Madhya Pradesh High Court
Gaurav Jain vs The State Of Madhya Pradesh on 19 July, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 CRR-1807-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 19th OF JULY, 2024
CRIMINAL REVISION No. 1807 of 2022
GAURAV JAIN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Megha Jain - Advocate for the applicant.
Shri Amit Mishra - Panel Lawyer for the respondent No.1/State.
None appears for respondent No.2, though served.
ORDER
The applicant has filed this revision under Section 397/401 of Cr.P.C. assailing the order dated 20.04.2022 passed in Sessions Trial No.42/2022 by the Fifth Additional Sessions Judge, Tikamgarh, framing the charge against the applicant under Sections 376(2)(n) and 306 of the Indian Penal Code.
2. Learned counsel for the applicant has submitted that in view of the facts and circumstances of the case and the material placed by the prosecution before the Court at the time of framing of charge in relation to Crime No.361/21, the material ingredients for framing the charge under Sections 376(2)(n) and 306 of IPC were not available and even after considering the said material, the offence under Sections 376(2)(n) and 306 of IPC is not made out and, therefore, the impugned order, according to counsel for the Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 2 CRR-1807-2022 applicant, is liable to be set aside as the trial Court did not apply its mind in appropriate manner so as to see that the material ingredients constituting the alleged offence were missing and as such, no case is made out against the present applicant and the charge could not have been framed.
3. To resolve the controversy involved in the matter, it is necessary to mention the brief facts of the case, which are as under:-
3.1 The policemen of Police Station Baldevgarh, District Tikamgarh registered an offence vide FIR No.361/21 on the basis of the information given by complainant Vivek Jain that the daughter of Arun Kumar Jain has committed suicide in her room by hanging herself and as such, merg intimation No.47/21, under Section 174 of Cr.P.C. got registered and thereafter, the matter was enquired.
3.2 During the course of enquiry, the police seized a Samsung mobile and a register in which the deceased had expressed her emotions. As per the material seized by the police, the deceased and present applicant, who was the resident of Sendhwa District Badwani were in affair. According to the complainant, the present applicant was creating pressure upon the deceased for getting married but later on he refused to enter into the marriage with the deceased. The said denial of marriage by the present applicant created unpleasant situation for the deceased and as such, she Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 3 CRR-1807-2022 committed suicide. The police registered the offence presuming that the present applicant created pressure upon the deceased for committing suicide and during the course of investigation, an offence under Section 376(2)(n) was also registered in addition to Section 306 of the Indian Penal Code.
3.3 The incident occurred on 12.08.2021 and the FIR got registered on 03.10.2021. The age of the deceased was shown as 21 years and as per the postmortem report, no injury marks were seen on external or internal parts of the body and the hymen was also found intact. The statement of father of the deceased was also recorded wherein he has stated that his daughter hung herself to death on 12.08.2021. He has further stated that four years prior to the date of incident, the present applicant who was working as an Engineer came from Sendhwa to Baldeogarh and was residing in the house of one Birchandra Jain as a tenant. He has further stated that the deceased used to go to the house of the landlord of the present applicant as her friend was also residing in the said house.
He has deposed that the applicant told the deceased that he will teach her English and very often the deceased used to go to the house of the present applicant to learn English and during that period only the present applicant trapped her in a false affair. According to the father of the deceased, the applicant created pressure upon the deceased to get married to him and accordingly he agreed for solemnizing the marriage according to the Hindu Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 4 CRR-1807-2022 rites and went to the present applicant's house on 10.07.2021 to discuss about the marriage with his family members but they gave several excuses and kept postponing the marriage on the pretext of discord etc. in the family and the present applicant continued to harass the deceased mentally. Father of the Deceased further stated that on 11.08.2021, there were some hot talks between applicant and his daughter (deceased) due to which she got mentally depressed as the present applicant refused to marry her and as such out of the shock she committed suicide on 12.08.2021. The father of the deceased has also made allegation against the applicant that on the false pretext of marriage, he developed physical relations with the deceased and thereafter refused to marry her on account of which she committed suicide. The other witnesses like mother of the deceased and Rakhi who is the friend of the deceased have also reiterated almost the same facts. The complainant Vivek Jain who is neighbour of the deceased has also stated that when he came to know that the deceased had committed suicide he went to the place of incident and saw that she hung herself to death in her room. He has further stated that he had no information regarding the cause of suicide.
