[Cites 11, Cited by 0]
Bombay High Court
Elvyn Martin S/O. Joe Gomes vs State Of Maharashtra Thr. Police ... on 29 January, 2026
2026:BHC-NAG:1646-DB
1-APL-809-2017.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 809 OF 2017
1. Elvyn Martin S/o Joe Gomes,
Aged about 51 years,
Occupation : Business,
Resident of D-7/1, Hingna Wadi
Road, MIDC, Hingna - 440028 APPLICANT
// V E R S U S //
1. The State of Maharashtra,
Through Police Station M.I.D.C.,
Hingna, Nagpur
2. XYZ (Victim)
in Crime No. 491/2017,
Police Station M.I.D.C.,
Nagpur City. NON-APPLICANT
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Mr. Chinmay S. Dharmadhikari a/w Raghav A. Bhandakkar,
Advocate for the applicants.
Mr. Nikhil Joshi, APP for non-applicant /State.
Mr. Atharv Khadse h/f S. K. Bhandarkar, Advocate for Non-
applicant No.2.
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CORAM : URMILA JOSHI PHALKE, J.
DATED : 29.01.2026
ORAL JUDGMENT :
1. Heard. Admit.
2. Heard finally with the consent of the respective parties.
1-APL-809-2017.odt
3. By this application, the applicant seeks quashing of the first
information report as well as the consequent proceedings arising
out of the same bearing Special Case No.229 of 2023 pending
before the District Judge-10 and the Additional Sessions Judge,
Nagpur arising out of impugned Charge Sheet No.91 of 2023.
4. The crime is registered on the basis of a report lodged by
the non-applicant No.2/informant on an allegation that in the year
2014, she had gone to obtain the job at 'Port-O-Gomez' restaurant.
At the relevant time, the present applicant has taken her interview
and provided her a job as a house keeping incharge. In the year
2015, she developed the intimate relationship with the present
applicant, which resulted in their love affair. She further alleged
that on the promise of marriage the present applicant has
subjected her for the forceful sexual intercourse on various
occasions. As the applicant was promised for marriage, she trusted
him and she never resisted the act of the physical relationship by
the present applicant. Subsequently, the relationship between
them was disturbed and the present applicant denied to perform
the marriage with her. On the basis of the said report, police have
registered the crime against the present applicant.
1-APL-809-2017.odt
5. Heard learned counsel for the applicant, who submitted
that, the entire statement of the victim discloses that the
relationship between the complainant and the present applicant
was consensual in nature. He invited my attention towards the
recital of the FIR as well as the recital statements and some
photographs also and submitted that, the investigation papers
shows that the relationship between the present applicant and the
non-applicant No.2 was consensual in nature. In the earlier FIR,
non-applicant No.2 nowhere discloses that there was a promise of
marriage and subsequent to the said complaint this FIR came to be
lodged on an allegation that, on the promise of marriage, she was
subjected for the sexual intercourse. He submitted that now, in a
catena of decisions, it has been held that mere promise of
marriage, is not sufficient to warrant conviction against the
accused. He submitted that by consent the non-applicant No.2 has
entered into a physical relationship. She is a matured lady of 25
years. The relationship was for three years between them and
considering the long standing relationship, by no stretch of
imagination, it can be said that, on the promise of marriage, she
was subjected for the forceful sexual assault. Thus, no offence is
1-APL-809-2017.odt
made out against the present applicant. In view of that, the
application deserves to be allowed.
6. Per contra, learned APP strongly opposes the said
contentions and submitted that under a misconception of the fact
her consent was obtained and therefore, it is not the consent at all
in the eyes of law. He submitted that there was a promise of
marriage and under the promise of marriage, the consent was
obtained and therefore, it is under the misconception of fact. He
further invited my attention towards the various photographs and
submitted that she was subjected for the assault also. In view of
that, the application deserves to be rejected.
7. Learned counsel for the complainant submitted that the
complainant has already taken a brief from him and there is no
contact. Thus, she has not engaged the another counsel though
she is aware of the fact that, the application is pending before this
Court.
