Madhya Pradesh High Court
Ajay Goswami vs The State Of Madhya Pradesh on 12 May, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 12 th OF MAY, 2023
MISC. CRIMINAL CASE No. 20926 of 2023
BETWEEN:-
AJAY GOSWAMI S/O SHRI SHIVCHARAN
GOSWAM I THAKUR BABA GALI BABTI JAIN KA
MAKAN DABRA, GWALIOR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAJMANI BANSAL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
INCHARGE POLICE STATION THROUGH
POLICE STATION ANTRI (MADHYA
PRADESH)
2. AB HYOKTR I THROUGH POLICE STATION
AN TR I THROUGH POLICE STATION ANTRI
DISTT GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUSHANT TIWARI - PUBLIC PROSECUTOR)
This application coming on for hearing this day, the court passed
the following:
ORDER
The present petition under Section 482 of CrPC has been filed by
the petitioner challenging the charge-sheet as well as consequential criminal
proceedings arising out of Crime No.155of 2016 registered at Police
Station Antri, District Gwalior for offences punishable under Sections
376(2)(f). 376(2)(n) of IPC pending before the trial Court in
S.T.No.22/2017.
( 2 ) In brief, the case of the prosecution is that on 22.12.2016
complainant- prosecutrix aged about 19 years lodged a written complaint
at Police Station Antri District Gwalior that she is resident of Bhitarwar.
Her father died ten years ago. Her mother used to support her by running
shop in Fairs. She is having two brothers. Her mother died in July 2015.
Her brothers asked petitioner who is their uncle to take care of the
prosecutrix as there is nobody to look after her. Thereafter, petitioner
took her to Dabra where he was residing in tenanted house along with his
wife and children. After 4-5 days petitioner took her to Gwalior for certain
bank work on motorcycle. Thereafter, he took her to village Nihona where
her mother resides. There, he committed sexual intercourse with her.
When she tried to cry, he put dupatta in her mouth. The petitioner
threatened that their brothers left her with him and if she disclosed the
incident to any body he will kill her. Thereafter, he took her to Gwalior
and Dabra. Afterwards, petitioner in every 4-8 days took her to Gwalior
on the pretext of bank work and in the night took her to village Nihona and
committed sexual intercourse with her. On July 2013, her marriage was
solemnized. Thereafter, petitioner went to her matrimonial house for
taking the prosecutrix to his house as per rituals. Then, she denied to go
with him but as her marriage was performed by petitioner who is his uncle,
her in-laws sent her with him. Thereafter, petitioner took her to Dabra and
then Shivpuri and stayed in a hotel and committed sexual intercourse with
her for 4 days. When her husband went to Dabra for taking her on the
occasion of Karua Chouth, her uncle denied to send her on which oral
dispute took place. Thereafter, her husband took her to Gwalior in the
house of his uncle then next day petitioner came there and asked to have
talk with the prosecutrix. Thereafter, she reached Bhind in her matrimonial
house and her husband went to Delhi for job then petitioner used to call on
the phone of her father-in-law and asked her to come to him but she
denied. Thereafter, petitioner told that if she did not come, he will kill her
husband. When petitioner threatened several times on phone, she called
her husband. Thereafter, when her husband came from Delhi she
informed him everything. On the basis of such complaint, FIR vide Crime
No.155/2016 has been registered against the petitioner. Statement of
prosecutrix was recorded. After completion of investigation and other
formalities, charge sheet has been filed by police.
(3) It is submitted by learned counsel for the petitioner that the FIR
has been lodged by the complainant with mala fide intention just to take
undue benefit. The complainant- prosecutrix is a major girl and she is
known the petitioner. She has made physical relationship with the
petitioner on her own consent and free will. The prosecutrix was in
relationship with petitioner over a significant period of time, therefore,
consent of the prosecutrix is not obtained by misrepresentation. Just to
take undue benefit she has lodged a false FIR. It is further submitted that
the statement of prosecutrix was recorded under Section 164 of Cr.P.C.,
in which she has stated that the petitioner is known to her for the last one
year and two months and if any woman continues to remain in physical
relationship for a long period, 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
AIR 2013 SC 2071, Tilak Raj vs. State of Himachal Pradesh AIR
2016 SC 406, Uday vs. State of Karnataka (2003) 4 SCC 46,
Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr.
