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2022 DIGILAW 1170 (BOM)

Shrikant v. State Of Maharashtra

2022-04-22

AMIT B.BORKAR, DIPANKAR DATTA

body2022
JUDGMENT amit B. Borkar, J. - Heard. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. By this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter 'CrPC' for short), the applicant is challenging the registration of the first information report bearing Crime No. 161/2019 registered with the non-applicant no. 1-Police Station for the offence under Section 376(2)(n) of the Indian Penal Code, 1860 (hereinafter "IPC" for short). 4. In order to consider the grievance of the applicant, it would be necessary to advert to contents of the first information report. The first information report was lodged by the non-applicant no. 2 on 06.04.2019, which states that in the year 2015-16 the applicant's sister got acquainted with her while getting training in Nursing. On 05.08.2017, which was her birthday, the applicant expressed his willingness to marry her. The applicant also sent a Facebook friend request to her, which was accepted by her resulting in a friendship with him. In the month of June-2018, both exchanged their cell phone numbers. In July-2018, the applicant came to her house and expressed his willingness to marry her in front of her mother. after three months, i.e. in November-2018, the applicant took her near Mahan Dam and, by promising marriage, had sexual intercourse with her. Thereafter, again in December-2018, they had sexual intercourse in a hotel. Both were having continuous talk regarding marriage. However, the applicant refused to perform marriage with her, resulting in the registration of the first information report against the applicant. 5. The applicant, therefore, challenged the registration of the first information report by filing the present application. This Court, on 27.08.2019, issued notice to the non-applicants and directed the investigating agency not to file a charge sheet without leave of the Court. The non-applicant no. 1 filed reply stating that the applicant had promised to marry the non-applicant no. 2 and, on the said pretext, committed sexual intercourse but subsequently refused to marry her. It is stated that essential ingredients of an offence under Section 376 of the IPC are made out. 6. We have heard Shri S. V. Sirpurkar, learned advocate for the applicant and Shri S. M. Ghodeswar, learned aPP for State and Shri C. a. Joshi, learned advocate for the non-applicant no. 2. 7. It is stated that essential ingredients of an offence under Section 376 of the IPC are made out. 6. We have heard Shri S. V. Sirpurkar, learned advocate for the applicant and Shri S. M. Ghodeswar, learned aPP for State and Shri C. a. Joshi, learned advocate for the non-applicant no. 2. 7. Shri S. V. Sirpurkar learned advocate for the applicant submitted that the relationship between the applicant and the non-applicant no. 2 was consensual in nature. He submitted that bare reading of the first information report as well as material on record would indicate that there was absolutely no intention on the part of the applicant when he entered upon the relationship not to marry the non-applicant no. 2, nor it can be suggested that promise to marry was false. Hence, he submitted that no offence had been made out against the applicant within the meaning of Section 376(2)(n) of the IPC. Learned advocate appearing for the applicant has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Shivshankar @ Shiva V/s. State of Karnataka Criminal appeal No. 504/2018, decided on 6th april,2018, Dr. Dhruvaram Murlidhar Sonar V/s. The State of Maharashtra and others Criminal appeal No. 1443/2018, decided on 22nd November 2018 and also the judgment of this Court in the case of akshay Gaikwad V/s. State of Maharashtra Criminal application (aPL) No. 285/2021, decided on 28th September 2021. 8. On the other hand, Shri C. a. Joshi, learned advocate appearing for the non-applicant no. 2, submitted that the first information report would indicate that the non-applicant no. 2 had developed friendship with the applicant as he had assured her that he would marry her. He submitted that the prosecution needs to be given the opportunity to lead evidence in support of its case. He placed reliance upon the judgment of the Hon'ble apex Court in the case of XYZ V/s. State of Gujrat (2019) 10 SCC 337 . Shri S. M. Ghodeswar, learned aPP submits that material on record is sufficient to constitute ingredients of the offence alleged against the applicant. He placed on record the case diary, which contains a statement of witnesses recorded under Section 161 of the CrPC. 9. On the basis of rival submissions and with the assistance of learned advocates, we have perused the first information report and the case diary. He placed on record the case diary, which contains a statement of witnesses recorded under Section 161 of the CrPC. 9. On the basis of rival submissions and with the assistance of learned advocates, we have perused the first information report and the case diary. The first information report and the statement under Section 161 of the CrPC record that the non-applicant no. 2 had developed friendship with the applicant in 2015-16. It is also disclosed that the applicant is serving in the army. In July-2018, the applicant expressed willingness to marry the non-applicant no. 2 in front of her mother and thereafter, he joined his army unit. It needs to be noted that there are no allegations that after expressing first willingness to marry in July 2018, there was sexual intercourse between the applicant and the non-applicant no. 2 till November-2018. However, in November-2018, they had sexual intercourse near Mahan Dam on the basis of the promise of marriage. The applicant again returned to his army unit. On 28.12.2018, the applicant and the non-applicant no. 2 had sexual intercourse on the basis of the promise of marriage; again, the applicant returned to his army unit. On 10.02.2019, when the applicant had returned back from his army unit, he again promised to perform marriage with her but on the said day there was no sexual intercourse. It is only on 13.02.2019, they had sexual intercourse. Thereafter non-applicant no. 2 consumed contraceptive pills. after one month i.e. on 13.03.2019, when the applicant refused to talk with her, she on 06.04.2019 lodged a report against the applicant. The contents of the first information report and the statements under Section 161 of the CrPC indicate that the non-applicant