Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 3846/2013 Decided on 13.09.2013 IN THE MATTER OF : ROBIN SETHI ..... Petitioner Through: Mr. Raj Kamal, Advocate versus STATE OF NCT OF DELHI AND ORS ..... Respondents Through: Mr. Rajat Katyal, APP for the State with SI Jitender Rana, CAW Cell, North Distt. CORAM HON'BLE MS.JUSTICE HIMA KOHLI HIMA KOHLI, J.
(Oral) 1. The present petition has been filed by the petitioner under Section 482 Cr.PC praying inter alia for quashing of the charge-sheet dated 12.01.2013 filed in case FIR No.95/2012 dated 15.03.2012, under 376/312/506/34 IPC at Police Station: Sarai Rohilla, Delhi. Sections The petitioner also seeks quashing of the order dated 31.08.2013 whereby, charges have been framed against him by the learned ASJ under Sections 376/506 IPC.
2. Counsel for the petitioner states that while framing the order on charge, the Sessions Court had erred inasmuch as it had failed to take into consideration the fact that there was no evidence on record to show that the petitioner had indulged in any act that could result in holding him guilty for the offence under Sections 376/506 IPC. Rather, a perusal of the entire allegations levelled against the petitioner would reveal that the complainant is a mature lady and she was not under any misconception of facts and nor had the petitioner extended any false promise of marriage to her. He submits that the physical relationship that had blossomed between the parties was voluntary in nature and now the prosecutrix is trying to wreak a revenge on the petitioner for a failed romance. In support of his submission that there was no misconception in the mind of the prosecutrix as contemplated under Section 90 of the IPC and a mere belief that the promise of marriage was going to be fulfilled, cannot be treated as a misconception of fact, learned counsel relies on the decision of the Supreme Court in the case of Uday vs. State of Karnataka reported as (2003) 4 SCC46 He also refers to the decision in the case of Shri Goutam Prasadi vs. State of Tripura reported as 2012(3) GLD626(Gau.) to contend that in the absence of any deception or misrepresentation or allurement at the time of committing sexual intercourse, it cannot be urged that the consent was given by the prosecutrix under any misconception of facts.
3. Learned APP for the State opposes the present petition and supports the impugned order on charge by submitting that the Sessions Court had carefully examined the case set up by the prosecution on the basis of a complaint lodged by the prosecutrix and the material gathered in the course of the investigation. He states that though the prosecution had named six persons as accused and the said list had included the petitioner, his parents, two brothers and a sister-in-law, the trial court had found that there was no evidence available against the accused No.2 to 6 for allegedly aiding the petitioner herein (accused No.1) in establishing a physical relationship with the prosecutrix on a false pretext of marriage and as a result, the said accused No.2 to 6 had been discharged. However, upon considering the material placed on record by the State, the Sessions Court was of the opinion that the petitioner ought to be charged for the offence punishable under Sections 376/506 IPC. Learned APP urges that at the stage of framing of charge, the Court is only required to take a preliminary view on the basis of the evidence placed before it and since there was enough material brought on record against the petitioner, the learned ASJ had proceeded to pass an order on charge against him.
4. Coming to the facts of the present case as set out in the charge sheet dated 12.1.2013, the prosecutrix is twenty one years old and studying in the Delhi University. The case of the prosecution is that on 29.09.2009, the prosecutrix had come in contact with the petitioner at a function and they had developed friendship. As per the prosecutrix, the petitioner had taken her to his parents and expressed his willingness to marry her in the presence of his family members. He had assured her that they would soon become husband and wife. Thereafter, the petitioner had taken her out of town to various places and had exploited her on the representation that they would soon solemnize their marriage. In October 2009, when the petitioner had visited the residence of the prosecutrix and found her alone at home, he had established a physical relation with her and compelled her not to disclose the same to anyone. The petitioner had taken the complainant out of town and both of them had stayed at Shimla for almost a week. Thereafter, in the year 2010, the petitioner had taken the complainant to Manali and had again allegedly established a physical relationship with her.
5. As per the prosecutrix, she had become pregnant in March, 2010 and when she informed the petitioner about the said development, he had failed to pay any heed and had asked her to terminate the pregnancy to avoid any disrepute to his family. In July 2010, the petitioner had taken the prosecutrix to Dalhousie and had again forcibly established a physical relationship with her on the pretext of marrying her. Finally, when the date of the marriage of the parties was not fixed, the complainant became suspicious and informed her parents, whereafter the parents of both the sides had met with each other and they had agreed to perform a Roka ceremony of the parties. But immediately after the Roka ceremony was performed, the prosecutrix discovered that she had become pregnant and the said pregnancy was again got terminated upon the petitioner exerting pressure on her. The aforesaid affair had continued upto July 2011 but finally, the complainant was allegedly threatened with dire consequences and was told by the petitioner and his family members in so many words that they had performed the Roka ceremony only to avoid any legal action against them. When the parents of the complainant had tried to contact the petitioner and his family members, they were also threatened. As a result, the subject FIR came to be registered.
