IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-28333 of 2010 Date of decision: 30.11.2010 Amanyodh Singh Nagra …. Petitioner Versus State of Punjab …. Respondent Present : Mr. N.S. Sodhi, Advocate for the petitioner. Mr. M.C. Berry, Addl. A.G., Punjab. Mr. Vikram K. Chaudhari, Advocate for the complainant. *** S.S. SARON, J. The petitioner seeks pre-arrest bail in a case registered against him on 7.9.2010 for the offence under Section 376 Indian Penal Code. The FIR (Annexure P2) has been registered on the complaint of the prosecutrix. It is alleged by the complainant that she was working as a sales girl with Kapson, Sector 17, Chandigarh. In September, 2008 she was working with Pepe Jeans, Sector 17, Chandigarh. One day the petitioner came to the complainant in the showroom of Pepe Jeans where she was working and expressed his desire to have friendship with her. The complainant, however, did not agree. Somehow the petitioner found out the date of birth of the complainant. On that day i.e. 19.10.2008, the petitioner called the complainant to Sunrise Hotel, Sector 52, Chandigarh for celebrating her birthday. On his repeated persuasion, the complainant agreed to go with him. On reaching there, the petitioner tried to force himself on the prosecutrix but she came out from there. Thereafter the petitioner Crl. Misc. No. M-28333 of 2010 [2] through his friend namely Rohit approached the complainant for compromise with him. He also increased the frequency of his meetings with her. The petitioner expressed his desire to marry the complainant. The petitioner used to live in a rented room at Kharar. One day the petitioner called the complainant to his room and expressed his intention to marry her. He also took the complainant to the Gurudwara Sahib, Daun. In the presence of Guru Granth Sahib, the petitioner assured the complainant that he would marry her and he also took four rounds with her around the Nishan Sahib. He did this because earlier he had administered some intoxicant to the complainant and while the complainant was sedated, he committed rape on her. On the assurance of the petitioner in the Gurudwara, the complainant became assured that he was prepared to marry her. Then the petitioner represented to the complainant that when he was going to marry her then there was nothing wrong in having physical relations amongst themselves. In this manner, the petitioner had physical relations with the complainant for 3/4 months. He committed sexual intercourse with the complainant many times in his room at Kharar. In April, 2009, the petitioner went to Australia and from there also through phone he remained in contact with the complainant and continued to assure her that he would marry with her. In December, 2009, the petitioner returned to India and joined a course of IELTS at Mohali. On the pretext of marriage, he kept having physical relations with the complainant. Then after 29.1.2010, the petitioner again went to Australia. From there, he told the complainant that he is in Australia for a short time and he was persuading his parents for marriage with the complainant. Later on, it is alleged that the petitioner put off the complainant and told her that he may not return back from Australia and he switched of his telephone. The father of the complainant got a heart attack on 15.7.2010 and he was admitted in PGI, Chandigarh. When the complainant was returning from PGI, she saw the car of the Crl. Misc. No. M-28333 of 2010 [3] petitioner in the University. She followed the car and when she met the petitioner, he flatly refused to get married to her saying that he was a ‘Jat’ while the complainant was a Scheduled Castes. In this manner, it is alleged that the petitioner had cheated the complainant and on the pretext of marriage with her wrongly maintained physical relations and ruined her life. It was, therefore, requested that a case of rape and cheating be registered against the petitioner and she be given justice. Learned counsel for the petitioner has contended that the complaint lodged by the prosecutrix is absolutely false. It is submitted that there is a delay of more than one and a half years in the registration of FIR; besides, the petitioner is aged 26 years, whereas the complainant is aged 34 years. It is submitted that the allegations of physical relations with the complainant are as per allegations in the FIR allegedly on the pretext of marriage. Therefore, it is submitted that no offence is made out. Besides, it is submitted that no complaint was made to anyone regarding the physical relations. Moreover, no medical evidence is there to corroborate the allegations as made. It is submitted that the petitioner passed B.Tech and joined Avtar Motor works, Phase VI, Mohali in 2008 where he remained till March 2009. During this time, the prosecutrix came in contact with the petitioner at Pepe Jeans, Sector-17, Chandigarh when the