Kaniganti Ajender Reddy vs The State Of Andhra Pradesh
2023 Latest Caselaw 4912 AP

  THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

          CRIMINAL PETITION No.8606 of 2022

ORDER:-

      The Criminal Petition, under Section 482 of the Code

of Criminal Procedure, 1973, is filed by the petitioners/A1

to A3, to quash the proceedings in F.I.R.No.111 of 2022 of

Ongole II Town Police Station, Prakasam District.

      2. Originally a case has been registered against A1 to

A3/the petitioners herein for the offences punishable

under Sections 417, 506, 509 r/w 34 of the Indian Penal

Code, 1860 and 3(1) (r) (s), 3(2) (va) of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (for short the 'Act 1989'). Subsequently, during

the course of investigation, police filed an alteration memo

on 14.8.2022 by incorporating the offences under Sections

376(2) (n), 506, 509 r/w 34 IPC, and 3(1) (r), 3(1) (s) and

3(2) (v) of the Act, 1989.
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     3. Brief facts of the case are that the de facto

complainant completed M.Tech and was doing Pre-Ph.D.

She has been working as Assistant Professor in IIIT, Ongole

from September, 2021. During the year 2020, while she

was doing FD Programme in NIT, Warangal, she came in

contact with A1. At that time A1 came to NIT for the

purpose of pursuing his M.Tech Project and presently he is

working as Software Engineer at Hyderabad.

     It is stated in the report that in the year 2020, A1

having introduced himself used to follow her by saying that

he loves her and he intends to marry her. The de facto

complainant cautioned him that she belongs to ST -

Yerukula Caste and A1 belongs to Reddy Caste, therefore

there is no possibility of accepting their marriage by both

their families and hence it is better to leave her. After a

month, A1 informed her that he convinced his mother for

their marriage. He further stated that he is not at all

particular about castes. By saying such cunning words
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that he would marry her and even his mother also

accepted, he against her will met her physically. Whenever

she got leave, A1 used to come to her working place and by

making her to believe that he would marry her and used to

meet physically. He took her to IIIT guest House at

Idupulupaya, Lakshmi Homes, Ameenapur, Lingamappli in

Hyderabad and in his house at Godavarikhani, and

enjoyed her. Finally in the afternoon of 19.4.2022 he went

to the house of the de facto complainant and stated that

his mother and his relatives accepted for their marriage

and his mother sent 10 grams of raw gold for making

engagement ring and his parents accepted for the marriage

and it is finally her duty to convince her parents and then

took her to Room No.201 in A-Grand Hotel and sexually

enjoyed her till 9.00 P.M., on that day. Thereafter on

knowing that she became pregnant, she informed the same

as a happy news to A1. Then he asked her to go for

abortion and on the next day he brought some tablets and
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made her to swallow and thereby caused miscarriage to

her. From then onwards, A1 was not talking to her and

used to disconnect her phone calls and started behaving as

she is an unwanted one.

     As there is no other option, she informed the same to

her parents. Then all of them went to the house of A1 and

discussed about the issue. The mother of A1 and others

told them that they will discuss and inform later. Again on

07.5.2022 the de facto complainant and her parents along

with elders went to the house of A1. The mother of A1

scolded her by their caste name. A3 who is a friend of A1

attacked the de facto complainant and caught hold of her

tuft and pressed her neck and pushed out her by abusing

all of them in filthy language. At that juncture, A1 also

attacked her and abused her in filthy language by touching

her caste name. As there is no other option, she/the de

facto complainant has resorted to give report to the police

against the petitioners herein. Based on the said report,
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police registered a case in Crime No.111 of 2022 against

the petitioners herein.

         4. Learned counsel for the petitioners submitted that

the relationship between A1 and the de facto complainant

is consensual one continuously. According to him, the said

consent is not on the account of misconception of fact and

as such, the same would not come within the purview of an

offence punishable under Section 376 IPC. He further

submits that the alleged intimacy started more than about

two (2) years back and continued till before giving report.

Learned counsel for the petitioners further submits that

the respondent No.2 was fully aware of the consequences

of the act, in which she alleged to have involved with the

petitioner No.1. Learned counsel for the petitioners,

however, confined his argument only to the extent that an

offence under Section 376 (2) (n) IPC would not be made

out against the petitioner No.1 herein, in the given set of

facts.

5. Learned counsel for the petitioners relied upon the

judgment of the Hon'ble Apex Court in Pramod

Suryabhan Pawar Vs. the State of Maharashtra and

others1, wherein it is held,

"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 the woman‟s decision to engage in the sexual act

19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the

Manu/SC/1142/2019

promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose.

