JUDGMENT : S.K. Palo, J. 1. Heard. 2. This revision under Section 397 read with Section 401 of Cr.P.C. has been filed by the accused/petitioner challenging the order dated 07.10.2014 passed by the learned 2nd Additional Sessions Judge, Dabra district Gwalior in Sessions Trial No. 557/2014 by which the learned Additional Sessions Judge has framed charge against the petitioner under Section 376 of IPC. 3. Facts necessary to decide this petition briefly stated are as follows:- The prosecutrix lodged a report on 25.08.2014 at Police Station Dabra that in the year 2010 she was studying in Polytechnic College, Dabra. She stayed in a rented house owned by the appellant Hemant Choubey. During her stay she developed friendship with Hemant Choubey. He promised her to marry. Because of which, they had love relationship and consequently developed physical relationship. When the complainant asked the petitioner to marry her, he avoided by saying that he will marry after few months. Subsequently, when the complainant pressed to marry her, the petitioner threatened her of her life. He used to commit sexual intercourse with her by threatening her. When she changed her rental room in January, 2014, the petitioner again exploited her sexually and asked her to harass her parents so that they can live in that house. The petitioner promised her to marry and live in the same house. Petitioner also threatened her to kill her parents as well as bother. At about two and half years ago, he took her gold ear tops, ring and also a pair of silver 'Payal' to meet the expenses of marriage. Because of fear of the petitioner, she did not lodge any report earlier. When she was in the college on 25.08.2014, the petitioner came to her college and slapped her. Hence, she has lodged the report. 4. After filing of charge-sheet, learned Trial Court framed charges under Sections 376(1) and 506 of IPC. The petitioner challenged the framing of charges on the ground that the impugned order dated 07.10.2014 is erroneous. It is not in accordance with the evidence available in the record. Her statement does not corroborate the medical report. The prosecutrix was a consenting party throughout. The consent obtained on the basis of promise to marry does not fall in the category of “rape”. Therefore, the impugned order be set aside. 5. It is not in accordance with the evidence available in the record. Her statement does not corroborate the medical report. The prosecutrix was a consenting party throughout. The consent obtained on the basis of promise to marry does not fall in the category of “rape”. Therefore, the impugned order be set aside. 5. On perusal of the record, it is observed that in her statement under Section 161 Cr.P.C., the prosecutrix has repeated the same narration which she has made in the FIR. The statement recorded before the JMFC, Dabra under Section 164(5) of Cr.P.C. also is repetition of the earlier version. In the last line of the statement, the prosecutrix has stated that on 25.08.2014, the petitioner/accused came to her college and beaten her with his shoes and tried to take her in the vehicle. Therefore, she lodged the report. From the complaint itself, it is evident that the petitioner and the respondent No. 2 belong to different caste and it is also significant that her ornaments ear tops and ring were taken by the petitioner about two and half years ago. 6. It is also seen from the record that she agreed to marry him after they had sexual relationship. Under the impression that he would marry, she did not complaint to anybody. The prosecutrix has stated that she is 21 years old at the time of deposing before the JMFC on 26.08.2014. That means two and half years ago, she was above 18 years of age. Her statement indicates that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. Prospect of the marriage proposal not materializing had also entered her mind. The evidence also reveal that she took a conscious decision after active application of mind to the things that were happening. She was also aware that their marriage may not take place at all, in view of the caste barrier, which is an important factor. 7. In the case of Uday Vs. State of Karnataka reported in (2003) 2 SCC 46, Hon'ble the Apex Court has held that :- “A. Penal Code 1860 – Ss. She was also aware that their marriage may not take place at all, in view of the caste barrier, which is an important factor. 7. In the case of Uday Vs. State of Karnataka reported in (2003) 2 SCC 46, Hon'ble the Apex Court has held that :- “A. Penal Code 1860 – Ss. 375 & 90 and 376 – Rape -- “Consent” Voluntary consent or consent under misconception of fact – Determination of – Consent given by the prosecutrix to sexual intercourse with accused - appellant, with whom she was deeply in love, on a promise that he would marry her on a later date – Prosecutrix continuing to meet accused and often having sexual intercourse and becoming pregnant – Complaint lodged on failure of appellant to marry her – In such case, held, the consent cannot be said to be given under misconception of fact – A false promise is not a fact within the meaning of the Penal Code – For determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, held, there is no straitjacket formula and each case has to be decided considering the evidence and surrounding circumstances of that case – Where (I) the prosecutrix (aged 19 years on the date of occurrence) had sufficient intelligence to understand the significance and moral quality of the act she was consenting to, (ii) she was conscious of the fact that her marriage with the appellant was difficult on account of caste considerations, (iii) it was difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix, held, appellant's conviction and sentence under S. 376 IPC was liable to be set aside – Question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under S. 375 fourthly and fifthly, or whether consent given under misconception of fact contemplated by S. 90 has a wider application so as to include circumstances not enumerated in S. 375, held, not necessary to be considered herein.” 