8. On hearing both the sides and on perusal of the entire
investigation report, it reveals that the non-applicant No.2 got
acquaintance with the present applicant in the year 2014, where
she appeared for an interview 'Port-O-Gomez' restaurant she
obtained the said job and thereafter, there was communication
1-APL-809-2017.odt
between the present applicant and non-applicant No.2. Her
statement itself shows that since 2015, the intimate relationship
was developed between them, which resulted into love affair and
thereafter, the applicant has also disclosed to her that he will
perform marriage with her. She was fully aware that the applicant
was a married person having daughters. As the recitals of the FIR
itself shows that, the applicant has disclosed to her that his two
daughters are taking education and there is a dissolution of
marriage between him and his first wife and his first wife is
residing abroad. Thus, as far as the fact that the applicant is a
married person was already disclosed to her by the present
applicant and thereafter, the friendship was developed between
them which resulted into the love affair and the said relationship
was continued for three years. It is apparent from her statement
that she residing along with the applicant in live in relationship.
9. As far as the aspect regarding the consent, breach of
promise or false of promise is distinguished by the Hon'ble Apex
Court in the case of Pramod Suryabhan Pawar vs. The State of
Maharashtra & Another reported in (2019) 9 SCC 608, wherein
the Hon'ble Apex Court observed that:
1-APL-809-2017.odt
"12 This Court has repeatedly held that consent with
respect to Section 375 of the IPC involves an active
understanding of the circumstances, actions and
consequences of the proposed act. An individual who
makes a reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the various
possible consequences flowing from such action or inaction,
consents to such action. In Dhruvaram Sonar which was a
case involving the invoking of the jurisdiction under
Section 482, this Court observed:
"15. ... An inference as to consent can be drawn if
only based on evidence or probabilities of the case.
"Consent" is also stated to be an act of reason
coupled with deliberation. It denotes an active will
in mind of a person to permit the doing of the act
complained of." This understanding was also
emphasised in the decision of this Court in Kaini
Rajan v State of Kerala:
"12. ... "Consent", for the purpose of Section 375,
requires voluntary participation not only after the
exercise of intelligence based on the knowledge of the
significance of the moral quality of the act but after
having fully exercised the choice between resistance and
asset. Whether there was (2013) 9 SCC 113 consent or
not, is to be ascertained only on a careful study of all
relevant circumstances."
13 This understanding of consent has also been set out in
Explanation 2 of Section 375 (reproduced above). Section
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3(1) (w) of the SC/ST Act also incorporates this concept of
consent:
"3(1) (w) -
(i) intentionally touches a woman belonging to a
Scheduled Caste or a Scheduled Tribe, knowing
that she belongs to a Scheduled Caste or a Sched-
uled Tribe, when such act of touching is of a sexual
nature and is without the recipient's consent;
... Explanation.--For the purposes of sub-clause (i), the ex-
pression "consent" means an unequivocal voluntary agree-
ment when the person by words, gestures, or any form of
non-verbal communication, communicates willingness to
participate in the specific act:
Provided that a woman belonging to a Scheduled
Caste or a Scheduled Tribe who does not offer
physical resistance to any act of a sexual nature is
not by reason only of that fact, is to be regarded as
consenting to the sexual activity:
Provided further that a woman's sexual history, in-
cluding with the offender shall not imply consent
or mitigate the offence;"
14 In the present case, the "misconception of fact" alleged by the
complainant is the appellant's promise to marry her. Specifically
in the context of a promise to marry, this Court has observed
that there is a distinction between a false promise given on the
understanding by the maker that it will be broken, and the
breach of a promise which is made in good faith but
subsequently not fulfilled. In Anurag Soni v State of
Chhattisgarh, this Court held:
1-APL-809-2017.odt
"37. The sum and substance of the aforesaid decisions
would be that if it is established and proved that from
the inception the accused who gave the promise to the
prosecutrix to marry, did not have any intention to marry
and the prosecutrix gave the consent for sexual
intercourse on such an assurance by the accused that he
would marry her, such a consent can be said to be a
consent obtained on a misconception of fact as per
Section 90 of the IPC and, in such a case, such a consent
would not excuse the offender and such an offender can
be said to have committed the rape as defined under
Sections 375 of the IPC and can be convicted for the
offence under Section 376 of the IPC." Similar
observations were made by this Court in Deepak Gulati v
State of Haryana ("Deepak Gulati"):
"21. ... 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..."
