Bombay High Court
Shubham S/O. Laxman Dikondwar And ... vs State Of Mah. Thr. Ps Dhantoli, Nagpur ... on 7 May, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:5513-DB
1 apl.806.23-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 806 OF 2023
1. Shubham S/o. Laxman Dikondwar,
Aged about 27 years, Occ. Govt. Service.
2. Manjusha @ Manju wd/o. Laxman Dikondwar,
Aged about 52 years, Occ. Household,
Both r's/o. Balaji Ward, Chandrapur.
3. Sushma w/o. Ujwal Atkulwar,
Aged about 32 years, Occ. Housewife,
R/o. Malipura, Yevatmal.
4. Ashwini w/o. Kamlesh Kallamwar,
Aged about 29 years, Occ. Housewife,
R/o. Mankapur, Nagpur.
5. Ujwal s/o. Vijay Atkulwar,
Aged about 32 years, Occ. Housewife,
R/o. Malipura, Yevatmal.
6. Kamlesh S/o. Laxmanrao Kallamwar,
Aged about 38 years, Occ. Business,
R/o. Mankapur, Nagpur.
7. Ranjana w/o. Ashok Singuwar,
Aged about 47 years, Occ. Housewife,
8. Ashok s/o. Dashrath Singuwar,
Aged about 51 years, Occ. Business,
Both R/o. Mankapur, Nagpur.
9. Prashant S/o. Laxman Lacharwar,
Aged about 45 years, Occ. Private,
R/o. Zingabai Takli, Nagpur. ... APPLICANTS
...VERSUS...
1. State of Maharashtra,
Through Police Station Dhantoli, Nagpur.
2. Complainant - XYZ
In Crime No.104/2023,
Dated 21/4/23, registered with
P. S. Dhantoli, Nagpur. ...NON-APPLICANTS
2 apl.806.23-J.odt
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Mr. R. S. Nayak, Advocate for Applicants.
Mr. Nikhil Joshi, A.P.P. for Non-applicant/State.
Mr. V. S. Mishra, Advocate for Non-applicant No.2.
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CORAM : VINAY JOSHI AND MRS.VRUSHALI V. JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT : 16.04.2024
DATE OF PRONOUNCING THE JUDGMENT : 07.05.2024
JUDGMENT (PER : MRS.VRUSHALI V. JOSHI, J.):
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1. Heard.
2. ADMIT. The matter is taken up for final disposal by consent of
learned Counsel appearing for the parties.
3. By this application, the applicants are seeking to quash the
charge-sheet (R.C.C.No.2098/2023) arising out of the First Information
Report vide Crime No. 104/2023 registered with Police Station, Dhantoli,
District Nagpur for the offence punishable under Sections 376, 417, 294,
323 read with Section 34 of the Indian Penal Code and Section 3 of the
Dowry Prohibition Act, 1961.
4. The applicants are the relatives of the applicant No.1
against whom the non-applicant No.2 has made allegation of rape. The
applicant No.2 is the mother of the applicant No.1 and the applicant
Nos.2 to 9 are close relatives of the applicant No.1. The offence is
registered under Section 376 of the Indian Penal Code (IPC) against the
3 apl.806.23-J.odt
applicant No.1 and the offence under Section 3 of the Dowry Prohibition
Act and under Sections 417, 294, 323 read with Section 34 of the IPC are
registered against all the other applicants.
5. The prosecution case in brief is as under :
The non-applicant No.2 i.e. the first informant, who is grown up
lady aged 26 years has lodged report on 21.04.2023 which lead to the
registration of crime. The informant is doing a job as H.R. in Pune based
company and doing work from home. The applicant No.1 became a
facebook friend of the first informant in November, 2021. They were also
close relatives, therefore, their friendship turned into a love affair. The first
informant resides in Nagpur and doing work from home and the applicant
No.1 Shubham resides at Chandrapur and working as a clerk in Tahsil office
Rajura, District Chandrapur. The allegations are made that when Shubham
came to Nagpur to meet her on 16.01.2022, he had established physical
relationship with her on the pretext of marriage. Thereafter, he continued
the sexual relations with her. Both of them informed about their love
relations to their family members and their family members also accepted
their love and accordingly, their engagement was performed on 05.11.2022.
The date of marriage was also fixed on 11.05.2023. They have celebrated
the Holy Festival by exchanging clothes. They planned for marriage and
accordingly arrangements were made by both the sides. During talks about
wearing clothes at the time of marriage, a dispute arose between the
4 apl.806.23-J.odt
applicant No.1 and non-applicant No.2. After the involvement of both
family members, there was some dispute, and a meeting was held to solve
the problem. The allegations are made by the first informant that the
mother and sisters of the applicant No.1 asked for more heavy gold chain
for applicant No.1 in marriage and they asked for car. The talks were held
on conference call. Thereafter, a meeting was held and it turned into sore
relations as there were abuses and beating at the time of meeting, and the
marriage between applicant No.1 and non-applicant No.2 was broke down.
As the abusive language was used and there was assault, applicant No.1
went to the Police Station for lodging a complaint, but considering the close
relationship, the police gave them understanding not to lodge the complaint
and they returned back. The non-applicant No.2 came to know about it and
she has lodged the report against the applicant No.1 and his family
members and the crime was registered.
6. Learned Counsel for the applicants has stated that the marriage
was fixed and the love relationship is admitted by the non-applicant No.2.
There was relationship between applicant No.1 and non-applicant No.2 with
consent. There is no question of giving false promise of marriage for
establishing the sexual relations. The reason for breaking marriage was
different. Therefore, the offence under Section 376 of the IPC would not be
attracted. The applicants have purchased the ornaments for marriage. The
arrangement for marriage was made by the mother of the applicant No.1
5 apl.806.23-J.odt
and other family members. Therefore, there is no question of asking the
ornaments or the dowry from the non-applicant No.2. No case is made out
against the applicants, hence prayed to quash the charge-sheet filed against
the applicants for the said offences.
