Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 578 (HP)

State of Himachal Pradesh v. Ajay Sharma

2023-12-21

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

body2023
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The State has sought leave to appeal against the judgment of acquittal of the respondent for the offence punishable under Section 376 of the Indian Penal Code (for short ‘IPC’). 2. The case of the prosecution, in brief, is that when the prosecutrix was working with the Department of Civil Supplies, the respondent, who was also working in the same Department, proposed to her for marriage and thereafter family members of the respondent came to the house of the prosecutrix with the proposal of marriage to the parents of the prosecutrix. The proposal of such marriage was accepted by the family members of the respondent and the prosecutrix. Both the families thereafter visited the houses of each other. 3. It is the further case of the prosecution that after proposal for marriage had been accepted by both the families, the respondent pressurized the prosecutrix for sexual intercourse. Even though, the same was objected to by the prosecutrix, however, respondent told her that by then, they would be husband and wife and, therefore, there is nothing objectionable in entering into sexual intercourse as he is going to marry her shortly. Under this pretext, the respondent during that time committed sexually intercourse with her many times. It was firstly on 28.02.2015 in Hotel Hamir at Hamirpur when the prosecutrix had gone to appear in a test. Secondly, on 21.12.2015 in the store of LPG at Bhattakuffar and lastly at the same place on 09.01.2016 where the respondent had sexually harassed her during entire day. 4. Lastly, it was the case of the prosecutrix that the respondent had sexually harassed her under false pretext of marriage as marriage between them was fixed for 4th and 5th March. However, the prosecutrix came to know from reliable persons that the respondent was going to marry another lady after cheating her. She, then contacted the respondent and his family members, but the respondent refused to marry the prosecutrix besides threatening her with dire consequences. 5. It is in this background that the prosecutrix lodged a report with the first Women Police Station, B.C.S. Shimla, which resulted into registration of the FIR No. 4/2016 dated 03.03.2016 for the commission of an offence punishable under Section 376 of IPC. 6. After conclusion of the investigation, charge-sheet was filed against the respondent. 5. It is in this background that the prosecutrix lodged a report with the first Women Police Station, B.C.S. Shimla, which resulted into registration of the FIR No. 4/2016 dated 03.03.2016 for the commission of an offence punishable under Section 376 of IPC. 6. After conclusion of the investigation, charge-sheet was filed against the respondent. Upon hearing the parties, the learned trial Court framed charge against the respondent under Section 376 of IPC. The contents of the charge were read over and explained to the respondent to which he pleaded not guilty and claimed to be tried. 7. The prosecution examined as many as 21 witnesses in all. After completion of the prosecution evidence, the respondent was examined under Section 313 Cr.P.C. wherein he denied the prosecution case. However, the respondent admitted that he was working in the same office with Civil Supplies Department having LPG Gas Agency outlet at Bhattakuffar, Shimla and got acquainted there with the prosecutrix. He submitted that he had not given any proposal to the prosecutrix for marrying her, however, prosecutrix had proposed that she would marry him and asked him to talk with her parents about marriage. He further submitted that the prosecutrix was aware about his marriage six months prior to registration of the case and in December, 2015, she had even met with the would be wife of the respondent and told her not to marry him (respondent) as she (prosecutrix) intended to marry him. He admitted that he was arrested on 03.03.2016. 8. After recording evidence and evaluating the same, the learned trial Court acquitted the respondent. 9. It is vehemently argued by the State that the findings recorded by the learned trial Court are perverse and, therefore, need to be set aside. 10. We have heard Ms. Sharmila Patial, learned Additional Advocate General and have gone through the records of the case. 11. At the outset, it needs to be noticed that the case of the prosecution is one of the betrayal on the part of the respondent to marry her despite having promised to marry and under the garb of marriage has established physical relations with her. The line of cross-examination on behalf of the respondent also proceeds on the premise that at one stage certain talks for marriage of the prosecutirx with the respondent were underway. The line of cross-examination on behalf of the respondent also proceeds on the premise that at one stage certain talks for marriage of the prosecutirx with the respondent were underway. Thus, in this background, can the respondent be held guilty of having committed rape upon the prosecutrix on false promise of marriage. 12. Before adverting to the factual aspect, the Court would like to refer to Section 375 of IPC and its essential ingredients in the backdrop of Section 90 to decide whether consent of the prosecutrix was procured through misconception of fact. 13. Section 375 of IPC reads as under: “375. Rape - A man is said to commit “rape” if he: (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person. (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person. (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person. (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First - Against her will. Secondly - Without her consent. Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Fifthly - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under eighteen years of age. Seventhly - When she is unable to communicate consent. Explanation 1 - For the purposes of this section “vagina” shall also include labia majora. Explanation 2 - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1 - A medical procedure or intervention shall not constitute rape. Exception 2 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 14. Thus, the prosecution must establish the following essential ingredients of rape: (i) the accused committed sexual intercourse with the woman. (ii) he did so against her will or without her consent. (iii) if there was a consent, it was obtained by putting her or any of her relations or person interested in fear of death or hurt. (iv) where consent was taken in deceitful belief that the accused was husband. (v) if consent was taken when the victim was incapable of understanding its nature and consequences due to: (a) Unsoundness of mind. (b) Intoxication. (c) Administration of any stupefying drug or substance by the accused either personally or through agents. (vi) When the accused had sexual intercourse with his wife less than 15 years of age. 15. Now, even if, it is assumed that the respondent had committed sexual intercourse with the prosecutrix, then it is required to be seen whether the sexual intercourse was without her free consent which is essential to declare the respondent guilty of offence punishable under Section 376 of IPC. 16. Consent has been well explained in Section 90 of IPC which reads as under: “90. 16. Consent has been well explained in Section 90 of IPC which reads as under: “90. Consent known to be given under fear or misconception - A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. Consent of insane person - if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent. Consent of child - unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” 17. Now, the moot question is whether sexual intercourse was with free consent of the prosecutrix or was given by her on misconception of fact. 18. Though, there is plethora of law on the subject discussed by the Hon’ble Supreme Court in its earlier judgments in Uday vs. State of Karnataka, AIR 2003 SC 1639 , Deepak Gulati vs. State of Haryana, AIR 2013 SC 2071 and Tilak Raj vs. State of Himachal Pradesh, AIR 2016 SC 406 , we would, however, refer to certain later judgments of the Hon’ble Supreme Court wherein the earlier law along with statutory provisions have been extensively dealt with by the Hon’ble Supreme Court. 19. In Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra and Others, AIR 2019 SC 327 , it was observed as under: “14. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression “against her “will” means that the act must have been done in spite of the opposition of the woman. The expression “against her “will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. 15. Section 90 of the IPC defines “consent” known to be given under fear or misconception: “Section 90: Consent known to be given under fear or misconception - A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception” Thus, Section 90 though does not define “consent” but describes what is not “consent.” Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. 16. In Uday vs. State of Karnataka, (2003) 4 SCC 46 , this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus: “21. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus: “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the con- sent given by the prosecutrix to sexual inter- course 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 inter-course 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 bur- den is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to under- stand the significance and moral quality of the act she was consenting to. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to under- stand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual inter- course with the appellant, and her consent was not in consequence of any misconception of fact.” 17. In Deelip Singh alias Dilip Kumar vs. State of Bihar, (2005) 1 SCC 88 , the Court framed the following two questions relating to consent: “(1) Is it a case of passive submission in the face of psycho- logical pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully nature and consequences of the act she was asked to indulge in? (2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her?” In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February, 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she be came pregnant, she revealed the matter to her parents. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she be came pregnant, she revealed the matter to her parents. Even there- after, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time. With this factual back-ground, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima-facie accountable for dam- ages under civil law. It was held thus: “The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW-12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW-12 that “later on” the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. On the other hand, the statement of PW-12 that “later on” the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case at Para 24 come to the aid of the appellant.” 18. In Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 , the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the con- sent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused. 19. Recently, this Court, in Shivashankar @ Shiva vs. State of Karnataka and Another, 2018 (3) All Cri LR 84 (SC) [Criminal Appeal No. 504 of 2018, disposed of on 6th April, 2018] has observed that it is difficult to hold that sexual inter- course in the course of a relationship which has continued for eight years is ‘rape’ especially in the face of the complainant’s own allegation that they lived together as man and wife. It was held as under: “In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as ‘rape’ especially in the face of the complainant’s own allegation that they lived together as man and wife.” 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 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.” 