4. Learned counsel for the applicant has submitted that no material is available on record to indicate that at any point of time, the present applicant had abated the deceased for committing suicide and even from the statement of family members of the Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 5 CRR-1807-2022 deceased, nothing has come out to indicate that the material ingredients of Section 107 of the Indian Penal Code are available so as to constitute an offence under Section 306 of IPC. As per counsel for the applicant, the allegations are omnibus and nothing specific alleged against the present applicant who is holding the post of Engineer and having no criminal antecedent, but since he was in affair with the deceased and somehow the promise of marriage could not be fulfilled and marriage could not be solemnized and consequently upon which the deceased committed suicide, therefore, the impugned FIR has been registered against the applicant. In support of his submission, counsel for the applicant has placed reliance upon an order passed by this Court in M.Cr.C. No.17465/2021 (Vikas Inwati Vs. State of Madhya Pradesh and another) decided on 24.11.2023 and also in an order passed by this Court in M.Cr.C. No.5754/2022 (Nageshwar Prasad Jaisal Vs. State of Madhya Pradesh and another) decided on 02.07.2024.
5. On the other hand, learned counsel appearing for the respondent/State has opposed the submission made by counsel for the applicant and submitted that for each and every case, it is not required to see whether the material ingredients of abatement are present or not but otherwise considering the situation existing in which the suicide has been committed leaving no other option before the deceased but to commit suicide, the offence of Section Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 6 CRR-1807-2022 306 of IPC is also made out. He has further submitted that the charge has been framed by the trial Court on the basis of available material and as such at this stage, it cannot be said to be illegal and the charge levelled against the applicant will be proved during the course of trial after adducing sufficient material and evidence before the Court.
6. I have heard the rival contentions of both the parties and perused the record.
7. As per the FSL report, except on neck where blood was found, nothing was found over the body of the deceased and even there is no material to indicate that any physical relation was developed between applicant and the deceased. Even in the postmortem report which is part of the charge-sheet, in the opinion of doctor, hymen was found intact. Along with the charge-sheet, the whats App messages sent by the applicant and deceased to each other have been produced.
8. From the overall material available in the charge-sheet, it can be presumed that the applicant and the deceased were in affair and the deceased was insisting the present applicant to marry her but the applicant was not inclined to do so and the deceased was threatening him that if anything happens to her or her family members then he would be responsible for the same and she would also register a case against him and his family members. Nothing reveals from the statement of family members of the deceased that Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 7 CRR-1807-2022 the applicant at any point of time had given any threat or asked the deceased to commit suicide. It also does not reveal that on the false pretext of marriage, physical relation developed between them but on the contrary as per the report of the doctor, hymen was found intact, meaning thereby there was no physical relations developed between them. The trial Court at the time of framing of charge has not considered all these material facts and as such, in absence of any ingredient of Section 107 of the Indian Penal Code, the offence of Section 306 of IPC and even 376 is also not made out against the present applicant.
9. In the present case, except the statement of witnesses saying that the present applicant has created pressure upon the deceased to get married to him but later on refused, nothing more is produced by the prosecution. Even from the mobile chat, it reflects that there was some dispute between the family members of the deceased and the present applicant and they were not reaching to any satisfactory conclusion and the deceased was showing her anger, reminding him of the past and asking the applicant to come back to her and get married. There is nothing to indicate that any promise was made by the present applicant to enter into marriage with the deceased and on the false assurance of marriage, he developed physical relations with the deceased. This Court has considered this aspect relying upon several decisions of the Supreme Court observing the same situation and found that under Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 8 CRR-1807-2022 the circumstances, offence of Section 376 is not made out. The observation made by this Court in case of Nageshwar Prasad Jaisal (supra) is as under:-
T h e Supreme Court in re Uday (supra) dealing with the factual circumstances existing in the said case observed 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."
In re Pramod Suryabhan Pawar (supra) , the Supreme Court dealing with the factual aspect of the matter interpreted as to how it is determined that the consent has been obtained under misconception of fact and observed 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 Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC 509] , this Court held : (SCC para 12) "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 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 Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 9 CRR-1807-2022 under Sections 375 IPC and can be convicted for the offence under Section 376 IPC."
