Madhya Pradesh High Court
Ankur @ Subodh vs The State Of Madhya Pradesh on 25 April, 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 25th OF APRIL, 2023
CRIMINAL APPEAL NO.8223 OF 2019
BETWEEN:-
ANKUR @ SUBODH THROUGH HIS
FATHER SHRI GANDESH RAWAT, AGED
ABOUT 24 YEARS, R/O RAWAT BABA
ROAD DABRA DISTRICT- GWALIOR
(MADHYA PRADESH)
........APPELLANT
(BY SHRI ATUL GUPTA - ADVOCATE)
AND
STATE OF M.P. THROUGH POLICE
STATION- KAMPOO, DISTRICT-
GWALIOR (MADHYA PRADESH)
........RESPONDENT
(BY SHRI ROHIT SHRIVASTAVA - PANEL LAWYER)
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This appeal coming on for orders this day, the Court passed the
following:
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JUDGMENT
This appeal has been filed under Section 374 (2) of Cr.P.C. by the appellant against the judgment of conviction and order of sentence 2 dated 16/09/2019 passed by 10 th Additional Session Judge, Gwalior, District- Gwalior (M.P.) in S.T. No.06/2017, whereby the appellant has been convicted and sentenced as under:-
Section Sentence Fine (Rs.) Default Stipulation 376(2)(N) of IPC 10 Years RI 1,00,000/- 2 Years RI 506 of IPC 6 Months RI 1000/- 15 Days' RI
2. In brief, prosecution case is that on 06/08/2016, complainant has made a written complainant at Police Station- Kampoo, District- Gwalior (M.P.) to the effect that on 19/11/2011, she met to accused- Ankur Rawat in her sister marriage and thereafter, Ankur proposed her to marry as there is no any caste difference between them. Thereafter, complainant said the accused - Ankur to talk to your parents then accused- Ankur Rawat said her to marry in temple first and thereafter, they shall inform to their family members. After that, they solemnized the marriage in temple and made physical relation which she opposed but accused- Ankur said her to marry with her. When the complainant told about it, they opposed the same and talked the accused so he also said the parents of the complainant to marry with her. Up to 17 th July, 2017, accused- Ankur Rawat exploited the complainant. Thereafter, when sometime lapsed and family members of the complainant pressurized the accused to marry with the complainant so accused- Ankur said them to talk his parents at his home. In the month of July, 2015, when mother and father of the complainant went to the house of the accused- Ankur Rawat at Dabra, his parents started quarreling and abusing them. When his maternal uncle told the whole thing, parents of the accused agreed. Everything was settled and accused- Ankur started coming at the house of the complainant as well and during this, accused 3
- Ankur Rawat made physical relation with the complainant repeatedly and on her refusal for the same, he used to say her that now he was her husband. Thereafter, parents of the complainant came to know that parents of the accused- Ankur Rawat were looking of a girl for him and when they went to the house of Ankur Rawat so his parents chased them away and when they talked to Ankur Rawat, he said that now he had used her a lot and if she had called and tried to talk him, he would do bad of her. Ankur Rawt got engaged on 12/07/2016 and on 05/08/2016 sent some people at the house of the complainant to threaten her. On the basis of her complaint, FIR bearing Crime No.419/2016 was registered at Police Station - Kampoo, District- Gwalior (M.P.) for the offence under Sections 376 and 506 of IPC. Thereafter, prosecutrix was sent for medical examination. The police also collected cloths, pubic hair and vaginal/seman/ sperm slide of the prosecutrix and accused; sent it to chemical analysis. During investigation, statements of the witnesses were recorded. After investigation, police filed the charge- sheet against the accused- Ankur Rawat before the Court of Judicial Magistrate First Class, District- Gwalior (M.P.) who committed the case of to the Sessions Court which was finally transferred to the Court of 10th Additional Session Judge, Gwalior, District- Gwalior (M.P.) for its trial. After trial, learned trial Court convicted and sentenced as above mentioned.
3. Learned counsel for the appellant submits that FIR has been lodged by the complainant/prosecutrix with mala fide intention just to take undue benefit. The complainant/prosecutrix is a major girl and she is known the appellant from the last five years. She has made physical relationship with the appellant on her own consent and free will. The 4 prosecutrix was in relationship with appellant 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 the statement of prosecutrix was recorded under Section 164 of Cr.P.C., in which she has stated that the appellant is known to her for the last five years and if any woman continues to remain in physical relationship for a long period including visiting hotel, 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 has 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.
56. From the plain reading of the allegations made by the prosecutrix, in the statement under Section 164 of Cr.P.C., it is clear that she was in relationship with the applicant for last two months. FIR has been lodged on 11/04/2021. Before lodging the report, neither prosecutrix has made any complaint to anybody in this regard.
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 6 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.'' 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 7 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.
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, 8 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 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, 9 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 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 10 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.'' 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 11 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....eepak 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 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 12 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 13 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 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 14 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 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 monthà Â'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 à Âas I was also a widow and I was also in need of a companion, I agreed 15 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 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 it is evident that there is a distinction between "mere breach of promise'' and ''giving a false promise to marry''. Only a false promise to marry made with an intention to deceive a woman would vitiate the woman's consent being obtained under misconception of fact, but mere breach of promise cannot be said to be a false promise. In the present case at hand, the complainant- prosecutrix was in physical relationship with applicant for a 16 long period. Thus, it cannot be said that her consent was obtained by misconception of fact.
9. Considering the facts and circumstances of the case and evidence came on record, learned trial Court erred in convicting the appellant for the aforesaid offences. Accordingly, the appeal allowed and the impugned judgment of conviction and order of sentence is hereby set- aside. The appellant is acquitted and discharged from all the charge of the present case.
10. A copy of this order be sent to the concerned trial Court for necessary compliance.
(DEEPAK KUMAR AGARWAL) JUDGE RAHUL Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA SINGH rahul PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf8 2ab676d0cde4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728 CE00D487, PARIHAR serialNumber=0275C4F803F94C47998BE5C534E21BD ED910FD4AB9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2023.04.28 18:14:15 +05'30'