petitioner had gone to purchase some articles in the showroom where she was employed as a sales girl. The petitioner and the prosecutrix became friends and they used to take their meals or eat out together in the market. It is submitted that the petitioner went to Australia in April 2009 and returned back to India in July 2009. On 15/16.08.2009, the petitioner again went to Australia and he returned back on 12.12.2009. Thereafter, he again went to Australia on 20.1.2010 and returned on 13.7.2010 and at present, he is living with his parents at village Behram, District Nawanshahar. It is submitted that the complainant Crl. Misc. No. M-28333 of 2010 [4] had demanded some rupees to join and pass IELTS. She told the petitioner that she wanted to go abroad where they would live together for which the petitioner had made her understand that neither were they from one and same caste nor the parents of the petitioner would agree for the alliance of this marriage. The petitioner did not pay or send any amount to the complainant and refused to give consent for marriage; on account of which the complainant got infuriated and held out open threats that she would not spare the petitioner. It is submitted that on account of the false complaint of the prosecutrix, the police officials of Women Cell, Mohali called the petitioner time and again and he used to for no reason remain at the Police Station. It is submitted that the police officials of Women Cell, Mohali are continuously harassing the petitioner. It is also submitted that the allegation that the petitioner was chased by the complainant on 15.7.2010, when she was returning from PGI Chandigarh, in the University are false as the flight of the petitioner had landed at Delhi on the same day. Therefore, it is submitted that the petitioner could not be at Chandigarh on 15.7.2010 and the entire allegations in the FIR are false. In response, learned State counsel and the complainant have submitted that the petitioner had been sexually abusing the complainant continuously on the false pretext of marriage. It is submitted that in the FIR it is alleged that the petitioner had physical relations with the complainant by administering her some intoxicant and when she was in a sedate condition. Therefore, it is submitted that the petitioner is not entitled to the concession of pre-arrest bail. I have given my thoughtful consideration to the matter. It may be noticed that the allegations in the FIR are that the petitioner had sexually abused the complainant which according to the complainant amount to commission of offence of rape. According to the learned counsel for the petitioner, the allegations of rape are an Crl. Misc. No. M-28333 of 2010 [5] after-thought and in any case do not fasten any criminal liability on the petitioner. It may however be noticed that there are clear allegations in the FIR that the prosecutrix was administered some intoxicant and when she was in a sedate condition, rape was committed on her. It may be noticed that the chemical examination of the prosecutrix was conducted. MLR was done and vaginal swabs were taken. As per report dated 21.9.2010 of the Chemical Examiner to Government of Punjab, there were three articles which were sent to the Chemical Examiner to Government of Punjab. In terms of the chemical examiner report, Spermatozoa was detected in exhibit II i.e. in the high vaginal swab. Learned counsel for the complainant has placed on record an application dated 22.7.2010 (Annexure C1) which is a complaint for lodging FIR against the petitioner. In the said application it is inter alia stated that in January 2009 the petitioner had called the prosecutrix in his room on the pretext that he was not well. The prosecutrix on reaching there found that he was drunk at that time. The complainant got annoyed for that. The petitioner felt sorry for that and requested her to stay for some time. He gave a cold drink to the prosecutrix which she consumed. After sometime she became unconscious and the petitioner committed sexual intercourse with her while she was unconscious. It may be noticed that the Supreme Court in Uday v. State of Karnataka, 2003 (2) RCR (Crl.) 99 has held that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date; cannot be said to be given under a misconception of fact. Learned counsel for the petitioner also cites Nikhil Parasar v. State of Govt. NCT of Delhi, 2010 (2) RCR (Crl.) 259 wherein it has been held that where an accused promises to marry the prosecutrix, the offence of rape would not be made out, as the prosecutrix and the petitioner had developed friendly intimacy and on account of that relationship, the Crl. Misc. No. M-28333 of 2010 [6] petitioner had sexual intercourse with the prosecutrix and promised to marry her which he later declined. It may, however, be noticed that in the complaint dated 22.7.2010 (Annexure C1), the complainant has