Gujarat High Court
Tarunkumar Ashokkumar Chouksey vs State Of Gujarat on 4 May, 2026
NEUTRAL CITATION
R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1091 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==========================================================
Approved for Reporting Yes No
==========================================================
TARUNKUMAR ASHOKKUMAR CHOUKSEY
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
RICHA SHAH(7541) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 04/05/2026
JUDGMENT
1) By way of present revision application under Sections 397 read with 401 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside the order dated 13.09.2017 passed by learned Additional Sessions Judge, Rajkot, in Sessions Case No.167/2016, whereby, the discharge application filed by the accused below Exh:26 came to be dismissed.
2) Heard Mr. Pawan A. Barot, learned counsel for the applicant - accused, Ms. Monali Bhatt, ld. APP for the respondent - State and Ms. Richa Shah, learned counsel for respondent No.2.
3) Brief facts of the case are that the applicant is studying and doing private job and by doing job earns his livelihood. The complainant is Page 1 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026 NEUTRAL CITATION R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026 undefined residing at Rajkot since last one and half year and with her sister since last two months and her permanent address is of Madhya Pradesh too and the complainant is working as teacher In different private school at Rajkot and she is well educated. The complainant went to Jabalpur (M.P) in the year 2012 and come in to contact with the present applicant and since then they are friends. In the year 2014, she got married with one Niranjanbhai Dilipbhai Shah at Rajkot and residing at Rajkot with in-laws, but as there are disputes and harassment from In-laws, the complainant - respondent no.2 got divorce in February 2015. Then she shifted as paying guest in Rajkot and she again started talking with present applicant and informed him about his family problem and at that point, applicant also stated loss in business and he wanted to die and at that point of time present complainant advised him to come to Rajkot and then the applicant went to Rajkot on 10.02.2016. Both the applicant and complainant were residing in different house and then, in July 2015, present applicant asked the respondent to join him in his apartment and at that point of time, the applicant introduced the complainant as his wife to the owner of the house and told the complainant that after she got divorce from his husband, he will marry her. Thereafter, present applicant started working as software engineer in company and after month he left the job and the present applicant insisted the complainant to have physical relationship and also stated that she is not liking the same as applicant used to talked with other girls too. That in the month of November 2015, she got legal divorce from his husband and then they both shifted to new address and thereafter, the appellant and complaint made physical relationship. Therefore, the applicant went to Jabalpur and avoided talks with the complainant and stopped whats App chats. With the said allegations, the complainant lodged FIR before Mahila police station at Rajkot.
Page 2 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026 NEUTRAL CITATION R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026 undefined 4) Learned counsel for the applicant has submitted that the
complainant is elder than the applicant and the complainant married and then got divorced and started to reside with the applicant and developed relationship between them. He has further submitted that, no ingredients of the alleged sections are made out. The relationship between the applicant and complainant was consensual in nature. The alleged offence to have been committed in the year July, 2015 till April, 2016 and FIR got registered on 11.06.2016 i.e. after a period of more than two months and the complainant failed to give any satisfactory reply for delay in registration of FIR. Pursuant to the FIR, the applicant released on regular bail. Upon coming to know that, the applicant got enlarged on regular bail, the complainant filed another FIR for the offence under Sections 406 and 420 of IPC, in which the applicant got anticipatory bail. Hence, the applicant has not committed the offence as alleged against him. Therefore, present application may be allowed.
5) Learned APP for the respondent State and learned counsel for the complainant have opposed the present revision application and contended that, the applicant by giving false promises made physical relationship with the complainant and then avoided the complainant and went to Jabalpur. In such circumstances, present application may not be allowed, as prayed for.
6) Having heard learned counsel for the respective parties and perusing the material placed on record, it appears that The complainant and applicant came in contact in 2012 and since then they were friends. In the year 2014, she got married with one Niranjanbhai Dilipbhai Shah at Rajkot and residing at Rajkot with in-laws, but due to differences, she got divorce in February 2015. Thereafter, the complainant and applicant again came in contact and started living together in one premise and made physical relationship. Then, as the applicant Page 3 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026 NEUTRAL CITATION R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026 undefined intended to get government job, he shifted to Jabalpur and avoided the complainant. Therefore, the complainant lodged FIR before Mahila police station at Rajkot, for the offence under Sections 376 and 323 of IPC.
7) The applicant was granted regular bail. Quashing application filed before this Court which came to be disposed of with an observation to file discharge application. The applicant preferred discharge application which came to be dismissed vide impugned order. Hence, present revision application has been preferred before this Court.
