JUDGMENT : SUMEET GOEL, J. 1. The present revision petition has been filed by the accused challenging the order dated 14.07.2022 passed by Additional Sessions Judge, Gurugram, Haryana whereby, he has been arraigned, for facing trial under Sections 323/376(2)(n)/406/506 of IPC. 2. The relevant part of the report filed by the police under Section 173 of Cr.P.C., 1973 (hereinafter referred to as CrPC, 1973), as spelt out in the petition, reads as follows: “Respected Sir, the description of the indictment is that a complaint dated 25.05.2021 ZERO FIR No 0001 dt. 27/04/2021 Section 3762N, 323,406,506 IPC, was received from the complainant to police station sector-29 Gurugram, Haridas Nagar police station, Khajuri Khas, and police station Sonia Nagar at the police station, Essence of the complaint are as follows “Sir, SHO Sector 29 Gurugram, Haryana 1976 P SECTOR 45 RESIDENT I Mrs. (sic) live in Gurugram, Haryana I have been living in this house separately from my husband since 2008. I am married and I am self-sufficient. I met (sic), in December 2015 on Facebook. After that, we started talking and then the phone number was exchanged He said, “I love you and want to get married.” A few days later Sanjay told that is father is ill and I am coming to Gurugram to meet him. You meet me at the airport and bring two or three pairs of clothes. I reached the airport where I met Sanjay Kumar where he came very late, from that place we went to Jhaoda officer due to delay, where we reach very late and there they had physical relations with me without my consent After that, the next day, Sanjay Kumar went to Medanta hospital and I came to my house. I told Sanjay on the phone that you didn’t do well with me. Then, Sanjay said I will marry you. Right now my father’s health is bad. You keep your mouth close sit relax and calm. Now my father’s condition is worse. We will get married as soon as my father recovers and I will give divorce to my wife. Sanjay Kumar called me to Dharuheda, where his parents also lived in his younger brother’s house, and said that staying here would serve his father. After that, i served his father for about 10 to 12 days. After that, he took his father to Jhansi. Sanjay Kumar called me to Dharuheda, where his parents also lived in his younger brother’s house, and said that staying here would serve his father. After that, i served his father for about 10 to 12 days. After that, he took his father to Jhansi. In the meantime, Sanjay would marry the same person. There he also had constant physical relations promise to marry me. After that, I came to know that Sanjay Kumar is not divorcing his wife and he is in CRPF (sic). I came to know after that when I asked Sanjay for marriage, he got angry with me and also threatened to kill me many times. Meanwhile, in May 2020, Sanjay Kumar’s children also complained against him. Then Commandant Sir got an inquiry done, and in the meantime, the convict Sanjay Kumar took advice from many people for interrogation and sent me to Gurugram and said that after all the atmosphere is fine, I will call you back to Jhansi, and after a few days, I came to know that the inquiry against Sanjay Kumar is being conducted. he called me back to Jhansi and take my signature on a blank paper, saying that I had taken you in my bank account and a land in which I had transferred two lakh rupees to Sanjay’s account, and that I was making you a nominee. They took my three to four signs by saying that I would make a nominee. I later came to know that Sanjay Kumar misused my sign by making me a servant and getting a rent agreement from Jhansi made in my name and told me that I was kept for the service his father and for his own use(sex). Sanjay Kumar misused my sign and pretended to marry me and cheated me. He took my two lakh rupees for the last time in November 2020.I am giving this complaint in front of female advocate Allina SENAPATI. On which the investigation was conducted by the LSI in the research of the prosecution by marking the above, after inspecting the research incident site, a map was prepared and the statements of the witnesses were recorded. During the investigation, after obtaining the records from the CRPF (sic), the police took the authority through the list. On which the investigation was conducted by the LSI in the research of the prosecution by marking the above, after inspecting the research incident site, a map was prepared and the statements of the witnesses were recorded. During the investigation, after obtaining the records from the CRPF (sic), the police took the authority through the list. During the investigation, the record dated 07/08/2016 was obtained, according to which accused Sanjay (sic) was found to have come to Delhi on 07/08/2016. In the prosecution, after obtaining the record from the State Bank of India, the authority was taken in the police through the list, which, according to the record, was made from the complainant’s account number (sic) through check number 035713 for Rs 2 lakh on 19/01/2018 to account number (sic) has been transferred to the account of The investigation involved in the prosecution of accused Sanjay (sic) was completed on 12.07.2021 on anticipatory bail from the above court. Photograph, medical document and a rent agreement and notice by the complainant in the prosecution On production of the LIF copy, the authority on the basis of the list was taken over to the police. According to the statement of the complainant, accused (sic) got the complainant to sign on a blank piece of paper and got the medical documents produced by the complainant in the name of (sic), which, according to the statement of the complainant, accused Sanjay Kumar Sharma gave the complaint