7. The non-applicant State has opposed the application stating that
the initial sexual relations established by the applicant No.1 are by giving
the assurance of marriage and thereafter he refused to marry with the non-
applicant No.2. Therefore, the offence under Section 376 of the IPC is made
out against applicant No.1. The specific allegations are made against all the
applicants. This is not a case to quash the charge-sheet. The statements are
recorded. The demand was there, therefore, the applicants have to face the
trial and prove their innocence. At this stage, it cannot be considered to
quash the charge-sheet.
8. The non-applicant No.2 appeared and filed her reply. She has
reiterated the contents of the First Information Report. She has filed some
photographs and some chats to prove their intimacy. She has specifically
stated that applicant No.1 has given the promise to marry and, therefore,
the sexual relations were established. After that he denied it and, therefore,
the offence under Section 376 of the IPC is made out. The other applicants
who are the relatives of applicant No.1 even before the marriage, demanded
dowry, and abused her in filthy language. Therefore, the offence under the
6 apl.806.23-J.odt
Dowry Prohibition Act, 1961, and 323 of the IPC are made out against the
other applicants, hence prayed to reject the application.
9. Heard both the learned Counsel and the learned A.P.P.. Perused
the record.
It is admitted position that applicant No.1 and non-applicant
No.2 were having love affair. They were in close relationship. The date of
marriage was fixed. Both the families accepted their love affair and
thereafter, due to some disputes between both the families, the marriage
was not performed. Initially applicant No.1 went to the Police Station to
report the incident as there was assault by each other. The complaint was
not registered. When non-applicant No.2 came to know about it, she has
lodged the complaint. Considering the allegations made and story narrated
by non-applicant No.2, it reveals that the sexual relations established by
both of them are consensual.
10. In order to impress the submission that one has to see the facts
of the case without getting influenced by the section invoked, reliance is
placed on the decision of the Supreme Court in case of Narinder Singh &
ors. Vs. State of Punjab and anr., AIR 2014 SCW 2065. In the said case,
relating to the offence punishable under Section 307 of the IPC, it is
expressed that despite invoking the particular section, the High Court has to
examine whether prima facie offence is made out under said section. The
7 apl.806.23-J.odt
learned counsel for applicant further relied on the decision of this Court in
case of Amit Kumar Arun Kumar Singh Vs. State of Maharashtra & anr.
2016 ALL MR (Crim) 1553, wherein this Court on facts, held that though
the offence is about rape, however, it was in between two adults having the
age of understanding. In the situation, this Court has quashed the First
Information Report on account of settlement.
11. The learned counsel appearing for the applicant has submitted
that the emerging facts are clear enough to convey that it is a case of
consensual relation. In this regard, reference can be made to the decision of
the Supreme Court in case of Pramod Suryabhan Pawar Vs. State of
Maharashtra and anr. (2019) 9 SCC 608. In the said decision, the Supreme
Court took review of earlier decisions and summarized the legal position in
para 18 which reads as below:-
"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."
8 apl.806.23-J.odt
12. On the similar line, reference can be made to the decision
of the Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar Vs.
State of Maharashtra & ors, 2019 AIR (SC) 327. In the said case,
Court has once again highlighted the distinction in between mere
breach of promise and false promise. The relevant observation made
in para 20 are as follows:-
"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
9 apl.806.23-J.odt
376 of the IPC."
13. The intention of applicant No.1 was not to establish the relations
by giving false promise. It is not the case of false promise of marriage
because the marriage was settled. The Holi was celebrated by both the
families. The arrangement of marriage was done by both the parties.
Therefore, there is no question of establishing sexual relations by giving
false promise. The non-applicant No.2 has filed copies of whatsapp chat,
which shows their romantic relationship and does not disclose any promise
to marry. From perusal of the police papers produced in the form of
charge-sheet, we are satisfied that the ingredients of the offence are not
fulfilled.
14. The allegations are made about the demand of dowry against the
entire family. During the period of arrangement of marriage, the dispute
took place between both the parties. The allegations are made about
demand of car and long gold chain. The receipts of purchase of jewellery
for marriage are filed on record by the applicants. The dispute took place
between applicant Nos.1 and non-applicant No.2 while discussing about
wearing of clothes on the wedding day. After the meeting, the relations
became sore and, therefore, to teach the lesson, she must have made such
allegations. Therefore, the offence under Section 3 of the Dowry Prohibition
Act for demand of dowry is also not made out.
10 apl.806.23-J.odt
15. The offence under Section 324 of the IPC is registered on
allegations that the sisters and other members slapped her mother by
pulling hair. The applicant No.1 first went to the Police Station. It is also
mentioned by non-applicant No.2 in her First Information Report that she
came to know about lodging of the complaint by applicant No.1, and
therefore, she went and lodged the complaint against the entire family
members. Considering the approach of non-applicant No.2 to teach the
lesson to the entire family of applicant No.1, allegations are made,
therefore, the offence under Section 324 is also not made out. Considering
the entire allegations made against the applicants, none of the offences are
made out against any of the applicants.
16. In view of the above, the application is allowed. We hereby
quash and set aside the charge-sheet (R.C.C.No.2098/2023) arising out of
the First Information Report vide Crime No.104/2023 registered with Police
Station, Dhantoli, District Nagpur for the offence punishable under Sections
376, 417, 294, 323 read with Section 34 of the Indian Penal Code and
Section 3 of the Dowry Prohibition Act, 1961.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Signed by: Mrs. R.M. MANDADE
Designation:RGurnule
PA To Honourable Judge
Date: 08/05/2024 19:16:32
