Madhya Pradesh High Court
Inder Kumar Goyal vs The State Of Madhya Pradesh on 3 December, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:21821
1 M.Cr.C. No. 20326 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 3rd OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 20326 of 2024
INDER KUMAR GOYAL
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
Appearance:
Shri Anil Kumar Mishra - Advocate for applicant.
Dr. Anjali Gyanani - Public Prosecutor for respondent No.1/State
Shri Prakhar Dhengula- Advocate for respondent No.2.
ORDER
This application, under Section 482 of Cr.P.C., has been filed for quashment of FIR in Crime No.113/2024 registered at Police Station Shivpuri Kotwali, District Shivpuri (M.P.) for offence punishable under Sections 376, 506 of IPC and under Sections 3(2)(v), 3(2)(va) and 3(1)(w)(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and all consequential proceedings arising out of it.
2. Prosecution story, in short, is that prosecutrix lodged an FIR on 14.02.2024 alleging that she is aged about 21 years and for the last five years was working in a shop, namely, Shri Ganesh Hosiery, Tekri. Therefore, she was on talking terms Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 2 M.Cr.C. No. 20326 of 2024 with the applicant who is the owner of shop in question. About 2-3 years back, applicant started claiming that he is in love with her and wants to marry her. She also started liking applicant and therefore physical relations were developed between them. After sometime, when she requested applicant to marry her then applicant started avoiding the same. Thereafter, she refused to have physical relationship with him. On 15.12.2023 at about 10:30 in the morning, she was working in the shop. At that time, applicant came and requested to have physical relation with him. It was replied by prosecutrix that she does not want to keep any relationship and she would indulge in physical relationship only after marriage, however, applicant forcibly committed rape on her and thereafter clarified that he will never marry her and complainant may do whatever she wants. It was further alleged that applicant is aware of the fact that prosecutrix belongs to scheduled caste. Since applicant had committed rape on her, therefore, she got afraid and did not lodge the FIR. On 14.02.2024, she informed the entire incident to her mother and accordingly, FIR was lodged.
3. Statement of prosecutrix was recorded under Section 164 of Cr.P.C. In her statement she stated that she was working in the shop of applicant about 2-3 years back. Applicant claimed that he has started liking her and he wants to marry a girl like her. Accordingly, friendship was developed between applicant and prosecutrix and both of them started talking to each other and they were also visiting various places. During this period, physical relationship was also developed. Prosecutrix requested applicant to marry her, then he avoided the same. Later on, she insisted that she would talk to him only when he marries her. On 15.12.2023 at about 10:00 to 10:30 am while she was working in the shop of applicant, then applicant came there and caught hold of her and took her to a street inside the shop and forcibly committed rape on her. When she requested him to marry her, he scolded that he would not marry her and she may do Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 3 M.Cr.C. No. 20326 of 2024 whatever she wants and in case she insists anymore then he would get her killed. Thereafter, she has left her job. She narrated the incident to her mother and accordingly, FIR has been lodged.
4. If the allegations made in the FIR as well as in the statement of prosecutrix recorded under Section 164 Cr.P.C. are considered then it is clear that the same can be bifurcated in following parts i.e.:-
(i) That, the prosecutrix was working in the shop of applicant and with passage of time friendship developed between them. They started visiting various places and during this period physical relationship took place voluntarily.
(ii) When applicant avoided marriage, then she insisted that she would not indulge in physical relationship, unless and until marriage is performed.
(iii) In spite of her resistance, she was raped on 15.12.2023.
5. Now, the only question for consideration is as to whether the physical relationship which took place on 15.12.2023 was consensual physical relationship or it was a rape?
6. Section 90 of Indian Penal Code reads as under:-
90. Consent known to be given under fear or misconception.--
A consent is not such a consent as it 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; or Consent of insane person.-- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 4 M.Cr.C. No. 20326 of 2024 Consent of child.-- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
7. Section 375 of Indian Penal Code reads as under:-
375. Rape.--
A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--
(First.)-- Against her will.
(Secondly.) -- Without her consent.
(Thirdly.) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
(Fourthly.) -- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly.) -- With her consent when, at the time of giving such Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 5 M.Cr.C. No. 20326 of 2024 consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly.) -- With or without her consent, when she is under eighteen years of age.
(Seventhly.) -- When she is unable to communicate consent.
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.-- A medical procedure or intervention shall not constitute rape.
Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
8. Now, the question for consideration is as to whether applicant had ever made any promise of marriage, prior to physical relationship which took place on 15.12.2023 or not?