Similar observations were made by this Court in Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati) : (SCC p. 682, para 21) "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;""
Thereafter, in re Maheshwar Tigga (supra) again the Supreme Court dealing with the facts of the case of Section 376 of IPC has reiterated as to how it is determined that the consent given by the prosecutrix is under misconception of fact and observed as under:-
"13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eye of the law. In the facts of the present case, we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.
17. This Court recently in Dhruvaram Murlidhar Sonar v. State of Maharashtra [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672 : AIR 2019 SC 327] and in Pramod Suryabhan Pawar v. State of Maharashtra [Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC (Cri) 903] arising out of an application under Section 482 CrPC in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities, quashed the proceedings."
In re Shivashankar @ Shiv (supra) , the Supreme Court observed as under:-
"In the facts and circumstances of the present case, it is difficult to sustain the charge levelled against the appellant who may have possibly, made a false promise of marriage to the complainant.
It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the facts of the complainant's own allegation that they lived together as man and wife."Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11
10 CRR-1807-2022 Further in re Dr. Dhruvaram Murlidhar Sona (supra) , considering the existing facts and circumstances of the case, which are almost similar to the case in hand, observed as under:
"20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus : (Deelip Singh [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p. 106, para 35) "35. The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW 12 that "later on", the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46 :
2003 SCC (Cri) 775] at para 24 come to the aid of the appellant."
In re Deepak Gulati (supra) , the Supreme Court observed as under:-
"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."Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11
11 CRR-1807-2022 In re Sonu @ Subhash Kumar (supra) , the Supreme Court observed as under:
"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 purpose 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 second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court weas in error in declining to entertain the petition under Section 482 of Cr.P.C. on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established."
This Court in re Madhur Baghrecha (supra) relying upon several judgments of the Supreme Court also considered the definition of rape provided under Section 375 of IPC and also the definition of consent known to be given under fear or misconception provided under Section 90 of IPC. The relevant paragraph of the judgment reads thus :-
"12. Further in the case of Pramod Suryabhan Pawar (supra) again the Supreme Court has considered the scope of respective provisions of Sections 375 and 90 of IPC and observed as under:-
9. The present proceedings concern an FIR registered against the appellant under Sections 376, 417, 504 and 506(2) IPC and Sections 3(1)(u), (w) and 3(2)
(vii) of the SC/ST Act. Section 376 IPC prescribes the punishment for the offence of rape which is set out in Section 375. Section 375 prescribes seven descriptions of how the offence of rape may be committed. For the present purposes only the second such description, along with Section 90 IPC is relevant and is set out below:
"375. Rape.--A man is said to commit "rape" if he-- *** under the circumstances falling under any of the following seven descriptions--
Firstly.--
Secondly.--Without her consent.
*** Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: 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."Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11
12 CRR-1807-2022 "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; or"
10. Where a woman does not "consent" to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 does not define the term "consent", a "consent" based on a "misconception of fact" is not consent in the eye of the law.
11. The primary contention advanced by the complainant is that the appellant engaged in sexual relations with her on the false promise of marrying her, and therefore her "consent", being premised on a "misconception of fact" (the promise to marry), stands vitiated.
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 action or inaction, consents to such action. In Dhruvaram Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
2018 SCC OnLine SC 3100] 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 v. State of Kerala [Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 : (2013) 3 SCC (Cri) 858] : (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."
13. This understanding of consent has also been set out in Explanation 2 of Section 375 (reproduced above). Section 3(1)(w) of the SC/ST Act also incorporates this concept of consent:
"3. (1)(w)(i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11
13 CRR-1807-2022 *** Explanation.--For the purposes of sub-clause (i), the expression "consent" means an unequivocal voluntary agreement when the person by words, gestures, or any form of non-verbal communication, communicates willingness to participate in the specific act:
Provided that a woman belonging to a Scheduled Caste or a Scheduled Tribe who does not offer physical resistance to any act of a sexual nature is not by reason only of that fact, is to be regarded as consenting to the sexual activity:
Provided further that a woman's sexual history, including with the offender shall not imply consent or mitigate the offence;"
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 Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC 509] , this Court held : (SCC para 12) "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 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 IPC and can be convicted for the offence under Section 376 IPC."
