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Sidharth v/s State of Maharashtra & Another


Company & Directors' Information:- R SIDHARTH & COMPANY (INDIA) PVT LTD [Strike Off] CIN = U17111WB1991PTC051089

    Criminal Application (Apl) No. 434 of 2017

    Decided On, 28 September 2017

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MRS. JUSTICE VASANTI A. NAIK & THE HONOURABLE MR. JUSTICE M.G. GIRATKAR

    For the Applicant: M.V. Bute, Counsel. For the Respondents: R1, S.S. Doifode, Additional Public Prosecutor, R2, S.P. Dhotre, Counsel.



Judgment Text

Vasanti A. Naik, J.

1. The criminal application is ADMITTED and heard finally at the stage of admission with the consent of the learned counsel for the parties.

2. By this criminal application, the applicant seeks the quashing and setting aside of the first information report registered against the applicant for the offences punishable under Sections 376, 417 and 323 of the Penal Code.

3. The non-applicant no.2 had lodged a report on 24.04.2017 alleging therein that she belongs to the scheduled castes and from 2015 she had a love affair with the applicant. It is alleged that since the year 2010, there was a friendly relationship between the applicant and the non-applicant no.2 but from the year 2014, they were in love with each other. It is alleged that the applicant and the non-applicant no.2 had studied together for the competitive examinations and the parents of the applicant and the non-applicant no.2 were aware of the relationship between them. It is alleged that the applicant used to frequently visit the house of the non-applicant no.2 and that she also used to visit the house of the applicant. It is alleged that sometimes she used to stay in the house of the applicant and his parents for two to three days. It is further alleged that the applicant and the non-applicant no.2 had told their respective families that they would get married after they secure a job. It is alleged that on several occasions, there was sexual intercourse between the applicant and the non-applicant no.2 and they had always ensured that the non-applicant no.2 should not become pregnant. It is alleged that in February2017 when the parents of the non-applicant no.2 went to the house of the applicant for chalking out the programmes for the marriage, the parents of the applicant refused to talk to the parents of the non-applicant no.2 on the pretext that the non-applicant no.2 was not in service. It is alleged that the applicant and his parents settled the marriage of the applicant with another girl and the applicant snapped the relationship with the non-applicant no.2. It is alleged that when the non-applicant no.2 went to the house of the applicant and his family members on 25.03.2017 the applicant told her not to meet him again. It is alleged that since the applicant had entered into a physical relationship with the non-applicant no.2 on a false promise of marriage, action may be taken against him in accordance with law. On the basis of the report lodged by the non-applicant no.2, the first information report was registered against the applicant under Sections 376, 417 and 323 of the Penal Code. The applicant has sought for the quashing and setting aside of the first information report registered against him under Section 376 of the Penal Code.

4. Shri Bute, the learned counsel for the applicant, submitted that it is well settled that an offence under Section 375 of the Penal Code could be made out only when the consent is obtained by the man on the false promise of marriage from the beginning of the sexual relationship. It is submitted that the offence punishable under Section 376 of the Penal Code could be made out only when the man has an intention to deceive the woman from the very beginning, when he seeks her consent for sexual intercourse. It is submitted that from the allegations in the report lodged by the non-applicant no.2, it is apparent that the applicant desired to marry the non-applicant no.2 when they had first entered into sexual relationship in the year 2014 and the applicant and the non-applicant no.2 had also informed their respective families about the love affair and their relationship and there was no objection in regard to the same. It is submitted that from the allegations made in the first information report that the parents of the applicant and the non-applicant no.2 were aware about the relationship between them and that the non-applicant no.2 was living for two-three days in the house of the applicant and his parents, it is clear that the applicant did not have the intention of deceiving the non-applicant no.2 in the year 2014 when the parties indulged in sexual intercourse for the first time. It is submitted that the Hon'ble Supreme Court has held in the judgment reported in (2013) 7 SCC 675 (Deepak Gulati Versus State of Haryana) that a Court must be assured that the accused has from the very beginning acted with mala fide intention of seducing the prosecutrix by making a false promise of marriage and not keeping the same. It is submitted that as the applicant did not have the intention of making a false promise of marriage and of not keeping the same from the very beginning and the said fact is asserted by the non-applicant no.2 in the report lodged by her in the police station, the continuance of the proceedings against the applicant for the offence punishable under Section 376 of the Penal Court would be an abuse of the process of Court.

