Gujarat High Court
Manoj Ratilal Bundela vs State Of Gujarat on 17 November, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 4390 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed -
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy-
of the judgment ?
4 Whether this case involves a substantial question-
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANOJ RATILAL BUNDELA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 17/11/2021
ORAL JUDGMENT
1. Rule. Learned Additional Public Prosecutor Mr. Pranav Trivedi waives service of notice of rule on behalf of respondent No.1 - State, whereas learned advocate Mr. Pratik Jasani waives service of notice of rule on behalf of respondent No.2 - original complainant.
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2. The petitioner - original accused is before this Court invoking the provisions of Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr. P. C."), praying to quash and set aside the First Information Report being C. R. No. I - 30 of 2017 registered with Mahila Police Station, Rajkot City for the offence punishable under Sections 376, 406, 323 and 506 of the Indian Penal Code, 1860.
3. It is the case of the petitioner that he had friendly relation with the complainant and they had cohabitated several times. The complainant is a married woman aged about 37 years. It is the case of the petitioner that the offence under Section 376 of the Indian Penal Code has not been made against him since the complainant had consented for establishing physical relation with the petitioner.
4. Learned advocate Mr. Virat Popat, referring to the facts stated in the FIR, submits that the details given in the FIR itself suggest that the complainant and the petitioner were in consensual relationship and because of internal disputes, the FIR has been lodged with an intention to threaten and blackmail the petitioner. Learned advocate Mr. Popat further submits that even after filing of FIR, the petitioner helped the complainant in bailing her out in connection with the FIR lodged on 14.02.2017 for offence under Sections 506(2), 504 and 114 of the Indian Penal Code. It is submitted that the complainant was also arraigned as an accused in connection with an FIR being C. R. No. 11208050211981 of 2021 and was arrested and sent to the judicial custody for the offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Learned advocate Mr. Popat has also referred to the photographs prior to the FIR, to submit that the complainant and the petitioner were in cordial relationship and had been together on different occasions. Learned advocate Mr. Popat Page 2 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 further states that the photographs post FIR too suggest that both of them had continued their relationship.
5. Countering the arguments, learned advocate Mr. Pratik Jasani submits that the facts in the FIR detail the manner in which the petitioner had exploited the complainant - victim. Learned advocate Mr. Jasani submits that the petitioner by giving false promise to marry, established physical relationship with the complainant. Learned advocate Mr. Jasani further submits that by threatening the complainant he would beat her and her children, and would forcibly enter into physical relationship. Learned advocate Mr. Jasani submits that the petitioner established friendship with the husband of the complainant and led him to consume liquor and non-vegetarian food on different occasions. Learned advocate Mr. Jasani also submits that the petitioner also threatened the complainant by controlling her husband and thus, the entire management of the house was under the control of the petitioner. Further, according to learned advocate Mr. Jasani, some loans were taken in the name of the complainant and the complainant has alleged that the petitioner had not even paid loans' installments. It is submitted that after the husband of the complainant faced paralytic attack and was bed-ridden, during that time too, the petitioner would forcibly engage in relation with the complainant. After the death of the husband on 02.01.2015, when the complainant proposed for marriage, the petitioner refused and gradually decreased the relationship, ultimately, the complainant was constrained to file the FIR.
6. Learned advocate Mr. Popat relies upon the decision in case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113. In reply to the decision cited by learned advocate Mr. Popat, learned advocate Mr. Jasani submits that the case of the complainant falls under Section 114-A of the Indian Evidence Act, 1872 and submits that there is presumption of absence of consent.
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7. Hon'ble Apex Court in case of Kaini Rajan (supra) has elaborated on the expression "without her consent" as well as consent given by a woman believing the man's promise to marry her. It has been observed thus :-
"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 alias Dilip Kumar v. State of Bihar (2005) 1 SCC 88. 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 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 if, on 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 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."
