Satendra Rathore vs The State Of Madhya Pradesh
2022 Latest Caselaw 4245 MP

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          THE HIGH COURT OF MADHYA PRADESH
                    M.Cr.C. No.45389/2021
          Satendra Rathore Vs. State of MP and another

Gwalior, Dated: 28/03/2022

      Shri B.K. Tyagi, Advocate for applicant.

      Shri    Rohit   Mishra, Additional Advocate        General    for

respondent No. 1/State.

Shri K.K. Pachauri, Advocate for respondent No. 2.

This application under Section 482 of CrPC has been filed

challenging the charge-sheet as well as consequential proceedings

arising out of Crime No.48/2021 registered at Police Station Kotwali

District Morena for offence under Sections 376, 376(2)(n) of IPC.

2. According to the prosecution case, respondent No. 2 lodged an

FIR against the applicant on the allegations that the complainant is

the student of B.A. II year. When she was in Class-XII, her friendship

developed with the applicant. Thereafter, the applicant started

stalking her and also proposed that he is in love with her and wants to

marry her. On 09/12/2020 at about 02:00 PM, he took her to Krishna

Restaurant and on the pretext of marriage, he forcibly committed rape

on her. When she scolded as to why he has committed rape on her,

then again the applicant assured that he would marry her. On various

occasions, she requested him to marry her, but he did not agree and,

accordingly, the FIR was lodged in Crime No.48/2021 at Police

Station Kotwali Morena, District Morena for offence under Section

376 of IPC.

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3. It is submitted that the statement of the prosecutrix was

recorded under Section 164 of Cr.P.C., in which she has stated that

the applicant is known to her for the last three years. When she was

in Class XII, the applicant used to stalk her and whenever she

objected to it, then he replied that he loves her and accordingly, they

started having talks on mobile phone. Thereafter, he called her in

Krishna Hotel on the pretext of attending a birthday party and

committed rape on her. When she scolded as to why he has

committed rape on her, then he assured that he would marry her.

Thereafter, on 2-3 occasions she had talks with the applicant. Later

on, she and the applicant also went to celebrate new year. On

4/1/2021 she went to Raj Palace Hotel where again on the pretext of

performing marriage, the applicant had physical relationship with her.

On 9/1/2021 she met with him in Krishna Restaurant and again

insisted for marriage, but he refused to do so. It was specifically

stated that the applicant is the resident of Gopalpura, Morena and

on the false promise of marriage, he had physical relationship

with her on various occasions during last three years, but now on

4/1/2021 and 9/1/2021 he has refused to marry her. It is submitted

that thus, it is clear from the statement of the prosecutrix recorded

under Section 164 of Cr.P.C. that for the last three years she was in

physical relationship with the applicant and if any woman continues

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.45389/2021 Satendra Rathore Vs. State of MP and another

to remain in physical relationship for three long years including

going alongwith the applicant to celebrate new year as well as

visiting hotels, then it cannot be said that her consent was obtained

by misconception of fact. To buttress his contentions, the counsel for

the applicant has relied upon the judgments passed by the Supreme

Court in the case of Deepak Gulati vs. State of Haryana reported in

AIR 2013 SC 2071, Tilak Raj vs. State of Himachal Pradesh

reported in AIR 2016 SC 406, Uday vs. State of Karnataka

reported in (2003) 4 SCC 46, Pramod Suryabhan Pawar Vs. State

of Maharashtra and Anr. reported in (2019) 3 SCC (Cri.) 903,

Sonu @ Subhash Kumar Vs. State of Uttar Pradesh & Anr.

reported in AIR 2021 SC 1405 as well as the judgment passed by this

Court in the case of Senjeet Singh Vs. State of M.P. and another

reported in 2020 (1) MPLJ (Cri.) 260, Abid Ali Vs. State of MP &

Anr. passed on 18/5/2017 in M.Cr.C. No.11363/2016 and a

judgment passed by a coordinate Bench of this Court in the case of

Umesh Lilani Vs. The State of M.P. & Anr. passed on 18/7/2019 in

M.Cr.C. No.16158/2019 (Indore Bench).

4. Per contra, the application is vehemently opposed by the

counsel for the State as well as the complainant. It is submitted by the

counsel for the complainant that if the girl has believed the promise

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made by the offender for three long years and continued with the

physical relationship, then it cannot be said that her consent was not

obtained by misconception of fact.

5. It is submitted by the counsel for the State that it is clear from

the statement of the prosecutrix that when she was in class XII, the

applicant used to stalk her and thus, it is clear that he succeeded in

developing friendship with the respondent no.2 by putting undue

pressure on her and thus, the consent given by the prosecutrix cannot

be said to be a free consent.

6. Heard learned counsel for the parties.

7. The statement of the prosecutrix recorded under Section 164 of

Cr.P.C. reads as under:-

01& eSa lrsUnz jkBkSj dks rhu lky iwoZ ls tkurh gwWaA eS ckjgoha d{kk esa Fkh vkSj i<kbZ ds fy, dkSfpax tkrh Fkh] rc lrsUnz jkBkSj esjk ihNk djrk Fkk rks eSaus muls iwNk fd esjk ihNk D;ksa djrsa gks rks mlus dgk fd eS rqEgsa I;kj djrk gSA fQj eSaus mlls Qksu ij ckrphr ,d&nks eghus gqbZA mlds ckn mlus eq>s d`".kk gksVy es mlus eq>s viuh cFkZMs dh ckr dgdj cqyk;k vkSj ogka ij mlus esjs lkFk tcjnLrh xyr dke fd;kA eSaus mlls dgk fd rqeus esjs lkFk xyr dke D;ksa fd;k rks og cksyk fd eSa 'kknh dj ywxkA mlds ckn nks&rhu ckj esjh mlls ckrphr gqbZA mlds ckn eS vkSj lrsaUnz U;w bZ;j ij ?kweus x, FksA fnukad 04-01-2021 dks eSa jkt iSysl gksVy esa xbZ ogka ij mlus eq>s 'kknh dk >kalk nsdj ejs lkFk 'kkjhfjd laca/k cuk,A fnukad 09-01-2021 dks eSa mlls d`".kk jsLVksjVsa es feyh Fkh vkSj eSaus mlls 'kknh ds ckjs es