Similar observations were made by this Court in Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati) : (SCC p. 682, para
21) "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;"
15. In Yedla Srinivasa Rao v. State of A.P. [Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615 :
(2007) 1 SCC (Cri) 557] the accused forcibly established sexual relations with the complainant.
When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the Court observed : (SCC pp.
Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:1114 CRR-1807-2022 620-21, para 10) "10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent."
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 vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] this Court observed : (SCC pp. 682-84, paras 21 & 24) "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; 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.
***
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 Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 15 CRR-1807-2022 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, [Ed. : The matter between two asterisks has been emphasised in original.] unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her [Ed. :
The matter between two asterisks has been emphasised in original.] ."
(emphasis supplied) In the aforesaid case, the Supreme Court has also taken note of the law laid down in the case of Uday (supra)."
Further in re Madhur Baghrecha (supra) taking note of the legal position on the issue, as has been considered by the Supreme Court in the case of Maheshwar Tigga (supra), this Court observed as under:
"14. In the case of Maheshwar Tigga (supra) also the Supreme Court has considered the scope of Sections 375 and 90 of IPC relying upon the law laid down in the cases of Dr. Dhruvaram Murlidhar Sonar and Pramod Suryabhan Pawar (supra) reiterating the same legal position and also observed that the proceeding under Section 482 of Cr.P.C. can be initiated for quashing the proceedings. The observation of the Supreme Court is imperative to be mentioned, which is as under:
"17. This Court recently in Dhruvaram Murlidhar Sonar v. State of Maharashtra [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672 : AIR 2019 SC 327] and in Pramod Suryabhan Pawar v. State of Maharashtra [Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC (Cri) 903] arising out of an application under Section 482 CrPC in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities, quashed the proceedings.
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. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11
16 CRR-1807-2022 marriage was to solemnised in the church or in a temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant's family was always very nice to her."
15. So far as the cases i.e. Laxmi Narayan and Pawan Gaur (supra) relied upon by the learned counsel for the respondent-State is concerned, on bare perusal of the same, it is clear that the facts of the said cases are altogether different from the present case because in the said cases the Supreme Court and the High Court dismissed the petition filed under Section 482 of Cr.P.C. on the ground that the compromise taken place between the parties is not sufficient and cannot be the sole ground for quashing the proceedings. In the said cases the petitioners had not raised any other ground except the ground of compromise taken place between the parties, but, here not only the facts of the present case are different than that of those cases relied by the counsel for the respondent-State, but the quashment of the proceeding is not being sought by the counsel for the petitioner on the ground that the parties entered into the compromise, it is argued that even from the allegation and the material produced by the prosecution, the offence under Section 376 of IPC is not made out against the present petitioner. According to the learned counsel for the petitioner, it is a case of consensual sexual intercourse because the petitioner and the prosecutrix both are major, literate, having affair and developed the physical relation out of their own free will, although for some reasons the said relationship could not be converted into marriage and annoying with the failure of the said situation, the complainant lodged the FIR and later on when the marriage of the prosecutrix was settled with some other boy, she filed an affidavit stating therein that since her marriage has been settled, she wants to enjoy her married life and if the case is continued in future, her remaining life would be adversely affected and, therefore, she has compromised the matter and further she does not want to prosecute the matter any further. On analyzing the facts and circumstances of the cases cited by the learned counsel for the respondent-State and the case at hand, it is apparent that the analogy drawn on by the Supreme Court Court and the High Court in the aforesaid cases is not applicable in the present case. In the present case, the petitioner is not seeking quashment of the FIR and proceeding thereof on the ground that the matter has been settled between the parties, but he is seeking quashment mainly on the ground that if the contents of FIR or allegations attributed by the complainant against the petitioner are taken to be true on its face value, the offence under Section 376 of IPC is not made out. As per Shri Datt, it is a clear-cut case of consent and consensual relation between two major persons with their consent as they were in relation. As such he has claimed quashment of the FIR and proceeding thereof.
