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Bail in rape case under section 376 of IPC.

Bail in Rape Case under section 376 IPC.

“Rape is a crime against one’s mind, psyche and reputation. Rape

leaves a permanent scar on the life of the victim and it becomes

horrendous for the victim of rape to lead a dignified and well respected

life in the society. It is very unfortunate that there is a high increase in the

rape instances and ravenous maniacs are not even sparing the girls of a

very tender age. Some of the recent rape cases have been so horrifying

that the entire nation protestedto condemn these barbaric acts and raised

a voice to curb the said menace by inflicting more severe punishment.

The Government also promptly appointed Justice J.S. Verma Committee

to review laws on crimes against women, which recommended certain

dramatic changes in the Criminal law relating to offences against women.

Undoubtedly there is a manifold increase in the crime concerning rapes,

but all the rape cases which are filed have their own individual story and

factual matrix. While most of the cases may be genuine, wherein the girl

is a victim of this horrifying crime, or has been forced, blackmailed,

threatened to enter into physical relationship with a male on the false

pretext of marriage with the sole intent to physically exploit the girl but

there may be cases where both persons out of their own will and choice,

develop a physical relationship. Many of the cases are being reported by

those women who have consensual physical relationship with a man but

when the relationship breaks due to one or the other reason, the women

use the law as a weapon for vengeance and personal vendetta to extort

money and sometimes even to force the boy to get married to her. Out of

anger and frustration, they tend to convert such consensual sex as an

incident of rape, defeating the very purpose of the provision. There is a

clear demarcation between rape and consensual sex and in cases where

such controversies are involved, the court must very cautiously examine

the intentions of both the individuals involved and to check if even the

girl on the other hand is genuine or had malafide motives. Cases like

these not only make mockery of the sacred institution of marriage but

also inflate the statistics of rape cases which further deprecates our own

society.”

——————————————————————————————————————————————————————————————————————————————————————————

Bail Appn. 311/2013 Page 1

$~2

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ BAIL APPLN. 311/2013

ROHIT CHAUHAN

….. Petitioner

Through Mr. B.S. Rana with Mr.TarunGahlot,

Mr.VijenderBhardwaj and

Mr. Satyam Sisodiya, Advs.

versus

STATE NCT OF DELHI

….. Respondent

Through Mr. Navin Sharma, APP for the State.

Mr.MasroorAlam Khan, Adv. for the

complainant.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

O R D E R

% 22.05.2013

1. By this application filed under Section 438 Cr.P.C. the petitioner seeks

grant of anticipatory bail.

2. The petitioner herein is accused of committing the offence under Sections

376/506/328 IPC in FIR No. 39/2013 registered with PS Rani Bagh. As

per the prosecuterix, Ms.Rupali Thakur it is alleged that she had an affair

with the petitioner, RohitChauhan for the last 3 years and during this

period the petitioner had physical intimacy with her on the promise that

he would marry her.

3. As per the complainant, who is present in court, the petitioner took the Bail Appn. 311/2013 Page 2

complainant to his house at Rishhi Nagar, Rani Baghon 14.2.2010 on the

pretext of introducing her to his mother, but since there was no one

present in his house, he forcibly had physical relationship with her. It is

also the case of the prosecutrix, that when she tried to shout, then the

petitioner daunted her that he would kill her and defame her and at the

same time he asked her not to worry as he loved her and would marry her

butif in case she discloses the said relationship to anyone then the

petitioner would harm himself physically. It is also the case of the

prosecutrix that the petitioner also gave certain pills to her so that she

would not conceive. It is further alleged by the prosecutrix that the

petitioner also threatened to kill her family members and to show her

obscene videos to her parents and upload the same on ‘YouTube’, if she

dared to refuse to maintain physical relations with him. It is also the case

of the prosecuterix, that on 9.7.2012, the petitioner administered some

drug in her cold drink, which she drank and again was forced to have

physical relations with him. It is also the case of the prosecuterix that on

13.7.2012, she filed a complaint at Police Station, Shalimar Bagh which

was later transferred to Police Station Rani Bagh, where the petitioner

and his family members were called by the police and they gave

assurance that they will arrange the marriage of the petitioner with the

complainant only if the complainant withdraws the said complaint. As per

the complainant, the marriage was solemnized at AryaSamajMandir, Bail Appn. 311/2013 Page 3

