Gujarat High Court
Sachin @ Devendra Gajanand Sangray vs State Of Gujarat & on 26 March, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/15688/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 15688 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any order
made thereunder ?
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SACHIN @ DEVENDRA GAJANAND SANGRAY....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR AY KOGJE, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MS HANSA PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/03/2015
Page 1 of 22
R/CR.MA/15688/2014 CAV JUDGMENT
CAV JUDGMENT
1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused seeks to invoke the inherent powers of this Court, praying for quashing of the first information report registered with the Athvalines Police Station, Surat City, vide I C.R. No.47 of 2012 of the offence punishable under Section 376 of the Indian Penal Code and also the charge-sheet filed by the Investigating Agency in the Court of the learned Judicial Magistrate First Class, Surat.
2. The respondent No.2-original first informant although served with the Notice issued by this Court, dated 13 th October, 2014 for final disposal yet has chosen not to appear either in person or through an advocate. This application has gone unopposed so far as the first informant is concerned.
3. The case of the prosecution may be summarized as under:-
3.1. The first informant and the applicant herein were serving with the Tata AIG Life Insurance Company at Surat. The first informant is serving as an adviser whereas the applicant is serving as a Sales Manager. Both developed intimacy for each other. They both started residing together at the Block No.-
D/3, Vighneshvar Estate, Timbliyawad, Nanpura, Surat. They both decided to have a live in relationship on their own free will and volition. It is the case of the first informant that she maintained physical relations as the applicant herein had Page 2 of 22 R/CR.MA/15688/2014 CAV JUDGMENT promised that he would get married with her. On 1 st March, 2012 both vacated the premises and parted ways. The first informant returned to her parental home on 10th March, 2012. The applicant visited the parental home of the first informant at Surat for inviting her and her family for his marriage which was to be solemanised on 13th March, 2012. According to the first informant, she was duped by the applicant.
4. In such circumstances, the First Information Report came to be registered for the offence of rape.
5. Mr. Kogje, the learned advocate appearing for the applicant vehemently submitted that the prosecution instituted at the instance of the first informant is nothing but an abuse of the process of law. He submitted that the first informant on her free will and volition and with eyes wide open had maintained physical relations with the accused for a period of about one year. On account of some dispute both decided to part ways. It is submitted that on account of the First Information Report lodged by the first informant the applicant could not get married.
6. Mr. Kogje submits that the charge-sheet deserves to be quashed.
7. Ms. Hansa Punani, the learned APP has opposed this application submitting that there is more than a prima facie case against the applicant and therefore no case for quashing of the charge-sheet is made out. She submits that the application deserves to be rejected.
Page 3 of 22 R/CR.MA/15688/2014 CAV JUDGMENT8. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for my consideration is whether the charge-sheet deserves to be quashed.
9. For the sake of argument, even if it is assumed, that the applicant and the first informant/prosecutrix, actually had a physical relationship, as alleged, the same would necessarily have to be consensual, since it is the case of the first informant herself, that the physical relationship was with her consent consequent upon the assurance of marriage.
10. There is a clear distinction between rape and consensual sex and in a case where there is a promise of marriage, the Court most very carefully examine whether the accused had actually wanted to marry victim, or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls in the ambit of cheating or deception.
11. In the aforesaid context, I may quote with profit the decision of the Supreme Court in the case of Deepak Gulati Vs. State of Haryana reported in 2013 Criminal Law Journal 2990. The Supreme Court made the following observations which in my opinion are worth taking note of.
"15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376, IPC have to be taken into consideration, along with the Page 4 of 22 R/CR.MA/15688/2014 CAV JUDGMENT provisions of Section 90 of the Act 1872. Section 90 of the Act, 1872 provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, and thus, a physical relationship would tantamount to committing rape.
16. This Court considered the issue involved herein at length in the case of Uday V. State of Karnatka, AIR 2003 SC 1639 :
(2003 AIR SCW 1035) Deelip Singh alias Dilip Kumar v. State of Bihar, AIR 2005 SC 203 : (2004 AIR SCW6479) YEDLA Srinivasa Rao V. State of A.P. (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar and Anr., AIR 2007 SC 3059 : (2007 AIR SCW 5532), and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutirx, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
17. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of victim. While a murderer destroys the physical frame of the victim, a rapist degrads 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, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape the most hated crime, rape tantamounts to a serious blow to the suprme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side.
