Allegation of Consent on Pretext of Marriage Gets Shattered when Women continues Relationship with Man Even after his Marriage: P&H HC

punjab and haryana high court Law Insider

Sanjeev Sirohi

Published on: 20 February 2023 at 15:40 IST

While ruling on a very significant legal topic with far reaching legal consequences for those women who continue relationship with men even after marriage, the Division Bench of Punjab and Haryana High Court comprising of Hon’ble Mr Justice Sureshwar Thakur and Hon’ble Mr Justice Kuldeep Tiwari has in a learned, laudable, landmark and latest judgment titled ABC v. State of Haryana and Another in CRA-AD-140-2022 (O&M) that was pronounced as recently as on January 25, 2023 while upholding an order of acquittal passed by the Trial Court in a rape case said that allegation of commission of rape on the pretext of marriage loses significance if the woman continues to be in a sexual relationship with the man even after his marriage with some other woman.

Therefore the criminal proceedings against the petitioner accused were quashed by the Court. Very rightly so!

At the very outset, this remarkable judgment authored by Hon’ble Mr Justice Kuldeep Tiwari for a Division Bench of the Punjab and Haryana High Court at Chandigarh sets the ball in motion by first and foremost putting forth in para 1 that, “The instant appeal is directed against the order of acquittal dated 22.12.2021 rendered by learned Additional Sessions Judge, Jind, whereby, the respondent No.2 has been acquitted qua the charges framed against him, under Sections 354 (D), 376(2)(N), and, 506 of Indian Penal Code (hereinafter referred to as “IPC”), in case FIR No. 178 dated 31.08.2018, registered at Police Station: Women, Jind, District Jind.”

While dwelling on the appellant contentions, the Division Bench then lays bare in para 2 stating succinctly that, “The appellant has challenged the order of acquittal, on the averments that the learned trial Court has not appreciated, in its right perspective, the credible evidence as led by the prosecution, whereas, the statement of the prosecutrix (identity of the prosecutrix is withheld in view of provision of Section 228(A) of IPC) (hereinafter referred to as the “prosecutrix”), alone was sufficient to bring home the guilt of the respondent No.2, as the defence has totally failed in its efforts to impeach the veracity of her statement,”.

Reliance has mainly been placed upon the statement of the prosecutrix, on the ground that, in a case involving sexual offences, the statement of prosecutrix does not require any corroboration to prove the commission of such offences by the wrongdoer(s),”.

It is further averred that the statement of a rape victim is to be considered, at par with the statement of an injured victim, and therefore, weighty credence ought to have been imparted to the statement of the prosecutrix by the learned trial Court, whereas, the learned trial Court erred by placing reliance to the minor contradictions to reach at a finding of acquittal, rather, has misdirected itself.

To put things in perspective, the Division Bench envisages in para 6 that, “Finding a prima facie case, the respondent No.2 was chargesheeted for commission of offences punishable under Sections 354(D), 376(2)(N), and, 506 of IPC, to which he pleaded not guilty and claimed trial,”.

The prosecution, in order to substantiate the charges framed against the respondent No.2, examined as many as 11 witnesses,”.

The respondent No.2, in his statement recorded under Section 313 Cr.P.C., pleaded innocence and false implication in the present case,”.

He took a specific stand therein, that he never extended any promise to marry the prosecutrix, rather, the prosecutrix entered into a relationship with him out of her own volition and their relationship was consensual.”

As we see, the Division Bench then recapitulates in para 7 mentioning that, “The trial Court did not find the statement made by the prosecutrix credible and consequently, recorded the impugned order of acquittal,”.

Moreover, while recording the impugned order of acquittal, it has been observed that, in fact, the prosecutrix was having a love affair with the respondent No.2, and, she freely exercised her choice between resistance and consent,”.

There is no evidence available on record to conclusively prove, that the respondent No.2 had no intention from the beginning to marry the prosecutrix, and, had extended such promise only to establish sexual relationship with her. Accordingly, the learned trial Court ordered the acquittal of the respondent No.2.

Be it noted, the Division Bench observes in para 9 that, “There is no dispute that this Court can re-appreciate the entire evidence while dealing with a order of acquittal. The High Court has full power to appreciate the entire evidence to reach its own conclusions and it is also open for the High Court, to re-determine the question of facts and law.

For this, we place reliance upon the judgment passed by Hon’ble Supreme Court in State of Maharashtra vs. Sujay Mangesh Poyarekar, 2008 (9) SCC 475.

Also, Hon’ble Supreme Court in Chandrappa vs. State of Karnataka, 2007(2) RCR (Crl.) 92 laid down broad principles to be followed while dealing with an appeal against an order of acquittal, which are as under:

“(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court, based on the evidence before it, may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal.

Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

Ordinarily, the order of acquittal will not be interfered with, lightly, merely because other view is possible. Upon passing of an order of acquittal, presumption of innocence in favour of the accused gets reinforced and strengthened, as laid down by Hon’ble Supreme Court in Harijana Thirupala vs. Public Prosecutor, High Court of A.P., (2002) 6 SCC 470.”

Needless to say, the Division Bench then mentions in para 10 that, “On the touchstone of the aforesaid legal proposition, as laid down by the Hon’ble Supreme Court, we do not find any solid ground to interfere with the impugned order of acquittal, as recorded by the learned trial Court.”

Most significantly, the Division Bench propounds in para 14 holding that, “On a conjoint reading of the statement of prosecutrix, recorded under Section 164 Cr.P.C., and, the MLR, containing assault history, we can safely conclude that it is a case where sexual relationship continued for a long period, i.e. more than 6 years, and it continued even after the marriage of respondent No.2,”.

Insofar as the reasoning given by the prosecutrix, as stated in history of sexual assault in the MLR, for continuing her physical relationship with respondent No.2 even after his marriage is concerned, it lacks corroboration, as the prosecutrix was completely mute in this regard in her both subsequent statements recorded before Magistrate, under Section 164 Cr.P.C., and, before the learned trial Court,”.

Therefore, it is a clear cut case of consensual sexual relationship. Even the allegation, as recorded in her sexual assault history in MLR, that she was in relationship with the respondent No.2 even after his marriage upon assurance given by the respondent No.2 to take divorce from his wife, remains unsubstantiated, in the absence of it being corroborated by her statements recorded before Court, and, before Magistrate, except it being carried in her complaint (Ex. P5),”.

Moreover, the allegation that consent was obtained under the pretext of marriage, loses its significance and becomes shattered, simply in light of the fact that the sexual relationship continued even after the marriage of respondent No.2,”.

It has come on record that the prosecutrix is an educated girl, who worked as Assistant Professor in Jind, and, also used to teach in a coaching centre. Therefore, she was well aware of the fact that once the respondent No.2 had married another woman, her marriage with respondent No.2 was not possible,”.

However, despite hers being aware of all the consequences, the prosecutrix chose to continue her relationship with a married man. In such circumstances, the consent of the prosecutrix was voluntary, and, not under any misconception of fact.”

What’s more, the Division Bench further points out in para 15 that, “Furthermore, there is not even a single piece of evidence available on record, except the bald statement of prosecutrix, that the respondent No.2 did not have any intentions to marry her since the very inception of their relationship,”.

Furthermore, when the prosecutrix was confronted with her statement, under Section 164 Cr.P.C., she smartly tried to cover up all the aforesaid lacunae by levelling allegations against the Magistrate, that it was the Magistrate, who advised her to narrate her story in brief,”.

However, such allegation of the prosecutrix becomes belied from the testimony of Ms. Shivani Rani, the then JMIC, Jind, who was examined as PW11, by the prosecution. She has categorically stated that she had recorded the statement of prosecutrix, under Section 164 Cr.P.C., only after ascertaining, and, being satisfied, that she is giving her statement voluntarily, and, without any duress,”.

Even the statement, so recorded, was read over to prosecutrix, whereupon, she appended her signatures thereon, as a mark of its correctness.”

Do note, the Division Bench notes in para 16 that, “Besides the above discussed material contradictions, there is also a huge delay of nearly 7 years in lodging the present FIR, which also goes on to cast a serious doubt on the case set up by the prosecutrix,”.

Though, delay in such cases is not fatal per se, but considering the broad probabilities of the case, the delay in reporting the matter to police in the instant case, is of importance. Nonetheless, the delay does not find explained, even remotely, by the prosecution and therefore, it affects the probative value of prosecutrix’s evidence.

As a corollary, the Division Bench holds in para 19 that, “Upon a cumulative reading and appreciation of the evidence on record, this Court comes to a conclusion that the statement of prosecutrix is unworthy of acceptance because the same is found to be replete with infirmities,”.

Moreover, the reasoning given in the learned trial Court’s judgment does not suffer from any gross perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. It is trite law that order of acquittal should not be disturbed unless there are substantial or compelling circumstances.”

Finally, the Bench then concludes by directing in para 20 that, “Therefore, this Court does not find any ground to interfere with the impugned order of acquittal. In sequel, the appeal is hereby dismissed, being bereft of merits, and, the impugned order of acquittal rendered by the learned Additional Sessions Judge, Jind, is hereby upheld.

In a nutshell, we thus see that the Punjab and Haryana High Court has made it indubitably clear that the allegation of ‘consent on pretext of marriage’ gets shattered when the woman continues her relationship with man even after his marriage with some other woman.

The appeal of the appellant thus rightly gets dismissed. The Court thus finds no reason to interfere with the order of  acquittal.

Sanjeev Sirohi, Advocate

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