Madhya Pradesh High Court Grants Bail To Man Accused Of Hiding Religious Identity From Prosecutrix & Committing Rape Under False Pretext Of Marriage

Justice Pranay Verma was essentially dealing with a bail application moved by Khan (Appellant), charged for offences punishable under Sections 366, 376(2) (n), 506-B IPC, r/w Section 5 of the Madhya Pradesh Freedom of Religion Act, 2021 and Sections 3(1)()(1), 3(2)(5) of SC/ST (Prevention of Atrocities) Act.

As per the prosecution story, a report was lodged by the father of the Prosecutrix to the effect that the Prosecutrix was missing and could not be found despite best efforts. Following the complaint, a search was made and she was eventually found with the Appellant.

Thereafter, her statement was recorded, wherein she stated that the Appellant had met her about two months ago and told his name to be Vikas. He kept meeting her from time to time and later asked her for marriage. She believed him and went along with him and that later, the Appellant committed rape upon her. The Prosecutrix again met him after a few days and went along with him to Ujjain where the Appellant revealed to her that his real name was Tausif Khan and that he was a Muslim.

The Prosecutrix claims that when she refused to marry the Appellant, he threatened her with dire consequences and repeatedly committed rape upon her.

The Appellant on the other hand submitted that he was innocent and had been falsely implicated in the case. He further submitted that the Prosecutrix was a major and had voluntarily met him and had gone along with him on several occasions. She was thus, a consenting party throughout.

He argued that considering her statements and conduct, there could be no doubt that she had voluntarily developed physical relationship with the him and continued to do so even after acquiring knowledge of his real identity. Hence, he argued that he deserved to be released on bail.

Per contra, the State submitted that in view of the allegations leveled against the Appellant and the material collected by the prosecution against him, he was not entitled to be released on bail, particularly since in her statement, the Prosecutrix specifically stated that she had come to know of his real religion only on the day of recovery.

Considering the material on record, the Court noted that the Prosecutrix has given contradictory statements and that she was a major, and hence the element of consent could not be ruled out-

In her statement recorded under Section 161 of the Cr.P.C. on 01.06.2021 the prosecutrix had stated that the appellant had told her his real name and about his religion on 25.05.2021 itself. She continued to accompany him for a period of 4-6 days even thereafter. In her statement under Section 164 of Cr.P.C. recorded on the next day she stated that the appellant told her about his name and his religion only on 31.05.2021. There is hence contradictions in her statements. The prosecutrix is apparently major. As per her, she had developed physical relationship with the appellant willingly, but had refused to marry him on coming to know his religion. In view of the facts of the case the probability of the prosecutrix being a consenting party cannot be ruled out.

With the aforesaid observations, the Court opined that the Appellant deserved to be enlarged on bail and accordingly, allowed the bail application.

Case Title: Tousif Kha S/o Yusuf Kha V/s. State of M.P. & Others

Citation: 2022 LiveLaw (MP) 55

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