Case title:
Sameer Amrut Kondekar vs. State of Maharashtra &Anr.
Date of Order:
29th of March, 2023
Bench:
HON’BLE JUSTICE BHARATI DANGRE
Parties:
Applicant: Sameer Amrut Kondekar
Respondent: State of Maharashtra &Anr
SUBJECT
By filing the current Revision Application, the Applicant is contesting the Additional Sessions Judge's decision below Exhibit 4 rejecting the Applicant's discharge request on the grounds that the current case does not involve consensual sexual intercourse and that, according to the prosecutrix's complaint, some of it may have even been forced.
IMPORTANT PROVISIONS
Indian Penal Code
Section376 (1)-Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
Section 323- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with a fine which may extend to one thousand rupees, or with both.
Section 67 of the Information Technology Act
Anyone who publishes, transmits, or causes to be published, seen, or heard any material that is lascivious, appeals to the prurient interest, or has the tendency to deprave and corrupt people who are likely, taking into account all relevant circumstances, to read, see, or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term that may extend to three years and fine that may extend to Five Lakh Rupees and
For a second or subsequent offense a term of imprisonment of either description that may reach five years and a fine that may reach ten lakh rupees.
OVERVIEW
- The complainant / prosecutrix, who is 27 years old, filed the complaint on February 17, 2016, reporting that she met the applicant in 2008 through the social networking site Orkut. After that, they became friends, and whenever she visited Mumbai, she would meet him. This is how the subject CR was created.
- In 2013, the complainant visited Mumbai and her friendship with a man turned into a romantic relationship. The applicant promised to marry her and both families were aware and agreeable to their relationship. However, whenever she visited his house, he forced himself upon her and they had a physical relationship in various locations.
- The complainant permitted the relationship on the assurance of marriage, but when she asked for it, he refused. They eventually separated, and the applicant continued to harass her through obscene messages, bad comments about her family, and physical and mental abuse.
- Sections 376, 323 of the Indian Criminal Code, as well as Section 67 of the Information Technology Act were invoked as a result of the aforementioned complaint.
- He is accused of committing rape against the prosecutrix in the charge sheet that has been filed following the conclusion of the inquiry.
ISSUES RAISED
Whether a Revision application should be allowed to discharge the applicant filed u/s 376, 323 of the Indian Penal Code and Section 67 of the Information Technology Act.
JUDGEMENT ANALYSIS
- The Hon’ble court commented that the complaint suggests that the promise to marry was not the only reason for the sexual relationship between the Applicant and the prosecutrix, as the prosecutrix was also in love with the Applicant.
- The complaint implies that the couple had a repeated sexual relationship out of their love affair, and not necessarily because of the promise of marriage on every occasion. They resided together for a period of time and then separated, and the only claim in the complaint is that the Applicant avoided performing the marriage.
- The Supreme Court of India, in the case of Pramod Suryabhan Pawar vs. State of Maharashtra &Anr [(2019) 9 SCC 608], distinguished between a false promise to marry and not fulfilling a promise to marry. Referring to an earlier case, Deepak Gulati vs. the State of Haryana[(2013) 7 SCC 675], the court stated that there must be adequate evidence to show that, at the initial stage itself, the accused had no intention whatsoever of keeping his promise to marry the victim.
- The court also noted that a 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 a misconception of fact. Therefore, the court expected the examination of whether a false promise of marriage was made by the accused at an early stage
- When analyzing Section 375 of the Indian Penal Code's definition of rape, it is important to understand that the phrase "without her consent" refers to a woman's unquestionable voluntary consent when she expresses her willingness to engage in a particular sexual act through words, gestures, or any other form of verbal or non-verbal communication.
- According to Section 90 of the Indian Criminal Code, consent that is understood to have been provided out of misplaced fear or misconception is not considered consent in the eyes of the law.
- It cannot be assumed that just because the physical contact with the prosecutrix had now ended, it was always done so against her will and without her agreement because the prosecutrix is at an age where she is aware of the relationship, both physical and mental.
- The court doesn’t believe there is enough evidence to proceed against the applicant by accusing him of violating Section 376 of the IPC given that the couple used to meet alone, without any indication that on every occasion when the physical relationship was established, the promise of marriage was made, when she had unambiguously consented to the physical indulgence, and without any complaint being made until she filed the FIR on February 17, 2016.
- The prosecutrix was allegedly assaulted, but there are no further specifics provided, and the charge is as vague as possible in terms of the offense under Section 323 of the IPC.
- In the aforementioned conditions, refusal to dismiss the Accused by the contested order by exercising power available in Court cannot be considered to be a valid exercise, much less one that is justified just by the assertion that there was forceful intercourse once in some time.
- Revision application is allowed by discharging the applicant in CR No. 61/2016 registered with Versova Police Station, Mumbai.
CONCLUSION
- The Punjab & Haryana High Court held the accused accountable under several IPC sections, including Section 376 for rape, in Bhupinder Singh v. Union Territory of Chandigarh [(2008) 8 SCC 531]. Although he wasn't her legal spouse, the woman only engaged in sexual activity with him since she thought of him as her husband.
- In Dileep Singh v. State of Bihar (AIR 2005 SC 203), the man was found guilty of rape in accordance with Section 375 of the IPC. The judges ruled that he deceived the girl into giving her consent to sexual activity by promising to marry her. The consent obtained by fraud against the victim is illegal.
- Undoubtedly, in this case, the prosecutrix was major both physically and emotionally when the connection started. She was at the age where it is assumed that she is mature enough to know the repercussions of her actions and in accordance with her own account, the relationship was sometimes forced upon her, and sometimes it was consensual.
- When two responsible adults come together and invest in a relationship, one cannot be held responsible just because the other complained about the act at a time when things were going ill.
Learn the practical aspects of Criminal Law Drafting HERE, IBC HERE, CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, NDPS Act HERE, Family Laws HERE, DV Act HERE