There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within a ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accuse; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of Page 5 of 22 R/CR.MA/15688/2014 CAV JUDGMENT her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
19. In Deelip Singh (Supra), it has been observed as under:- "20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
20. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed :
"We are of opinion that the expression "under a misconception of fact" is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation shouuld be regrded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration
(d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact the second accused intended to get the girl married??.."thus ? If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person". ? Although in cases of contracts a consent obtained by coercion or fraud is only viodable by the party affected by it, the effect of Section 90, IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage Page 6 of 22 R/CR.MA/15688/2014 CAV JUDGMENT itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact, the fact must have an immediate relevance." Section 90, IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
12. I may also quote with profit the decision of the Supreme Court in the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar (2005) 1 Scc 88, which reads as under:-
"15.The last question which calls for consideration is whether the accused is guilty of having sexual intercourse with PW12 'without her consent' (vide Clause secondly of Section 375, IPC). Though will and consent often interlace and an act done against the will of a person can be said to be an act done without consent, the Indian Penal Code categorizes these two expressions under separate heads in order to be as comprehensive as possible.
16.What then is the meaning and content of the expression 'without her consent'? Whether the consent given by a woman believing the man's promise to marry her is a consent which excludes the offence of rape? These are the questions which have come up for debate directly or incidentally.
17.The concept and dimensions of 'consent' in the context of Section 375, IPC has been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case.
18.The Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 Page 7 of 22 R/CR.MA/15688/2014 CAV JUDGMENT reads as follows :
"90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception......."
19.Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.
20.The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.
21.Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word 'consent'.
22. In most of the decisions in which the meaning of the expression 'consent' under the Indian Penal Code was discussed, reference was made to the passages occurring Page 8 of 22 R/CR.MA/15688/2014 CAV JUDGMENT in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases - Permanent Edition and other legal Dictionaries. Stroud defines consent as 'an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side." Jowitt, while employing the same language added the following :
".......Consent supposes three things - a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind."
23. In Words and Phrases - Permanent Edition, Volume 8A, the following passages culled out from certain old decisions of the American Courts are found :
"......... adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent."
24.It was observed by B.P. Singh, J. speaking for the Court in Uday v. State of Karnataka (SCC p.53, para 12) "12. the Courts in India have, by and large, adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent."
25.There is a good analysis of the expression 'consent' in the context of Section 375, IPC by Tekchand, J., in Rao Harnarain Singh Sheoji Singh v. State. The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. The observation of the learned Judge that (AIR p.126, para 7) that "there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent", is quite apposite. The said proposition is virtually a Page 9 of 22 R/CR.MA/15688/2014 CAV JUDGMENT repetition of what was said by Coleridge, J. in Regina v. Day in 1841 as quoted in Words and Phrases (Permanent Edition) at page 205. The following remarks in Harnarain's case are also pertinent (AIR p.126, para 7) :
"Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be Consent."
26.The passages occurring in the above decision were either verbatim quoted with approval or in condensed form in the subsequent decisions : Vide In Re: Anthony (AIR 1960 Madras 308); Gopi Shankar v. State (AIR 1967 Raj 159); Bhimrao v. State of Maharashtra (1975) Mah LJ
660); Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234). All these decisions have been considered in a recent pronouncement of this Court in Uday v. State of Karnataka. The enunciation of law on the meaning and content of the expression 'consent' in the context of penal law as elucidated by Tekchand, J. in Harnarain's case (which in turn was based on the above extracts from Law Dictionaries) has found its echo in the three-Judge Bench decision of this Court in State of H.P. v. Mango Ram (2000) 7 SCC 224), K.G. Balakrishnan, J. speaking for the Court stated thus (SCC pp. 230-31, para 13):
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
On the facts, it was held that there was resistance by the prosecutrix and there was no voluntary participation in the sexual act. That case would, therefore, fall more appropriately within Clause first of Section 375.