They are as follows:

(i) The complainant and the appellant knew each other since 1998 and were intimate since 2004;

(ii) The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other‟s houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant;

and
(iii)    The        appellant        expressed            his
reservations              about      marrying             the

complainant on 31 January 2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015.

20. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the

complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant‟s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant‟s promise of marriage. Therefore, even if the facts set out in the complainant‟s statements are accepted in totality, no offence under Section 375 of the IPC has occurred."

6. He also relied upon the judgment of Madhya

Pradesh High Court in Amar Singh Rajput Vs State of

Madhya Pradesh (Misc. Criminal Case No.46602 of

2022), where in it is held,

"16.Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman Under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: (SCC pp.682-84, paras 21 & 24) 2 1 . ... 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 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 the woman'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 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. 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 petitioner for a long period. She herself went with the petitioner to a house in Seondha. Thus, it cannot be said that her consent was obtained by misconception of fact. At the most, it can be said to be a breach of promise to marry.

Near about more than one year time is sufficient time for a prudent woman to realize as to whether the promise of marriage made by the petitioner is false from its very inception or there is a possibility of breach of promise. When the petitioner was not acceding to her request for marriage, then why she continued with relationship with him till lodging of the FIR. Thus, it is clear that at the most, it can be said that it is a case of breach of promise and, therefore, it cannot be said that the promise made by the petitioner was obtained under fear or misconception of fact.

Under these circumstances, the prosecution of the petitioner for offence under Sections 376(2)(N), 506 and 34 of IPC would be nothing but abuse of process of law and, therefore, FIR crime No.164/2021 registered at police Station Seondha, Distt. Datia for the offence punishable under Sections 376(2) (N), 506 and 34 of IPC and its subsequent criminal proceedings in the form of charge-sheet are quashed against the petitioner Petition stands allowed"

7. On the other hand, learned counsel for the

respondent No.2 submits that the de facto complainant

was cheated by A1 by making false promise of marriage

and had forcible intercourse with her, as such, the act of

the petitioner No.1 would come within the purview of

376(2)(n) IPC. The police, during the course of

investigation, have rightly altered the Section of Law from

417 IPC to 376(2) (n) IPC. He further submitted that the

investigation is at a nascent stage. Truth or otherwise has

to be thoroughly investigated by the police. He relied upon

the judgment in M/s Niharika Infrastructure Vs State of

Maharasthra2 to show that the jurisdiction of this Court

under Section 482 Cr.P.C. is limited.

8. Learned Special Assistant Public Prosecutor too

concurred with the submissions made by the respondent

No.2 herein. He further submitted that viewing from any

angle, it is clear that under Section 376 (2) (n) IPC is

2021 SCC Online SC 315

attracted to the facts of the case as A1 made false promise

and on the pretext of marriage made the de facto

complainant to accept for sex. He further emphasized on

the fact that on their first meeting, it is alleged by the

de facto complainant that A1 had forcible intercourse with

her. Relying upon the same, the learned Special Assistant

Public Prosecutor strenuously contended that acts of A1

squarely fall within the purview of offence punishable

under Section 376(2) (n) IPC.

9. Learned counsel for the respondent No.2 vehemently relied upon Potnuru Appala Naidu Vs. P.P. Hyderabad3, wherein it is held, "50. On over all consideration of the factual scenario, we are satisfied that the consent which had been obtained by the accused was not a voluntary one, which the victim under the misconception of the fact that the accused would marry her, accorded consent which is not a consent in the eye of law. He developed a sexual relationship with the victim in the year

2023 Lawsuit (AP)33

2007, and by that time, his marriage was already held, and it is not the case of the appellant that he informed about his marriage with the victim during the year 2007, despite knowing the said fact, she developed intimacy with him.

51. It transpires from the record that the prosecutrix otherwise would not have surrendered but for the false promise of marriage given by the accused. The result of the discussion is that from the very beginning, the accused had dishonest and fraudulent intention to exploit the prosecutrix sexually and from the very inception of the making promise, the accused did not entertain the intention of marrying the prosecutrix and the promise to marry the prosecutrix was a mere hoax. The trial court discussed all facts of the matter in lucid and eloquent manner and came to a right conclusion.

52. Having regard to the ratio of Judgments cited supra, and applying the same to the evidence and the facts and circumstances of the case, we are of the considered opinion that the findings of the Trial court with regard to the guilt of the

accused for the offences under section 376 and 417 of I.P.C is well founded".

