Manish vs The State Of Madhya Pradesh

Court: HIGH COURT OF MADHYA PRADESH

Bench: JUSTICE S. K. Awasthi

Manish vs The State Of Madhya Pradesh on 10 January, 2020

Law Point: 

JUDGEMENT

(1). Applicant/accused has preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (in brevity ‘Cr.P.C’), for quashment of FIR dated 03.05.2019 registered as Crime No.572/2019 at Police Station Banganga, District Indore for offence under Section 376(2) (N), 506, 323 of I.P.C.

(2). Brief facts of the case are that the prosecutrix lodged an FIR at Police station Banganga District Indore on 03.05.2019 to the effect that she is residing near the house of the applicant. Six year back, she came in the contact with the applicant. Gradually the acquaintance turned into love. The applicant made physical relationship with her on the pretext of marriage. Two years ago, the applicant solemnized the marriage with other girl, thereafter, she stopped to meet him. However, the applicant used to harass her and he made physical relationship with her saying that he will take divorce with his wife and marry with the prosecutrix. On 12.04.2019 at about 06:00 when she was sleeping at her room, the applicant entered into her house and tried to sexual intercourse forcefully with her. When she cried then applicant pressed her mouth and threatened to kill her. After hearing the noise of the prosecutrix, her mother came to the room and after seeing her, the applicant fled away from the place of occurrence. On the basis of aforesaid report lodged by the prosecutrix, police registered the FIR at crime No.572/2019 for commission of offence under Section 376 (2) (N) and 506-B of I.P.C. against the applicant. During the investigation, police recorded the statement of prosecutrix and other witnesses. Prosecutrix was sent to the hospital for medical examination and after completion of the investigation, the charge sheet has been filed against the applicant.

(3). Learned counsel for the applicant has submitted that the prosexcutrix is a major lady aged about 27 years and she was in live in relationship up to 3-4 years with the applicant, which clearly shows that she was absolutely consenting party. It is well within the knowledge of the prosecutrix that the applicant has already been married, even then she made physical relationship with the applicant, therefore, then it is not a case where consent of the prosecutrix was obtained either by misrepresentation or misconception of fact. It is further submitted that the prosecutrix and applicant both have seen in compromising position by the mother of the prosecutrix, so she has no option to save her chastity, she lodge the FIR against the applicant. Under these circumstance, learned counsel for the applicant prays for quashment of the FIR No. 572/2019 registered against the applicant at Police Station Banganga for the offence under Section 376(2) (N), 506, 323 of I.P.C.

(4). On the other hand, learned Public Prosecutor for the respondent/State opposed the prayer made by the applicant by contending that according to the statement of the prosecutrix the consent of sexual intercourse was accorded by the prosecutrix on account of false promise of marriage given by the applicant, therefore, such consent is vitiated and the sexual relationship made by the applicant would fall under the purview of rape. Hence, sufficient material is available on record to prosecute the applicant with the present crime, and no ground is available for quashment of FIR registered against the applicant. Thus, he prays for dismissal of the petition.

(5). I have heard learned counsel for the parties and perused the charge-sheet.

(6). From perusal of the first information report as well as the statement of the prosecutrix recorded under Section 161 and 164 of Cr.P.C., it reveals that the prosecutrix was having love affection with the applicant since last 4-5 years. At that time, the prosecutrix was aged about 22 -23 years and she was major, therefore, she was consenting party to make physical relationship with the applicant. Though, the prosecutrix made allegation that the applicant made physical relationship with her at false pretext of marriage, later on he contacted marriage with another girl, however, from the statement of prosecutrix, it is evident that after knowing the fact that applicant has already been marriage with other girl and there is possibility of their marriage, she

had chosen to continue the relationship with the applicant. Thus, it is not a case that the consent for sex was granted to the prosecutrix due to false promise of marriage given by the applicant but was granted because prosecutrix was also in love with the applicant and wanted to live in his company.

(7). In the case of Deepak Gulati vs. State of Haryana reported in AIR 2013 SC 2071, the Hon’ble Supreme Court has held with regard to consent of the prosecutrix in case of rape 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.

(8). In the case of Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra & Ors., (Criminal Appeal No.1443/2018 dated 22/11/2018 ) the Hon’ble Apex Court

has held that 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 malafide 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 malafide 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 IPC.

(9). In view of the aforesaid pronouncements of the Hon’ble Supreme Court, this Court is of the view that the prosecutrix was deeply in love with the applicant and she continued to have physical relationship with him even after knowing very well that he has already married and he is not in position to marry her. Therefore, the prosecutrix cannot be held to turn around and claim that the consent was based on misconception of the facts. It is also pertinent to note that the alleged incident has taken place on 12.04.2019 and FIR has been lodged on 03.05.2019 and no plausible explanation has been offered by the prosecutrix regarding delay in lodging the FIR and according to the medical report no external or internal injuries were found in the person of the prosecutrix. Even if the allegations made by the prosecutrix are taken at their face value and accepted in their entirety, they did not make a case against the applicant under 376(2) (N), 506, 323 of I.P.C. (10). With the aforesaid, this petition filed under Section 482 of Cr.P.C.is allowed. The FIR dated 03.05.2019 registered as Crime No.572/2019 at Police Station Banganga, District Indore against the applicant Manish for offence under Section 376(2) (N), 506, 323 of I.P.C. is hereby quashed.

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