8. Here in this case on hand, the complainant was a married woman and the petitioner - accused was in relation with her while her husband was alive. She has stated that her husband and the petitioner were friend and the petitioner was constantly Page 4 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 visiting her house. She had also travelled with the petitioner at different places. The fact in the FIR itself suggests that the petitioner and the complainant were in cordial relationship. The complainant has alleged that the petitioner had given a false promise to marry and under such false promise, had established physical relationship and had continued with sexual acts. It has to be noted that the complainant while she was in relationship with the petitioner, was a married woman and the petitioner used to visit her house in presence of her husband. The facts in the FIR suggest that there is no fraud committed and the relation was open and consensual. Even the children of the complainant appear to have known of the relationship of the petitioner with the complainant.
9. In case of Deepak Gulati vs. State of Haryana reported in (2013) 7 SCC 675, the Hon'ble Supreme Court has dealt with the expression "consent" and the distinction has been drawn for mere breach of promise and not fulfilling the false promise. The observations in paragraph 21 of the said decision are quoted hereinafter :-
"21. 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 the 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 accused; 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 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 Page 5 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 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.
10. Here, in this case, the fact shows that the complainant is a married woman aged about 37 years. The husband of the complainant and the present petitioner were driver by profession and so, the petitioner used to visit the house of the complainant and had developed acquaintance which, as stated in the FIR, resulted into deep relationship of the petitioner with the complainant. The complainant has stated that the petitioner continued in relationship even after the death of her husband. She has made the complaint on the ground that she was forced to enter into the relationship and the petitioner denied marriage with her. The facts in the FIR itself show the conduct of the complainant which demonstrates voluntary consent. The complainant had unequivocally entered into voluntary agreement with the petitioner to enter into the sexual acts. There would not be any intention of the petitioner nor of the complainant to establish relationship for marriage since both were married persons. She had entered into relationship by intimacy with the petitioner when her husband was alive. So, there would not be any case of promise to marry.
11. Learned advocate Mr. Jasani refers to the decision in case of Anurag Soni vs. State of Chhattisgarh reported in (2019) 13 SCC 1 to submit that the relation between the parties would be constituted as rape, consent was under promise to marry her and has relied on the observations of the Hon'ble Apex Court in paragraphs 16, 17, 18 and 19 which read as under :-
"16. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant's promise that he Page 6 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 would marry her and relying upon such promise, she consented for physical relationship with the appellant- accused. Even considering Section 114A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship.
17. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.
18. Now, so far as the submission on behalf of the accused appellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inception the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.
19. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades 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 Page 7 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant accused for the offence punishable under Section 376 of the IPC. The appellantaccused must face the consequences of the crime committed by him."
12. Learned advocate Mr. Popat to counter the arguments of learned advocate Mr. Jasani refers to the decision in Pramod Suryabhan Pawar vs. State of Maharashtra and anr. reported in (2019) 9 SCC 608, in which Hon'ble Apex Court considered the case under the provisions of Section 482 of Cr. P. C and quashed the FIR. The Hon'ble Court while referring to the case in Anurag Soni (supra), in paragraph 14 held as under :-
"14. In the present case, the "misconception of fact"
alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh9, this Court held:
"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."
Similar observations were made by this Court in Deepak Gulati v State of Haryana10 ("Deepak Gulati"):
Page 8 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 "21. ... 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 accused..."
13. Learned advocate Mr. Jasani also refers to the decision in case of XYZ vs. State of Gujarat reported in (2019) 10 SCC 337 to contend that though the High Court has inherent powers under Section 482 of the Cr. P. C to quash the FIR, the same is to be exercised very sparingly and states that the complainant should be given an opportunity to lead the evidence during trial so she can have the recourse of protection of law under Section 114-A of the Evidence Act read with Section 90 of IPC. In the said decision, the Hon'ble Apex Court has observed that in view of serious allegations made in the complaint, the High Court should not have made a roving inquiry while considering the application filed under Section 482 of Cr. P. C. But, at the same time, the Apex Court has laid down that the powers under Section 482 of Cr. P. C. is to be exercised depending on contents of the complaint and the material placed on record. The Apex Court while entertaining the provisions of Section 114-A of the Evidence Act, has observed that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. In Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1 SCC 88, in paragraph 19, the higher court expresses the position under Section 90 of IPC. Paragraph 19 is reproduced for ready reference :-
"19. 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 Page 9 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 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."
