Rape- An assault on the body, mind and privacy of the victim. : Telangana High Court

Kotnaka Maheshwer vs State Of Telangana on 5 January 2021 Telangana High Court Kotnaka Maheshwer vs State Of Telangana on 5 January 2021 Bench: T.Vinod Kumar THE HON BLE SRI JUSTICE T.VINOD KUMAR CRIMINAL PETITION No.70820 This Criminal Petition under Sections 437 and 439 of the Code of Criminal Procedure 1973 is filed seeking grant of regular bail to the petitioner herein who is arrayed as accused No.1 in Crime No.1220 on the file of Boath police station Adilabad District. The offences alleged against the petitioner are under Sections 417 420 376(2)(n) 323 506 read with Section 109 Indian Penal Code for short IPC 2. Heard learned counsel for the petitioner and learned Public Prosecutor appearing for the respondent State and perused the record 3. With the consent of the learned counsel appearing for the parties the criminal petition is taken up for hearing through Video Conferencing in the virtual Court today i.e. 05.01.2021 4. Learned Counsel for the petitioner would submit that the provisions of Section 376 IPC do not stand attracted to the facts of the present case since the petitioner and the defacto complainant had consensual sexual relationship for over a period of two years. Learned Counsel for the petitioner would further submit that since the sexual relationship is consensual though under the promise of marriage the same would not fall within the purview of Section 420 IPC since the petitioner never had the intention to cheat or dishonestly induce the defacto complainant to enter in sexual relationship from the beginning of the relationship from the year 2018. It is only in the recent past due to certain differences between the petitioner his family and the defacto complainant the petitioner is unable to perform marriage with the defacto complainant. Learned Counsel for the petitioner would also further submit that the petitioner is in judicial custody since 12.11.2020 and is facing loss of reputation in the society. Therefore he prays for grant of regular bail 5. On the other hand learned Additional Public Prosecutor would submit that the petitioner under the promise of marrying the defacto complainant had sexual relationship with the petitioner over a period of time and is now backing out of the promise to perform marriage. As the petitioner had physically exploited the defacto complainant continuously for over a period of two years under the promise of marrying the defacto complainant and now having declined the defacto complainant has approached the respondent authority and lodged the present complaint on 28.10.2020 whereupon the respondent authority has registered the crime and took up investigation into the matter Further the learned Additional Public Prosecutor would submit that as of today eight witnesses have been examined and the investigation is in progress and the authorities are required to record 164 Cr.P.C. statements in the matter. Learned Additional Public prosecutor would further submit that since the investigation is in advance stage if the petitioner is granted bail there is every possibility of tampering with the evidence and also the possibility of influencing the witnesses Indian Kanoon Kotnaka Maheshwer vs State Of Telangana on 5 January 2021 Learned Additional Public Prosecutor would submit that having regard to the grave nature of offence with societal impact the present petition needs to be dismissed 6. Having regard to the submissions made as above and considering the law laid down by the Apex Court in Anurag Soni v. State of Chhattisgarh1 wherein it has been observed that But for the false promise by the accused to marry the prosecutrix the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception As observed hereinabove the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society an assault on the body mind and privacy of the victim. As observed by this Court in a catena of decisions while a murderer destroys the physical frame of the victim a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime the rape tantamounts to a serious blow to the supreme honour of a woman and offends both her esteem and dignity this Court is of the view that the sudden shift in attitude and approach of the petitioner towards defacto complainant and refusing to marry her after exploiting physically for over two years by the petitioner would only go to show that the petitioner under the false promise of marriage had physical relationship with the defacto complainant who under misconception of fact and promise of marriage had consented to have sexual relationship with the petitioner. Thus the principles as laid down in the judgement of the Apex court in Anurag Soni casewould clearly stand attracted to the facts of the present case. In view of the above this Court sees no valid reason or ground for grant of regular bail to the petitioner 1 2019 SCC Online SC 509 7. Accordingly the Criminal Petition is dismissed 8. Pending miscellaneous petitions if any shall stand closed in the light of this final order JUSTICE T.VINOD KUMAR Date: 05.01.2021 MRKR Indian Kanoon 

Summary: Rape is a violation of the victim’s body, mind and personal privacy, is the most morally and physically reprehensible crime in society. Rape reduces a woman to an animal because the core of her life is being shaken. A rape victim cannot be called an accomplice by any means. Rape leaves the victim’s life with a lasting scar. This turns extreme when it’s done with the consent of the prosecutrix on the misconception of facts, was mentioned by Justice T.Vinod Kumar of the Telangana High Court in the matter of Kotnaka Maheshwer versus State of Telangana [CRIMINAL PETITION No.7085 of 2020] The following order was passed where the learned counsel for the petitioner would submit, as the applicant and the defacto complainant maintained a consensual sexual relationship for over two years, that Section 376 IPC provisions were not drawn to the facts of the present case. Learned A counsel for the petitioner further submits that, since the relationship is consensual, the same will not fall within the competence of Section 420 IPC, although the promise of marriage does not apply since, from the beginning of the 2018 relationship, the petitioner was never intended to cheat or dishonestly induce a defacto complainant to enter into sexual relations. In recent times, the petitioner was unable to marry the complainant because of certain differences between the petitioner, his family and the de facto plaintiff. A learned counsel to the petitioner would further argue that since 12.11.2020 the petitioner has been in legal custody and is facing reputation loss in society. Therefore he prays for regular bail. The learning Public Prosecutor, on the other hand, would submit that the petitioner had sexual relations with the petitioner for some time on the promise of marrying the defacto-competitive, and now supports his promise to marry. The petitioner had been continuous physical use of the defacto complainant for over two years on the promise of the marriage of the defacto complainant and has now rejected the defacto complainant, and on 28.10.2020 the defacto complainant approached the respondent’s authority and lodged the present complaint. The learned prosecutor would further submit that eight witnesses had been examined and the investigation was underway today, and 164 Cr.P.C. Statements on the issue must be recorded by the authorities. Additional Public Prosecutor learned would also state that since the investigation is being conducted in advance, the petitioner may be granted any bail to alter the evidence and also influence the witnesses. Having regard to the submissions made as above, and considering the law laid down by the Apex Court in Anurag Soni v. State of Chhattisgarh wherein it has been observed that-  “But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.”