no. 2 had voluntarily developed relationship with the applicant. Neither in the first information report nor in the statement under Section 161 of the CrPC she stated that the promise made by the applicant before sexual intercourse was false. On the contrary, she has consistently stated that the applicant was making a promise to perform marriage with her. From reading the first information report and statements under Section 161 of the CrPC, it appears that the applicant and the non-applicant no. 2 were deeply in love and met each other whenever the applicant used to come to his native place from his army unit. From reading the first information report and statements under Section 161 of the CrPC, it appears that the applicant and the non-applicant no. 2 were deeply in love and met each other whenever the applicant used to come to his native place from his army unit. It does appear that she permitted him the liberties which can be permitted only to a person with whom one is in deep love. However, we cannot lose sight of the fact that the places where the incident of sexual intercourse took place are the places where two young persons madly in love can visit on the promise of marriage. as stated by her, the applicant promised to marry her on more than one occasion. Therefore, in the facts of case, such a promise loses all significance prompting such a couple to succumb to the temptation of having a sexual relationship. In the facts of the case, it appears that the non-applicant no. 2 willingly consented to have sexual intercourse with the applicant with whom she was deeply in love and not because he promised to marry her. 10. The considerations which weighed while determining the aspect of consensual sex have been delved into and expounded by the apex Court in the case of Pramod Suryabhan Pawar V/s. State of Maharashtra (2019) 9 SCC 608 wherein the apex Court, in paragraph nos. 16 and 18 have held as under:- '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 Section 375 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. 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 Section 375 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. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.' (Emphasis supplied) * * * * 18. To summarise the legal position that emerges from the above cases, the 'consent' of a woman with respect to Section 375 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.' 11. The apex Court, while interpreting the distinction between mere breach of promise, and not fulfilling a false promise, has observed in the case of Dr. Dhruvaram Murlidhar Sonar (supra) in paragraph no. 20 as under:- '20. Thus, 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 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 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 forseen 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 clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.' 12. On the basis of allegations in first information report as well as contents of statement under Section 161 of the CrPC, and in the backdrop of the aforesaid exposition of law, we have no doubt that following important features of the case emerge:- i) the relationship between the applicant and the non-applicant no. 2 was of consensual nature. ii) the parties were in a love relationship for a period of about two years and thereafter in a physical relationship from November-2018 till april-2019. iii) the applicant expressed his first willingness on 05.08.2017, second willingness to marry in July-2018 and had his first sexual encounter in November-2018, which shows that promise itself was not of immediate relevance or had a direct nexus to the complainant's decision to engage in the sexual act. iv) Neither in the first information report nor the statement under Section 161 of the CrPC the respondent no. 2 state that the promise to marry was false nor stated that the applicant never intended to perform the marriage. v) the promise to marry was not an immediate cause for the non-applicant no. 2 to give her consent for the sexual act. Vi) the sexual intercourse between the applicant and the non-applicant no. 2 had developed with the consent of the non-applicant no. v) the promise to marry was not an immediate cause for the non-applicant no. 2 to give her consent for the sexual act. Vi) the sexual intercourse between the applicant and the non-applicant no. 2 had developed with the consent of the non-applicant no. 2, as is clear from medical papers in the case diary that she offered no resistance nor had made any complaint anywhere at any time though they had repeated sexual intercourse from November-2018 till July-2019. 13. The reliance placed on the judgment in the case of XYZ V/s. State of Gujrat (supra) by learned advocate for the non-applicant no. 2 is misplaced as in the facts of the said case the victim was coerced into the relationship by clicking inappropriate pictures and by black-mailing her. In the said case, the relationship was not consensual as in the present case. The facts of the said case disclose that due to poor financial condition, the victim was under pressure of her employer/accused, who took advantage of her financial condition and committed rape by threatening to publish her nude pictures. 14. Bearing in mind the test which has been enunciated in the above decisions, we are of the view that even assuming all the allegations in the first information report are correct for the purpose of considering the complaint for quashing under Section 482 of the CrPC, no offence has been established. There are no allegations that the promise to marry given to the non-applicant no. 2 was false at its inception. On the contrary, it would appear from the contents of the first information report that there was a subsequent refusal on the part of the applicant to marry the non-applicant no. 2, which gave rise to the registration of the first information report. We are, therefore, of the opinion that continuance of the present proceedings against the applicant would amount to an abuse of the process of the Court. 15. For the above reasons, Rule is made absolute in terms of prayer-clause (1), which reads as under:- "1) call for records and proceedings in crime no. 161/2019 registered at Police Station Khadan and on perusal of same quash and set aside FIR dated 06/04/2019, bearing No. 161/2019, registered at Police Station, Khadan, Dist. akola (annexure-I) for offence under section 376(2)(n) of the Indian Penal Code as against the applicant;"