Page No.# 1/6 vs The State Of Assam And Anr
2025 Latest Caselaw 2589 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And Anr on 8 August, 2025

                                                                            Page No.# 1/6

GAHC010188362022




                                                                    2025:GAU-AS:10432

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Pet./950/2022

            JITENDER JAIN @ MONU
            S/O- LATE PRADEEP KR. JAIN, R/O- WARD NO. 13, GURU NANAK NAGAR,
            CHAPAGURI, P.S. AND DIST. BONGAIGAON, ASSAM, PIN- 783380.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM

            2:YASMIN KHATOON (INFORMANT)
             D/O- LATE MD. TASLIM
             R/O- SANTIPATTI
             P.S. DIPHU
             GUWAHATI
             DIST. KARBI ANGLONG
            ASSAM-782460

Advocate for the Petitioner   : MR. B D KONWAR SR. ADV., MR. R SALOI,MR H
AGARWAL,MR J SINGH

Advocate for the Respondent : PP, ASSAM,

Page No.# 2/6

BEFORE HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date of Hearing : 06.08.2025 Date of Judgment : 08.08.2025

JUDGMENT AND ORDER (S.K. Sharma, J)

Heard Mr. B D Konwar, learned Senior counsel assisted by Ms. J Konwar, learned for the petitioner and Mr. P S Lahkar, learned Additional Public Prosecutor, Assam for the State. None appeared for the respondent No. 2.

2. This is an application under Section 482 of the CrPC, 1973 (as amended) for quashing of the PRC Case No. 355/2022 arising out of Bongaigaon Police Station Case No. 100/2022 registered under Sections 376/417 of the IPC pending in the Court of the learned Chief Judicial Magistrate, Bongaigaon.

3. The informant/respondent No. 2 herein had lodged an FIR on 21.02.2022 alleging that since April, 2021 she was in love with the accused petitioner who promised to marry her and developed physical relationship with her in the month of August in his house. On 21.09.2021 he took her to Calcutta and kept her in a hotel and raped her. Thereafter on 23.09.2021 he put Sindoor and Mangalsutra and married her. After returning they stayed separately, but many times the accused petitioner called her to his house and raped her.

4. On the basis of the aforesaid complaint, an FIR No. 100/2022 was lodged to take necessary legal actions. Accordingly, police registered a case as per the complainant's report for the offences punishable under Sections 376/417 of the IPC, 1860.

5. The accused petitioner was taken into custody and subsequently released on bail.

6. Mr. B D Konwar, learned Senior counsel has submitted that even if the facts disclosed in Page No.# 3/6

the FIR are taken at their face value and accepted in their entirety, no offence under Sections 376/417 IPC is made out against the accused petitioner.

7. It submitted that in the instant case the complainant is a grown-up major woman who was deeply in love with the accused/petitioner. While it appears that the accused/petitioner and the complainant had a love affair, she had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. Despite this, she did not resist the overtures of the accused/petitioner and in fact succumbed to them given the fact their physical relationship sustained over a long period of time, so it can be presumed that the complainant was a consenting party. She thus freely exercised a choice between resistance and assent and therefore, all these circumstances lead to the conclusion that the complainant freely, voluntarily and consciously consented to having sexual intercourse with the accused/petitioner and her consent was not in consequence of any misconception of fact. Therefore, the ingredients of Section 375 of the IPC, 1860 to attract punishment under Section 376 of the Indian Penal Code, 1860 is not attracted against the accused petitioner.

8. It is further stated that a plain reading of the FIR dated 21.02.2022 makes it clear that there was neither fraudulent nor dishonest intention on the part of the accused/petitioner at the beginning of the love affair with the complainant nor there is breach of contract. Moreover, a mere breach of contract cannot give rise to criminal prosecution for cheating under Section 417 of the IPC, unless fraudulent or dishonest intention is shown right at the beginning of their love affair or relationship. In order to constitute cheating the deception must be with a fraudulent and dishonest intention and for the aforesaid reasons also he is not guilty of the offence under Section 417 of the IPC, 1860 and therefore, on this ground as well the FIR is liable to be set aside and quashed.

9. In support of his aforesaid submission, Mr. B D Konwar, learned Senior counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Uday -Vs- State of Karnataka reported in (2003) 4 SCC 46, wherein it was held that - It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of Page No.# 4/6

fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent bring one of them.

10. In the said case it was further held that - Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequence of the act, particularly, when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consent to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

11. In the aforesaid case, the Hon'ble Supreme Court also observed that it was not the promise of marriage that induced the prosecutrix to consent to having sexual intercourse with the appellant as she knew that her marriage with him was difficult on account of caste considerations and was bound to meet with stiff oppositions from the members of both the Page No.# 5/6

families and there was a distinct possibility that the marriage may not take place despite the promise of the appellant.

12. Mr. B D Konwar, learned Senior counsel further placed reliance upon the decision of the Hon'ble Supreme Court in Mandar Deepak Pawar -Vs- The State of Maharashtra & Another., [Criminal Appeal No(s). 442/2022 (decided on 27.07.2022)]. In the said decision, the Hon'ble Supreme Court observed that in that case the parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. This was a case of consensual physical relationship on the assurance of marriage, where the Hon'ble Supreme Court quashed the FIR holding that the registration thereof was an abuse of the criminal process.

13. The Hon'ble Supreme Court in the said case further held that - We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled "Pramod Suryabhan Pawar -Vs- State of Maharashtra & Anr." where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1806.

14. Coming to the facts of the present case, it is apparent from the FIR as well as the statements of the victim recorded under Section 164 CrPC that she continued to engage in consensual physical relationship with the accused petitioner for a considerable period of time. She voluntarily went to the house of the accused petitioner, where she engaged in physical relationship and subsequently even accompanied him to Calcutta, where further such activities took place. Even after returning from Calcutta, she continued to visit the house of the accused petitioner and engaged in sexual intercourse.

15. Belonging to the Islamic faith, she was well aware of the obstacles to the promised marriage, as the petitioner is a person of Jain religion and being a mature girl of 23 years, it was not expected of her to take the petitioner's word for it. In other words, the promise of marriage was not the only reason for which she engaged in sexual intercourse with the Page No.# 6/6

accused petitioner.

16. From the chain of events narrated by the prosecutrix herself, it appears that she herself was also a person interested in the physical relationship with the accused petitioner, even de- hors the promise of marriage.

17. It is also interesting to note that she had stated in the FIR that the accused had applied vermilion on her forehead, adorned her with Mangalsutra and married her. If that be the case, i.e., if she understood the said act as an act of marriage, there is perhaps no reason to complain on her part regarding breach of promise to marry.

18. In any case, even if it is to be held that the accused petitioner did not seriously intend to marry the prosecutrix, it is apparent that she did not consent to such act solely on the basis of such promise and the said condition is to be fulfilled in order to attract liability under Sections 375/376 IPC read with Section 417 IPC.

19. Having regard to the facts and circumstances of the instant case considered in the light of the decision of the Hon'ble Supreme Court, more specifically, the case of Mandar Deepak Pawar (Supra), this Court is of the view that a case for quashing of the PRC Case No. 355/2022 arising out of Bongaigaon P.S. Case No. 100/2022 in exercise of the power conferred under Section 482 CrPC has been made out.

20. Consequently, this criminal petition is allowed and the proceeding of PRC Case No. 355/2022 arising out of Bongaigaon P.S. Case No. 100/2022 hereby stands set aside and quashed.

21. Interim order, if any, stands merged with this order.

JUDGE

Comparing Assistant