Monday, 3 June 2013

Bail/Anticipatory Bail in Rape Cases 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."
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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

1 comment:

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