14. It is true that this Court should not make any roving inquiry which considering the application filed under Section 482 of Cr. P. C., but such power under Section 482 of Cr. P. C. is required to be exercised depending on the contents of the complaint and material placed before the Court. Here, in this case, the complaint coupled with the evidence on record suggest that the relation was consensual and the facts of the case details out longer period of relationship of the complainant with the petitioner, and friendly terms of her husband with the petitioner. The complainant has stated in the FIR about the petitioner administering the requirements of the family. She had developed the relationship during lifetime of her husband with the petitioner.
15. Learned advocate Mr. Popat also relies on the decision in case of Sonu alias Subhash Kumar vs. State of Uttar Pradesh and anr. reported in AIR 2021 SC 1405 in which, Hon'ble Apex Court while dealing with the power under Section 482 of Cr. P. C. quashed the charge-sheet filed and also quashed the order of the trial Court to take cognizance. The Apex Court while observing the facts of the case and rival submissions, has noted that in the FIR, it is recorded that the second respondent had developed a friendship with the appellant and he had assured that he would marry her. They developed a physical relationship which spread over a period of one and half years, during the course the second respondent conversed with the parents and sister of the appellant. The parents of the appellant were agreeable to the Page 10 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 couple getting marriage. The appellant called her to Jhansi stating that she should come and visit him so that they can get married. On traveling to Jhansi at the behest of the appellant, the second respondent was informed by the father of the appellant that the appellant did not wish to marry. The Apex Court referring to the contents in the FIR as well as statement under Section 164 of the Cr. P. C. observed in paragraph 8 as under :-
"8. The contents of the FIR as well as the statement under Section 164 of Cr. P. C. leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge:
(i) The relationship between the appellant and the second respondent was of a consensual nature;
(ii) The parties were in the relationship for about a period of one and a half years; and
(iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR."
16. The case of Pramod Suryabhan Pawar vs State of Maharashtra reported in (2019) 9 SCC 608 was referred to narrate the observations :-
"9. In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:
"Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it..."Page 11 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022
R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 In paragraph 10, the Court has referred to the summary of legal position as depicted in Pramod Suryabhan Pawar (supra), "10. Further, the Court has observed:
"To summarise the legal position that emerges from the above cases, 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 itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
17. Thus, in Sonu alias Subhash Kumar(supra), the Apex Court while dealing with the power under Section 482 of Cr. P. C. for quashing the FIR, referring the legal position enunciated in Pramod Suryabhan Pawar (supra) has laid down as under :-
"11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.
18. Here, in the present case, the facts in the complaint clearly suggest that the relationship of the complainant with the petitioner was consensual in nature and was for longer time. The complainant was married woman and established relationship with Page 12 of 13 Downloaded on : Wed Jan 12 01:36:15 IST 2022 R/CR.MA/4390/2017 JUDGMENT DATED: 17/11/2021 the petitioner during life time of her husband. The complainant even along with her children had travelled with the petitioner to various places. The facts suggest that the petitioner even was running her house for providing basic necessities and it appears that the relation continued even after the death of her husband and she had proposed for marriage and the petitioner denied to marry. The complainant was even aware of the fact that the petitioner is a married man, when she started her relation with him. She had established intimate relation with the friend of her husband. There could not be any promise to marry when both of them were married persons. The long term affair continued even after the death of the husband of the complainant and subsequently, the petitioner declined the proposal of marriage. The materials on record by way of photographs and bail papers towards the FIR against the complainant demonstrates that the petitioner continued to support the complainant even after the FIR.
19. Considering the facts and circumstances of the present case, while applying the principles of law as delineated in the case authorities referred herein above, the petition is allowed by exercising the jurisdiction under Section 482 of Cr. P. C. since the offence is not made out.
20. In the result, the FIR being C. R. No. I - 30 of 2017 registered with Mahila Police Station, Rajkot for the offence punishable under Sections 376, 406, 323 and 506 of the Indian Penal Code, 1860 against the petitioner is quashed. Rule is made absolute.
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