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2017 DIGILAW 1001 (MP)

MOHIT SHARMA v. STATE OF M. P.

2017-09-14

G.S.AHLUWALIA

body2017
JUDGMENT : G.S. AHLUWALIA, J. 1. This application under section 482 of Cr.P.C., 1973 has been filed for quashing the FIR in Crime No. 613/2016 registered by Police Station, Padav, District Gwalior for offence under Sections 376 and 323 of IPC and the investigation as well as the consequential proceedings. 2. The necessary facts for the disposal of the present application in short are that the prosecutrix/respondent No. 2 lodged a FIR on 29/12/2016 alleging that she is residing as a tenant in the house of one Dharmendra Bhadoriya and is prosecuting her studies of B.Sc 2nd year. About 2 years back she came in touch with the applicant, who developed physical relations with her on the promise of marriage. It is mentioned in the FIR itself that for the last 2 years the prosecutrix was living in live-in relationship with the applicant on the promise of marriage. On 25/12/2016 the applicant took her to a hotel at about 5 PM and booked a room No. 309. The prosecutrix again insisted for marriage and the applicant promised to do so and again on the false promise of marriage, the applicant forcibly had physical relations with her and she was raped. On 27/12/2016 when again she insisted for marriage, she was beaten by the applicant and then he clearly refused that he would not marry her. 3. It is submitted by the counsel for the applicant that if the entire allegations made in the FIR are accepted in toto, then it would be clear that the prosecutrix herself was a consenting party and was living in live-in relationship for last 2 years and in such circumstances it cannot be said that the applicant had obtained her consent under the misconception of the fact that he would marry her. To buttress his contentions, the counsel for the applicant has relied upon the judgments passed by the Supreme Court in the cases of Deepak Gulati v. State of Haryana reported in 2013 (127) AIC 122 (SC) : AIR 2013 SC 2071 , Tilak Raj v. State of Himachal Pradesh reported in 2016 (158) AIC 227 (SC) : AIR 2016 SC 406 , Uday v. State of Karnataka reported in 2003 (5) AIC 576 (SC) : (2003) 4 SCC 46 as well as order passed by this Court in the case of Abid Ali v. State of M.P. and another passed on 18/5/2017 in M.Cr.C. No. 11363/2016. 4. Per contra, it is submitted by the counsel for the State as well as the counsel for the respondent No. 2 that during pendency of this petition the police has filed the charge-sheet and the case is fixed for framing of charges and the applicant can raise all the grounds at that stage. It is further contended by the counsel for the respondent No. 2 that it is clear from the FIR as well as the case diary statement of the prosecutrix that on 25/12/2016 the applicant forcibly had physical relations with respondent No. 2 and he had raped her and when she insisted for marriage, then she was beaten. It is further submitted that every incident of physical relation requires consent of the woman and merely because the respondent No. 2 had agreed for physical relations on earlier occasion, that by itself would not be sufficient to discard/ignore the allegation of respondent No. 2 that on 25/12/2016 and 26/12/2016 the applicant had forcibly raped the prosecutrix, which clearly shows that the prosecutrix was not a consenting party for having physical relations with the applicant on 25/12/2016 and 26/12/2016. Even otherwise, it is submitted that if the respondent No. 2 was in a bona fide belief that the applicant would marry her and if she agreed for physical relations, then whether the applicant had a reason to believe that the consent has been given as a consequence of misconception or not, is a matter to be decided at the trial. It is further submitted that there was no social impediment for marriage of the applicant with the respondent No. 2, therefore, it cannot be said that the respondent No. 2 was aware of the fact that her marriage with the applicant is not possible. It is submitted that her belief that the applicant would marry her was a bona fide belief obtained by the applicant under the misconception of fact and accordingly her consent is hit by Section 90 of IPC. It is further submitted that in view of the presumption provided under Section 114-A of Evidence Act, where the prosecutrix alleges that she had not consented for having physical relations, then a presumption has to be drawn that the physical relations took place without her consent. 