8. In the present case it is difficult to say that the petitioner knew or had reason to believe that the prosecutrix had consented to have sexual relationship with him only as the consequence of her believe based on his promise that they will get marriage in due course. From the record the same is hardly seen. On the contrary, the circumstances of the case tend to support to conclusion that the petitioner has reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. 9. In such case, the consent of the prosecutrix was obtained or given in consequence of misconception of a fact arising from his promise is difficult to impute. In any event it was not possible for the petitioner to know what was in her mind when she consented because there were more reasons then one for her consent. 10. In the case of Deelip Singh alias Dilip Kumar Vs. State of Bihar reported in (2005) 1 SCC 88 , it is held that:- “A. Penal Code, 1860 – Ss. 375 secondly and 90 – Rape -- “Without her consent” -- Meaning – Consent as explained under S. 90 relevant -- “Consent” compared with “will” and “submission” -- Consent given by a woman believing the man's promise to marry her would fall within the expression “without her consent” only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax – Nature of consent – Questions relevant for determining – Burden on prosecution to prove absence of consent from attendant circumstances – Evidence should be scanned carefully – Past, contemporaneous and subsequent conduct are relevant – On facts, held, prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accused's promise to marry her – But accused's promise was not false from its inception with the intention to seduce her to sexual act – Hence cl. Secondly of S. 375 not established – Instead, accused committed breach of promise for which he would be liable for damages under civil law – Words and phrases -- “consent”.” 11. In Prashant Bharti Vs. Secondly of S. 375 not established – Instead, accused committed breach of promise for which he would be liable for damages under civil law – Words and phrases -- “consent”.” 11. In Prashant Bharti Vs. State of NCT of Delhi reported in (2013) AIR (SC) 2753, it is held that:- “Criminal Law – Code of Criminal Procedure, 1973 – Section 482 – Indian Penal Code, 1860 – Sections 376, 354 and 328 – Saving of inherent powers of High Court – Quashing of criminal proceedings – Prosecutrix gave phone call to police alleging that accused had, a day before, tried to outrage her modesty after administering her with some intoxicating substance in a soft drink – Immediately an FIR was registered – On medical examination, however, no poisoning was found – In her supplementary statement prosecutrix stated that accused and herself were known to each other for past several months and accused had physical relationship with her on three different dates on false promise of marriage – Since alleged sexual intercourse had occurred one month prior to medical examination, no medical proof corroborating her assertions of sexual intercourse could have been found barring fact that her hymen was not intact – However on basis of prosecutrix's statement, offence u/S 376 was added – Subsequently a charge sheet was filed – Being aggrieved against registration of FIR accused preferred writ petition before High Court, which was dismissed – Prosecutrix also filed writ petition seeking quashing of FIR, which was also dismissed – Charges were framed by Trial Court – Again accused preferred revision petition before High Court assailing framing of charges, which was again dismissed – Instant appeal – Factual findings: prosecutrix was a married woman on alleged dates of sexual intercourse and alleged date of occurrence and entered into a second marriage just a week thereafter i.e. after divorce – held, therefore, prosecutrix was in a relationship of adultery on alleged three dates with accused and her assertion that she was induced to a physical relationship by accused on basis of promise to marry her, stood irrefutably falsified – Held, therefore, alleged sexual intercourses were consensual – Further factual finding, presence of prosecutrix and accused at alleged place of occurrence was established to be false on basis of mobile phone call details of both of them; and such proof was to be considered as conclusive for all intents and purposes and could not have been altered at culmination of trial since it was based upon scientific evidence – Held, therefore, initiation of instant criminal proceedings would never have led to conviction of accused – Held finally, judicial conscience of High Court ought to have persuaded it, on basis of material available before it, while passing impugned order, to quash criminal proceedings initiated against accused, in exercise of inherent powers vested with it u/S 482, CrPC – FIR, charge sheet and framing of charges ordered to be quashed.” 12. In the present case, the material relied by the petitioner/accused is the document of the prosecution itself. This material rule out the assertion contained in the charges levelled against accused/petitioner. The material relied upon by the petitioner as said above is the document filed by the prosecution and relied upon by the prosecution. Lastly, the proceeding with the trial would result in abuse of process of the Court and would not serve the ends of justice. 13. In view of the above, the learned Trial Court committed a mistake of law, in framing charge against the petitioner, therefore, this revision petition succeeds and the impugned order dated 07.10.2014 passed by the learned 2nd Additional Sessions Judge, Dabra district Gwalior framing charge punishable under Section 376 of IPC against the petitioner Hemant Choubey is quashed. However, it is made clear that the Court may proceed with the other charges in accordance with law. 14. With the aforesaid, revision is disposed of.