Telangana High Court

Veeraboina Saikiran vs The State Of Telangana on 18 January, 2023

Bench: K.Surender

          HON'BLE SRI JUSTICE K.SURENDER

         CRIMINAL PETITION No.10050 OF 2022
ORDER:

1. This Criminal Petition is filed to quash the proceedings

against the petitioner/Accused in F.I.R.No.92 of 2021 on the

file of P.S.,Thungathurthy, Suryapet District.

2. The petitioner is accused of cheating and committing

rape on the 2nd respondent. On the basis of the complaint

filed on 02.08.2021, FIR was registered for the offences

under Section 417, 420, 376(2)(n), 506 r/w 34 of IPC. It is

alleged in the complaint that while the 2nd respondent was

studying at Dilsukhnagar, she got acquainted with the

petitioner herein and they fell in love. For three years they

went around and the petitioner also took her to her aunt's

place at Uppal and she believed that the petitioner would

marry her. With such belief, they had physical relation.

Many a times, petitioner took the 2nd respondent to

functions in the family and introduced to his relatives as his

would be wife. The father of the 2nd respondent was looking

for alliance to get the 2nd respondent married, however, the

petitioner called her father and insisted not to look for any

alliance and that he was going to marry her. Thereafter, the

father of the 2nd respondent and relatives went to the house

of the petitioner for discussing about the marriage. However,

the family members stated that they were not interested in

their alliance for the reason of both belonging to different

castes. Further, the petitioner and others threatened that

they would kill family members of 2nd respondent if they

insist for marriage. Thereafter complaint was filed against

the petitioner and other family members of the petitioner.

According to the petitioner and the learned Public

Prosecutor, investigation is still pending before the

concerned police.

3. Learned counsel for the petitioner and the 2nd

respondent/victim would submit that with the intervention

of elders, petitioner and the 2nd respondent had married on

27.12.2021 and a child was also born. They are now living

together as husband and wife with the child separately and

they do not intend to continue with the case.

4. Learned counsel for the petitioner relied on the

judgments of Hon'ble Supreme Court in support of his

contention that in the event of the parties settling issues

and the facts of the case not making out an offence of rape,

though alleged in the FIR or charge sheet the same can be

quashed. He relied on the following judgments; i) Sonu alias

Subhash Kumar v. State of Uttar Pradesh [AIR 2021

Supreme Court 1405]; ii) Pramod Suryabhan Pawar v.

State of Maharashtra [(2019) 9 Supreme Court Cases 608];

iii) Dr.Dhruvaram Murlidhar Sonar v. State of

Maharashtra [(2019) 18 Supreme Court Cases 191]; iv)

Deepak Gulati v. State of Haryana [(2013) 7 Supreme

Court Cases 675] and v) Gian Singh v. State of Punjab and

another[ (2012) 10 Supreme Court Cases 303].

5. On the other hand, Sri S.Sudershan, learned

Additional Public Prosecutor opposed the intervention of

this court in quashing the proceedings under Section 482 of

Cr.P.C on the ground of compromise when there are serious

allegations of rape. The Hon'ble Supreme Court in the case

of State of Madhya Pradesh v. Laxmi Narayan and others

[(2019) 5 Supreme Court Cases 688] case, held that in

case of serious offences such as rape or offence against

society, High Court under inherent powers cannot quash

the proceedings. In view of the judgment of the Hon'ble

Supreme Court in Laxmi Narayana's case and also in view

of the heinous nature of offence alleged, the petition has to

be dismissed.

6. Admittedly, the investigation is still pending and

during the pendency of investigation, the petitioner and 2nd

respondent have married and now they have a child.

7. As seen from the complaint, the allegation of the 2nd

respondent is that she was acquainted with the petitioner

and they have gone to various places over a period of three

years and petitioner has also taken the 2nd respondent to

various functions and introduced to his relatives as his

would be wife. However, there is an allegation that they had

sexual relation and the 2nd respondent was under the belief

that the petitioner would marry her.

8. The offence of rape would arise when a victim involved

in a sexual relation was in any manner forced to have such

sexual relation under threat, coercion or false promise

deliberately made. Admittedly, both are adults and have

consented to have physical intimacy in the back ground of

knowing one another over a period of three years.

9. It has to be ascertained from the facts of the case

whether physical relation amounts to rape or sex between

consenting adults. If the accused had made a false promise

in order to satisfy his sexual desire, it would amount to an

offence of cheating though both consent for physical

intimacy. However, subsequent breach of promise to marry

will not amount to an offence of cheating if such intention

was not entertained by the accused from the inception. In

the present case, even according to the 2nd respondent, the

petitioner had taken the 2nd respondent to various family

functions and also introduced her to his relatives stating

that she was his would be wife. Apparently, the petitioner

had intention to marry her, failing which, he would not have

ventured into taking her to his family functions. In the

present case it cannot be said that petitioner had any

criminal intention of having sexual intimacy with the 2nd

respondent by making false promises. The Hon'ble

Supreme Court in the case of Pramod Suryabhan Pawar v.

State of Maharashtra(supra) held as follows:

"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 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:

"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."

18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to 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."

10. Thereafter, the Hon'ble Supreme Court relying on

Pramod Suryabhan Pawar's case quashed the proceedings

under Section 376 IPC in Sonu alias Subhash Kumar's

case (supra) finding that on facts when there was no

allegation to the effect that the promise to marry was made

with false intention from the inception, would not give rise

to an offence of cheating and rape. Accordingly, the

proceedings therein were quashed.

11. In the present case, applying the observations of the

Hon'ble Supreme Court in the judgments cited by the

learned counsel for the petitioner, on facts, as discussed in

the preceding paragraphs, there was no fraudulent intention