Bombay High Court
Ayush Rajnand Hadke vs State Of Mah. Thr. Pso Ps Sonegaon ... on 6 December, 2023
Author: Vinay Joshi
Bench: Vinay Joshi, M. W. Chandwani
2023:BHC-NAG:16950-DB
Judgment 902 apl 1604.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 1604/2023
Ayush Rajnand Hadke,
Age about 26 yrs., Occ. Student,
R/o. C/o. Rajnand Hadke Somalwada
Juni Vasti, behind MSEB Somalwada,
Dist. Nagpur.
.... APPLICANT
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station Sonegaon,
Dist. Nagpur.
2. Complainant XYZ,
Crime No. 59 of 2022,
Police Station, Sonegaon,
Dist. Nagpur.
... NON-APPLICANTS
---------------------------------
Mrs. L.P. Ranga, Advocate for applicant.
Mrs. S.V. Kolhe, Addl. Public Prosecutor ('APP') for non-applicant
No.1/State.
Mr. Y.P. Bage, Advocate for non-applicant No.2.
----------------------------------
CORAM : VINAY JOSHI AND
M. W. CHANDWANI, JJ.
DATE : 06.12.2023.
Judgment 902 apl 1604.23
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ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard.
2. Admit.
3. The matter is taken up for final disposal with the consent
of learned counsel appearing for the parties. By this application
under Section 482 of the Code of Criminal Procedure ('Code'), the
applicant is seeking to quash charge-sheet arising out of Crime No.
59/2022 registered at Police Station, Sonegaon, Dist. Nagpur for the
offence punishable under Sections 376, 376(2)(n), 506 of the Indian
Penal Code on account of settlement as well as merits.
4. The facts in brief are that informant (victim) lady aged
about 22 years was studying at College of Engineering, Mohagaon,
Butibori, Nagpur. For educational purpose, she was residing with
her maternal uncle at Nagpur. The applicant was in visiting terms at
the house of informant's maternal uncle. Somewhere in the year
2018, the victim got acquainted with the applicant and then their
casual acquaintance turned into love relationship. They used to meet
each other frequently at different places. On 04.06.2018 at late
Judgment 902 apl 1604.23
night, the applicant telephonically called the informant at his house.
In response, the victim went to the applicant's house where applicant
established sexual relations by force. While leaving the place, the
applicant stated to the victim for not to disclose the things as it
would defame them. He has also stated that they would marry soon.
Later on, the applicant continued to sexually exploiting her by saying
that he would marry with her. They had also physical relations at
lodging house. Finally, the applicant denied for marriage, therefore
the report.
5. Learned Counsel appearing for the applicant would
submit that contents of the FIR even if taken at its face value, it does
not make out a case of false promise constituting the offence of rape.
It is argued that the facts are clear enough to convey that the consent
was not given by the informant only on account of promise to marry,
but relations were established due to love affair.
6. Learned Counsel appearing for the applicant strenuously
argued that the facts does not disclose that it is a case of false
promise vitiating the consent. He would submit that both were young
Judgment 902 apl 1604.23
and had relationship purely out of love affair. It is submitted that
despite initial denial, the informant has maintained sexual relations
which itself discloses that the consent was not given on account of
promise to marry. It is submitted that reading of Police Report itself
discloses that the initial relations were out of love relationship.
There are no allegations that on first occasion, the applicant assured
informant about marriage and under such promise, sexually
exploited her. In substance, it is argued that the allegations levelled
in the Police Report does not constitute a case of consent obtained
under misconception of facts.
7. Per contra, learned APP. would submit that, the consent
was given by the informant under a misconception of fact. Reading
of the FIR discloses that the accused had sexual intercourse with the
informant by giving false assurance that he would marry. According
to him, it is evident that the applicant never intended to marry with
her and therefore, the consent vitiates amounting to the offence of
rape.
8. The Supreme Court has occasion to deal the same issue
Judgment 902 apl 1604.23
in several cases. The observations made in this regard would provide
us a guiding factor. In case of Deepak Gulati vs. State of Haryana
(2013) 7 SCC 675, specific observations were made in paragraph 21
of the judgment, which reads as follows :
"21. 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
Judgment 902 apl 1604.23
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."