HaritVihar, Burari, Delhi on 10th August, 2012, where the family of the

petitioner i.e. his mother Kiran, brother Kitty, cousin brother Vishnu

Yadav, petitioner’s MassiPoonam, petitioner’s other Massa and Massi

were all present. It is also the case of the prosecutrix that after the

solemnisation of the said marriage, the petitioner did not take her to his

house even for a day and rather after two days of marriage, the petitioner

and his family members took the prosecutrix to AryaSamajMandir, beat

her and forcibly took her signatures on one paper for dissolving the said

marriage. It is also the case of the prosecuterix that after the marriage, the

petitioner and his family members visited her locality several times and

abused her besides creating nuisance outside her house. It is also the case

of the prosecuterix that her sister was also threatened whenever she used

to go to her school. It is also the case of the prosecuterix that on

3.11.2012, she again made a complaint against the petitioner and his

family members in Police Station Shalimar Bagh, and when they were

called by the police, they had demanded for one flat and Rs. 20 lakhs if

the prosecutrix wanted to live with them. Thereafter, a complaint was

filed by the prosecutrix with the Crime Against Women Cell, Maurya

Enclave, so as to pursue her complaint dated 13th July, 2012.

4. Advancing the arguments on behalf of the petitioner, Mr. B.S. Rana,

Advocate, submits that the petitioner was abducted from his residence on

9.8.2012 at about 9 p.m. and he was severely beaten by the police in the Bail Appn. 311/2013 Page 4

police station and was taken to AryaSamajMandir, HaritVihar, Burari,

Delhi, where he was forced to solemnize the aforesaid marriage with the

complainant. To support his arguments counsel for the petitioner placed

reliance on some of the photographs placed on record wherein the

petitioner can be seen in a track suit and some police officials taking

photographs of the marriage from his mobile. It is also the case of the

petitioner that the complainant extorted a sum of Rs. 2.50 lakhs form the

petitioner and his family for getting the said marriage dissolvedand vide

settlement deed dated 10th August, 2012, which was duly signed by both

the parties and their relatives, the said marriage was declared null and

void. It is also the case of the petitioner that on 22nd January, 2013, the

mother of the petitioner lodged a complaint with the Commissioner of

Police to bring correct facts to the knowledge of the police, as to how the

petitioner was forced to marry the prosecutrix and how he was

blackmailed to pay the said amount of Rs. 2.50 lakhs to the prosecutrix. It

is also the case of the petitioner that when the mother of the petitioner

lodged a complaint, it is only thereafter that the respondent got the said

case registered against the petitioner on 30th January, 2013. Counsel for

the petitioner further submits that the petitioner and the complainant were

known to each other for the last three years and during that period, both

of them startedloving each other and the physical intimacy shared by both

of them was consensual and therefore, there is no question of the Bail Appn. 311/2013 Page 5

petitioner ever raping the complainant. Counsel also submits that the

petitioner had already filed a civil suit to seek decree of declaration to

declare the said marriage as null and void and the said suit is pending

disposal before the civil Court. Counsel furtherstates that after

solemnization of the said marriage the complainant lodged a complaint

against the petitioner after a gap of almost 3 years.

5. Counsel for the petitioner further submits that the complainant never

challenged the said deed of cancellation of marriage and the said

complaint was lodged by the prosecutrix only with a view to extort more

money from the petitioner and his family. During the course of the

arguments, counsel for the petitioner has also placed on record certain

photographs indicating as to how advance the complainant is. Counsel

further submits that the photographs make it apparent that the prosecutrix

can be seen dressed inappropriately, having beer while sitting next to

some boy. It could also be seen that she is lighting cigarette for him.

6. Based on the above submissions, counsel for the petitioner submits that

the petitioner has been falsely implicated by the respondent in the present

case.