alleged that in January 2009 the petitioner called her in his room on the pretext that he was not well. The prosecutrix reached there and found that he was drunk and she got annoyed with him because of that. The petitioner felt sorry for his misconduct and he requested the prosecutrix to stay for some time. He gave a cold drink to the prosecutrix which she consumed. After sometime she became unconscious and the petitioner committed sexual intercourse with her while she was unconscious. When she gained consciousness, she was shocked to find herself in an undressed state. She started crying and requested the petitioner to give her clothes, but the petitioner refused for the same. Then the petitioner again asked for sexual intercourse, but she refused. Then the petitioner threatened the prosecutrix that he would not give her clothes and would disclose his relations with the prosecutrix to everyone. The prosecutrix got afraid of the situation and then the petitioner again committed rape on her. After that incident the petitioner started convincing the prosecutrix not to take it to heart and that he was going to marry her very soon and for that he went to Gurudwara Sahib, Daun, Kharar and took 4 ‘Lanwas’ with her and made her feel like his wife in the presence of God. The prosecutrix submitted another application dated 20.8.2010 (Annexure C2) to the Senior Superintendent of Police, Mohali. It is alleged by the complainant that on 19.8.2010 she had gone for a job and at about 2.30 p.m. she received a telephone call from her brother who asked her to immediately come home as some unknown person were troubling her ailing father by saying some unpleasant things about the complainant and her father whose condition was worsening due to the heart attack. Crl. Misc. No. M-28333 of 2010 [7] Though the legal position is that sexual intercourse by an accused on a promise to marry the prosecutrix and when he did not marry due to stiff resistance from the family members of both sides would not be guilty of the offence of rape. However, the present is not a case where the offence of rape had been committed entirely on the pretext of marriage. The allegations in the FIR are that initially some intoxicant was administered to the prosecutrix and while she was in a sedate condition, rape was committed on her. Thereafter, also rape was committed which may be on the pretext of marriage. However, initially the rape was not on the pretext of marriage. Therefore, the contention of the learned counsel for the petitioner that promise of marriage does not constitute an offence would not apply in the facts and circumstances of the present case. The question regarding delay of more than one and a half years in lodging the FIR is also insignificant as a person on whom an offence of rape has been committed is generally reluctant to report the matter to the Police and thereby ruin her reputation. The petitioner it is stated is 26 years of age, whereas the age of prosecutrix is 34 years is also not of much significance as it is the petitioner who is alleged to have committed the offence of rape on the prosecutrix. The fact that the physical relations continued for quite some time is not a circumstance which is to be gone into at this stage; neither is the fact that the prosecutrix did not complain about the fact of rape being committed on her is also of no consequence as a person on whom rape is committed is generally reluctant to disclose the sad fact lest her reputation is ruined in the eyes of public and amongst her relatives and friends. The contention of the learned counsel for the petitioner that the prosecutrix is alleged to have seen the petitioner in the Panjab University campus on 15.7.2010 whereas as per the air-ticket (Annexure P5) he had returned from Australia on 15.7.2010 is also of Crl. Misc. No. M-28333 of 2010 [8] not much consequence. Learned counsel for the complainant has submitted that in the application dated 22.7.2010 (Annexure C1) the complainant has submitted that on 20.7.2010 when she was returning from PGI, Chandigarh to her house, she saw the car of the petitioner in the University campus at Chandigarh and she chased the car and shocked to see the petitioner in that car along with another girl. It is submitted that the date 15.7.2010 in the FIR has been inadvertently mentioned whereas it should have been 20.7.2010 which is the date correctly mentioned in the application dated 22.7.2010 (Annexure C1). Keeping in view the facts and circumstances of the case, no ground for pre-arrest bail is made out. Crl. Misc. petition is, accordingly, dismissed. However, nothing stated or observed herein shall be construed as an expression of opinion on the merits of the case and the investigating authority or the Court as the case may be shall consider the case on the basis of evidence and material as is brought on record. (S.S. SARON) JUDGE November 30, 2010 amit