Madhya Pradesh High Court
Santosh Kumar Yadav vs The State Of Madhya Pradesh on 4 July, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 4th OF JULY, 2023
MISC. CRIMINAL CASE No.21390 of 2023
Between:-
SANTOSH KUMAR YADAV S/O SHRI
SUDHANRAM YADAV, AGED 50 YEARS,
R/O 526 MODERN TOWN, POLICE
STATION- SIROL, CITY CENTER,
DISRICT- GWALIOR (MADHYA
PRADESH)
........APPLICANT
(BY SHRI RAJIV SHARMA- ADVOCATE WITH SHRI HEMANT
RANA- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH POLICE STATION -
KAMPOO, DISTRICT- GWALIOR
(MADHYA PRADESH)
3. PROSECUTRIX X THROUGH POLICE
STATION- KAMPOO, DISTIRCT-
GWALIOR (MADHYA PRADESH)
........RESPONDENTS
(SHRI NEERAJ DHAMANYA- PANEL LAWYER FOR
RESPONDENT/STATE AND SHRI VIBHOR KUMAR SAHU- ADVOCATE
FOR THE COMPLAINANT)
--------------------------------------------------------------------------------------------
This application coming on for hearing, this day, the Court passed the
following:
ORDER
This petition under Section 482 of Cr.P.C. has been filed by the applicant seeking quashment of FIR registered as Crime No.132/2023 at 2 Police Station -Kampoo, District- Gwalior (M.P.) for the offence punishable under Sections 376, 376(2)(b), 376(2)(n), 354 and 506 of IPC and other consequential proceedings arising therefrom.
2. Brief facts of the case are that on 06/04/2023, prosecutrix/complainant lodged a computerized complaint at Police Station- Kampoo, District- Gwalior (M.P.) alleging that she is aged 23 years and she is student of B.Sc. in K.R.G. Collage. In the year 2022, she was 2 nd year of B.Sc. when she was introduced to the applicant who was the professor and was holding the post of H.O.D. Of Biotechnology. She was under stress due to failure of her second year paper then the applicant came in her contanct and they became friends and applicant assured her that if she would obey him, he would get her passed in the exams in future and also make her professor in the collage. Thereafter, applicant and prosecutrix exchanged their mobile numbers and started talking on mobiles phones. Thereafter, on 09/04/2022, applicant called her in his chamber and molested her with bad intention. When the prosecutrix objected the same, applicant threatened her to spoil her career, due to which, she did not tell about this anybody. Thereafter, applicant started calling her at collage any time again and again and kissing and touching with bad intention. On 27/02/2023, applicant took her from the Collage to his friend's hotel situated at Dabra highway by his car bearing Registration No.MP07-PA-5181 and committed rape with her forcefully and threatened her not to tell about this to her family members. Thereafter, he left her at the temple of Mandre Ki Mata. Thereafter, on 3 05/04/2023, applicant called the prosecutrix by making phone upon her mother's mobile and took her again to his friend's hotel situated at Dabra highway and committed rape with her forcefully and at about 4:00 PM, applicant left the prosecutrix at Kampoo and he threatened to kill her and her family members if she narrated the incident to anyone. On the basis of aforesaid, crime has been registered against the applicant. She was sent for medical examination. Nothing adverse has been found on the body of the prosecutrix. Statements were recorded. Thereafter, applicant was arrested on 06/04/2023. After investigation, charge sheet has been submitted.