20. In Pramod Suryabhan Pawar vs. State of Maharashtra and Another, AIR 2019 SC 4010 , the Hon’ble Supreme Court was dealing with quashing of an FIR wherein allegations regarding accused having established sexual relations on the promise of marriage had been levelled. The Hon’ble Supreme Court noticed that there were no allegations in the FIR that when the accused promised to marry the informant, it was done in bad faith or with an intention to deceive her and accordingly the FIR was quashed. It shall be apt to reproduce para-18 of the report which reads as under: “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.” 21. 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.” 21. A three Judge Bench of the Hon’ble Supreme Court while examining an issue of “consent” in Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108 held that under Section 90 of IPC, consent given under fear of injury or misconception of fact is no consent in the eyes of law, but misconception of fact has to be in proximity of time to occurrence and cannot be spread over period of four years. In that case, it was found that the consent by the prosecutrix was conscious and informed choice made by her after due deliberation and had been spread over a long period of time coupled with conscious positive action and not to protest. Considering all facts and circumstances, it was held by the Hon’ble Supreme Court that the appellant therein did not make any false promise or intentional misconception of marriage leading to establishment of physical relationship between the parties. Prosecutrix herself was aware of the obstacles because of different religious beliefs. The Hon’ble Supreme Court after placing reliance on its earlier judgments, some of which have been mentioned and extracted above, in Paras 18 and 20 observed as under: “18. We have given our thoughtful consideration to the facts and circumstances of the present case and are of the considered opinion that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant’s family was always very nice to her. 20. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant’s family was always very nice to her. 20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday vs. State of Karnataka, (2003) 4 SCC 46 are considered relevant: (SCC p. 58, Para 25) “25.......It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.” 22. In Sonu alias Subhash Kumar vs. State of Uttar Pradesh and Another, AIR 2021 SC 1405 , the Hon’ble Supreme Court was dealing with quashing of charge-sheet where the accused had allegedly committed rape on prosecutrix on pretext of promise of marriage. In Sonu alias Subhash Kumar vs. State of Uttar Pradesh and Another, AIR 2021 SC 1405 , the Hon’ble Supreme Court was dealing with quashing of charge-sheet where the accused had allegedly committed rape on prosecutrix on pretext of promise of marriage. The Hon’ble Supreme Court after noticing that the relations between accused and the prosecutrix were of consensual in nature, wherein there were no allegations of promise to marry being false at inception, held that subsequent refusal on the part of the accused from marriage did not constitute an offence and the charge-sheet was accordingly quashed. It shall be apt to reproduce Para-11 of the report which reads as under: “11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of Cr.P.C. no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of Cr.P.C. on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.” 23. In Shambhu Kharwar vs. State of Uttar Pradesh and Another, AIR 2022 SC 3901 , the Hon’ble Supreme Court was dealing with a case of quashing of proceedings for an offence of rape wherein the accused and the victim, both educated adults, were found in consensual relations for 5 years. The victim, during that period, got married to someone-else that ended in divorce by mutual consent in 2017. The allegations of victim indicated that her relationship with the accused continued prior to her marriage, during its subsistence and even after grant of divorce. In these circumstances, it was found that crucial ingredients of offence of rape were absent since relationships between the parties were purely consensual. The allegations of victim indicated that her relationship with the accused continued prior to her marriage, during its subsistence and even after grant of divorce. In these circumstances, it was found that crucial ingredients of offence of rape were absent since relationships between the parties were purely consensual. The Hon’ble Supreme Court after relying upon some of its earlier judgments (as noticed above) observed as under: “12. In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent. 13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent. 14. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent. 14. The High Court, in the course of its judgment, has merely observed that the dispute raises a question of fact which cannot be considered in an application under Section 482 of Cr.P.C. As demonstrated in the above analysis, the facts as they stand, which are not in dispute, would indicate that the ingredients of the offence under Section 376 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of Cr.P.C. on a completely misconceived basis.” 24. Recently, the Hon’ble Supreme Court in Naim Ahamed vs. State (NCT of Delhi), 2023 Criminal Law Journal 2785, after considering the earlier judgments, as referred to above, held and observed that there is difference between giving a false promise and committing of breach of promise by the accused. In the case of false promise, the accused, right from the beginning would not have any intention to marry the prosecutrix and would have cheated the victim by giving a false promise to marry her only with a view to satisfy his lust. Whereas, in case of breach of promise, one cannot deny the possibility that the accused might have given a promise with all seriousness to marry her and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376 of IPC. 25. Bearing in mind the aforesaid exposition of law, we shall now proceed to consider the facts on record. 