10. The learned Special Assistant Public Prosecutor

relied upon a judgment of the Hon'ble Supreme Court in

the State of Uttar Pradesh Vs. Naushad4 , where in it is

held,

"11. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under Section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the

(2013) 16 Supreme Court Cases 651

accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused-

respondent guilty of the offence of rape as defined under Section 375 of the IPC.

12. The answer to point no.3 is pertaining to the question of sentence awarded by the trial court to the accused. The trial court has justified in awarding of maximum sentence of life imprisonment to the accused under Section 376 of the IPC on the ground that the facts of this case are of a very grave nature. The accused being related to the prosecution used to often visit her house and took undue advantage of this relationship and kept the

prosecutrix under the misconception that he would marry her and committed rape on her for more than two years thereby making her pregnant. In such circumstances, the trial court held that it would be justifiable to award the maximum sentence to the accused. We, therefore, hold that the trial court was correct in awarding the maximum sentence of life imprisonment to the accused as he has committed a breach of the trust that the prosecutrix had in him, especially due to the fact that they were related to each other. He thus invaded her person, by indulging in sexual intercourse with her, in order to appease his lust, all the time knowing that he would not marry her. He committed an act of brazen fraud leading her to believe that he would marry her".

11. Learned counsel for the respondent No.2 relied

upon the judgment of the Apex Court in Mathivathana Vs

State5, wherein it is held,

2016 SCC Online Madras 11979

"Though the petitioner has got a very good defence in this trial inasmuch as possession of a fabricated document simplicitor may not attract the penal provisions of the Penal Code, 1860, yet, the question of mensrea cannot be decided in a proceeding under Section 482 Cr.P.C. It is for the trial Court to analyse the circumstances of the case and come to a conclusion whether the petitioner was a victim as pleaded by Mr.John Satyan".

12. Learned counsel for the respondent No.2 further

relied upon Anurag Soni Vs State of Chattisgarh6,

wherein it is held,

"As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now−a−days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the

(2019) 13 Supreme Court Cases 1

physical frame of the victim, a rapist degrades 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. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant− accused for the offence punishable under Section 376 of the IPC. The appellant−accused must face the consequences of the crime committed by him."

13. In M/s Niharika Infrastructure case stated

supra, relied upon for the respondent No.2, the Hon'ble

Supreme Court enunciated the following principles;

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the „rarest of rare cases‟. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress,

the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-

restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the

jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

14. This Court, after perusing the material on record

and the judgments submitted by both the petitioners and

respondents, in order to arrive to a conclusion that the

consent given by the de facto complainant is under fear or

under misconception, it is essential to narrate Section 90

IPC. Section 90 IPC reads as follows;

"90. Consent known to be given under fear or misconception.--A consent is not such a consent as it 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."

15. The aforesaid provision makes it clear that the

consent obtained from a person under fear or

misconception is not a consent. Equally, if consent is given

by insane or child, the same also cannot be construed as

consent. Latter two instances are not applicable to the case

on hand. In those circumstances, this Court is inclined to

confine only to the first provision of Section 90 IPC i.e.,

whether the consent had taken from the de facto

complainant by A1 is either under fear or misconception.

16. On perusal of material on record, it goes to show

that nowhere it is stated that consent of the de facto

complainant has been obtained under fear. If such is the

case, it should be only under misconception. It is to be

seen whether such misconception is intended or not and

whether the same would come within the purview of

misconception or not, it is necessary for this Court to look

into Section 114-A of the Evidence Act. Section 114-A of

the Indian Evidence Act deals with Presumption as to

absence of consent in certain prosecutions for rape. A

perusal of aforesaid Section goes to show that where

sexual intercourse by the accused is proved and the

question is whether it was without consent of the woman

alleged to have been raped and such woman states in her

evidence before the Court that she did not give consent, the

Court shall presume that she did not give consent.

17. In the present case on hand, the de facto

complainant is a highly qualified woman, who has

completed Post Graduation of Master of Technology and

was doing Pre-Ph.D. At the same time, she has been

working as Assistant Professor in IIIT, Ongole. Being an

Assistant Professor, a woman would be aware of

misconception and consequences thereof. It is not the case

of the de facto complainant/2nd respondent that she is an

illiterate. From the year 2020 onwards A1 developed

intimacy with the de facto complainant, and on the pretext

of marrying the de facto complainant both used to meet

physically. The relationship between both A1 and the

de facto complainant continued till 19.4.2022. After

continuing their relationship for a period of two (2) years,

the de facto complainant only after on coming to know that

she has become pregnant, she informed to her parents

about their relationship. In the report given by her, the de

facto complainant categorically stated that on several

occasions she and A1 met physically at different places.

