Sachin Sukhla vs State Of Rajasthan
2021 Latest Caselaw 68 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 2092/2019

Sachin Sukhla S/o Sh. Kali Shankar Sukhla, Aged About 28 Years, R/o House No 76, A Block, Hiran Magri, Sector No 9, Udaipur

----Petitioner Versus

1. State Of Rajasthan, Through PP

2. Miss Priyanka Mathur D/o Late Sh. Khusal Chand Mathur, R/o Learned 414, Double Story Sector No 9 , Ps Savina , Distt. Udaipur

----Respondents

For Petitioner(s) : Mr. Deepak Menaria, through VC For Respondent(s) : Mr. Farzand Ali, G.A.-cum-A.A.G., with Mr. A.R. Choudhary, P.P.

Mr. Jitendra Ojha, through VC

HON'BLE MR. JUSTICE SANDEEP MEHTA

Order

Date of pronouncement : 05/01/2021

Order reserved on : 14/12/2020

The instant criminal miscellaneous petition under

Section 482 CrPC has been filed by the petitioner Sachin Shukla

seeking quashing of the FIR No.135/2019 registered at the Police

Station Savina, District Udaipur for the offence under Section 376

IPC.

The respondent No.2 complainant lodged the FIR with

the following allegations :-

"mijksDr fo'k; esa fuosnu gS fd eSa fiz;adk ekFkqj iq=h LoxhZ; dq"ky pan ekFkqj fuoklh L] 4 14 Mcy LVksjh lsDVj 9 dh

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jgus okyh gwa esjs iM+ksl esa lfpu "kqDyk firk dkyh "kadj "kqDyk dk edku gSA lfpu ls fiNys 12 lky ls esjh nksLrh gS ge nksuksa ,d nwljs ls I;kj djrs gS lfpu us esjh "kknh djus dk oknk dj j[kk Fkk lfpu "kqDyk us esjs lkFk laca/k Hkh cuk, gq, gS eq>s "kknh dk >kalk nsdj lfpu esjs lkFk "kkjhfjd "kks'k.k djrk jgk vHkh eq>s irk pyk gS fd lfpu "kqDyk fdlh vU; yM+dh ls 19 vizSy dks "kknh dj jgk gS 21 Qjojh dks esjs ?kj fcuk esjh ethZ ds vk;k vkSj esjs lkFk laca/k cuk, iwoZ Hkh dbZ ckj esjs lkFk esjs ?kj ij vkrk Fkk cgyk Qqlykdj esjs lkFk laca/k cuk, vkSj esjs lkFk /kks[ks ls ekufld o "kkjhfjd "kks'k.k djrk jgkA lfpu "kqDyk ds fo:) izdj.k ntZ dj dkuwuh dk;Zokgh djsaA ;g lkjh ckr eSaus esjh ekrkth dks crkbZ rks mudks Hkh "kknh dj jgk gwa ;g >kalk nsrk jgkA"

The petitioner seeks quashing of the above FIR

imploring the court to exercise its inherent powers under Section

482 CrPC claiming that the allegations levelled in the impugned

FIR, even if taken on the face value, do not constitute the offence

alleged.

Mr. Deepak Menaria, learned counsel representing the

petitioner, placed reliance on the judgments of the Hon'ble

Supreme Court in (1) Dr. Dhruvaram Murlidhar Sonar Vs.

The State of Maharashtra & Ors. [AIR 2019 SC 327] and

(2) Maheshwar Tigga Vs. The State of Jharkhand [(2020)

10 SCC 108] and fervently urged that the relationship between

the complainant and the petitioner, which continued unabatedly

for almost 12 years, was purely consensual without any element

of deceit involved in it. However, at a later point of time, strain

developed in the relations, after which, the petitioner parted ways

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with the complainant. The impugned FIR has been filed purely

with oblique motive of harassing and humiliating the petitioner

and is full of false and fabricated allegations. He, thus, prays that

the impugned FIR deserves to be quashed.