9. Since it is not the case of prosecutrix that physical relationship took place on 15.12.2023 on the false promise of marriage, therefore, this Court is of the considered opinion that so far as the act which took place on 15.12.2023 is not covered by Section 90 of IPC and it cannot be said that consent of prosecutrix for having physical relationship on 15.12.2023 was obtained under any misconception of fact.
10. The Supreme Court in the case of Mahesh Damu Khare Vs. State of Maharashtra & Anr. passed on 26.11.2024 in Special Leave Petition (Crl.) No. 4326 of 2018 has held that whether the act of physical relationship was consensual act or it was a rape has to be examined under the active understanding of the circumstances, actions and consequences of the act. In the case of Mahesh Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 6 M.Cr.C. No. 20326 of 2024 Damu Khare (supra), it has been held as under:
"20. Keeping this aspect in mind as to what amounts to consent with reference to Section 375 of the IPC, this Court has examined and considered in a number of cases that if the person acts with an active understanding of the circumstances, actions and consequences of the act, it would indicate the presence of consent. It was observed in the case of Shambhu Kharwar v. State of Uttar Pradesh and Anr. (2022 SCC OnLine SC 1032) as follows:-
"11. In Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608, a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh (2021) 18 SCC 517, observed that:
"12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action...
[...]
14. [...] 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...
[...]
16. 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. The "consent" of a woman under Section 375 is Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 7 M.Cr.C. No. 20326 of 2024 vitiated on the ground of a "misconception of fact"
where such misconception was the basis for her choosing to engage in the said act...
[...]
18. 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.
(emphasis supplied)
21. The complainant had taken the plea that the appellant had physical relationship with her against her consent by making a false promise that he would marry her. In this regard, it has to be considered whether making a false promise to marry amounts to an offence. If a false promise of marriage is made to a woman by a man, thus deceiving the woman leading her to engage in sexual relations, it may amount to misconception of fact, in which case the consent given by the woman may be vitiated. In this regard one may refer to the decision of this Court in Niam Ahmed v. State (NCT of Delhi) (2023 SCC OnLine SC 89), "20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause - Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 8 M.Cr.C. No. 20326 of 2024 prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376."
22. In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.
23. It must also be clear that for a promise to be a false promise to amount to misconception of fact within the meaning of Section 90 of IPC, it must have been made from the very beginning with an intention to deceive the woman to persuade her to have a physical relationship. Therefore, if it is established that such consent was given under a misconception of fact, the said consent is vitiated and not a valid consent. In this regard we may refer to the case of "Deepak Gulati v. State of Haryana" [(2013) 7 SCC 675], in which it was held as follows:
"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.Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 9 M.Cr.C. No. 20326 of 2024 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 misrepresentation 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."
"24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage 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 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."
(emphasis supplied)
24. It may be also noted that there may be occasions where a Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 10 M.Cr.C. No. 20326 of 2024 promise to marry was made initially but for various reasons, a person may not be able to keep the promise to marry. If such promise is not made from the very beginning with the ulterior motive to deceive her, it cannot be said to be a false promise to attract the penal provisions of Section 375 IPC, punishable under Section 376 IPC.
25. In the present case, even assuming that the appellant had made the promise since 2008 when they met for the first time, the fact that they remained unmarried for a long period till 2017 without there being any protest or objection by the complainant, does not indicate the intention at the initial stage itself to make the promise falsely to marry the complainant. Making an allegation of non-fulfilment of promise to marry without undue delay by the promissee would, on the other hand, be an indicator of a false promise being made from the initial stage. In the present case, what is not in dispute is that the physical relationship between the appellant and the complainant continued for a long period of about a decade and as such it is difficult to infer that the appellant had made a false promise since the initial stage and continued to make false promises to marry her on the basis of which she also continued to have physical relationship with him.
26 ** ** **
27. Thus, from the above it appears that it is more of an extra- marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one.
In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.
11. If the facts of present case are considered in light of law laid down by Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 11 M.Cr.C. No. 20326 of 2024 Supreme Court in the case of Mahesh Damu Khare (supra), then it is clear that it is a case of physical relationship for a long time without any insistence of marriage which indicates the unlikelihood of any such promise made by applicant for marrying her. It rather indicates that relationship was consensual one. Admittedly, prosecutrix was in physical relationship with applicant who is the owner of shop in which prosecutrix was working for approximately three years. It is also a case of prosecutrix that she was visiting several places for recreational purposes. If applicant had ever made any promise of marriage then without insisting for marriage and remaining in physical relationship for more than 2-3 years clearly indicates that that the act of physical relationship of prosecutrix with applicant was consensual one. If prosecutrix was of the view that unless and until marriage is performed she will not have physical relationship with applicant then why she continued to work in the shop of applicant?