27.We shall turn our attention to the cases which dealt with the specific phraseology of Section 90, IPC. We have an illuminating decision of the Madras High Court rendered in 1913 in Re: N. Jaladu (ILR 36 Madras 453) in which a Division Bench of that Court considered the scope and amplitude of the expression 'misconception of fact' occurring in Section 90 in the context of the offence Page 10 of 22 R/CR.MA/15688/2014 CAV JUDGMENT of kidnapping under Section 361, IPC.The 2nd accused in that case obtained the consent of the girl's guardian by falsely representing that the object of taking her was for participating in a festival. However, after the festival was over, the 2nd accused took her to a temple in another village and married her to the 1st accused against her will. The question arose whether the guardian gave consent under a misconception of fact. While holding that there was no consent, Sundara Ayyar, J. speaking for the Bench observed thus (ILR pp. 456-57):
"We are of opinion that the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act illustration (d) that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. In considering a similar statute, it was held in England in R. v. Hopkins 1842, Car and M 17, 254 that a consent obtained by fraud would not be sufficient to justify the taking of a minor. See also Halsbury's Laws of England, Volume 9, page 623. In Stephen's Digest of the Criminal Law of England (sixth edition, page 217), the learned author says with reference to the law relating to "abduction of girls under sixteen" "thus.....If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person."........... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90, IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
This decision is an authority for the proposition that a misrepresentation as regards the intention of the person seeking consent, i.e. the accused, could give rise to the misconception of fact. This view of the Madras High Court was accepted by a Division Bench of Bombay High Court in Purshottam Mahadev v. State of Bombay (AIR 1963 Bombay 74). Applying that principle to a case arising under Section 375, consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of Page 11 of 22 R/CR.MA/15688/2014 CAV JUDGMENT fact.
28.On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375, IPC, we have the decision of Division Bench of Calcutta High Court in Jayanti Rani Panda v. State of West Bengal (1984 Cri LJ 1535). The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at para 7 : (Cri LJ pp. 1537-38) "Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is.............. why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged."
The discussion that follows the above passage is important and is extracted hereunder : (Cri LJ p. 1538, para 7) "The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and Page 12 of 22 R/CR.MA/15688/2014 CAV JUDGMENT continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other,unless the Court can be assured that from the very inception the accused never really intended to marry her." (Emphasis supplied) The learned Judges referred to the decision of Chancery Court in Edgomgtpm v. Fotz,airoce (1885) 29 Ch D 459, and observed thus : (Cri LJ p. 1538, para 8) "This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect : "There must be a misstatement of an existing fact." Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Sec. 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact."
After referring to the case law on the subject, it was observed in Uday (supra) at paragraph 21 :(SCC pp. 56-
57) "21. It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait-jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It Page 13 of 22 R/CR.MA/15688/2014 CAV JUDGMENT must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
29.The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, Clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda, (supra) which was approvingly referred to in Uday's case (supra). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end - "unless the Court can be assured that from the very inception, the accused never really intended to marry her".In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu's case, (supra) (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no strait-jacket formula could be evolved for determining whether the consent was given under a misconception of fact.Reading the judgment in Uday's case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out."
Page 14 of 22 R/CR.MA/15688/2014 CAV JUDGMENT13. I may also quote with profit the decision of the Supreme Court in the case of Kaini Rajan Vs. State of Kerala (2013) 9SCC 113, which reads as under: "12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" IS ALSO STATED TO BE AN ACT OF REASON COUPLED WITH DELIBERATION. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC referes to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent.
"Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intellignece based on the knowledge of the significance andmoral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See state of H.P. v. Mango Ram.)
