Bombay High Court
Sarfaraz Khan S/O. Habib Khan vs The State Of Mah. Thr. Pso, Ps ... on 30 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:1260-DB
Judgment apl1708.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] No. 1708 OF 2023.
Sarfaraz Khan s/o Habib Khan,
Age 31 years, Occupation - Business,
resident of Mominabad Colony, Pandharkawada,
Taluq Kelapur, District Yavatmal
445001. ... APPLICANT.
VERSUS
1.The State of Maharashtra,
through Police Station Officer,
Police Station Pandharkawada,
Taluq Kelapur, District Yavatmal
445001.
2.(XYZ) Victim in Crime No.946/2018
registered with Police Station
Officer, Pandharkawada,
Taluq Kelapur, District Yavatmal
445001. ... NON-APPLICANTS.
---------------------------------
Shri F.R. Kashif, Advocate for the Applicant.
Shri M. Khan, A.P.P. for Non-applicant No.1/State.
Shri S.S. Sheikh, Advocate for Non-applicant No.2.(VC).
----------------------------------
Rgd.
Judgment apl1708.23
2
CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : JANUARY 30, 2024.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard. Admit.
By consent of the learned Counsel for the parties, the
matter is taken up for final disposal.
2. This is an application seeking to quash the criminal
prosecution bearing Sessions Case No.34/2019 pending on the file of
the Sessions Court, Kelapur arising out of first information report
bearing Crime No.946/2018 registered with Pandharkawada Police
Station, District Yavatmal for the offence punishable under Sections
376[2][n] and 417 of the Indian Penal Code.
3. The informant lady aged 24 years, has lodged the report
alleging offence of repeated sexual intercourse. On the basis of said
report dated 15.10.2018, the police have registered aforesaid crime
and after completion of investigation filed final report. It is the case
Rgd.
Judgment apl1708.23
of informant that she got acquainted with the applicant 4 years
preceding to the lodgment of the police report. Love relationship
developed in between them during the said period. The informant
has stated that in the month of August, 2014 the applicant assured to
marry and under said pretext had established sexual relations,
despite resistance. The informant has further stated that the things
were repeated on and often for next 4 years, but, finally the
applicant refused to marry, therefore, the report.
4. The learned Counsel for the applicant would submit that
it is purely a case of consensual relationship between two adults. He
would submit that from 4 years preceding the report, both had
relations which itself shows that out of love and passion the
relationship was maintained. Our attention is invited to the aspect
that the informant is well educated graduate lady, and was preparing
for competitive examination. He would submit that having regard to
the long standing relation it is not a case of obtaining consent by
deceitful means.
5. We have examined the material collected during the
Rgd.
Judgment apl1708.23
course of investigation. True the statement of informant was
recorded by the Magistrate in terms of Section 164 of the Code of
Criminal Procedure, wherein she stated about alleged forcible sexual
intercourse on the promise of marriage. On examination, it is
evident that from the month of August, 2014 for next 4 years, both
were in relationship. It is difficult to digest that on each and every
occasion she has submitted herself to the applicant on same promise
for marriage. There are no allegations that he has used force or
compulsion. The informant never ventilated her grievance nor
perceived suspicion though from 4 years, they had sexual relations.
6. In several decisions the Supreme Court after considering
similar situation has expressed that there is marked distinction
between false promise to marry and failure to perform the assurance.
We may profitably refer to the decisions of Supreme Court in cases of
- (1) Pramod Suryabhan Pawar .vrs. State of Maharashtra and
another - [2019] 9 SCC 608, (2) Dr. Dhruvaram Murlidhar
Sonar .vrs. State of Maharashtra - 2019 AIR SC 327 and (3) Amit
Kumar Arun Kumar Singh .vrs. State of Maharashtra and another -
Rgd.
Judgment apl1708.23
2016 All MR (Cri) 1553. In the aforesaid decisions, it has been
observed that when two adults are in relationship from long time it is
indicative of consensual relationship.
7. We could not see from the material that only because the
applicant has assured for marriage, the informant has succumbed to
his wishes. Rather it is evident that both were educated young
people and out of love and passion the relationship continued for
long 4 years. Moreover, the informant lady has filed an affidavit
stating that out of misconception she has lodged report and she has
no objection to quash the proceedings. Keeping aside her no
objection, we have examined the entire material and we are of the
considered opinion that it is a case of consensual relationship and
thus, a prima facie case to constitute the offence of rape has not
been made out.
8. In view of above, Criminal Application needs to be
allowed, hence the following order.
ORDER
(i) Criminal Application is allowed and disposed of.
Rgd.
Judgment apl1708.23
(ii) The criminal prosecution bearing Sessions Case
No.34/2019 pending on the file of the Sessions Court,
Kelapur arising out of first information report bearing
Crime No.946/2018 registered with Pandharkawada
Police Station, District Yavatmal for the offence
punishable under Sections 376[2][n] and 417 of the
Indian Penal Code, is hereby quashed and set aside.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 01/02/2024 17:35:08