Per contra, learned Public Prosecutor and Mr. Jitendra

Ojha, learned counsel representing the complainant, have

vehemently and fervently opposed the submissions advanced by

the learned counsel for the petitioner. They contend that the

petitioner sexually exploited the complainant for a period of

almost 12 years under a totally fraudulent promise of marriage.

Thereafter, he lost interest in the complainant and ditched her and

contracted marriage with another woman. They, thus, urged that

this court should refrain from interfering in the impugned FIR at

the inception.

I have given my thoughtful consideration to the

submissions advanced by the learned counsel for the parties and

gone through the material available on record.

Going by the contents of the FIR, it is clear that the

complainant is a mature woman aged 27 years. She and the

petitioner lived in the immediate neighbourhood and developed

intimacy with each other. They were involved in a purely

consensual relationship with each other for nearly a decade. In

this duration, both indulged in sexual relations in an unhindered

manner. The complainant alleged in the FIR that the petitioner

had promised to marry her and that the physical relations were

established under this fictitious assurance. However, there is no

mention in the report as to when such promise was made. She

claims to have realized the fact that the petitioner's promise to

marry her was fraudulent only when she came to know that the

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petitioner was marrying another woman on 19.04.2019. Ex facie,

upon a perusal of the impugned FIR, this court is of a firm opinion

that the decade long relationship between the complainant (who is

a mature woman aged 27 years) and the petitioner was purely

mutual and consensual. Considering the fact that both were in a

relationship about 12 years, the allegation that the complainant

was bestowing sexual favours to the accused only in the

expectancy that he would certainly marry her does not stand to

reason. Thus, even if the highest allegations as set out in the

impugned FIR are taken on their face value, necessary ingredients

of the offence of rape are not made out therefrom.

Hon'ble Apex Court in the case of Dr. Dhruvaram

Murlidhar Sonar (supra) considered the aspect of consensual

sexual relationship vis-a-vis sexual relationship under a promise of

marriage and held as below :-

"14. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression "against her 'will'" means that the act must have been done in spite of the opposition of the woman. 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.

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15. Section 90 of the IPC defines "consent" known to be given under fear or misconception:-

"Section 90:

Consent known to be given under fear or misconception. A consent is not such a consent as it intended by any section of this Code, if the con- sent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception"

Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Con- sent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances.

16. In Uday v. State of Karnataka (2003) 4 SCC 46, this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus:-

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"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the con- sent given by the prosecutrix to sexual inter- course 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 inter- course 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

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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."

17. In Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88, the Court framed the following two questions relating to consent:-

(1) "Is it a case of passive submission in the face of psycho- logical pressure exerted oral lurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in?

(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her"?

In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and

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they fell in love with each other. One day in February, 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she be- came pregnant, she revealed the matter to her parents. Even there- after, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time. With this factual back- ground, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus:-

"The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was

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false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW 12 that later on, the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his familyelders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case at para 24 come to the aid of the appellant".

18. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla

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Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the con- sent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused.

19. Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6 th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is 'rape', especially in the face of the complainant's own allegation that they lived together as man and wife. It was held as under:-

"In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife".

[Emphasis supplied]

20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very

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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 be- tween the parties would not constitute an offence under Section 376 of the IPC.

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

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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. Shehad 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 registered under Section 376(2)(b) cannot be sustained."

The facts of the case at hand are even more stark

because the relationship between the petitioner and the

complainant was based on a mutual love affair, which continued

unabatedly for almost 12 years. Thus, I am of the firm opinion

that allowing continuance of investigation of the impugned FIR

would be nothing short of gross abuse of process of law.

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Accordingly, the instant criminal miscellaneous petition

deserves to be and is hereby allowed. The impugned FIR

No.135/2019 registered at the Police Station Savina and all

proceedings sought to be taken thereunder against the petitioner

are hereby quashed and set aside.

(SANDEEP MEHTA),J

Pramod/-

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