18. In order to attract the offence punishable under

Section 376(2)(n) IPC, it has to be seen whether the

consent was obtained under misconception of fact or the

person who obtained consent had a reason to believe that

the consent was given in consequence of such

misconception. It is pertinent to mention here on perusal of

the First Information Report itself as the de facto

complainant categorically stated at initial stage that

marriage between both the de facto complainant and A1

would not be possible for the reason that they both belong

to different castes. Right from the beginning, the de facto

complainant knew the marriage is not likely to take place

on account of caste considerations. It is obvious that any

proposal to that extent would face stiff opposition from

members of both families. The de facto complainant is

aware of the said fact as there is no chance or remote

possibility. Knowing pretty well that the chance of getting

marriage between both of them is remote, no prudent

woman would give a consent under the guise of

misconception of fact. No one would keep calm but will

draw a line as to whether the promise of marriage made by

the accused is false from its very inception especially the

accused has been dodging the marriage. No prudent

woman would go around with the person for a period of two

(2) years on the ground of promise of marriage. In the case

on hand, the de facto complainant has continuous

relationship till she became pregnant. In the absence of

any misconception, it can be inferred that the accused and

the de facto complainant meeting physically is the result of

their deep love for each other. It is significant to note in the

case on hand that the de facto complainant went with the

accused No.1 to lonely places and to hotel rooms. It usually

happens when both the accused No.1 and the de facto

complainant are madly in love without caring that what

may come. Thereafter when a moment arises all the

promises would lose their significance, particularly when

they overcome with their emotions and passion and find

themselves in a dicey situation. A1 and the de facto

complainant both are highly educated. They met physically

under the trust of some promises. This is what appears to

have taken place in the case on hand too.

19. Learned counsel for the respondent No.2

vehemently argued by relying upon the judgment of this

Court in the case of Potnuru Appala Naidu Vs P.P.

Hyderabad cited supra, where this Court was pleased to

rely upon the judgment of the Apex Court in the case of

Pramod Suryabhan Pawar and distinguished the said

judgment.

20. A perusal of the said judgment goes to show that

the accused was already married and are having children.

Suppressing the said fact, the accused promised to marry

the de facto complainant. The de facto complainant

believed his version and had sexual relations with him for

several times. This is a classic example where the

misconception had taken place. The accused knowing

pretty well that he being married and had children and he

would not marry the de facto complainant, but made

promise to marry must be accepted as False promise. In

those circumstances, the Court had come to the conclusion

by relying upon Section 90 IPC that the appellant therein

committed the offence punishable under Section 376 IPC

and so confirmed the conviction.

21. In the present case, the facts are distinguishable

for the reason that A1 is not married. Here both A1 and the

de facto complainant were madly in love with each other. In

those circumstances, it would be very difficult to come to

conclusion that the de facto complainant had consented in

consequence of misconception of fact arising from promise

of A1. It is impossible to know for any person to know what

was in the mind of the de facto complainant when she has

given consent, because there can be any number of

reasons for her to give consent.

22. in view of the aforesaid reasons, this Court is of

the view that misconception of fact must be confined only

to the circumstances falling within the descriptions of

fourthly and fifthly to Section 375 IPC or whether consent

given was under misconception of fact contemplated by

Section 90 IPC which is a wider in application, so as to

include circumstances not enumerated in Section 375 IPC.

23. In view of the aforesaid reasons, this Court is

convinced that an offence under Section 376 (2) (n) IPC is

not made out. Accordingly the proceedings in respect of an

offence only under Section 376(2)(n) IPC are liable to be

quashed. In respect of the other offences that are alleged

against the petitioners herein, police are directed to

proceed with the investigation.

24. Therefore, the Criminal Petition is partly allowed

and the proceedings in F.I.R.No.111 of 2022 of Ongole II

Town Police Station in respect of offence under Section

376(2) (n) IPC, are hereby quashed. In respect of other

offences punishable under Sections 506, 509 r/w 34 IPC,

3(1) (r), 3(1) (s) and 3(2) (va) of the Act, 1989, the Criminal

Petition is dismissed.

Miscellaneous m petitions, if any pending, in the

Criminal Petition, shall stand closed.

___________________________________ JUSTICE K. SREENIVASA REDDY

Date: .10.2023 GR

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

CRIMINAL PETITION No.8606 of 2022

Date:12.10.2023

GR