non-applicant no.1 then she shall be killed, or get killed. So the non-applicant no.1 has committed offences under section 376/506/109 RPC and the non-applicant no.2 has committed offences under section 109 RPC and the non-applicant no.3 has committed offence under section 506 RPC. The non-applicant no.2 has got the engagement of the non-applicant no.1 broken with the applicant for which he has given assurance to the applicant.

That the applicant has filed an application on 24/10/2016 in the court of CJM Udhamupur, which was transferred to the court of Mobile Magistrate Udhampur. The Mobile Magistrate has dismissed the application with the remarks that the applicant should approach the police station first and then should come to the court.

On the receipt of this application, the police station registered the FIR No. 26/2016 for offence U/s 376, 506, 109 RPC and the investigation of the case was commenced. The SHO during the course of investigation prepared the site map of place of occurrence and seized the ATM card from the possession of the complainant as a matter of proof, after preparing the seizure memo of the ATM card and medical examination of prosecutrix was got conducted and report from Ramnagar hospital was obtained; the statement of witnesses u/s 161 Cr.P.C. were recorded and the statement of prosecutrix was got recorded before the court of JMIC Ramnagar u/s 164-A Cr.P.C; copy of the statement was obtained. From investigation it was found that the accused Bikram Singh son of Mela Ram caste Thakkar R/o Basantgarh used to commit sexual intercourse with complainant for the last 5 years but did not marry with her and instead he had married with one Shakti Devi; the accused Bikram Singh got admission of the complainant for undergoing the training of Multipurpose worker. The accused during the process had given his ATM card to the complainant for its use as well as a room was also hired for residential purposes by him for the complainant at Ramnagar. Apart from this, the accused used to give all the necessities of life to the complainant. During holidays the complainant had gone to her native place and the accused Bikram Singh had also proceeded on leave to his home. On 8/9/2016 he came to complainant and there he committed rape on the complainant; from investigation offences u/s 376/506/109 RPC have been found proved against accused Bikram Singh son of Mela Ram caste Thakkar R/o village Basantgarh; accused Kansi Ram son of Mela Ram caste Thakkar R/o Basantgarh had assured the complainant for her matrimonial tie with his real brother namely accused Bikrarm Singh; but had not kept his promise and as such the offence u/s 109 RPC has been found proved against him. Further the accused Mst. Shakti Devi wife of Bikram Singh caste Thakkar R/o Basantgarh used to extend threat to the complainant for doing away her life in case she will come in between her and her husband, so the offence u/s 506 RPC has been found proved to have been committed by her."

In her statement recorded under section 164-A Cr.P.C., she has reiterated the same with some improvements of facts.

In Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra & Ors. [Criminal Appeal No. 1443 of 2018 arising out of S.L.P.

(Criminal) No.6532 of 2018] decided on 22/11/2018, it has been held as under:-

"12. Recently, in Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017) 13 SCC 369, this Court has observed as under: "Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to 8 be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding.

The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 Cr.P.C. and quashed the criminal proceedings." It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.

In the instant case, FIR was registered against the appellant and the co-accused under Sections 376(2)(b), 420 read with Section 34 of the IPC and under Section 3(1)(x) of the SC/ST Act. Section 376(2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. The said provision during the relevant point of time was as under:-

"376. Punishment for rape.-

(1) ..............

Whoever,-

(a) ...............

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) to

(g) ................ shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine."

Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the 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, or 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 reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of.

Section 90 of the IPC defines "consent" known to be given under fear or misconception:-

"Section 90: Consent known to be given under fear or misconception.- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, 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" Thus, Section 90 though does not define "consent", but describes what is not "consent".

Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances.

In Uday v. State of Karnataka (2003) 4 SCC 46, this Court was considering a case where the prosecutrix, aged about 19 years, had 11 given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus:-

"21. 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 straitjacket 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.

Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to.

That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact."

In Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88, the Court framed the following two questions relating to consent:-

(1) "Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in?

(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her"?

In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February, 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions.

After she became pregnant, she revealed the matter to her parents. Even thereafter, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time. With this factual back-ground, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus:-

"The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact.

On the other hand, the statement of PW 12 that "later on", the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case at para 24 come to the aid of the appellant".

In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him.

She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives.

Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police.

The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused.

Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight 16 years is 'rape', especially in the face of the complainant's own allegation that they lived together as man and wife. It was held as under:-

"In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife".

Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.

There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.

The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."

In present case, Complainant has admitted the fact that petitioner was known to him from last more than five years; she has also admitted the fact that, it is the petitioner who got her admitted in multipurpose Training programme at Ramnagar and he used to pay all the expenses of training to her, and has also handed over his ATM Card of J&K Bank Ltd., to her and she used to withdraw money from his ATM. It has further been admitted that the petitioner used to assure to the applicant that he will marry with her. It is further case of complainant that she was on holiday and she went to her house at Jakhed, Tehsil Latti Marothi; petitioner on 8/9/2016 came to Jakhed Tehsil Latti Marothi District Udhampur and resided with the her and performed forcibly intercourse with her at the night and then refused to marry with her. After that the applicant came to know that the petitioner/accused has married with the one Shakti Devi on 21/9/2016.

So from above facts it is evident, that they were living together as they were known to each other for quite long time. They were in a relationship with each other for quite some time and enjoyed each other's company. When she came to know that the petitioner No.1 had married with Shakti Devi, she lodged the complaint. From above facts, it further appears that, it was not her case that prior to coming to know about the marriage of petitioner with Shakti Devi, petitioner No.1 forcibly raped her; she would be knowing the consequence of sexual intercourse at the time of alleged incident. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. Further even if these circumstances mentioned in complaint/FIR and statements under section 164-A Cr.P.C. are considered as true, that lead to the conclusion that she freely, voluntarily and consciously consented to go with petitioner and had sexual intercourse with her consent and was not in consequence of any misconception of fact that accused promised to marry her. I am conscious of the fact that statement of complainant recorded u/s 164-A Cr.P.C. cannot be brushed aside especially in rape case; but her statement has to be read along with all other attending circumstances. Except bald version of prosecutrix, there is nothing on record from which it can, prima facie, be proved that she was forcibly made to sexual intercourse by petitioner No.1. The criminal proceeding has been initiated only when complainant came to know that petitioner has solemnized marriage with one Shakti Devi. All allegations, if are taken at its face value to be correct, this is at the most a case of sexual intercourse with consent which does not constitute the offence of rape. At the most, it is a case of live in relationship inasmuch as the complainant was living in rented accommodation, provided by petitioner as admitted in FIR. The improved allegations in the statement under Section 164-A Cr.P.C. are false and even if the trial is directed to be proceeded with, the same would not conclude in the conviction of the accused and to proceed with the case would be sheer abuse of process of law. It is well settled law that any subsequent statement to fill up the lacunae in the complaint made earlier cannot be a ground for proceeding with the case. Now law has been settled in plethora of judgments that consent given by prosecutrix to sexual intercourse with the person with whom she has understanding and known to her for longtime, on a promise that he would marry her on the later date, cannot be said to be given under misconception of fact. It is not the case of complainant that the accused/petitioner made false promise of marriage from early stage; had it so, the petitioner would have not got her admitted in multipurpose Training programme at Ramnagar and used to pay all the expenses of her training , and handed over his ATM Card of J&K Bank Ltd., to her which she used and withdrew money from this ATM. It is also not the case of complainant that prior to 08.09.2016, the alleged date of rape, petitioner has ever made any attempt to commit sexual intercourse with her. It may be possible that complainant agreed to sexual intercourse on account of her love and passion with petitioner. It may be possible that petitioner would have intention to marry with complainant, but due to unavoidable circumstances he was unable to marry with complainant. This does not mean that accused/petitioner was having intention not to marry with complainant at all at initial stage of meeting with complainant. The failure to keep promise to marry the victim in future on certain date, due to reasons that are not clear, does not always amount to misconception of fact.

The allegations with regard to commission of rape on her appear to have been manufactured in order to create an illusion of cause of action with regard to commission of offence of rape. All these facts narrated are so improbable and so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. F.I.R., must disclose essential ingredients of the offence.

In Uday vs. State of Karnataka, (2003) 4 SCC 46, it has been held as under:-

"21. 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."

In view of what has been discussed above, I am of considered opinion that, the FIR impugned has been lodged with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge; thus criminal proceedings is manifestly attended with mala fide and has been maliciously instituted.

Consequently, the instant petition is allowed and FIR No.26/2016 dated 01.11.2016 registered at Police Station, Basantgarh for commission of offences under Sections 376, 506, 109 RPC, against the petitioners, is quashed.