6. After arguments were addressed by both sides, the learned ASJ arrived at the conclusion that upon going through the complaint, the statements of the prosecutrix recorded under Sections 161 and 164 Cr.PC and having regard to the fact that she had categorically alleged that the petitioner had established a physical relationship with her on several occasions from the year 2009 onwards and he had continued to assure her that he would marry her, it is a case that would require trial to determine as to whether the prosecutrix, while succumbing to the physical advances of the accused, was kept under any misconception of facts to the effect that he would eventually marry her whereas he never had any such intention since the very inception of the relationship. It was further observed by the Sessions Court that on the basis of the material brought on record, it was difficult to determine with certainty as to whether the petitioner had never intended to marry the prosecutrix and limited to the aforesaid aspect, trial was required to be conducted. Lastly, it was observed that though the allegations levelled by the prosecutrix in her statement recorded under Section 161 Cr.PC that the petitioner had threatened her by showing her some photographs or videos was not established by way of any recovery, yet at that stage, her statement could not be entirely discarded.
7. The Court has perused the aforesaid observations made by the learned ASJ in the impugned order. It has also carefully considered the arguments advanced by the counsels for the parties and the decisions cited by the counsel for the petitioner in support of his submission.
8. The law on the aspect of appreciation of evidence at the stage of framing of charge is well settled. For the purpose of framing of charge, the Court is required to judicially consider whether on consideration of the materials on record, it can be said that the accused has been reasonably connected with the offence alleged to have been committed and that on the basis of the said materials, there is a reasonable probability or chance of the accused being found guility of the offence alleged. [Ref.: Sati Kanta Guha and Anr. vs. State of West Bengal, 1911 Cri.LJ1644. At the stage of the framing of charge, the court is required to peruse the evidence on record without going into the deep probative value and conclude if there exists a ground for presuming that the offence has been committed and not necessarily to determine that there exists a ground for convicting the accused.
9. In the case of Uday (supra), after examining the law on the issue of rape without consent, the Supreme Court had observed 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 facts and a false promise is not a fact within the meaning of Section 90 IPC. The Supreme Court had noted that there is no straitjacket formula for determining as to whether the consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under misconception of facts and held that in the ultimate analysis, the tests laid down by the courts can only provide guidance to the judicial mind when considering the question of consent. However, in each case, the Court must consider the evidence before it and the surrounding circumstances before arriving at a conclusion for the reason that each case is based on its own peculiar facts and circumstances, which may have a bearing on the question whether the consent was voluntary in nature or was given under a misconception of facts.
10. No doubt, the decision in the case of Uday (supra) does examine the effect of consent obtained by fraud and discusses the test to be conducted so as to discover as to whether the consent in a particular case is voluntary in nature or whether it is vitiated so as not to be a legal consent. However, a perusal of the aforesaid decision reveals that the Supreme Court was examining a case where evidence had been duly adduced by the prosecution and upon perusing the said evidence, it had embarked on a discussion as to whether it was reasonably possible in the given facts and circumstances, to infer lack of consent on the part of the prosecutrix therein.
11. In the present case, when the materials placed on record were sifted by the Sessions Court to examine if there is a reasonable probability of the petitioner being found guilty of the offence alleged, it had arrived at a fair conclusion that though no case was made out against the accused No.2 to 6, there is sufficient evidence available to frame charges against the petitioner and thereafter decide as to whether the prosecution could prove each and every ingredient of the offence, the absence of consent being one of them. The court finds merit in the submission made by the learned APP for the State that some evidence would have to be led to establish as to whether at the relevant time, the petitioner did not have any intention of keeping his promise to marry the prosecutrix.
12. As a result, this Court is of the opinion that in the given facts and circumstances of the present case, there appears no justification for interfering with the impugned order on charge framed by the learned Sessions Court as the same does not suffer from any irregularity. after the evidence comes to be recorded It is only in the case that it can be determined with certainty as to whether there was actually any absence of deception or misrepresentation or extension of any allurement by the petitioner at the time of committing sexual intercourse with the prosecutrix. It would therefore be premature to conclude that the consent given by the prosecutrix was not under any misconception of facts as alleged by the petitioner and the order on charge ought to be set aside. The present petition is accordingly dismissed as being devoid of merits.
13. Needless to state that the observations made hereinabove are prima facie in nature and are limited to examining the correctness of the impugned order on charge and the same shall not be treated as a finding returned on the merits of the case, which shall be tried and decided by the trial court uninfluenced by this order. SEPTEMBER13 2013 rkb/mk CRL.MC38462013 (HIMA KOHLI)