The Jammu and Kashmir High Court on Thursday quashed a rape case, observing that “if a fully grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activities until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by the misconception of facts.”
A single-judge bench of Justice Sanjeev Kumar heard the petition filed under Section 482 of the Code of Criminal Procedure, seeking quashing of an FIR under Section 376 under the Indian Penal Code registered in Police Station Bari Brahamana.
The case of the prosecution is that on 06.12.2020, the prosecutrix lodged a written complaint in the Police Station, Bari Brahmana, Samba alleging therein that she had been continuously exploited and raped by the petitioner for the last 7 years on the promise of marriage. Since the petitioner refused to marry the prosecutrix, she filed a complaint before the police. On the basis of this complaint, the police registered the FIR for the offence under Section 376 IPC and arrested the petitioner.
Pardeep Majotra, advocate for the petitioner, submitted that the prosecutrix was having deep love affair with him and that he had consensual sex with the prosecutrix and, therefore, it cannot be said that an offence of rape was committed on her by him. It is further submitted that prosecutrix is a major, aged 24 years and therefore, she must know the consequences of having sexual relations with the petitioner without being married to him.
Petitioner’s counsel further argued that the prosecutrix has executed an affidavit before the Special Judicial Mobile Magistrate (Electricity), Sub Judge, Jammu on 11.01.2021, wherein she has stated that her statement under Section 164 CrPC was recorded under the influence of police officials as the police was threatening her that if she will not make the statement against the petitioner, then they will registered a case against her. It is also informed to the High Court, that now the petitioner has married the prosecutrix in the Sub-Jail Hiranagar where both of them executed marriage agreement and the petitioner and the prosecutrix have decided to live and reside like husband and wife.
Reliance was made on a judgment of Supreme Court in the case of State of Madhya Pradesh vs. Laxmi Narayan and ors, (Criminal Appeal No. 349/2019, decided on 05.03.2019) , with the submission that in view of the agreement arrived at between the parties, the offence alleged to have been committed by the petitioner may be allowed to be compounded.
The Court held that the judgment cited by counsel for the petitioner is not applicable to the case as the offence punishable under Section 376 IPC is non-compoundable on account of settlement between the accused and the prosecutrix, therefore, it cannot not be a ground to quash the criminal proceedings.
It was stated by the Court that the Supreme Court, in the case of State of Haryana Vs. Bhajanlal reported in 1992 Supp (1) , laid down that the power of the High Court under Section 482 CrPC can be exercised where the allegations made in the First Information Report or complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.
Moreover , the Apex Court in the case of Jayanti Rani Panda vs. State of Bengal 1984 CrLJ, held that failure to keep the promise of marriage at a future uncertain date does not always amount to a misconception of fact at the inception of the act itself, court further stated.
The Bench also pointed out that when the statement of prosecutrix recorded under Section 164 CrPC is read with her complaint, it is evident that there had been no false promise of marriage by the petitioner/accused, that too, with a view to induce the prosecutrix to sexual act. Reference was made to the judgement of Apex Court in the case of Deepak Gulati vs State of Haryana, (2013) 7 SCC 675.
“Having regard to the conduct of the prosecutrix and the legal position adumbrated above, it cannot be said that the petitioner has committed the offence alleged against him. More so, the petitioner has married the prosecutrix in the jail and, therefore, the promise allegedly extended has been fulfilled. In these circumstances, even if, we were to put the petitioner/accused to trial, nothing but clean acquittal will come out,” the Court ordered while quashing the FIR.