Atish Yadav vs State Of MP

Heard.

This is the first bail application under Section 439 of Cr.P.C. filed by the present applicant, who is in custody since 12.5.2020 in connection with Crime

No.565/2020 registered at Police Station Ghamapur District Jabalpur for the offence punishable under Sections 376, 376(2)(n) of IPC.

The allegation against the present applicant is that he committed rape on the prosecutrix initially in the month of November 2019 for the first time and

subsequently on many occasions under the pretext of marriage.

Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case, as the prosecutrix herself was a consenting

party, as she is admittedly 21 years old. It is further submitted that the affair between the applicant and the prosecutrix was going on since last around

two years in which they also developed intimate relationship and now after the parents of the applicant refused the marriage proposal of the applicant

with the prosecutrix, a false case under Section 376 of IPC has been levelled against him.

Learned counsel for the applicant has heavily relied upon the judgment of the Hon’ble Apex Court in the case of Pramod Suryabhan Pawar Vs.

State of Maharashtra and another, reported in (2019) 9 SCC 608 wherein in the similar circumstances the Supreme Court has quashed the criminal

proceedings initiated against the applicant under Section 376 of IPC. It is further submitted that in the aforesaid case also the Court has opined that no

case under Section 376 of IPC can be initiated when sexual intercourse between the parties took place on account of a promise made by the applicant

to marry the prosecutrix, as the promise made by the applicant was not found to be false. Thus it is submitted that the applicant be released on bail.

Learned counsel for the State on the other hand has opposed the prayer of the applicant and has submitted that in her statement made under Section

164 of Cr.P.C. the prosecutrix has made clear allegation against the applicant constituting the offence of rape.

Learned counsel for the objector Shri VK Tyagi has also opposed the prayer of the applicant and has submitted that the charge sheet is yet to be filed

and if the applicant is released on bail, he would tamper with the prosecutrix evidence, as at this stage also the prosecutrix is being pressurized to

compromise the case.

Heard the learned counsel for the parties and perused the record.

On perusal of the record this Court finds that in her statement made under Section 164 of Cr.P.C. the prosecutrix has clearly mentioned that she was

subjected to sexual intercourse against her will, as there was nobody in the house of the applicant and when she objected to him, he promised that he

would marry her and thereafter on many other occasions also he had sexual intercourse with her on the pretext of marriage but subsequently resiled

from his promise on the ground that his family members are not ready. In the considered opinion of this Court the aforesaid statement of the

prosecutrix is sufficient to constitute an offence of rape.

So far as the reliance placed by the learned counsel for the applicant on the decision of the Hon’ble Supreme Court in the case of Pramod

Suryabhand Pawar (supra) is concerned, this Court finds that the facts are clearly distinguishable. In that case the relationship was going on between

the applicant and the prosecutrix for around eight years and both of them had also visited hospitals to verify if the prosecutrix is pregnant. Thus in

these circumstances the Hon’ble Supreme Court has held that no case of rape is made out. Thus no benefit of the aforesaid decision can be

claimed by the applicant Under the present facts and circumstances of the case.

In view of the aforesaid discussion no case for bail is made out. Accordingly, the present application is hereby dismissed with liberty to the applicant

to renew his prayer after charge sheet is filed.