3. It is submitted by learned counsel for the applicant that FIR has been lodged by the prosecutrix on 06/04/2023 after more than one month of the incident i.e. 27/02/2023 with mala-fide intention just to take undue benefit. The complainant/prosecutrix is a major lady aged 23 years and she is well versed with pros and cons of making friendship with the male person. She knew the applicant very well for last one year. She has made physical relations with the applicant on her own consent and free will. The prosecutrix was in relationship with applicant over a significant period of time, therefore, consent of the prosecutrix is not obtained by misrepresentation. Just to take undue benefit, she has lodged a false FIR. It is further submitted that if prosecutrix was exploited by the applicant without her consent, being a major girl, first of all, she had to lodge the FIR against him or tell her parents about this but she did not it. She knew the applicant from last one year when she was studying in the year 2022 and if 4 any woman continues to remain in physical relationship for a long period, then it cannot be said that her consent was obtained by misconception of fact. To buttress his contentions, the counsel for the applicant has relied upon the judgments passed by the Supreme Court in the case of Deepak Gulati vs. State of Haryana AIR 2013 SC 2071, Tilak Raj vs. State of Himachal Pradesh AIR 2016 SC 406, Uday vs. State of Karnataka (2003) 4 SCC 46, Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr. (2019) 3 SCC (Cri.) 903, Sonu @ Subhash Kumar Vs. State of Uttar Pradesh & Anr. AIR 2021 SC 1405 as well as the judgments passed by this Court in the case of Senjeet Singh Vs. State of M.P. and another 2020 (1) MPLJ (Cri.) 260, Abid Ali Vs. State of MP & Anr. passed on 18/5/2017 in M.Cr.C. No.11363/2016 and a judgment passed by a coordinate Bench of this Court in the case of Umesh Lilani Vs. The State of M.P. & Anr. passed on 18/7/2019 in M.Cr.C. No.16158/2019 (Indore Bench) as well as the order dated 28th March, 2022 passed by a Coordinate Bench of this Court in the case of Satendra Rathore vs. State of MP and Another passed in MCRC 45389 of 2021.
4. Learned counsel for the State as well as complainant vehemently opposed the submission so advanced by the applicant by submitting that at this stage no interference is warranted.
5. Heard learned counsel for the parties and perused the record.
6. From the plain reading of the allegations made by the prosecutrix, it is clear that she was in relationship with the applicant for last many months. 5 FIR has been lodged belatedly by the prosecutrix just to take undue advantage.
7. The Hon'ble Apex Court in the case of Deepak Gulati (supra) has 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.'' 6 In the case of Tilak Raj (supra), the Hon'ble Supreme Court has 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.'' The Hon'ble Supreme Court further in the case of Uday (supra) has 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 7 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.
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 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.
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 8 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 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 9 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.'' The Hon'ble Apex Court in the case of Sonu @ Subhash Kumar (supra) has held 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.'' 10 The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar (supra) has 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 Chhattisgarh, 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 of the Indian Penal Code 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 Indian Penal Code 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 ("D"21.. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether that was made, at an early stage a false promise of marriage by the Accused....Deepak Gulati"): (SCC p.682, para 21)
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 11 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 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 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 12 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 Indian Penal Code 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.
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 thewoman's decision to engage in the sexual act."
The Hon'ble Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. Naval Singh Rajput and others reported in 2019 (3) MPLJ (Cri.) SC 52 has held as under:-
''20. Thus, there is a clear distinction between rape and consensual sex. The Court, in such cases, must very carefully examine whether the complainant 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 later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the 13 sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 of the Indian Penal Code.
21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a monthÃÂ's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that ÃÂas I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together.
We used to reside sometimes at my home whereas some time at his home. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They 14 were in a relationship with each other for quite some time and enjoyed each others company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under section 376(2)(b) cannot be sustained. ''
8. On going through the law laid down by the Hon'ble Apex Court and looking to the facts and circumstances of the case as well as the fact that the complainant/prosecutrix was in physical relationship with applicant for a long period and she has lodged the FIR after more than one month of incident. On the alleged date of incident, the prosecutrix herself went with the applicant at hotel situated at Dabra Highway. Thus, it cannot be said that her consent was obtained by misconception of facts.
9. Under these circumstances, the prosecution of the applicant for the offence punishable under Sections 376, 376(2)(b), 376(2)(n), 354 and 506 of IPC would be nothing but abuse of process of law and, therefore, no case 15 is made out warranting prosecution of applicant. As a consequence thereof, FIR registered as Crime No.132/2023 at Police Station -Kampoo, District- Gwalior (M.P.) for the offence punishable under Sections 376, 376(2)(b), 376(2)(n), 354 and 506 of IPC and other consequential proceedings arising therefrom are hereby quashed. Applicant is discharged from the present case.
10. Accordingly, the instant petition preferred under Section 482 of Cr.P.C. by the applicant stands allowed and disposed of.
11. Let a copy of this order be sent to the concerned Court below as well as police station concerned for information and compliance.
(DEEPAK KUMAR AGARWAL)
JUDGE
RAHUL Digitally signed by RAHUL SINGH PARIHAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
SINGHrahul
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab67 6d0cde4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00 D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910 PARIHAR FD4AB9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2023.07.05 12:16:44 +05'30'