7. The present bail application of the petitioner has been strongly opposed

by Mr Navin Sharmalearned APP for the State duly assisted by the

counsel representing the complainant. Mr Navin Sharma submits that the

petitioner sexually exploited the prosecutrix on the assurance of marrying Bail Appn. 311/2013 Page 6

her although he never intended to do so. Counsel also submits that there

are specific allegations levelled by the complainant against the petitioner,

forcing the complainant to have sexual relations with her and on many

occasions he even threatened to kill her and defame her. On one occasion

he even mixed some drug in her cold drink and thereafter, shared physical

intimacy with her. He also blackmailed the complainant that he would

upload her pictures/ videos on the ‘YouTube’ if she refused to maintain

sexual relations with him. Counsel further submits that the petitioner was

never forced to marry the complainant but the police officials were

deployed by the area SHO in civil uniform to ensure that no untoward

incident takes place at the time of solemnization of the marriage. Counsel

also submits that the petitioner has forged and fabricated the deed of

divorce dated 11th August, 2012 as on enquiry it was found that the said

divorce deed was never notarized by SaritaGarg, Advocate. Counsel also

submits that as per the complaint dated 22.1.2013 filed by the mother of

the petitioner to the SHO Shalimar Bagh, the prosecutrix left for Jaipur

immediately on the following day of the said marriage and she had

returned to Delhi after 3 days. Counsel for the State further submits that

if as per the mother of the petitioner she was at Jaipur on the following

day of her marriage then how could she have signed a divorce deed and

got the same attested from the notary.

8. I have heard learned counsel for the parties at considerable length and Bail Appn. 311/2013 Page 7

given my anxious consideration to the arguments advanced by them.

Before I proceed to decide the aforesaid bail application, it would be

pertinent to discuss some recent judgments in the said context.

9. The judgment of the Apex Court, in the case of Deepak Gulati V. State of

Haryana,Criminal Appeal No. 2322/2010, the Hon’ble Supreme Court

while dealing with an appeal filed by the appellant convicted for the

offence punishable under Sections 365 and 376 of the Indian Penal Code,

1806, held as under:-

“14. The undisputed facts of the case are as under:

I. The prosecutrix was 19 years of age at the time of the

said incident.

II. She had inclination towards the appellant, and had

willingly gone with him to Kurukshetra to get married.

III. The appellant had been giving her assurance of the fact

that he would get married to her.

IV. 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 appellant for several days, and had

travelled with him from one place to another.

V. Even after leaving the hostel of Kurukshetra University,

she agreed and proceeded to go with the appellant to

Ambala, to get married to him there.

18. Consent may be express or implied, coerced or

misguided, obtained willingly or through deceit. Consent is

an act of reason, accompanied by deliberation, the mind

weighing, as in a balance, the good and evil on each side.

There is a clear distinction between rape and consensual sex

and in a case like this, the court must very carefully

examine whether the accused 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 latter

falls within the ambit of cheating or deception. There is a

distinction between the mere breach of a promise, and not

fulfilling a false promise.Bail Appn. 311/2013 Page 8

21. Hence, it is evident that there must be adequate

evidence to show that at the relevant time, i.e. at initial

stage itself, the accused had no intention whatsoever, of

keeping his promise to marry the victim. There may, of

course, be circumstances, when a person having the best of

intentions is unable to marry the victim owing to various

unavoidable circumstances. The “failure to keep a promise

made with respect to a future uncertain date, due to reasons

that are not very clear from the evidence available, does not

always amount to misconception of fact. In order to come

within the meaning of the term misconception of fact, the

fact must have an immediate relevance.” Section 90 IPC

cannot be called into aid in such a situation, to pardon the

act of a girl in entirety, and fasten criminal liability on the

other, unless the court is assured of the fact that from the

very beginning, the accused had never really intended to

marry her.

22. The instant case is factually very similar to the case of

Uday (Supra), wherein the following facts were found to

exist:

I. The prosecutrix was 19 years of age and had adequate

intelligence and maturity to understand the significance and

morality associated with the act she was consenting to.

II. She was conscious of the fact that her marriage may not

take place owing to various considerations, including the

caste factor.

