The Allahabad High Court while dismissing an application held that a man establishes a sexual relationship with a woman against her will and without her consent is said to have committed rape on the woman.
A single-judge bench of Justice Anish Kumar Gupta passed this order while hearing an application under section 482 filed by Raghav Kumar.
The application under Section 482 Cr.P.C has been filed seeking quashing of the charge-sheet dated 13.12.2018 in Case under section 504, 506, 376 I.P.C, Police Station Mahila Thana, District Agra, pending in the court of the District and Sessions Judge, Agra.
The facts of the case are that the opposite party no 2 herein initially submitted a complaint dated 12.11.2018 before the Additional Director General of Police, Agra Zone, Agra, seeking registration of the FIR and strict action against the applicant herein.
On the aforesaid complaint, as per the direction of the Additional Director General of Police, the FIR has been registered at Women Police Station, Agra, on 15.11.2018, whereby the Case was registered for the offences under Sections 504, 506, 328, 34, 376 IPC against the applicant and the entire family members of the applicant.
As per the FIR, both the applicant as well as the opposite party no 2 are highly educated persons and belong to a higher social status. Both of them were studying together in Agra and used to meet each other. The allegation in the FIR is that once in 2016, the entire family members of the applicant came to the house of the opposite party no 2 and proposed the marriage of applicant with opposite party no 2. The aforesaid proposal was rejected by opposite party no 2. Therefore, the family members of the applicant returned. However, the said applicant continued to talk with the applicant herein. The opposite party no 2 herein went to Delhi for her studies.
Subsequently, after about a year on 16.10.2017, in the morning at 10:00 A.M the applicant went to the house of the opposite party no 2 and informed her about the illness and hospitalization of his mother and asked the opposite party no 2 to donate the blood. In view thereof, the opposite party no 2 accompanied the applicant herein, however, instead of taking her to the hospital the applicant took her to his house, where, except the mother all other family members met and welcomed her in the house. The sisters-in-law (bhabhis) of the applicant herein went in the kitchen to bring tea for her.
Subsequently, applicant’s elder brother Ashish brought tea and brothers- Ketan Kumar and Atul brought biscuits and namkeen etc. After consuming the tea, she became unconscious. When she regained her consciousness, she found herself without clothes and she realized that she has been raped. Then, the sisters-in-law of the applicant brought clothes of the opposite party no 2, then, she wore the said clothes. Then, the opposite party no 2 told them that she will complain about this incident to the police. Then, the applicant putting the revolver on his head told her that he loves her and wanted to marry her, if she refused, he will commit suicide right then.
Then, all the family members came inside the room and called her a bride and at the same time all the persons showed the nude pictures of the opposite party no 2, which they had taken during the aforesaid incident. Thereby, the opposite party no 2 got frightened. Thereafter, on the basis of the aforesaid nude pictures taken by the applicant and other family members, they started blackmailing the opposite party no 2.
In such compelling circumstances, the opposite party no 2 agreed to marry the applicant herein. Thereafter, after sometime all the family members except the father of the applicant herein came to the house of the opposite party no 2 and a golden ring was given to the opposite party no 2. Thereafter, under the pretext of marriage the applicant started physical exploitation of the opposite party no 2 by taking her at different places and hotels and on one occasion he has filled vermilion in parting of her hair.
Thereafter, the family members of the applicant took the opposite party no 2 in various relations and introduced her as the wife of the applicant and started exchanging gifts. Subsequently, the parents of the opposite party no 2 also agreed to marry the opposite party no 2 with the applicant herein.
Subsequently, the opposite party no 2 went to Delhi for preparation of IAS Exams and also started doing private jobs there. The applicant also came there and continued to exploit the opposite party no 2 physically.
Thereupon, after physical exploitation he used to take all the salary of the opposite party no 2 forcibly. Fed up with all this, the opposite party no 2 left the job and came back to her house and the last time the applicant herein established physical relationship with the opposite party no 2 at the house of the opposite party no 2.
Subsequently thereto, when the opposite party no 2 pressurised the applicant to marry the opposite party no 2, then, he started avoiding the same and told the opposite party no 2 that once they had gone with a proposal to marry the opposite party no 2, then, she has rejected the proposal of marriage and thereby she has insulted him and his family members, therefore, by doing the aforesaid incidents as narrated hereinabove, they have taken a revenge of that insult committed by the opposite party no 2. Now, they will not marry the applicant with the opposite party no 2. The applicant also threatened her of dire consequences and told that she should commit suicide. Thereafter, he switched off his phone.
When she called the mother of the applicant she also threatened her that if she made any complaint, posters of her nude pictures shall be placed in the entire locality of the opposite party no 2. On the basis of the aforesaid narration of the facts in the FIR she has asked for a strict action against the applicant and the entire family members of the applicant.
After due investigation, the charge-sheet was filed on 13.12.2018 only against the applicant herein for the offences under Sections 376, 504, 506 IPC and the names of all other accused in the FIR were dropped by the Investigation Officer.
The Court observed that,
In the light of the judgements of the aforesaid position of law, if the facts of the case are examined, we will find that though the applicant and the opposite party no 2 were friends, the opposite party no 2 had never agreed for any relationship with the applicant other than the friendship and that is apparent from the fact that initially the opposite party no 2 has rejected the proposal of marriage with the applicant. However, she was continuously in talking terms with the applicant.
As per the allegations in the FIR, which are supported in her 161 CrPC statement as well as in her 164 CrPC statement, the applicant herein has taken opposite party no 2 to his house on the pretext of illness and hospitalization of his mother where she has been given tea which was intoxicated and after consuming the said tea the opposite party no 2 became unconscious and she was sexually assaulted without her consent and nude pictures of the opposite party no 2 were taken, thereafter, she was blackmailed to give consent to the relationship.
Therefore, for the initial incident as alleged in the FIR there was no consent on the part of the opposite party no 2 herein. Therefore, the offence of rape is prima facie constituted against the applicant, however, the subsequent relationship of the applicant with the opposite party no 2 was initially under threat perception created by the applicant and his family members and subsequently a promise of marriage was also stated to have been given by the applicant, which was accepted by the opposite party no 2 under the threat perceptions created by the applicant and his family members.
However subsequently, they are stated to have been in consensual relationship for sufficiently long periods of time and applicant and his family member have refused to marry the opposite party no 2, the FIR has been lodged and the fact that they were in continuous physical relationship is sufficiently established during the investigation.
“Therefore, in the considered opinion of this Court since the initial relationship was established by the applicant with an element of cheating, threat etc, against the will of the opposite party no 2, prima facie an offence under Section 376 I.P.C is made out against the applicant. Though, the subsequent relationship, which appears to be a consensual relationship under the promise of marriage, however, such consent is also stated to be given by the opposite party no 2 initially under the threat perception created by the applicant herein. Therefore, in the considered opinion of ths Court the judgements relied upon by the applicant in Shivashankar (supra), Pramod Suryabhan Pawar (supra) and Jiyaullah (supra) are of no help to the applicant, in view of the initial act committed against the will of the opposite party no 2.
Therefore, the Court does not find any good reason to quash the proceedings as prayed by the applicant,” the Court also observed while dismissing the application.