to the complainant. He got it done in the name of his wife (sic) so that accused (sic), who is posted in the Central Reserve Police Force CRPF at (sic). The accused was sent a notice under section 41 (1) CrPC on 05.03.2022, which on 05.03.2022 the accused’s arrest form, identity card, and list crime inquiry form were filled out, on which the accused signed. Accused is a government service because of this he was inform by mail through His HEAD QUARTER. The accused Sanjay (sic) was got medical from the above mentioned government hospital under the Haryana Medico Legal Act. Which Dr. Sir MLC NO. RKG/GGN/48/2022 dt 14.04.2022 gave. The investigation of the indictment has been completed. The challanable evidence against the above accused, Sanjay (sic), has come on file, so the challan under Section 173 (2) Cr.P.C is being prepared and given in the Honorable Court.” 3. Which Dr. Sir MLC NO. RKG/GGN/48/2022 dt 14.04.2022 gave. The investigation of the indictment has been completed. The challanable evidence against the above accused, Sanjay (sic), has come on file, so the challan under Section 173 (2) Cr.P.C is being prepared and given in the Honorable Court.” 3. Learned counsel for the petitioner has argued that the petitioner as also the victim/complainant were married with their respective spouses and also had children from their respective marriages; the marital status of the parties was well known to each other; the petitioner as also the victim were in consensual relationship; the said consensual relationship turned sour on account of dispute(s) arising between them and, in this factual backdrop, the report filed by police under Section 173 of Cr.P.C. (as also material appended thereto) it cannot be construed that the petitioner has committed rape upon the victim/complainant. Learned counsel for the petitioner has further argued that the petitioner as also the victim are well-educated persons and both of them are aged about more than 50 years and were well aware of the entirety of situation when entering into such consensual relationship. Therefore, setting aside of the impugned order is prayed for. 3.1 Learned State counsel has argued that, the report filed by the police under Section 173 of Cr.P.C., 1973 as also material appended therewith, clearly shows that the petitioner-accused had caused the complainant/victim to enter into physical relation(s) by extending false promise of marriage and hence the impugned order does not deserve to be interfered with. Accordingly, she has prayed for dismissal of the instant revision petition. 3.2 Learned counsel appearing for the complainant has argued that the complaint made by the complainant as also the statement recorded by the complainant under Section 164 of Cr.P.C. before the concerned Magistrate clearly shows that the petitioner-accused is guilty of committing rape upon the victim/complainant by inter alia extending false promise of marriage. Learned counsel for the complainant has further argued that the petitioner-accused had promised to divorce his wife in order to marry the complainant/victim which was never ever the intention of the petitioner-accused from the very beginning. Learned counsel for the complainant has further argued that the petitioner-accused had promised to divorce his wife in order to marry the complainant/victim which was never ever the intention of the petitioner-accused from the very beginning. Learned counsel for the complainant has further argued that the plea(s) raised on behalf of the petitioner-accused involve adjudication upon disputed questions of fact which shall be essentially gone into during the course of trial after entire evidence has been led and these cannot be looked into at the present stage. Accordingly, learned counsel has sought for dismissal of the instant revision petition. 4. I have heard the learned counsel for the parties and have perused the paper book. Vide order dated 15.05.2024, the lower Court record (in original) was summoned which has been since received and has also been perused by this Court. 5. The prime issue for consideration in the present revision petition is as to whether the petitioner-accused has been rightly arraigned by way of impugned order passed by learned trial Court. The analogous legal issues that arise for consideration of the Court are as follows: (A) what are the parameters required to be considered for framing of charges against an accused. (B) what are the parameters for adjudication of a rape case based upon pretext of promise to marry. 6. This Court, firstly, proceeds to discuss the above legal issues that have arisen for consideration in the present revision petition: Legal Issues (A) WHAT ARE THE PARAMETERS REQUIRED TO BE CONSIDERED BY THE COURT FOR FRAMING OF CHARGES AGAINST AN ACCUSED. Relevant statutory provisions 7. Code of Criminal Procedure, 1973 Section 227 reads as under: “227. Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” Section 228 reads as under: “228. Framing of charge: (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which: (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report. (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 239 reads as under: “239. When accused shall be discharged- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” Section 240 reads as under: “240. Framing of charge: (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 245 reads as under: “245. