Madhya Pradesh High Court
Amar Singh Lodhi vs The State Of Madhya Pradesh on 4 October, 2023
Author: Sunita Yadav
1 M.Cr.C.NO.33682 OF 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT JUSTICE SUNITA YADAV
ON THE 4th OF OCTOBER, 2023
MISC. CRIMINAL CASE NO.33682 OF 2023
BETWEEN:-
AMAR SINGH LODHI S/O SHRI
BADRI PRASAD LODHI, AGED
ABOUT 30 YEARS,
OCCUPATION: DRIVER
RAILWAY R/O VILLAGE
SIRSAUD POLICE STATION
AMOLA DISTRICT SHIVPURI
(MADHYA PRADESH)
.....PETITIONER
(SHRI AWDHESH SINGH BHADAURIA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION
KHANIYADHANA, DISTRICT
SHIVPURI (MADHYA PRADESH)
2. ABHIYOKTRI CRIME NO.165/2023,
POLICE STATION
KHANIYADHANA, DISTRICT
SHIVPURI (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI P.P.S. BAZEETA - GOVERNMENT ADVOCATE FOR THE
RESPONDENT NO.1/STATE).
BY SHRI KALPANA PARMAR - LEARNED COUNSEL FOR THE
RESPONDENT NO.2)
This petition coming on for hearing this day, the Court
passed the following:
2 M.Cr.C.NO.33682 OF 2023
ORDER
1. By invoking inherent power of this Court, this petition has
been preferred by petitioner u/S.482 of Cr.P.C. seeking quashment
of FIR bearing Crime No.165 of 2023 registered at Police Station
Khaniyadhana, District Shivpuri (M.P.) for the offence punishable
under Sections 376, 376(2)(N) of the I.P.C. and other subsequent
criminal proceedings initiated therefrom.
2. The facts in brief to decide this petition are that FIR bearing
Crime No.165 of 2023 was registered at Police Station
Khaniyadhana, District Shivpuri (M.P.) for the offence punishable
under Sections 376, 376(2)(N) of the I.P.C. (Annexure-P-1) against
the petitioner was filed.
3. As per prosecution story, petitioner committed rape upon the
prosecutrix at the behest of the false promise of marriage. A written
complaint by the prosecutrix was filed alleging that about three
years back from the date of FIR i.e. on 29.3.2023 her marriage was
fixed with petitioner in the year 2020. Thereafter, the prosecutrix
and petitioner started communicating each other. The petitioner
often came to her house. The prosecutrix accepted the petitioner as
her husband and thereafter, she made physical relationship with the
petitioner for the first time on 7.5.2020 at her own house. The
prosecutrix and petitioner made physical relationship on many
occasions. About 4 to 5 months back, when the petitioner refused to
marry her, then she decided to lodge this FIR.
4. Upon receiving written report as above, Police Station
3 M.Cr.C.NO.33682 OF 2023
Khaniyadhana, District Shivpuri registered the FIR bearing Crime
No.165/2023 and investigated the matter. During the course of
investigation, statement of prosecutrix was recorded in which she
repeated the allegations made in FIR.
5. Learned counsel for the petitioner argued that FIR has been
lodged by the prosecutrix with mala fide intention. The prosecutrix
is a major woman and has made physical relationship with the
petitioner on her own volition and free will. The further submission
is that the allegation in FIR as well as in police statement of
prosecutrix reveal that the petitioner never made any promise to
marry the prosecutrix. The prosecutrix made physical relationship
on her own will without any pressure or threat; therefore, the
ingredients of Sections 376 and 376(2)(N) do not made out; hence,
it has been prayed that the FIR and consequential proceedings may
be quashed.
6. Learned counsel for the petitioner has placed reliance upon
the cases 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.
7. On the other hand learned counsel for the State as well as
learned counsel for the complainant/prosecutrix vehemently
4 M.Cr.C.NO.33682 OF 2023
opposed the prayer made by learned counsel for the petitioner and
argued that in this case, ingredients of Sections 376 and 376(2)(N)
are made out; therefore, it has been prayed that this petition is
deserves to be dismissed.
8. Heard the learned counsel for the parties and perused the
record.
9. The perusal of record as well as case diary indicates that the
prosecutrix in the FIR as well as in her police statement recorded
under Section 161 of the Cr.P.C. stated that her marriage was fixed
with petitioner about three years back in the year of 2020 and on
7.5.2020 for the first time she made physical relationship with
petitioner after accepting him as her husband. There is no allegation
that before making physical relationship, the petitioner made any
pressure or threatened her. On the other hand, it was the prosecutrix
herself who accepted the petitioner as her husband and started
having physical relationship. Prosecutrix is a major woman being
aware of consequences of her physical relationship with the
petitioner without marriage. The allegations made in FIR as well as
police statement of prosecutrix recorded under Section 161 of the
Cr.P.C. further indicates that the FIR is lodged after a gap of three
years after first incident when the petitioner allegedly refused to
marry the prosecutrix. Thus, at the most this is a case of breach of
promise. In the case of Tilak Raj (supra) the Apex Court has held
that :-
"In the instant case, the prosecutrix was an adult and
5 M.Cr.C.NO.33682 OF 2023
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.''
10. In the case of Uday (supra) the Apex Court observed that:-
"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."
11. Further the Apex Court in the case of Sonu @ Subhash
Kumar(supra) held that:-
''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
6 M.Cr.C.NO.33682 OF 2023
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.''
12. In view of the above settled principle of law while examining
this case, it is found that the prosecutrix who is major woman was
in physical relationship with petitioner of her own volition. She has
accepted the petitioner as her husband and made physical
relationship for almost three years on her own volition and when
the petitioner refused to marry her, the FIR has been lodged. The
prosecutrix has not claimed that the petitioner forced her to accept
him as her husband. There is a distinction between the "breach of
promise" and giving a "false promise to marry." Only a false
promise to marry made it with intention to deceive a woman would
vitiate the woman consent being obtained under misconception of
fact but mere breach of promise cannot be said to be a false
promise. Under these circumstances, the ingredients of Sections 376
and 376(2)(N) of I.P.C do not made out in this case and the
prosecution of petitioner is found to be nothing but abuse of process
of law.
13. Consequently, the petition is allowed and FIR bearing Crime
7 M.Cr.C.NO.33682 OF 2023
No.165 of 2023 registered at Police Station Khaniyadhana, District
Shivpuri (M.P.) for the offence punishable under Sections 376,
376(2)(N) of the I.P.C. and other subsequent criminal proceedings
arising out of it are hereby quashed.
(SUNITA YADAV)
Ahmad* JUDGE
Digitally signed by MOHD AHMAD
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
MOHD AHMAD
ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=76cd720db57b34b7642c70ed7eaf9b624f80d89cea07317bb14
d87e882cf0d0f, postalCode=474001, st=Madhya Pradesh,
serialNumber=F3F56CD397D8CD6A76865A062F285CC6010CB90C4A13
B78A9AEC4BA8C65B56BA, cn=MOHD AHMAD
Date: 2023.10.06 17:00:44 +05'30'