8) For the sake of argument, even if it is assumed, that the applicant and the first informant/prosecutrix, actually had a physical relationship, as alleged, the same would necessarily have to be consensual, since it is the case of the first informant herself, that the physical relationship was with her consent consequent upon the assurance of marriage.
9) There is a clear distinction between rape and consensual sex and in a case where there is a promise of marriage, the Court most very carefully examine whether the accused had actually wanted to marry victim, or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls in the ambit of cheating or deception.
10) In the aforesaid context, I may quote with profit the decision of the Supreme Court in the case of Deepak Gulati Vs. State of Haryana reported in 2013 Criminal Law Journal 2990. The Hon'ble Supreme Court made the following observations which in my opinion are worth taking note of.
"15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the Page 4 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026 NEUTRAL CITATION R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026 undefined false promise of marriage. Thus, the provisions of Sections 417, 375 and 376, IPC have to be taken into consideration, along with the provisions of Section 90 of the Act 1872. Section 90 of the Act, 1872 provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, and thus, a physical relationship would tantamount to committing rape.
16. This Court considered the issue involved herein at length in the case of Uday V. State of Karnatka, AIR 2003 SC 1639 : (2003 AIR SCW 1035) Deelip Singh alias Dilip Kumar v. State of Bihar, AIR 2005 SC 203 : (2004 AIR SCW6479) YEDLA Srinivasa Rao V. State of A.P. (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar and Anr., AIR 2007 SC 3059 : (2007 AIR SCW 5532), and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutirx, under a misconception of 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.
17. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of victim. While a murderer destroys the physical frame of the victim, a rapist degrads and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape the most hated crime, rape tantamounts to a serious blow to the suprme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
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 a 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 accuse; 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.
In Deelip Singh (Supra), (2005) 1 SCC 88, it has been observed as under:-
"20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the Page 5 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026 NEUTRAL CITATION R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026 undefined victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
20. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed :
"We are of opinion that the expression "under a misconception of fact" is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation shouuld be regrded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact the second accused intended to get the girl married??.."thus ? If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person". ? Although in cases of contracts a consent obtained by coercion or fraud is only viodable by the party affected by it, the effect of Section 90, IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at 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, 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."
11) It is also profitable to refer to the judgments of the Hon'ble Supreme Court in the case of Samadhan S/o. Sitaram Manmothe Vs. State of Mahrashtra & Anr, in Criminal Appeal No.5001/2025 and Jothiragawan Vs. State Rep. By the Inspector of Police & Anr, Surendra Khawse Vs. Vs. State of Madhya Pradesh, reported in 2025 INSC 1143, Pramod Suryabhan Pawar Vs. State of Maharashtra, reported in 2019 (9) SCC 608, Maheshwar Tigga Vs. Page 6 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026 NEUTRAL CITATION R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026 undefined The State of Jharkhand, reported in 2020 (10) SCC 108, wherein in similar facts of the case, the Hon'ble Supreme Court quashed the FIR and other consequential proceedings.
12) It is difficult to impute to the accused, knowledge of the fact that the prosecution had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. It appears that for any reason, the accused and the prosecutrix discontinued the relationship and parted ways.
13) Thus, in overall view of the matter, this Court is not convinced with the case of the prosecutrix. In a case of this type, no other evidence is helpful except the version of the prosecutrix. Assuming for a moment that there was some assurance of marriage even then mere breach of promise to marry by itself will not substantiate the offence under Section 376 of the Indian Penal Code.
14) This Court take notice of the fact and in opinion of this Court, which goes to the root of the matter that none of the averments made in this application have been refuted by the first informant. The concept of discharge in criminal jurisprudence operates as a constitutional safeguard by ensuring that no individual is subjected to the burden of a criminal trial unless the prosecution establishes a prima facie case.
15) For the foregoing reasons and observations, present application deserves to be allowed and is hereby allowed. Impugned order dated 13.09.2017 passed by learned Additional Sessions Judge, Rajkot, in Sessions Case No.167/2016, FIR in question and other proceedings if any pursuant thereto are hereby quashed and set aside. Accordingly, the applicant is acquitted of all the charges levelled against him. Rule is made absolute. As the applicant accused is on bail, he need not surrender. The applicant is ordered to be set at liberty forthwith if he is not required in any other case. The bail and bail bond stands cancelled Page 7 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026 NEUTRAL CITATION R/CR.RA/1091/2017 JUDGMENT DATED: 04/05/2026 undefined and surety, if any, stands discharged. Record and proceedings be sent back to the concerned Court forthwith. Direct Service is permitted.
(HASMUKH D. SUTHAR,J) SUCHIT Page 8 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Tue May 05 2026 Downloaded on : Tue May 05 21:56:12 IST 2026