Madhya Pradesh High Court
Ankit @ Nikki vs The State Of Madhya Pradesh on 2 February, 2023
Author: Anjuli Palo
Bench: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 2 nd OF FEBRUARY, 2023
CRIMINAL REVISION No. 8 of 2020
BETWEEN:-
ANKIT @ NIKKI S/O SHRI OMPRAKASH KHARE, AGED
ABOUT 29 YEARS, OCCUPATION: SHOP KEEPER
JABALPUR NAKA, DAMOH, P.S. DAMOH DEHAT, DIST.
DAMOH (MADHYA PRADESH)
.....APPLICANT
(BY SHRI B.J. CHOURASIYA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. P.S.
DAMOH DEHAT P.S. DAMOH DEHAT DIST.
DAMOH (MADHYA PRADESH)
2. VICTIM X W/O NOT MENTION, THR. P.S. DAMOH
DEHAT DISTT. DAMOH (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PRASANJIT CHATERJEE - PANEL LAWYER)
(RESPONDENT NO.2 BY SHRI BHUPENDRA KR. SHUKLA - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
Heard on admission.
This criminal revision has been filed by the applicant challenging the order dated 16.12.2019 whereby learned trial Court has framed charge under Sections 376(2)(dha), 506(II) of the Indian Penal Code against the applicant.
The prosecutrix (respondent No.2) lodged an FIR stating that she is the wife of one Surjan Singh. Their marriage was performed 15 years back and they Signature Not Verified Signed by: PRACHI PANDEY Signing time: 2/4/2023 2:06:24 PM 2 have two children. It is alleged against the present applicant that between year 2009-10, she was in love relationship with the applicant and since then, she was residing with him along with her children. She has alleged that the applicant, by giving false assurance of marriage, committed rape with her continuously for a period of 9 years. Thereafter, the applicant refused to marry her, then the prosecutrix lodged the FIR against him on 23.07.2019 at Police Station-Damoh Dehat, District-Damoh.
Counsel for the applicant submits that it is not a case of Section 376 of I.P.C. because the prosecutrix was a consenting party.
Counsel appearing for respondent No.2 submits that on the false pretext of marriage, the applicant made the prosecutrix to enter in sexual intercourse with him for a continuous period of 9 years, and committed rape.
It is apparently clear that the relationship of "husband and wife" was between the prosecutrix and Surjan Singh, which is still in existence, as there is no divorce between them. The prosecutrix is a married lady aged about 32 years having two children aged about 11 years. Even then, she was residing with the applicant and was a consenting party. Therefore, it cannot be said that the applicant committed rape with her on false pretext of marriage.
The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra & Another reported in (2019) 9 SCC 608, has observed in paragraph-12 that:-
"12. This Court has repeatedly held that consent with respect to Section 375 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 Signature Not Verified Signed by: PRACHI PANDEY Signing time: 2/4/2023 2:06:24 PM 3 action or inaction, consents to such action. In Dhruvaram Murlidhar Sonar Vs. State of Maharashtra reported in (2019) 18 SCC 191 which was a case involving the invoking of the jurisdiction under Section 482, this Court observed: (SCC para 15) "15. ... 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 mind of a person to permit the doing of the act complained of."
This understanding was also emphasised in the decision of this Court in Kaini Rajan Vs. State of Kerala reported in (2013) 9 SCC 113: (SCC p. 118, para 12) "12. ... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the 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."
Further, in the case of Maheshwar Tigga Vs. State of Jharkhand reported in (2020) 10 SCC 108, the Hon'ble Supreme Court has observed as follows:-
"14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the Signature Not Verified Signed by: PRACHI PANDEY Signing time: 2/4/2023 2:06:24 PM 4 occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest.
xxx
18. We have given our thoughtful consideration to the facts and circumstances of the present case and are of the considered opinion that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs."
Likewise, the Hon'ble Supreme Court in the case of Shambhu Kharwar Vs. State of Uttar Pradesh & Another reported in 2022 SCC OnLine SC 1032, has held that:-
"13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under Section 375 Signature Not Verified Signed by: PRACHI PANDEY Signing time: 2/4/2023 2:06:24 PM 5 IPC are absent. The relationship between the parties was purely of a consensual nature."
Looking to the aforesaid and considering the statement of all the witnesses annexed with the case-dairy and also available on record, in the opinion of this Court, it is a case where the prosecutrix has falsely implicated the applicant in the offence of rape by misusing the process of law.
Therefore, this criminal revision is allowed. The charge as well as the proceedings initiated against the present applicant under Sections 376(2)(dha) and 506-II of the Indian Penal Code, are hereby, quashed.
Accordingly, the applicant be treated as discharged from all the charges.
(SMT. ANJULI PALO) JUDGE Prachi Signature Not Verified Signed by: PRACHI PANDEY Signing time: 2/4/2023 2:06:24 PM