5. Shri Doifode, the learned Additional Public Prosecutor appearing for the non-applicant no.1 submitted that the first information report was rightly registered against the applicant for the offence punishable under Section 376 of the Penal Code. It is submitted that even if the applicant had initially desired to marry the non-applicant no.2, since he had refused to marry her on the say of his parents, it would be necessary to hold that the applicant had the intention to deceive the non-applicant no.2. The learned Additional Public Prosecutor relied on the judgments reported in (2006) 11 SCC 615 (Yedla Srinivasa Rao Versus State of A.P.), 2014 All M R (Cri) 2383 (Nitin Omprakash Agrawal Versus State of Maharashtra & Another), (2013) 12 SCC 710 (Karthi Alias Karthick Versus State, represented by Inspector of Police, Tamil Nadu) and 2017 (4) Mh.L.J. Cri. 204 (Baburao V.Nair Versus State of Maharashtra & Another) to substantiate his submission. It is submitted that this cannot be a case for quashing and setting aside the first information report as the question whether the applicant had the intention to deceive the non-applicant no.2 from the year 2014 when the parties had first indulged in sexual intercourse, could be decided by the trial Court after considering the evidence adduced by the parties. It is submitted that since the non-applicant no.2 had agreed for the physical relationship solely in view of the promise of the applicant that he would marry her and since the applicant has deceived the non-applicant no.2, the criminal application is liable to be dismissed.

6. Mrs.Dhotre, the learned counsel for the non-applicant no.2, submitted that the applicant had decided to marry the non-applicant no.2 after both of them were able to secure a job but in the year 2017 he resiled from the said promise and decided to marry some other girl on the say of his parents as the non-applicant no.2 was not in service. It is submitted that since the applicant had falsely promised to marry the non-applicant no.2 and had not fulfilled the same, the first information report is rightly registered against the applicant for the offence punishable under Section 376 of the Penal Code.

7. To appreciate the submissions made on behalf of the parties, it would be necessary to consider the provisions of Section 375 of the Penal Code. The provisions of Section 375 of the Penal Code read thus:

'375. Rape. – A man is said to commit 'rape' if he –

(a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

First. – Against her will.

Secondly. – Without her consent.

Thirdly. – With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. – With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. – With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. – With or without her consent, when she is under eighteen years of age.

Seventhly. – When she is unable to communicate consent.

Explanation 1. – For the purposes of this section, 'vagina' shall also include labia majora.

Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal 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 to consenting to the sexual activity.

Exception 1. – A medical procedure or intervention shall not constitute rape.

Exception 2. – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'

To perceive the meaning of 'consent' within the meaning of the term, as intended by the Code, it would be necessary to consider the provisions of Section 90 of the Penal Code, which read thus:

'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

Consent of insane person. – if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child. – unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

After considering the relevant provision of the Penal Code, the Hon'ble Supreme Court has laid down in the judgment reported in (2013) 7 SCC 675 (Deepak Gulati Versus State of Haryana) that the Court must be assured that the accused had from the very beginning acted with mala fide intention of seducing the prosecutrix by making a false promise of marriage and not keeping his promise. It is held by the Hon'ble Supreme Court in the said judgment that where the prosecutrix under a misconception of the fact, to the extent that the accused is likely to marry her submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned. It is expressed by the Hon'ble Supreme Court in the said judgment that -

'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.'

The Supreme Court went on to add that:

'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.'

It is further observed that:

'There is a distinction between the mere breach of a promise, and not fulfilling a false promise. 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 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. 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, to 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.'

It is apparent from the judgment of the Hon'ble Supreme Court that in a case like this, the Court is enjoined with a duty to examine whether at an early stage a false promise of marriage was made by the accused and whether the consent was given after wholly considering the nature and consequences of the indulgence.

8. The Supreme Court has clearly carved out a distinction between a mere breach of a promise and not fulfilling a false promise. It is held by the Supreme Court that to make out an offence punishable under Section 376 of the Penal Code, the girl should, under a misconception of fact, agree to have sexual intercourse and at the initial stage itself, the accusedboy should have no intention, whatsoever of keeping his promise to marry the girl. While distinguishing the cases between the mere breach of promise and not fulfilling a false promise, the Supreme Court has held that there could be cases where the accused would on account of circumstances which he could not have foreseen or which are beyond his control, is unable to marry her despite having every intention to do so. It is held by the Hon'ble Supreme Court in the said judgment that in order to fall within the meaning of the term 'misconception of fact', the fact must have an immediate relevance. It is observed by the Hon'ble Supreme Court that Section 90 of the Penal Code cannot be called into aid where the boy does not have an intention to deceive the girl at the initial stage when he promises to marry her so as to fasten the criminal liability on the boy by pardoning the act of the girl in the entirety.