26. In the instant case, the prosecutrix is a grown-up and matured girl of 27 years of age, well educated having done B.Ed. and M.Com. She claims herself to be in deep love with the respondent. 25. Bearing in mind the aforesaid exposition of law, we shall now proceed to consider the facts on record. 26. In the instant case, the prosecutrix is a grown-up and matured girl of 27 years of age, well educated having done B.Ed. and M.Com. She claims herself to be in deep love with the respondent. But, then she was aware of the fact that since the respondent belonged to a different caste, the marriage was not possible and this has specifically come in the cross-examination of PW-2, mother of the prosecutrix, in Paras 3 and 4, which read as under: “3. It is correct to suggest that between the years 2013 to 2016, our family and family of the accused were making preparation for the marriage of the accused and the prosecutrix. It is correct to suggest that during this period the matching of the horoscopes of the prosecutrix and the accused was also done. 4. No date was finalized for the marriage of the accused and the prosecutrix. It is correct to suggest that the marriage between the accused and the prosecutrix could not take place because the prosecutrix was found to be elder to the accused and our castes and customs were also different.” 27. Thus, what is evident from the testimony of mother of the prosecutrix is that marriage between the respondent and the prosecutrix could not take place because prosecutrix was found to be elder to the accused and their castes and customs were found to be different which clearly goes to indicate that the respondent had not made a false promise to the prosecutrix at the inception of their relationship. Moreover, the promise was not a false promise given in bad faith where there was no intention of the respondent to adhere to the same at the time it was given. Therefore, there is no direct nexus of promise to the prosecutrix’s decision to engage in sexual act. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the respondent to marry the prosecutrix. 28. Here, it also needs to be noticed as to whether the prosecutrix herself was serious to get married to the respondent and can be said to have been deceived. For this purpose, we would have to refer to the material that has come on record. 29. 28. Here, it also needs to be noticed as to whether the prosecutrix herself was serious to get married to the respondent and can be said to have been deceived. For this purpose, we would have to refer to the material that has come on record. 29. It is the specific case of the prosecution that she remained in relationship with the respondent since the year 2013 and claims herself to have been subjected to sexual intercourse on 28.02.2015, 21.12.2015 and lastly on 09.01.2016. She was medically examined on 03.03.2016 i.e. on the date of registration of the FIR and certain samples were taken for sending to SFSL, Junga including: (i) Public hair clippings. (ii) Blood sample on FTA card. (iii) Vaginal smear on slides. (iv) Vaginal swabs. (v) Blood smeared swab. 30. The prosecutrix, as per her own version, had last sexual intercourse with the respondent on 09.01.2016, as stated by the prosecutrix in her statement and as stated by doctor Mudita Gupta (PW-19) on the basis of the statement of the prosecutrix given to her at the time of her medical examination. But, then SFSL detected semen on the vaginal swabs that were taken on 03.03.2016. PW-19 admitted the suggestion that human semen can be found in the vagina because of other reasons than the coitus. She also admitted as correct the suggestion that semen can be live for 72 hours and dormant semen could be detected upto maximum 15 days and lastly she admitted the suggestion that the semen of any sexual contact having taken place about two months back cannot be found in the vagina. In this background, the Court needs to observe that the prosecutrix herself was not serious to get married to the respondent and cannot, therefore, be held to be deceived. 31. The Court is conscious and aware of the fact that in the case of the instant kind, the sole testimony of the prosecutrix can be sufficient to convict the accused. But, in order to prove the allegation of rape, such sole testimony of the prosecutrix must be reliable and of “sterling quality.” However, we do not find the testimony of the prosecutrix to be qualified to be termed as “sterling quality”, rather, the prosecutrix does not appear to be trustworthy as she has consistently changed her statement from time to time to suit her convenience. 32 As per the report under Section 154 Cr.P.C. Ext. PW-1/A, the prosecutrix alleged that when the respondent proposed her for marriage, the family members of the respondent had come to the house of the prosecutrix with the proposal of marriage before her parents and this proposal was accepted by the family members of both the prosecutrix and the respondent and after that they were residing as relatives with each other and also visited the house of each other. However, in her statement under Section 164 Cr.P.C. (Ext. PW-1/B), the prosecutrix got recorded that the family of the respondent came with the proposal of marriage of the respondent with the prosecutrix in the year 2013 and they met with her family members at Diamond Restaurant, B.C.S. Shimla and they also exchanged ‘shagun’ etc. and there was also ‘rokka’ (a sort of formal ceremony of engagement) and in between she and respondent used to talk to each other and also met to each other and the respondent had tried to establish physical relationship with her. Further, in her report Ext. PW-1/A, she had got recorded that when the proposal of marriage was accepted by both the parties, the respondent pressurized her for sexual intercourse and when she objected to the same, then the respondent told her that they would be husband and wife and there is