16. Considering the arguments advanced by the learned counsel for the parties, the material available in the case diary, the facts and circumstances of the Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 17 CRR-1807-2022 case and also in view of the enunciation of law laid down by the Supreme Court in the cases cited above, in my opinion, this Court can exercise the power provided under Section 482 of Cr.P.C. and quash the FIR and the proceedings initiated thereof against the petitioner. It is not only for the reason that in view of the existing facts and circumstances of the case the conduct of the petitioner does not fall within the definition of rape as defined in Section 375 of IPC, but also for the reason that the power provided under Section 482 Cr.P.C. can be exercised to secure the ends of justice. In the present case, the complainant and her counsel has informed this Court that the marriage of the prosecutrix has been settled with some other boy and if the present case is continued further, that may adversely affect newly married life of the prosecutrix. I find substance in the submission made by the learned counsel for the complainant/prosecutrix that in such circumstances, it would be appropriate to quash the proceedings arising out of the FIR No. 62/2020."
10. Thus, in absence of any material corroborating the allegation made by the deceased, the charge relating to an offence under Section 376 of IPC could not have been framed by the trial Court. It is a very common nowadays that in young age when a boy and girl get attracted towards each other, they normally presume that their relationship will naturally culminate into marriage. However, sometimes it fails, and it also depends upon person to person to face such a situation. Some people come out from that situation and some of them fail to face that situation and commit suicide. It depends upon their patience, emotional strength and power to resist. The High Court of Chhattisgarh, Bilaspur in CRR No. 1213/2023 (Ku. Pooja Chopra and others Vs. State of Chhattisgarh) relying upon various judgments of the Supreme Court, dealt with this issue and has observed as under:-
"30.True it is that the deceased had written in suicide letter about the threats given by applicants, but, in the opinion of this Court, nature of threats mentioned in the suicide letter written by deceased are not of such an alarming proportion so as to drive a 'normal person' to contemplate suicide. Most importantly, there is no mention in suicide Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 18 CRR-1807-2022 letter or statements of any witness, when such threats were uttered, whether it was continuous or a single incident and whether it was much prior to the suicide or in close proximity when the suicide was committed. Further, if deceased had felt annoyed and threatened by the applicants, he might have lodged complaint in this regard with police, but deceased had not made any complaint to the police with regard to threats given to him by applicants. In the opinion of this Court, suicide letter only expressed a state of anguish of deceased towards applicant No.1 due to her betrayal in love, but it cannot be depicted as expressing anything intentional on the part of applicants that the deceased might commit suicide. This presumption gets strengthened from the statements of some independent witnesses that deceased told them that applicant No.1 had cheated him, she had refused to marry him, he cannot live without her and will commit suicide.
31. If a lover commits suicide due to love failure, if a student commits suicide because of his poor performance in the examination, a client commits suicide because his case is dismissed, the lady, examiner, lawyer respectively cannot be held to have abetted the commission of suicide. For the wrong decision taken by a man of weak or frail mentality, another person cannot be blamed as having abetted his committing suicide. My above view is fortified by the decision of Hon'ble Supreme Court in case of Geo Verghese vs. The State of Rajasthan & anr, reported in 2021 SCC Online SC 873, wherein Hon'ble Supreme Court while quashing FIR under Section 306 of IPC, has observed thus:-
"30.If, a student is simply reprimanded by a teacher for an act of indiscipline and bringing the continued act of indiscipline to the notice of Principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting a child, any student who is very emotional or sentimental commits suicide, can the said teacher be held liable for the same and charged and tried for the offence of abetment of suicide under Section 306 IPC.
31. Our answer to the said question is 'No'.
11. In view of the aforesaid, it is clear that knowing fully well that when nothing could be proved even during trial and no material for constituting an offence is available, then the trial Court should not have framed the charge of Sections 376(2)(n) and 306 of the Indian Penal Code against the applicant. The trial Court while framing the charge by the impugned order has also not taken note of the fact that the evidence produced by the prosecution is Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11 19 CRR-1807-2022 inadmissible and difficult to prove during trial and as such, the impugned order passed by the trial Court is not sustainable.
12. Consequently, this revision is allowed. The order dated 20.04.2022 passed by the Fifth Additional Sessions Judge, Tikamgarh in Sessions Trial No.42/22 framing charge against the applicant under Sections 376(2)(n) and 306 of the Indian Penal Code is hereby set aside.
(SANJAY DWIVEDI) JUDGE Rao Signature Not Verified Signed by: SATYA SAI RAO Signing time: 01-08-2024 11:06:11