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 245 reads as under: “245. When accused shall be discharged: (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Relevant case law 8. The precedents, apropos, to the matter in issue are as follows: (i) The Hon’ble Supreme Court in case of State of Karnataka versus L. Munishwamy:1977 (3) SCR 133 has held as under: “10. On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghadigaonkar, AIR 1960 SC 1113 and Century Spinning and Manufacturing Co. v. State of Maharashtra, AIR 1972 SC 545 , show that it is wrong to say that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a persons’ liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal’s case Section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient grounds for proceedings with the case. To an extent Section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. To an extent Section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the res ult of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.” (ii) The Hon’ble Supreme Court in case of State of Bihar vs. Ramesh Singh, AIR 1977 SC 2018 has held as under: “(b) in exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in S. 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction, Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction, Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable, We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S.227.” (iii) The Hon’ble Supreme Court in case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunjia and others, 1979 (4) SCC 274 has held as under: “18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual Ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.” (iv) The Hon’ble Supreme Court in case of Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962 has held as under: “From the above discussion, it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” (v) The Hon’ble Supreme Court in case of State of Maharashtra vs. Som Nath Thapa, (1996) 4 SCC 659 has held as under: “31. In Antualy’s case, Bhagwati, C. opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of “prime facie” case has to be applied. In Antualy’s case, Bhagwati, C. opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of “prime facie” case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence. 32. Let us note the meaning of the word “presume.” In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence.” (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming, Stroud’s Legal Dictionary has quoted in this context a certain judgment according to which “A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged’. (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition. 33. The aforesaid shows that if on the basis of materiais on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” (vi) The Hon’ble Supreme Court in case of State of M.P. vs. S.B. Johri, AIR 2000 SC 665 has held as under: “4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and others, 1991 (1) RCR (Crl.) 89 : 1990 (4) SCC 76 , after considering the provisions of Sections 227 and 228, Criminal Procedure Code, 1973 Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, 1977 (4) SCC 39 , Union of India v. Prafulla Kumar Samal, 1979 (3) SCC 4 and Supdt. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, 1977 (4) SCC 39 , Union of India v. Prafulla Kumar Samal, 1979 (3) SCC 4 and Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 (4) SCC 274 and held thus: “From the above discussion it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift (sift ?) the evidence as it cannot be expected even at the initial-stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” (Emphasis supplied) (vii) The Hon’ble Supreme Court in case of Union of India vs. Prafulla Kumar Samal and another, (1979) 3 SCC 4 has held as under: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerges: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” (viii) The Hon’ble Supreme Court in case of Sajjan Kumar vs. CBI, (2010) 9 SCC 368 has held as under: “17. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) if on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) at the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” (ix) The Hon’ble Supreme Court in case of Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey and Ors. 2022 (12) SCC 657 has held as under: “27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice.” Analysis (Re law) 9. The statutory provisions of Cr.P.C., 1973, dealing with framing of charges are contained in three sets of sections, namely; Sections 227 and 228 deal with Sessions trial, Sections 239 and 240 deal with trial of warrants case whereas Sections 245 deals with trials of summons case. Despite there being some difference in the language employed by legislature in these three sets of statutory provisions, the common test required for framing of charges is that of prima facie case as has been enunciated by the Hon’ble Supreme Court in case of Som Nath Thapa (supra). The mantle that a Court is to adorn while considering the aspect of framing of charges is different from that of a trial Judge, who is hearing final arguments after the entire evidence has been adduced after a full-fledged trial & the seminal question before such trial Judge is as to whether or not the prosecution has made out a case for conviction of the accused. The ratio-decidendi of judgments of Hon’ble Supreme Court in case of Ramesh Singh (supra) and Anil Kumar Bhunjia (supra) clearly stipulates that the standard of test and proof which is to be applied is not the same as the one which ought to the applied at time of final adjudication upon culmination of trial i.e. whether to hold the accused guilty or not. In other words, if the Court were to find that the accused might have committed the offence, it ought to frame charges whereas for conviction the Court has to find that the accused has actually committed the offence. Ergo, the Court is required to see whether from the material placed before it, a strong suspicion is made out against the accused. Needless to say, such strong suspicion must be founded on some tangible material. Ergo, the Court is required to see whether from the material placed before it, a strong suspicion is made out against the accused. Needless to say, such strong suspicion must be founded on some tangible material. Such material must have the capability of being transformed into reliable evidence at stage of trial. Such strong suspicion ought not be pure subjective satisfaction based on moral notions of a Judge that the case is one where it is possible that accused might have committed the offence. To put in other words, it is not suspicion but grave/strong suspicion that will call for a person to be arraigned as an accused. 