nothing bad in doing such act as he is going to marry her shortly. She also got recorded that during this period, the respondent many times had sexual intercourse with her. But, in her statement before the Court, as already observed above, prosecutrix specifically stated that she had sexual intercourse with the respondent only thrice. When the prosecutrix appeared before the Court as PW-1, she stated that the family members of the respondent and the members of her family met 2-3 times. She also stated that they met in Diamond Restaurant, B.C.S. Shimla and then they introduced a new fact of taking horoscope of prosecutrix, whereas, she never stated so either in report Ext. PW-1/A under Section 154 Cr.P.C. or in her statement under Section 164 Cr.P.C. Ext. PW-1/B. When the prosecutrix was cross-examined, she stated that they met in Diamond Restaurant in the month of November, 2013 and she met the parents of the respondent once or twice. PW-1/A under Section 154 Cr.P.C. or in her statement under Section 164 Cr.P.C. Ext. PW-1/B. When the prosecutrix was cross-examined, she stated that they met in Diamond Restaurant in the month of November, 2013 and she met the parents of the respondent once or twice. The prosecutrix also stated that she could not tell the date of meeting of her parents as well as respondent’s parents. However, she stated that this incident took place prior to ‘Diwali’ of 2013 in Diamond Restaurant, B.C.S. Shimla. 33. When prosecutrix was confronted with the previous contrary version in report Ext. PW-1/A, then she stated that for the first time her parents as well as respondent’s parents had met at Diamond Restaurant, B.C.S. Shimla and thereafter they had met 2-3 times. She categorically admitted that in her report Ext. PW-1/A, name of the Diamond Restaurant had not been mentioned. When the mother of the prosecutrix appeared as PW-2, she stated in her cross-examination that in the year 2013 when her daughter disclosed about the respondent and proposal for marriage by him, they met in hotel Diamond in the year 2013 and she met the parents of the respondent once or twice. She categorically stated that neither she had gone to the house of the respondent nor respondent or his family members had come to her house. 34. What further casts a serious doubt on the testimony of the prosecutrix is that she had claimed that the photographs of the ‘rokka’ ceremony at Restaurant Diamond were taken, but then surprisingly, the prosecutrix did not even ask the respondent for such photographs of an event which could be conveniently termed to be one of the most important event in the life of the prosecutrix. This is highly improbable and makes the testimony of the prosecutrix unnatural and, thus, no reliance on the same can be placed. 35. It also needs to be noticed that in the report Ext. This is highly improbable and makes the testimony of the prosecutrix unnatural and, thus, no reliance on the same can be placed. 35. It also needs to be noticed that in the report Ext. PW-1/A, it has been categorically mentioned that the respondent sexually harassed her by giving a hope of marriage and marriage was fixed for 4 th and 5th March and thereafter the prosecutrix came to know from reliable sources that the respondent was going to marry with some other girl after cheating her and when the fact of marriage of respondent with other lady came to her knowledge, she contacted the respondent and his family members but the respondent totally denied to marry her and further threatened her with dire consequences. 36. However, when statement of the prosecutrix under Section 164 Cr.P.C. is perused, then it would be noticed that the prosecutrix has turned around and stated that she recently came to know through somebody that marriage of the respondent was fixed for 4th and 5th March with some other girl and in the evening, she shared this fact with her mother. Prosecutrix further stated that she remained upset for 2-3 days and on 3rd March, 2016, she made a complaint in this behalf. It has also been got recorded that during this period the respondent had also threatened that they were 80 members in his family and she could not have caused any damage to him because there was only her father and nobody-else would support her. It has also been got recorded in the statement under Section 164 Cr.P.C. by the prosecutrix that the respondent abused her mother and told that their family was having such nature because of which marriage could not take place and she was also termed as characterless by the respondent. All these things have not been mentioned in Ext. PW-1/A. 37. That apart, as PW-1 stated that during interim period between 2013 to 2016, no date was fixed with regard to marriage and further admitted that no formal engagement between her and the respondent had taken place. She also admitted that the customs of the respondent and her family were different. 38. PW-1/A. 37. That apart, as PW-1 stated that during interim period between 2013 to 2016, no date was fixed with regard to marriage and further admitted that no formal engagement between her and the respondent had taken place. She also admitted that the customs of the respondent and her family were different. 38. As regards, meeting with the wife of the respondent, apart from the version extracted above, the prosecutrix while being cross-examined admitted that she had met with the girl with whom the marriage of the respondent had been fixed and further admitted that she had told the girl not to marry the respondent because she intended to solemnize marriage with the respondent. Prosecutrix though denied the suggestion that the girl had refused to accept her proposal, but then volunteered to state that the girl had told that she would herself talk to the respondent. 39. In the given facts and circumstances of the case, we have no doubt in our mind that the view taken by the learned trial Court to acquit the respondent is a plausible and a possible view and, therefore, warrants no interference. Accordingly, leave to appeal is rejected.