Bombay High Court
Fajal S/O Afsar Sheikh vs The State Of Mah. Thr. Pso Ps ... on 8 November, 2023
Bench: Vinay Joshi, M. W. Chandwani
2023:BHC-NAG:16425-DB
Judgment 1 906-J.Cri. APL No.1581.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 1581 OF 2022
Fajal S/o Afsar Sheikh
Aged about 24 years, Occ. Labour,
R/o. At Post Varanwali,
Tah. Pusad, Dist. Yavatmal .... APPLICANT
// VERSUS //
1) The State of Maharashtra,
through Police Station Officer,
Ganeshpeth Police Station,
Nagpur Urban, Tah. and Dist.
Nagpur.
2) X Y Z (Victim in Crime
No.0151/2022 registered by
Police Station Officer, Ganeshpeth
Police Station, Nagpur Urban,
Tah. and Dist. Nagpur) .... NON-APPLICANTS
___________________________________________________________
Mr. Abhishek Zade, Advocate for applicant.
Mr. A.B. Badar, Additional Public Prosecutor for non-
applicant No.1/State.
Mr. S.M. Wandre, Advocate for non-applicant No.2.
___________________________________________________________
CORAM : VINAY JOSHI AND
M.W. CHANDWANI, JJ.
DATED : 08th NOVEMBER, 2023.
ORAL JUDGMENT : (Per Vinay Joshi, J.)
1. Heard. Admit. Heard finally by consent of the learned
counsel appearing for the parties.
Judgment 2 906-J.Cri. APL No.1581.2022.odt
2. By this application the applicant is seeking to quash the
charge-sheet bearing No.83/2022, arising out of Crime
No.151/2022, registered with Police Station Ganeshpeth, Nagpur
City, for an offence punishable under Sections 376(2)(n) and 417 of
the Indian Penal Code.
3. At the instance of report lodged by the informant, who
is aged about 23 years, the aforesaid crime came tobe registered. At
the inception, the learned Counsel for the applicant has attracted
our attention to the "Adharcard" of the informant to impress that on
the date of filing of First Information Report (FIR), the informant
was aged about 25 years and 10 moths.
4. It is informant's case that in the year 2019, she started
to work at 'Anand Bakery' where the applicant was already
employed. The casual acquaintance of both has turned into love
relationship. They were frequently meeting with each other as well
as talking on phone. Both of them assured each other to get
married. The informant stated that from the Month of October-
2021 onwards, for considerable period, she had sexual relations
with applicant at different places. According to the informant, when
she has asked the applicant for marriage, he refused and therefore
the report.
Judgment 3 906-J.Cri. APL No.1581.2022.odt
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 case squarely falls in the arena of
voluntary sexual relations in between two adults. Learned Counsel
for the informant as well as learned Additional Public Prosecutor
appearing for the non-applicant/State resisted the application by
contenting that the informant has specifically stated about
assurances given by the applicant for marriage. It is submitted that
since consent was given by the informant on promise to marry,
therefore, the consent vitiates, amounting to offence of rape.
6. Learned Counsel for the applicant has submitted 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. Particularly, he has pointed out
that reading of FIR as well as statement of the informant does not
say that since the applicant assured for marriage, she has indulged
into sexual activities. It is apparent that in the year 2019 both got
acquainted with each other, developed love relationship and
decided to marry but, the wish did not work out. In order to
constitute an offence of rape, "consent" must be obtained under the
misrepresentation or misconception of fact. To establish whether
Judgment 4 906-J.Cri. APL No.1581.2022.odt
the "consent" was vitiated by "misconception of fact" arising out of
a promise to marry, the prosecution must establish that the promise
was false and only because the accused assured for marriage, she
has consented for sexual relations with the applicant. There is
marked distinction that both decided to marry and accused under
the promise of marriage had enjoyed sexual relations. The case
squarely falls in the earlier category where both adults have
indulged into sexual relations out of love and affection.
7. The learned Counsel for the applicant has relied on the
decision of this Court in the case of Pawan S/o Bhimrao Jadhav Vs.
State of Maharashtra and another in Criminal Application (APL)
No. 1065/2019, decided on 05.04.2023 wherein, this Court took a
review of several Supreme Court's decisions in the field and finally
observed that unless there is intention to deceive since inception,
and the victim has given consent solely on the basis of promise, the
offence of rape would not constitute.
8. We have carefully examined the entire material and
found that it was a consensual relationship between two adults.
There is no element that by relying on the promise, the lady has
succumbed to the wishes of the applicant. Though, the applicant
has denied for marriage, however, that does not mean that since
inception he had intention to deceive. In the circumstances, even if
Judgment 5 906-J.Cri. APL No.1581.2022.odt
the prosecution's case is accepted as it stand, it does not make out a
prima facie case to constitute the offence of rape.
9. In view of that, the Criminal Application is allowed and
disposed of. We hereby quashed and set aside the FIR relating to
Crime No.151/2022, registered with Police Station Ganeshpeth,
Nagpur City, for the offence punishable under Sections 376(2)(n)
and 417 of the Indian Penal Code, 1860 and the related charge-
sheet No.83/2022 pending on the file of the concerned Court.
10. In view of disposal of Criminal Application (APL) No.
1581 of 2023, pending application (APPP) No.548 of 2023 is
disposed of.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.)
Kirtak
Signed by: Mr. B.J. Kirtak
Designation: PA To Honourable Judge
Date: 09/11/2023 19:30:46
