'Only After Physical Relationship, Issue Regarding Marriage Cropped Up': Calcutta High Court Quashes Rape Case

The Calcutta High Court recently quashed criminal proceedings against an accused for the alleged offence of rape on the ground that the physical relationship between him and the victim was consensual and the issue of marriage cropped up only after the physical relationship. The single judge bench of Justice Tirthankar Ghosh noted:“Having regard to the version of the complainant and the prosecution witnesses who were also aware regarding the relationship of the accused with the complainant particularly with regard to the narration of the facts that the complainant on her own had been to a hotel and it is only after the physical relationship, the issue regarding marriage cropped up, I am of the opinion that the principles settled hereinabove do apply in the facts and circumstances of the present case. As such the further continuance of the case and the consequent proceedings including the charge-sheet filed therein calls for interference.”The victim had alleged that she had an "affair" with the accused-petitioner who by promising to marry her, cohabitated with her for a considerable period of time.An FIR was registered by the police under Section 417 (Punishment for cheating), Section 376 (Punishment for Rape) and Section 506 (Punishment for criminal intimidation) of IPC against the accused-petitioner. The Investigating Officer (IO) on completion of investigation submitted charge-sheet. The IO relied upon 15 witnesses, out of which eight of the witnesses were the neighbours and acquaintance and the rest were two doctors and five police officials. In course of investigation, the statement of the victim was also recorded under Section 164 of the CrPC by the Judicial Magistrate.The counsel appearing for the accused-petitioner submitted that if the allegations made in the complaint and with the documents relied upon by the prosecution are accepted to be true, the same fail to make out any offence as in the present case both of them were major and were having a consenting relationship. The Court noted that in her statement under Section 164 of the CrPC, the victim stated that initially she had friendship with the accused who proposed her, however, she refused such proposal.“….after some days both of them had been to a hotel where she met friend of the accused and his girlfriend. There in a separate room the accused forced her for physical relationship, as a result of which thereafter she became attached to the accused and such physical relationship continued. After sometime when the complainant requested him to marry her, the accused promised to marry but started evading her," the court noted.The court relied upon the judgment of the Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608 wherein the Apex Court held:“…the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.”The court further relied upon the similar findings in the judgments of the Supreme Court in Uday v. State of Karnataka (2003) 4 SCC 46; Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and Ors (2019) 18 SCC 191; Maheshwar Tigga v. State of Jharkhand (2020) 10 SCC 108; Sonu v. State of U.P., 2021 SCC OnLine SC 181 and Shambhu Kharwar v. State of U.P. 2022 SCC OnLine SC 1032. Accordingly, the court quashed the criminal proceedings and the charge-sheet filed against the accused-petitioner. Case Title: Sk. Sohel Ashik v. State of West Bengal & AnrCitation: 2023 LiveLaw (Cal) 121Click Here to Read/Download Judgment

'Only After Physical Relationship, Issue Regarding Marriage Cropped Up': Calcutta High Court Quashes Rape Case

Udit Singh

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