14. This Court examined the scope of Section 375 IPC in a case where the facts have some resemblance with the one in hand. Reference may be made to the judgment of this Court in Deelip Singh V. State of Bihar. In that case, this Court examined the meaning and content of the expression "without her consent" in Section 375 IPC as well as whether the consent given by a woman believing the man's promise to marry her, is a consent which excludes the offence of rape. This Court endorsed the principle that a misrepresentation as regards the intention of the person seeking consent i.e. the accused, could give rise to the misconception of fact. While applying this principle to a case arising under Section 375 IPC, this Court held that the consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to ",misconception of fact" within the meaning of Section 90 IPC. This Court further held that: (SCC p. 104, para 28) ".....If on facts it is established that at the very inception of the making of promise, the accused did not really entertain the Page 15 of 22 R/CR.MA/15688/2014 CAV JUDGMENT intnetion of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exclupate him from the ambit of the second clause of Section 375 IPC."
In the facts of that case, this Court held, that the predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her of the prospect of marriage with the accused. The Court held that she came to the decision to have a sexual affair only after being convinced that the accused would marry her and it is quite clear from her evidence, which is in tune with her earlier version given in the first information report. The Court noticed that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act.
15. In Ramdas v. State of Maharashtra this Court held that :
(SCC p.179, para 23) "23.....the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity."
16. Vijayan v. State of Kerala was a case where the complaint was made by the prosecutrix after the alleged commission of rape on her by the accused. At the time of making the case, the prosecutrix was pregnant for about seven months. This Court did not place reliance on the sole testimony of the prosecutrix. The Court noticed that flaw that no DNA test was conducted to find out whether the child was born out of the said incident and the accused was responsible for the said child.
17. K.P. Thimmappa Gowda V. State of Karnatka was a case where the accused had assured the prosecutrix that he would marry her and had sexual affair, which was repeated on several occasions as well. But he did not marry and she became pregnant. That was a case where there was delay of eight months in filing the complaint. The accused was given the benefit of doubt holding that it would not be possible to conclude that the alleged sexual act was committed without the consent of the prosecutrix."
14. Having discussed the legal aspects bearing on the interpretation of the term "consent" with special reference to Section 90 of the IPC, I must now turn my attention to the factual aspects of the case related to consent.
Page 16 of 22 R/CR.MA/15688/2014 CAV JUDGMENT(I) The prosecutrix was 28 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act, she was consenting to. She is serving as an Adviser with the Tata AIG Life Insurance Company at Surat.
(II) It is difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. The accused would not have visited the house of the prosecutrix with an invitation card on his own marriage. It appears that for any reason the accused and the prosecutrix discontinued the relationship and parted ways.
15. Thus, in the over all view of the matter I am not convinced with the case of the prosecutrix. In a case of this type no other evidence is helpful except the version of the prosecutrix. Assuming for the moment that there was some assurance of marriage even then mere breach of promise to marry by itself will not substantiate the offence under Section 376 of the Indian Penal Code.
16. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has Page 17 of 22 R/CR.MA/15688/2014 CAV JUDGMENT been dealt with by the Supreme Court in Rajiv Thapar & Ors. V/s. Madan Lal Kapoor (Criminal Appeal No....of 2013, arising out of SLP (Crl.) no.4883 of 2008, decided on 23.1.2013) wherein the Supreme Court interalia held as under:-
22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence.
Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section -482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable Page 18 of 22 R/CR.MA/15688/2014 CAV JUDGMENT facts; the material produced is such, aswould rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.c. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by Page 19 of 22 R/CR.MA/15688/2014 CAV JUDGMENT invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i)Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the materials is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?Page 20 of 22 R/CR.MA/15688/2014 CAV JUDGMENT
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
17. I take notice of the fact and in my opinion which goes to the root of the matter that none of the averments made in this application have been refuted by the first informant.
18. The petition has gone unopposed.
19. In the result, the First Information Report registered with the Athwaline Police Station, Surat City of the offence under Section 376 of the Indian Penal Code against the applicant-accused, and the consequential charge-sheet deserves to be quashed. The same is accordingly quashed. Resultantly, the further proceedings of the Criminal Case No.11026 of 2012, pending in the Court of the learned Chief Judicial Magistrate, Surat are also hereby Page 21 of 22 R/CR.MA/15688/2014 CAV JUDGMENT order to be quashed. Rule is made absolute.
(J.B.PARDIWALA, J.) Manoj Page 22 of 22