9. Keeping the aforesaid law laid down by the Hon'ble Supreme Court in mind, it would be necessary to decide whether a case for quashing and setting aside the first information report registered against the applicant under Section 376 of the Penal Code is made out. Normally, this Court would be loathe in quashing and setting aside the first information report registered against a man for an offence punishable under Section 376 of the Penal Code, where the allegation made by the woman in the report is that the man had sexual intercourse with her on a promise that he would marry her and that she had consented for the said sexual relationship only in view of his promise to do so. Where it is alleged by the woman in the report lodged by her that the man had never intended to marry her, the Courts would not endeavour to quash and set aside the first information report and would relegate the parties to the trial where the accused would be required to prove that he had no intention to deceive the girl from the very beginning. In the present case, the applicant is not required to prove that he had the intention to marry the non-applicant no.2 as that is the case of the non-applicant no.2, in the report lodged by her. The non-applicant no.2 has alleged in the report lodged by her that she had a friendly relationship with the applicant since the year 2010 and from the year 2014, they were in love and they were involved in sexual intercourse as the applicant had promised to marry her. If the non-applicant no.2 had stopped at those allegations, the first information report could have been registered against the applicant under Section 376 of the Penal Code after he refused to marry her as it would have been necessary for the applicant in that case to prove that he did not have an intention to deceive the non-applicant no.2 right from the year 2014 when they were involved in sexual relationship for the first time. However, the non-applicant no.2 has alleged in the first information report that the love affair between the non-applicant no.2 and the applicant and their relationship was known to the members of the respective families and the applicant used to often go to the house of the non-applicant no.2 and that the non-applicant no.2 used to live in the house of the applicant and his parents for two-three days. This clearly shows that even according to the non-applicant no.2, the family members of the non-applicant no.2 and the applicant were aware about the relationship and about what was going on between the applicant and the non-applicant no.2 and there was no objection till the year 2017 when for some reasons, one of which is mentioned in the report, the parents of the applicant did not desire that the applicant should marry the non-applicant no.2 and the applicant therefore, asked the non-applicant no.2 to stop meeting him and maintaining any further relationship. The Hon'ble Supreme Court has held in the judgment in the case of Deepak Gulati (Supra) that for proving that the girl had consented for the sexual intercourse only on a misconception of fact pertaining to the promise by the boy to marry her, it would be necessary to prove that right from the beginning, the boy intended to deceive the girl. For proving the offence under Section 375 of the Penal Code, while making the promise, the accused must not have intended from the inception to marry the prosecutrix and the prosecutrix should have consented for the sexual intercourse only on the said misrepresentation. However, if the accused proves that he intended to marry the prosecutrix at the beginning but due to some subsequent development he could not fulfill the promise, the offence of rape under Section 375 of the Penal Code cannot be made out. In the instant case, the allegations in the first information report clearly spell out that the applicant desired to marry the non-applicant no.2 in the year 2014, that they were involved in the sexual relationship, that the parents of the applicant and the non-applicant no.2 were aware about the relationship and had no objection for the same but after three years, something went wrong between the parties and on the say of the parents of the applicant, the applicant refused to continue the relationship with the non-applicant no.2 and to marry her. As observed earlier, normally we would have been reluctant in considering a case for quashing and setting aside the first information report in respect of an offence punishable under Section 376 of the Penal Code but since in this case, it is clear from the F.I.R. that from the very beginning the applicant did not have the intention to deceive the non-applicant no.2, as the said fact is asserted by the non-applicant no.2 herself, a case for quashing and setting aside the first information report is made out. By following the law laid down by the Hon'ble Supreme Court in the judgment in the case of Deepak Gulati (Supra), it would be necessary to quash and set aside the first information report, as we are sure that this is not a case where the applicant had acted with a mala fide intention of seducing the non-applicant no.2 with a false promise of marriage from the very beginning. In this case, as per the law laid down by the Hon'ble Supreme Court in the case of Deepak Gulati (Supra) and specially paragraph 24 thereof, the provisions of Section 90 of the Penal Code cannot be called into aid. The judgments reported in (2006) 11 SCC 615 (Yedla Srinivasa Rao Versus State of A.P.), 2014 All M R (Cri) 2383 (Nitin Omprakash Agrawal Versus State of Maharashtra & Another), (2013) 12 SCC 710 (Karthi Alias Karthick Versus State, represented by Inspector of Police, Tamil Nadu) and 2017 (4) Mh.L.J. Cri. 204 (Baburao V.Nair Versus State of Maharashtra & Another) and relied on by the learned Additional Public Prosecutor, would not be of any help to the prosecution. In the judgment reported in (2006) 11 SCC 615 (Yedla Srinivasa Rao Versus State of A.P.), the Hon'ble Supreme Court was considering a case whether the prosecutrix had refused to participate in the act of sexual intercourse but the accused had kept on persisting and persuading her and after three months, the accused had forcibly committed sexual intercourse with her, without her consent and will. In the said case, when the prosecutrix started crying, she was assured by the accused that he would marry her and on the basis of that assurance, the sexual intercourse continued. The case is clearly distinguishable on facts as in that case, the prosecutrix was misled by the accused who falsely held out the promise of marriage, right from the inception. In the case in the judgment reported in 2014 All M R (Cri) 2383 (Nitin Omprakash Agrawal Versus State of Maharashtra & Another), there was an allegation of repeated sexual intercourse between the prosecutrix and the accused on a promise of marriage and subsequently the accused had refused to marry her. In the said set of facts, this Court had held that the question of fact involved in the case could not have been decided in exercise of the jurisdiction under Section 482 of the Code of Criminal Procedure and the parties would be required to prove the facts in the trial Court. The said case is distinguishable as in the said case, the prosecutrix had not alleged that initially the accused had desired to marry her and their relationship was made public and was known to the respective families, who had also not objected, like the facts in the present case. The learned Additional Public Prosecutor could not have relied on the judgment reported in 2017 (4) Mh.L.J. Cri. 204 (Baburao V.Nair Versus State of Maharashtra & Another) as in that case, forcible sexual intercourse was committed by the accused without the consent of the prosecutrix. Since the allegation in the said case was of forcible sexual intercourse without the consent of the girl, this Court had refused to quash and set aside the first information report.