III. It was difficult to impute to the accused, knowledge of

the fact that the prosecutrix had consented as a

consequence of a misconception of fact that had arisen from

his promise to marry her.

IV. There was no evidence to prove conclusively, that the

appellant had never intended to marry the prosecutrix.

23. To conclude, the prosecutrix had left her home

voluntarily, of her own free will to get married to the

appellant. She was 19 years of age at the relevant time and

was, hence, capable of understanding the complications and

issues surrounding her marriage to the appellant. According

to the version of events provided by her, the prosecutrix had

called the appellant on a number given to her by him, to ask

him why he had not met her at the place that had been predecided by them. She also waited for him for a long time,

and when he finally arrived she went with him to the

Karnalake where they indulged in sexual intercourse. She

did not raise any objection at this stage and made no

complaints to anyone. Thereafter, she also went to

Kurukshetra with the appellant, where she lived with his

relatives. Here to, the prosecutrix voluntarily became

intimate with the appellant. She then, for some reason,

went to live in the hostel at Kurukshetra University illegally, Bail Appn. 311/2013 Page 9

and once again came into contact with the appellant at the

Birla Mandir. Thereafter, she even proceeded with the

appellant to the old bus-stand in Kurukshetra, to leave for

Ambala so that the two of them could get married in court at

Ambala. However, here they were apprehended by the

police.

24. If the prosecutrix was in fact going to Ambala to marry

the appellant, as stands fully established from the evidence

on record, we fail to understand on what basis the allegation

of “false promise of marriage” has been raised by the

prosecutrix. We also fail to comprehend the circumstances in

which a charge of deceit/rape can be leveled against the

appellant, in light of the afore-mentioned fact situation.”

10.While dealing with the anticipatory bail application of an accused of

committing the same offence, this Court in the case of Mohd. Iqbal V.

State , Bail Application no. 2145 of 2009, held as under:-

“There is an old Jewish saying “if you are close when you

should be distant, you will be distant when you should be

close”. It is for both man and woman to restrain

themselves and not to indulge in intimate activities prior to

the marriage. Undoubtedly it is responsibility, moral &

ethical, both, on the part of men not to exploit any woman

by extending false promise or through devious acts to force

or induce the girl for sexual relationship. But ultimately, it is

woman herself who is the protector of her own body.

Promise to marry may or may not culminate into marriage.

It is the prime responsibility of the woman in the

relationship or even otherwise to protect her honour, dignity

and modesty. A woman should not throw herself to a man

and indulge in promiscuity, becoming source of hilarity. It is

for her to maintain her purity, chastity and virtues”

11. In another bail application No. 1760 of 2012 dealing with the same

offence, this Court held as under:-

“Rape is one of the most barbaric and heinous crimes not

only against the victim of the rape but also against the

society as a whole. The cases of rape, gang rape and digital

rape are on increase and perpetrators of this inhuman and

brutal crime are worse than even the beasts and deserve to

be dealt with a heavy hand. The entire country is seriously

debating this issue and there are proposals coming forth Bail Appn. 311/2013 Page 10

that death penalty should be the answer to deal with the

accused involved in such heinous crime. Having said this, I

am also constrained to observe here that no one should be

allowed to trivialise the gravity of offence by misusing the

same as a weapon for vengeance or vendetta.”

12.It is appalling to see that rape rears its ugly facade almost every day. As

per the National Crime Record Bureau, in India, a rape is committed

every 20 minutes. Rape being the fastest growing crime is undoubtedly

one of the most deplorable, belligerent and atrociousact committed

against the dignity of a woman. Rape has been held to be even more

serious than murderwhich not only destroysthe woman physically but

also shatters her innerself by destroying her each living moment

emotionally and psychologically.

13. Rape is a crime against one’s mind, psyche and reputation. Rape

leaves a permanent scar on the life of the victim and it becomes

horrendous for the victim of rape to lead a dignified and well respected

life in the society. It is very unfortunate that there is a high increase in the

rape instances and ravenous maniacs are not even sparing the girls of a

very tender age. Some of the recent rape cases have been so horrifying

that the entire nation protestedto condemn these barbaric acts and raised

a voice to curb the said menace by inflicting more severe punishment.