15 In Yedla Srinivasa Rao v State of Andhra Pradesh the
accused forcibly established sexual relations with the
complainant. When she asked the accused why he had
spoiled her life, he promised to marry her. On this premise,
the accused repeatedly had sexual intercourse with the
complainant. When the complainant became pregnant, the
accused refused to marry her. When the matter was
brought to the panchayat, the accused admitted to having
had sexual intercourse with the complainant but
1-APL-809-2017.odt
subsequently absconded. Given this factual background,
the court observed:
(2019) SCC OnLine SC 509 (2013) 7 SCC 675 (2006) 11
SCC 615 "10. It appears that the intention of the accused
as per the testimony of PW 1 was, right from the
beginning, not honest and he kept on promising that he
will marry her, till she became pregnant. This kind of
consent obtained by the accused cannot be said to be
any consent because she was under a misconception of
fact that the accused intends to marry her, therefore, she
had submitted to sexual intercourse with him. This fact
is also admitted by the accused that he had committed
sexual intercourse which is apparent from the testimony
of PWs 1, 2 and 3 and before the panchayat of elders of
the village. It is more than clear that the accused made a
false promise that he would marry her. Therefore, the
intention of the accused right from the beginning was
not bona fide and the poor girl submitted to the lust of
the accused, completely being misled by the accused
who held out the promise for marriage. This kind of
consent taken by the accused with clear intention not to
fulfil the promise and persuading the girl to believe that
he is going to marry her and obtained her consent for
the sexual intercourse under total misconception, cannot
be treated to be a consent...."
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
1-APL-809-2017.odt
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:
"21. ... 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
1-APL-809-2017.odt
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 IPC 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." (Emphasis supplied)".
10. While summarizing, the legal position the Hon'ble Apex
Court held that 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.
1-APL-809-2017.odt
11. The allegation in the present FIR indicates that since
January 2015 to August 2017, the applicant and the non-applicant
No.2 were in a relationship. She was residing in live in
relationship and the physical relationship was also developed
between them. Thus, the prosecutrix who herself, a grown up lady
could not be said to have acted under the alleged false promise
given by the applicant and under the misconception of fact while
giving the consent to have sexual relationship with the present
applicant. Admittedly, she is a grown up lady and despite knowing
the fact that, he is a married person, she continued to have such
relationship between at least for about three years till she lodges a
FIR in the year 2017 i.e., on 28.11.2017.
12. Hon'ble Apex Court in the case of Maheshwar Tigga v. State
of Jharkhand, (2020) 10 SCC 108 it is observed that:
"Under Section 90 of IPC, Section 90 IPC , a consent given
under a misconception of fact is no consent in the eyes of
law. But the misconception of fact has to be in proximity of
time to the occurrence and cannot be spread over a period
of four years. It hardly needs any elaboration that the
consent by the appellant was a conscious and informed
choice made by her after due deliberation, it being spread
over a long period of time coupled with a conscious positive
action not to protest. The prosecutrix in her letters to the
1-APL-809-2017.odt
appellant also mentions that there would often be quarrels
at her home with her family members with regard to the
relationship, and beatings given to her."
13. In view of the aforesaid judgments, it is evident that the
consent of the victim, i.e. non-applicant No. 2, was conscious,
voluntary and a deliberate exercise of free choice. The same cannot
be said to be the outcome of any involuntary action, misconception
of fact or denial of choice, particularly when adequate opportunity
was available to her to resist or decline the act. She specifically
stated in her statement that she never resisted the act of the
present applicant, which shows that she willingly entered into such
relationship and therefore, the offence under Section 375 is not
made out against the present applicant and therefore, the
application deserves to be allowed. Accordingly, I proceed to pass
the following order:
ORDER
(i) Application is allowed.
(ii) The FIR in connection with in Crime No.491 of 2017
registered under Section 376, 417 of Indian Penal Code
and Section 3(1)(iii) of Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1889 is hereby
1-APL-809-2017.odt
quashed and set aside as well as the consequent
proceedings bearing Special Case No.229 of 2023 pending
before Learned District Judge-10 and Additional Sessions
Judge, Nagpur arising out of the impugned charge-sheet
No.91 of 2023 is also hereby quashed and set aside to the
extent of applicant.
(URMILA JOSHI PHALKE, J.)
MJ Jadhav