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.45389/2021 Satendra Rathore Vs. State of MP and another

cksyk rks mlus euk dj fn;kA lrsaUnz jkBkSj tks fd xksikyiqjk eqjSuk dk jgus okyk gS] mlus 'kknh dk >kalk nsdj esjs lkFk fiNys rhu lkyksa esa dbZ ckj 'kkjhfjd laca/k cuk,] ysfdu mlus eq>ls 'kknh djus ds fy, 04-01-2021 vkSj 09-01-2021 dks cksyk rks mlus fnukad 09-01-2021 dks eq>ls 'kknh djus ls Li"V :i ls euk dj fn;kA fQj mlds ckn eSaus fnukad 11-01-2021 dks Fkkuk flVh dksrokyh esa fjiksVZ djus xbZ Fkh] fdrq ejh fjiksVZ fy[kh ughaa xbZA mlds ckn fnukad 18-01-2021 dks esjh fjiksVZ flVh dksrokyh esa fy[kh xbZ FkhA

8. From the plain reading of the allegations made in the statement

under Section 164 of Cr.P.C., it is clear that the respondent no.2 was

in friendship with the applicant and they used to talk to each other on

phone. On 9/12/2020 she went to Krishna Hotel in order to attend the

birthday party where it is alleged that she was raped, however, in

spite of that she continued to talk to the applicant and even they went

together to celebrate new year. On 4/1/2021 also she went to Raj

Palace Hotel to meet the applicant where it is alleged that physical

relationships were developed, but on 9/1/2021 the applicant refused

to marry her. However, in her statement under Section 164 of Cr.P.C.

she has specifically stated that for the last three long years the

applicant had physical relationship with her on multiple occasions.

9. The Supreme Court in the case of Deepak Gulati (supra) has

held as under:-

"18. Consent may be express or implied,

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coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused 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 latter falls within the ambit of cheating or deception. 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 mis-representation 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

In the case of Tilak Raj (supra), the Supreme Court has held as under:-

"19. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case,

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the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable."

The Supreme Court in the case of Uday (supra) has held as under:-

"21. 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 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

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offence, absence of consent being one of them.

23. 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 consequences 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 consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.

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We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak

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moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

The Supreme Court in the case of Sonu @ Subhash Kumar

(supra) has held as under:-

11 Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.

The Supreme Court in the case of Pramod Suryabhan Pawar

(supra) has held as under:-

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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: (SCC para 12) "12. 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 Indian Penal Code 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 Indian Penal Code and can be convicted for the offence Under Section 376 IPC."

Similar observations were made by this Court in Deepak Gulati v. State of Haryana ("Deepak Gulati"): (SCC p.682, para 21) "21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether that was made, at an early stage a false promise of marriage by the Accused....

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 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

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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: (SCC pp.682-84, paras 21 & 24)

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 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 Indian

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Penal Code 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.

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."

The Supreme Court in the case of Dr. Dhruvaram Murlidhar

Sonar Vs. Naval Singh Rajput and others reported in 2019 (3)

MPLJ (Cri.) SC 52 has held as under:-

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

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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 376 of the Indian Penal Code.

21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home." Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint

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registered under section 376(2)(b) cannot be sustained.

10. Thus, it is clear that there is a distinction between "mere breach

of promise" and "giving a false promise to marry". Only a false

promise to marry made with an intention to deceive a woman would

vitiate the woman's consent being obtained under misconception of

fact, but mere breach of promise cannot be said to be a false promise.

The respondent no.2 was in physical relationship with the applicant

for three long years. She continued to meet him in hotels. She went

alongwith the applicant to celebrate new year. Thus, it cannot be said

that her consent was obtained by misconception of fact. At the most,

it can be said to be a breach of promise to marry. Three long years are

more than sufficient time for a prudent woman to realize as to

whether the promise of marriage made by the applicant is false from

its very inception or there is a possibility of breach of promise. When

the applicant was not acceding to her requests for marriage, then why

she continued with the relationship with him and why she

continuously visited him in the hotels as well as why she went with

the applicant to celebrate new year? Thus, it is clear that at the most it

can be said that it is a case of breach of promise and, therefore, it

cannot be said that the promise made by the applicant was obtained

under fear or misconception of fact.

11. Under these circumstances, the prosecution of the applicant for

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offence under Sections 376 and 376 (2) (n) of IPC would be nothing

but misuse of Criminal Law and, therefore, no case is made out

warranting prosecution of the applicant.

12. Consequently, the FIR in Crime No.48/2021 registered at

Police Station Kotwali District Morena for offence under Sections

376, 376(2)(n) of IPC and all other consequential criminal

proceedings are hereby quashed.

13. The application succeeds and is hereby allowed.

(G.S. Ahluwalia) Judge

Arun* ARUN KUMAR MISHRA 2022.03.30 19:19:33 +05'30'