9.1 However, it does not mean that the Court is not required to consider the material brought before it at time of its consideration upon the aspect of framing of charges. The Court is duty bound to sift through material brought before it to find out whether or not prima facie case is made out against the accused as has been held by the Hon’ble Supreme Court in the case of Prafulla Kumar Samal (supra). However; truthfulness, sufficiency, acceptability or reliability of such material ought not to be delved into as held in the dicta of judgment of Hon’ble Supreme Court in case of SB Johri (supra). To put it differently, the probative value of material brought before the Court is not to be minutely examined. The Court, ought not to accept what material says as gospel truth, if such material is opposed to common sense or broad probabilities of the case as has been held by Hon’ble Supreme Court in case of Niranjan Singh Karam Singh Punjabi (supra). Hence the Court is required to consider broad probabilities, total affect of evidence/documents produced before it, the basic infirmities in the case which go to the root of the prosecution version, there being a legal bar to prosecution, the element of criminality clearly missing and so on. At this juncture, a word of caution is called for viz, while considering the material at the time of framing of charges, the Court is not to sift through such material in a meticulous manner lest it amounts to a mini trial. Such an endeavour is impermissible, in law, as laid down by the Hon’ble Supreme Court in the case of Ghulam Hassan Beigh (supra). Such an endeavour is impermissible, in law, as laid down by the Hon’ble Supreme Court in the case of Ghulam Hassan Beigh (supra). 9.2 There is no gainsaying that framing of charges is a crucial facet of criminal proceedings. An order framing charge (s) affects a person’s liberty in a substantial manner and, therefore, a Court is required to carefully look into this aspect as held in case of Munishwamy’s case (supra). Further; the Court cannot, while considering the aspect of framing of charges, be expected to act merely as a post office or mouth piece of prosecution as enunciated by Hon’ble Supreme Court in Sajjan Kumar’s case (supra). A Court, while adjudicating upon the aspect of framing of charges, is essentially required to consider the interests of all concerned, namely; the prosecution (society at large), victim/complainant and the accused; the interest of justice and fair trial being above all. The sapient principle, which has met with favour from the Hon’ble Supreme Court, reads thus: “A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.” A trial Judge, hence, ought not to treat the pivotal matter pertaining to framing of charges in a perfunctory nay ritualistic manner. Often enough, a trial ensues, complete with a rigmarole spiraling about, due to lack of assiduity accorded to framing of charges. Duty and work of a trial Judge is indubitably demanding, exacting as also relentless and there is no easy way out of it. Yet, the judicial wisdom must be surely and unhesitatingly applied by the trial Court in framing charges, in every case, with its unique factual matrix. It is seen, more often than not, that there is an endeavour by the complainant-side to drag the accused into the rigmarole of a lame prosecution/trial for facing a fullfledged trial which has its own perils. It is seen, more often than not, that there is an endeavour by the complainant-side to drag the accused into the rigmarole of a lame prosecution/trial for facing a fullfledged trial which has its own perils. Even when prosecution case is lame and does not meet the requisite standards, especially when the accused would be manifestly let go of and particularly when accused ought to be discharged in facts of a given case; facing a protracted trial would tantamount to punishment in itself for the accused; also in terms of time and expenses besides the anxiety, unease as also a sense of persecution; a sword of Damocles hanging over the head of such an accused. Ergo, the trial Court must create a balance, discard its dilemmas in accordance with law at all stages of trial including the stage of consideration of arraignment. That the justice is served is primary, including the process of justice, which ought to be just and fair to all concerned; even to the accused. 9.3 No exhaustive set of guideline(s) to govern, the exercise of aspect of framing of charges by a Court, can possibly be laid down however, alluring this aspect may be. It is neither fathomable nor desirable to lay down any straightjacket formula in this regard. To do so would be to crystallize into a rigid definition, a judicial discretion, which even the Legislature has, for best of all reasons, left undetermined. Any attempt in this regard would be, to say the least, a quixotic endeavour. Circumstantial flexibility, one additional or different fact, may make a sea of difference between conclusions in two cases. Such exercise would thus, indubitably, be dependent upon the factual matrix of the particular case which the Court is in seisin of, since every case has its own peculiar factual conspectus. 