5. In reply, it is submitted by the counsel for the applicant that merely because an accused can argue at the stage of framing of charges, the petition filed under section 482 of Cr.P.C., 1973 for quashing the charge-sheet should not be dismissed. To buttress his contention, the counsel for the applicant relied upon the judgment passed by the Supreme Court in the case of Umesh Kumar v. State of Andhra Pradesh and another reported in (2013) 10 SCC 591 . 6. Heard learned counsel for the parties. 6.1 Section 114-A of Evidence Act reads as under:- "114-A. Presumption as to the absence of consent in certain prosecution for rape.- In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent." 6.2 The Supreme Court in the case of Yedla Srinivasa Rao v. State of A.P. reported in 2007 (1) MPHT 314 (SC) has held as under:- "16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of P.W.1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her." The Supreme Court in the case of Uday (supra) has held as under:- "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse 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 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." 6.3 If the facts of the case are considered, then it is clear that the applicant under the promise of marriage developed physical relations with the respondent No. 2, however, from the FIR as well as the case diary statement of the prosecutrix, it is nowhere clear that she had ever objected to physical relations, which admittedly took place on several dates on the ground of non-fulfilment of promise of marriage. She continued to have physical relations with the applicant in spite of the fact that he was repeatedly avoiding the request of marriage, however, the distinguishable matter in the present case is that there is specific averment in the FIR as well as the case diary statement of the prosecutrix that on 25/12/2016 and 26/12/2016 the applicant booked a room No. 309 where both of them stayed for two days and again the respondent No. 2 insisted for marriage and initially the applicant expressed his willingness to keep his promise, but still it is alleged that he forcibly had physical relations with the prosecutrix and raped her. From this part of the statement, it can be inferred that although the prosecutrix had voluntarily stayed with the applicant in room No. 309 of a hotel for two days, but she was not a consenting party for physical relations unless and until the marriage is solemnized. It is submitted by the counsel for the applicant that in her statement under section 164 of Cr.P.C., 1973 the prosecutrix has stated that after having physical relations with the applicant on 25/12/2016 and 26/12/2016 she had requested for marriage and, therefore, the allegations in the FIR as well as the case diary statement of the prosecutrix that prior to having physical relations on 25/12/2016 and 26/12/2016 she insisted for marriage and the applicant forcibly had physical relations with her and had raped her cannot be accepted. Unfortunately, the submissions made by the counsel for the applicant cannot be accepted. At this stage, the FIR, case diary statement as well the statement under section 164 of Cr.P.C., 1973 cannot be considered meticulously. Unfortunately, the submissions made by the counsel for the applicant cannot be accepted. At this stage, the FIR, case diary statement as well the statement under section 164 of Cr.P.C., 1973 cannot be considered meticulously. Further, the statement recorded under section 164 of Cr.P.C., 1973 cannot be used for omissions and contradictions in the statement under section 161 of Cr.P.C., 1973 or the FIR. 6.4 Before having physical relations on a particular day, the consent of the woman is necessary and a man cannot compel her to have physical relations with him only on the ground that on previous days she was a consenting party. If the prosecutrix alleges that on a particular day she was not a consenting party and she was raped and she was sexually violated forcibly by the applicant, then prima facie there is a strong suspicion against the accused and accordingly the proceedings cannot be quashed. 6.5 Considering the totality of the circumstances, in the considered opinion of this Court, in view of the specific allegation that on 25/12/2016 and 26/12/2016 the applicant had forcibly violated her sexually and had raped her and considering the limited scope of interference, as at this stage meticulous appreciation of evidence is not possible and the proceedings can be quashed only if no offence is made out, even if the entire allegations are accepted as a gospel truth, the FIR as well as the charge-sheet filed against the applicant under Section 376 of IPC cannot be quashed. 6.6 Accordingly, the application fails and is hereby dismissed.