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Synopsis

The Calcutta High Court recently quashed criminal proceedings against an accused for alleged crime of rape on the grounds that the physical relationship between the victim and the accused was consensual in nature.

The single judge bench of Justice Tirthankar Ghosh observed that the marriage issue had cropped up only after the physical relationship was established.

The judge said, “Having regard to the version of the complainant and the prosecution witnesses who were also aware regarding the relationship of the accused with the complainant particularly with regard to the narration of the facts that the complainant on her own had been to a hotel and it is only after the physical relationship, the issue regarding marriage cropped up, I am of the opinion that the principles settled hereinabove do apply in the facts and circumstances of the present case. As such the further continuance of the case and the consequent proceedings including the charge sheet filed therein calls for interference.”

The victim had alleged that she had an "affair" with the accused petitioner, who cohabited with her for an extended period of time after promising to marry her. The petitioner was charged under Section 417 (Penalty for deception), Section 376 (Penalty for rape), and Section 506 (Penalty for criminal intimidation) of the Indian Penal Code.

The prosecution relied on 15 witnesses out of which 8 were neighbours and acquaintances, the rest were two doctors, and five were police officials. The statement of the victim was also recorded under Section 164 of CrPC by the Judicial Magistrate.

Counsel for the accused-petitioner argued that even if the allegations made in the complaint and in the documents relied upon by the prosecution were accepted as true, they did not constitute an offence because both parties were adults and had consented to the relationship.

The court observed, “….after some days both of them had been to a hotel where she met a friend of the accused and his girlfriend. There in a separate room, the accused forced her into a physical relationship, as a result of which thereafter she became attached to the accused and such a physical relationship continued. After some time when the complainant requested him to marry her, the accused promised to marry but started evading her.”

The court noted that in her statement under Section 164 of the CrPC, the victim stated that initially, she had a friendship with the accused who proposed to her, however, she refused such a proposal.

Court also relied on the SC judgment in Pramod Suryabhan Pawar vs. The State of Maharashtra wherein it was held, “…the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.”

Accordingly, the court quashed the criminal proceedings and the charge sheet filed.

Case Title: Sk. Sohel vs. State of West Bengal & Anr.