(2019) 3 SCC (Cri.) 903, Sonu @ Subhash Kumar Vs. State of Uttar
Pradesh & Anr. AIR 2021 SC 1405 as well as the judgments passed by
this Court in the case of Senjeet Singh Vs. State of M.P. and another
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) as well as the order dated 28th March,
2022 passed by a Coordinate Bench of this Court in the case of Satendra
Rathore vs. State of MP and Another passed in MCRC 45389 of
2021.
(4) On the other hand, the petition is vehemently opposed by the
counsel for the State and submitted that if a girl has believed the promise
made by the offender for a long period and continued with the physical
relationship, then it cannot be said that her consent was not obtained by
misconception of fact. From the statement of prosecutrix recorded under
Section 161 as well as 164 of CrPC, it is clear that the petitioner on the
false pretext of marriage has succeeded in developing relationship with
prosecutrix by blackmailing her and therefore, consent given by the
prosecutrix cannot be said to be a free consent.
(5) Heard learned counsel for the parties.
(6) From the plain reading of the allegations made by the
prosecutrix, in the statement under Section 164 of Cr.P.C., it is clear that
she was in relationship with the petitioner since 2015. FIR has been lodged
in the year 2016. Before lodging the report, neither prosecutrix has made
any complaint to anybody in this regard.
(7) The Hon'ble Apex Court in the case of Deepak Gulati (supra)
has held as under:-
''18. Consent may be express or implied, 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 Hon'ble 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, 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 Hon'ble Supreme Court further 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 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. 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
t h e 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 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 Hon'ble Apex 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 Hon'ble Supreme Court in the case of Pramod Suryabhan
Pawar (supra) has held as under:-
''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 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 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
thewoman's decision to engage in the sexual act."
The Hon'ble Apex 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 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 œas 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 others 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
rap e, the complaint registered under section 376(2)(b) cannot be
sustained. ''
(8) On going through the law laid down by the Hon'ble Apex Court
it is evident 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. In the present case at hand, the
complainant- prosecutrix was in physical relationship with petitioner for a
long period i.e. near about five years. On the alleged date of incident, the
prosecutrix went along with the petitioner to a hotel. 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. Near about five years
are more than sufficient time for a prudent woman to realize as to whether
the promise of marriage made by the petitioner is false from its very
inception or there is a possibility of breach of promise. When the
petitioner was not acceding to her request for marriage, then why she
continued with relationship with him till 30th September, 2021 as alleged
by the prosecutrix. 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 petitioner was obtained under fear or misconception
of fact.
( 9 ) Under these circumstances, the prosecution of the petitioner
f o r offence under Sections 376(2)(f) and 376(2)(n) of IPC would be
nothing but abuse of process of law and, therefore, no case is made out
warranting prosecution of petitioner. As a consequence thereof, charge-
sheet as well as consequential criminal proceedings arising out of Crime
No.155/2016 registered at Police Station Antri District Gwalior for
offences punishable under Sections 376(2)(f) and 376(2)(n) of IPC and
pending criminal proceedings in S.T.No.22/2017 before the trial Court,
Gwalior are hereby quashed.
(10) Petition stands allowed.
(11) Let a copy of this order be sent to concerned Court below as
well as police station concerned for information and compliance.
(DEEPAK KUMAR AGARWAL)
JUDGE
mani
SUBASR
Digitally signed by SUBASRI MANI
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, postalCode=474001,
st=Madhya Pradesh,
2.5.4.20=4b80d075e6ee8e3334ea900daffef94852390
562efcaf7cdb4d94b8fc0be1414,
I MANI
pseudonym=E7C0C70D17E5C27BC949540C564953C
AC4239A94,
serialNumber=CA216CA75EF9E38C3785C8BBE6486F
7003C0B639E6EA08F81ACF600889A329F3,
cn=SUBASRI MANI
Date: 2023.05.12 19:13:25 -07'00'