The Government also promptly appointed Justice J.S. Verma Committee

to review laws on crimes against women, which recommended certain

dramatic changes in the Criminal law relating to offences against women.Bail Appn. 311/2013 Page 11

14.Undoubtedly there is a manifold increase in the crime concerning rapes,

but all the rape cases which are filed have their own individual story and

factual matrix. While most of the cases may be genuine, wherein the girl

is a victim of this horrifying crime, or has been forced, blackmailed,

threatened to enter into physical relationship with a male on the false

pretext of marriage with the sole intent to physically exploit the girl but

there may be cases where both persons out of their own will and choice,

develop a physical relationship. Many of the cases are being reported by

those women who have consensual physical relationship with a man but

when the relationship breaks due to one or the other reason, the women

use the law as a weapon for vengeance and personal vendetta to extort

money and sometimes even to force the boy to get married to her. Out of

anger and frustration, they tend to convert such consensual sex as an

incident of rape, defeating the very purpose of the provision. There is a

clear demarcation between rape and consensual sex and in cases where

such controversies are involved, the court must very cautiously examine

the intentions of both the individuals involved and to check if even the

girl on the other hand is genuine or had malafide motives. Cases like

these not only make mockery of the sacred institution of marriage but

also inflate the statistics of rape cases which further deprecates our own

society.Bail Appn. 311/2013 Page 12

15. In the facts of the present case, here is a complainant who appears to be

quite an ultra-modern lady with an open outlook towards life, enjoying

alcohol in the company of menwhich is evident from the photographs

placed on record, which have not been denied by the prosecutrix present

in court.She does not appear to be such a vulnerable lady that she would

not raise her voice on being immensely exploited over such a long period

of time. As per the prosecutrix, she had a physical relationship with the

petitioner for the last more than 2 ½ years and it is not just a single act of

sharing physical intimacy but the same continued for almost a long period

of three years. There lies a possibility that the petitioner might have then

refused to marry the prosecutrix and this refusal on the part of the

petitioner gave a serious jolt to the prosecutrix who then with the help of

police, solemnized the marriage with him, in the wee hours of the night

when petitioner was in his casual apparels(track suit). It is only on

30.01.2013, that the complainant raised her voicefor the first time and

made allegations of rape against the petitioner. It is an admitted case that

the said marriage ultimately did not consummate as the complainant was

never brought to the matrimonial home and the petitioner has already

filed a civil suit to seek decree of declaration for declaring the said

marriage as null and void. Bail Appn. 311/2013 Page 13

16.The court can also not be oblivious of the fact that the marriage between

the complainant and the petitioner had indeed taken place and both the

parties have not disputed this fact. Therefore, this circumstance by itself

entitles the petitioner to the grant of the anticipatory bail. We are not

commenting here upon the circumstances which led to the solemnisation

of the said marriage as there is a civil suit already pending before the

court.It would be worthwhile to mention that being the victim of such a

reprehensible crime, one should lodge a complaint immediately, or within

a reasonable period of time unless there are sufficient reasons to explain

the long delay. Delay in lodging an FIR, in such like cases can ultimately

diminish the chances of conviction, as due to such delay, the medical

evidence and the other circumstantial evidence may rarely be available to

support the case of prosecution.

17.It is a settled position of law, that every case is to be dealt based on its

individual factual matrix and no set principle or straight jacket formula

can be applied specifically while dealing with bail matters where only

prima facie view can be taken to appreciate the facts in a given case.

18. Considering the facts of the present case, in light of the aforesaid

discussion and the material on record, I am inclined to grant anticipatory

bail to the petitioner. Accordingly in the event of arrest, the petitioner

shall be released on bail subject to furnishing of his personal bonds in the Bail Appn. 311/2013 Page 14

sum of Rs. 50,000 with one surety of the like amount to the satisfaction of

the arresting officer.

19. It is directed that the petitioner and his family members shall not visit

the prosecutrix or try to intimidate her.

20. The present anticipatory bail application stands disposed of. It is ordered

accordingly.

Dasti.

KAILASH GAMBHIR, J

MAY 22, 2013

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