9. On the same line, we may refer the decision of the
Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar vs. State
of Maharashtra and ors. 2018 SCC OnLine SC 3100 with emphasis
on paragraph 23 of the decision, which reads as below :
"23. 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 latter 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
Judgment 902 apl 1604.23
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 IPC."
10. In said case, the Supreme Court has considered its earlier
pronouncement in case of Uday .vrs. State of Karnataka - [2003] 4
SCC 46, and reiterated the principle that there is a clear distinction
between rape and consensual sex. It was considered that there can
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 misconception created by the accused or the
circumstances are beyond his control. It is expressed that the Court
shall very carefully examine all the aspects in like cases.
11. It emerges from the above exposition of law that
"consent" of a woman must involve an active and reasoned
deliberation towards the proposed act to attract the penal
consequence. The promise of marriage must have been a false
promise given in bad faith and with no intention to adhere the
Judgment 902 apl 1604.23
promise.
12. Section 90 of the Indian Penal Code defines "consent
known to be given under fear or misconception", reads as below :
"Section 90 - Consent known to be given under fear
of 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"
13. Section 90 of the Code, though does not define the term
'consent', but, in negative manner it describes what does not amount
to consent. True, consent may be expressed or implied, must
actuated, obtained through deceit or fraud. If the consent is given
under misconception of fact, it vitiates. In order to come out from
the clutches of Section 375 of the Indian Penal Code, the consent
requires voluntary participation and not on some deceitful
misrepresentation. In case at hand undoubtedly there was no
resistance for physical intercourse but, as per the victims case there
was love relationship.
Judgment 902 apl 1604.23
14. In case of Pramod Suryabhan Pawar vs. State of
Maharashtra and anr. 2019 SCC OnLine SC 1073, once again the
Supreme Court has summarized the position in paragraph 22, which
reads as below :
"22. 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."
15. In view of above settled position, it is necessary to examine
the facts and relevant circumstances of the case to find out whether
in given case, the consent was actuated by fraud amounting to
absence of consent. With the assistance of both sides, we have
examined the material adduced by the prosecution.
Judgment 902 apl 1604.23
16. Undeniably, the informant lady aged 22 years was well
educated and studying in the Engineering College. They had love
relationship for long period of four years. During said period, they
frequently met each other and had enjoyed sexual relations. The FIR
itself discloses that on first occasion i.e. on 04.06.2018, the applicant
had called the informant. She went to the house of applicant at mid-
night and they had sexual relations. Pertinent to note that victim
never stated that, at the relevant time the applicant has established
relations by giving promise to marry, though she stated that the
applicant has sexual relations by use of force. However admittedly,
for next four years, the thing repeated, but she did not lodge report.
17. Bearing in mind the test, which has been enunciated in
above decisions, it is evident that even assuming that all the
allegations in the police papers are correct, no offence has been
made out. It is impossible to find the essential ingredients to
constitute the offence of rape. The crucial ingredients of the offence
of rape are missing. The relationship was purely of consensual
nature. The fact nowhere indicates that only because the applicant
assured for marriage, the lady gave consent, nor it indicates that
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since inception the applicant with deceitful intent gave a promise to
marry.
18. In substance, the prosecution case even if it is accepted at
its face value, it does not make out prima facie case to establish the
essential ingredients to constitute the offence of rape. Besides that,
the matter has been amicably settled. The informant (victim) has
filed affidavit-reply stating that the relation was consensual. Out of
minor differences in anger, she has lodged report.
19. Considering all above circumstances, continuation of
prosecution amounts to abuse of the process of the Court. In view of
that application is allowed. We hereby quash and set aside charge-
sheet arising out of Crime No. 59/2022 registered at Police Station,
Sonegaon, Dist. Nagpur for the offence punishable under Sections
376, 376(2)(n), 506 of the Indian Penal Code on account of
settlement as well as merits.
20. Application stands disposed of in above terms.
(M. W. CHANDWANI, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 08/12/2023 18:53:31
