The Supreme Court on Thursday dismissed a plea filed by a prosecutrix challenging the pre-arrest bail granted to a rape accused alleging she was raped on the false pretext of marriage.
The bench led by Chief Justice NV Ramana and Justice Surya Kant observed that the prosecutrix was already married when she came into contact with the accused.
Dismissing the plea of the prosecutrix, the bench said that she is a police constable and has dealt with this kind of cases on day to day basis therefore she could not have been hoodwinked into a promise of marriage by a person.
The facts of the case are that the accused was working in Ellaqui Dehati Bank at Chanderkote, Ramban, whereas the prosecutrix is serving as a Constable in the Jammu and Kashmir Police Department. In her complaint, she has submitted that in the year 2018, she came in contact with the petitioner, who promised to marry her.
“From the facts narrated in the FIR, it emerges that the accused and the prosecutrix had been in relationship for about three years and during this period they developed physical relations with each other on several occasions. The prosecutrix accompanied the accused to Katra, Srinagar and several other places during this period. From the facts narrated in the pleadings of the parties, it further emerges that the prosecutrix was married at the time she came in contact with the accused,” noted the High Court in its order.
The High Court also noted that, “The prosecutrix remained in relationship with the petitioner for about three years right from the year 2018. She accompanied him to several places and spent many days and nights with him. As per own case of the prosecutrix, she enjoyed sexual relationship with the petitioner on a number of occasions. She, however, claims that she did so on account of the false promise of marriage extended to her by the petitioner.”
“The prosecutrix has, however, admitted in her pleadings that she was married in the year 2018 and she got divorce from her husband in January, 2020. There appears to be force in the contention of the accused that the promise of marriage by a man to a married lady is improbable and it is highly unlikely that a married lady would give her consent for having sexual relationship by believing such a promise,” said the High Court.
“This Court would not like to comment on the merits of the allegations made by the prosecutrix in the FIR but the material on record does suggest that the prosecutrix and the petitioner were deeply in love with each other, which resulted in sexual intercourse between the two,” held by the High Court.
The Supreme Court in the case of Uday v. State of Karnataka, (2003) 4 SCC 46, while considering a similar issue, made certain observations which are relevant to context of the present case. The same read as under:
“It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”
For what has been observed by the Supreme Court in Uday’s case (supra), it becomes clear that for making out a charge of rape against an accused, there has to be material to show that the prosecutrix had consented to sexual intercourse in consequence of a misconception of fact arising from the promise of the accused.