10. The facts in the present case are peculiar. In the peculiar facts of this case, when the love affair and the sexual relationship between the applicant and the non-applicant no.2 was known to their respective families and the applicant and the non-applicant no.2 had decided to marry each other and the applicant did not have an intention to deceive the non-applicant no.2 from the beginning and he had not made a false promise of marriage, the first information report is liable to be quashed and set aside. The continuance of the trial in the peculiar facts of the case would result in the abuse of the process of the Court. The Calcutta High Court has held in the case of Jayanti Rani Panda Versus State of West Bengal, reported in 1984 Cri.L.J. 1535 that in order to come out of the meaning of misconception of fact, the fact must have an immediate relevance. It is further observed that if a fully grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity till she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact and the provisions of Section 90 of the Penal Code cannot be invoked unless the Court can be assured that from the inception, the accused never intended to marry her. It is held in the judgment reported in AIR 2003 SC 1639 (Uday Versus State of Karnataka) that when an accused expresses love and promises to marry the prosecutrix on a later date and the prosecutrix is aware

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of the fact that they belong to different castes and the proposal of their marriage would be opposed by their family members and yet the prosecutrix starts cohabiting with the accused consciously and becomes pregnant, the consent given by the prosecutrix to the sexual intercourse cannot be under the misconception of fact, i.e. the promise to marry but because she also desired for it. The Hon'ble Supreme Court has held that the consent given by the prosecutrix to the sexual intercourse with the person with whom she is deeply in love on a promise of marriage, cannot be said to be under a misconception of fact unless it is proved that she could not have consented to sexual intercourse but for the promise by the accused that he would marry her. In the instant case, the non-applicant no.2 has asserted in the report lodged by her before the non-applicant no.1 that she and the applicant were very much in love, that they were indulging in sexual relationship from 2014, that their parents were aware about the relationship between them and did not object to the same, that they were regularly visiting the houses of each other and that the non-applicant no.2 was sometimes residing with the applicant and his parents for two to three days. If something has gone wrong after a period of three years, as the applicant did not have the intention of deceiving the non-applicant no.2 from the very beginning, the non-applicant no.2 cannot allege that the applicant has committed rape on her. Even some of the love marriages where the parties are in courtship for years together are sought to be dissolved within a couple of months or years from the marriage. It is possible that between two individuals, who are in love, something may go wrong in future. Hence, for an offence punishable under Section 376 of the Penal Code, it is required to be proved that the accused had sought to deceive the prosecutrix from the beginning, that he had never intended to marry her and that he had on the false promise of marriage lured the prosecutrix in entering into a sexual relationship. In the peculiar facts and circumstances of the case, specially in view of the assertions and allegations in the report lodged by the non-applicant, a clear case is made out by the applicant for quashing and setting aside of the first information report registered against him for the offence punishable under Section 376 of the Penal Code, as the said offence cannot be prima-facie made out, even if we accept the allegations in the first information report at their face value. 11. Hence, for the reasons aforesaid, the criminal application is partly allowed. The first information report registered against the applicant for the offence punishable under Section 376 of the Penal Code is hereby quashed and set aside. Order accordingly.
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