12. If prosecutrix was of the view that she is being sexually abused by applicant without any intention to marry her, then least which was expected from her was to leave the shop but even that was not done. Even after last act of physical relationship which took place on 15.12.2023, it is nowhere mentioned that prosecutrix immediately left the shop. It is true that delay in lodging FIR in such offences cannot be a ground for quashment of FIR for the reason that in such cases prosecutrix or her family would not rush to police station at the first instance as the pride and respect of the family as well as prosecutrix is also involved and if they take time to consider such aspect then it cannot be said that FIR was belated but if the facts and circumstances of the case are considered then it is clear that prosecutrix did not inform her mother about the act of applicant and she informed on the day when FIR was lodged and immediately thereafter FIR was lodged. Therefore, it is clear that the delay was not on account of the apprehension of losing respect in the society.
Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AMNEUTRAL CITATION NO. 2024:MPHC-GWL:21821 12 M.Cr.C. No. 20326 of 2024
13. If the entire allegations are taken on their face value then it is clear that the prosecutrix was working in the shop of applicant. She started liking applicant and therefore she was voluntarily moving around with applicant and visiting different places for recreational purposes. She was also having consensual sexual relationship without any protest and if the act alleged of 15.12.2023 is considered in the light of the consensual relationship performed there between the parties, this Court is of the considered opinion that it cannot be held that consent of prosecutrix was obtained by misconception of fact or she had ever resisted her relationship with applicant on 15.12.2023. The Supreme Court in the case of Uday Vs. State of Karnataka reported in (2003) 4 SCC 46 held as under:
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 straitjacket 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 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.
22. ** ** **
23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record.
In the instant case, the prosecutrix was a grown up girl studying in a Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 13 M.Cr.C. No. 20326 of 2024 college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.
24. ** ** **
25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 14 M.Cr.C. No. 20326 of 2024 appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.
14. The Supreme Court in the case of Tilak Raj Vs. State of Himachal Pradesh reported in AIR 2016 SC 406 held as under:
19. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence.
After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.
Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AMNEUTRAL CITATION NO. 2024:MPHC-GWL:21821 15 M.Cr.C. No. 20326 of 2024
20. The evidence as a whole including FIR, testimony of prosecutrix and MLC report prepared by medical practitioner clearly indicate that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the Appellant seems to be consensual in nature. The trial court has rightly held thus:
"23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bed room at night.
24. The entire circumstances discussed above and which have come to the fore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature.
25. It is also not the case that the consent had been given by the prosecutrix believing the accused's promise to marry her. For, her testimony itself shows that the entire story of marriage has unfolded after 05.01.2010 when the accused was stated to have been summoned to the office of the Dy. S.P. Prior to 05.01.2010, there is nothing on record to show that the accused had been pestering the prosecutrix for any alliance. The prosecutrix has said a line in her examination-in- chief, but her cross-examination shows that no doubt the two were in relationship, but the question of marriage apparently had not been deliberated upon by any of the two. After the sexual contact, come talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage."
15. The Supreme Court in the case of Deepak Gulati Vs. State of Haryana Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:21821 16 M.Cr.C. No. 20326 of 2024 reported in AIR 2013 SC 2071 held as under:
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 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 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.
16. Accordingly, considering the totality of facts and circumstances of the case, this Court is of the considered opinion that since the prosecutrix was a consenting party, therefore, no offence under Sections 376, 506 of IPC is made out. So far as offences under Sections 3(2)(v), 3(2)(va) and 3(1)(w)(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are concerned, in view of specific averment made in the FIR that prosecutrix was also in love with applicant and therefore she had consensual physical relationship on earlier occasion, this Court is of considered opinion that no case is made for prosecution of applicant for offences under Sections 3(2)(v), 3(2)(va) and 3(1)(w)(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AMNEUTRAL CITATION NO. 2024:MPHC-GWL:21821 17 M.Cr.C. No. 20326 of 2024
17. Considering the totality of facts and circumstances of the case, this Court is of the considered opinion that the prosecution of applicant for offences punishable under Sections 376, 506 of IPC and under Sections 3(2)(v), 3(2)(va) and 3(1)(w)
(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act would amount to misuse of power and in fact prosecutrix herself was consensual party. Accordingly, FIR in Crime No.113/2024 registered at Police Station Shivpuri Kotwali, District Shivpuri (M.P.) as well as charge-sheet filed arising out of the said FIR are hereby quashed. Applicant is discharged.
18. Accordingly, application succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge pd Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 12/10/2024 5:51:12 AM