9.4 As a result of above discussion, the following postulates emerge: I. The power as also the duty cast upon the Court, while considering the aspect of framing of charges, is a significant facet of criminal proceedings & hence the same ought to be undertaken in an assiduous manner and not in a ritualistic or lackadaisical manner. II. 9.4 As a result of above discussion, the following postulates emerge: I. The power as also the duty cast upon the Court, while considering the aspect of framing of charges, is a significant facet of criminal proceedings & hence the same ought to be undertaken in an assiduous manner and not in a ritualistic or lackadaisical manner. II. The Court, while considering the aspect of framing of charges, ought not to act merely as a post office or a mouth piece of the prosecution but ought to consider this pivotal aspect keeping in view the interest of all concerned namely the prosecution (society at large), victim/complainant as also the accused; the interest of justice and fair trial being above all. III. A Court while considering the question of framing of charges, undoubtedly, has power to sift and weigh the material produced before it for the limited purpose of finding out whether or not a prima facie case is made out against the accused. It must be cautioned, at this stage, that the Court ought not to make a roving enquiry into the truthfulness, reliability, relevance or sufficiency etc. of such material brought before it since these aspects are required to be accounted for at the time of holding the accused guilty or not. IV. While sifting through the material placed before it the Court ought to consider the broad probabilities of the case, total affect of evidence/document produced before it, basic infirmities in the case, there being legal bar to the prosecution, whether such material is opposed to common sense, whether the allegations and material brought in support thereof are patently absurd or inherently improbable to meet the test of a prudent person, the continuation of the trial is abuse of the process of Court/law leading to injustice and such factors of akin nature. V. Where the material produced before the Court discloses grave/strong suspicion, the Court will be justified in framing charge(s) and proceed further. However, where such material shows that two views are equally possible and the material gives rise to some suspicion but not grave/strong suspicion, then the Court ought not to frame charges against the accused. VI. There is no gainsaying that the factors/principles enumerated hereinabove are illustrative in nature for no inexorable formula can be laid down in this regard. However, where such material shows that two views are equally possible and the material gives rise to some suspicion but not grave/strong suspicion, then the Court ought not to frame charges against the accused. VI. There is no gainsaying that the factors/principles enumerated hereinabove are illustrative in nature for no inexorable formula can be laid down in this regard. In other words, it is not only difficult but is inherently impossible to state with exhaustive precision such factors/principles since every case has its own unique factual conspectus. 10. Now this Court proceeds to deliberate upon the second legal issue, namely: B WHAT ARE THE PARAMETERS FOR ADJUDICATION OF A RAPE CASE BASED UPON PRETEXT OF PROMISE TO MARRY. Relevant statutory provisions 11. Section 375 of Cr.P.C, 1973 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; or or (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; or (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; or (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. 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. 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.” Section 90 of Indian Penal Code, 1860 reads as under: “90. Consent known to be given under fear or misconception – A consent is not such a consent as is 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 of misconception; or 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; or Consent of child. – 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; or 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.” Section 114-A of Indian Evidence Act, 1872 reads as under: “114-A. Presumption as to 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. Explanation.-In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375 of the Indian Penal Code (45 of 1860).” Relevant Case Law: 12. The precedents, apropos, to the matter in issue are as follows: (i) The Hon’ble Supreme Court in case of Deelip Singh @ Dilip Kumar vs. State of Bihar, 2005 (1) SCC 88 has held as under: “What then is the meaning and content of the expression ‘without her consent’? Whether the consent given by a woman believing the man’s promise to marry her is a consent which excludes the offence of rape? These are the questions which have come up for debate directly or incidentally. 15. The concept and dimensions of ‘consent’ in the context of Section 375 Indian Penal Code has been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of the each case. 16. Indian Penal Code does not define ‘consent’ in positive terms, but what cannot be regarded as ‘consent’ under the Code is explained by Section 90. Section 90 read as follows: “90. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of the each case. 16. Indian Penal Code does not define ‘consent’ in positive terms, but what cannot be regarded as ‘consent’ under the Code is explained by Section 90. Section 90 read as follows: “90. Consent known to be given under fear or misconception – A consent is not such a consent as is 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 given firstly under fear of injury and secondly under a misconception of fact is no ‘consent’ at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. 17. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It is envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person given the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. 18. Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. This is the scheme of Section 90 which is couched in negative terminology. 18. Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of ‘consent’ is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word ‘consent’. 19. In most of the decisions in which the meaning of the expression ‘consent’ under the Indian Penal Code was discussed, reference was made to the passage occurring in Stroud’s Judicial Dictionary, Jowitt’s Dictionary on English Law, Words & Phrases – Permanent Edition and other legal Dictionaries. Stroud defines consent as “an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the goods and evil on each side.” Jowitt, while employing the same language added the following: “...Consent supposes three things – a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.” 20. In Words & Phrases – Permanent Edition, Volume 8A, the following passages culled out from certain old decisions of the American Courts are found : “.....adult female’s understanding of nature and consequences of sexual act must be intelligent understanding to constitute ‘consent’. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent....” 21. It was observed by B.P. singh, J. speaking for the Court in Uday v. State of Karnataka, 2003 (2) RCR (Criminal) 99 (SC) : 2003 (2) Scale 329 , “the Courts in India have, by and large, adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent.” 22. There is a good analysis of the expression ‘consent’ in the context of Section 375 Indian Penal Code by Tekchand, J. in Rao Harnarain Singh v. State, AIR 1958 Punjab 123. The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. There is a good analysis of the expression ‘consent’ in the context of Section 375 Indian Penal Code by Tekchand, J. in Rao Harnarain Singh v. State, AIR 1958 Punjab 123. The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. The observation of the learned Judge that “there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent”, is quite apposite. The said proposition is virtually a repetition of what was said by Coleridge, J. in Regina v. Day in 1841 as quoted in Words and Phrases (Permanent Edition) at page 205. The following remarks in Harnarain’s case are also pertinent: “Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be Consent.” 23. The passages occurring in the above decision were either verbatim quoted with approval or in condensed form in the subsequent decision : vide In Re: Anthony, AIR 1960 Madras 308, Gopi Shankar v. State, AIR 1967 Rajasthan 159, Bhimrao v. State of Maharashtra, 1975 Mah. L.J. 660, Vijayan Pillai v. State of Kerala, 1989 (2) K.L.J. 234 . All these decisions have been considered in a recent pronouncement of this Court in Uday v. State of Karnataka. The enunciation of law on the meaning and content of the expression ‘consent’ in the context of penal law as elucidated by Tekchand, J. in Harnarain’s case (which in turn was based on the above extracts from law Dictionaries) has found its echo in the three-Judge Bench decision of this Court in State of H.P. v. Mango Ram, 2000 (3) RCR (Criminal) 752 (SC) : (2000) 7 SCC 224 . K.G. Balakrishan, J. speaking for the Court stated thus : “Submission of the body under the fear or terror cannot be construed as a consented sexual act. 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 after having fully exercised the choice between resistance and assent. 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 after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” On the facts, it was held that there was resistance by the prosecutrix and there was no voluntary participation in the sexual act. That case would therefore fall more appropriately within Clause first of Section 375. 24. We shall turn our attention to the cases which dealt with the specific phraseology of Section 90 Indian Penal Code. We have an illuminating decision of the Madras High Court rendered in 1913 in Re: N. Jaladu, ILR 36 Madras 453 in which a Division Bench of that Court considered the scope and amplitude of the expression ‘misconception of fact’ occurring in Section 90 in the context of the offence of kidnapping under Section 361 Indian Penal Code. The 2nd accused in that case obtained the consent of the girl’s guardian by falsely representing that the object of taking her was for participating in a festival. However, after the festival was over, the 2nd accused took her to a temple in another village and married her to the 1st accused against her will. The question arose whether the guardian gave consent under the a misconception of fact. While holding that there was no consent, Sundara Ayyar J. speaking for the Bench observed thus: “We are the opinion that the expression ‘under a misconception of fact’ is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act illustration (d) that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. In considering a similar statute, it was held in England in R. v. Hopkins 1842, Car & M 17, 254 that a consent obtained by fraud would not be sufficient to justify the taking of a minor. In considering a similar statute, it was held in England in R. v. Hopkins 1842, Car & M 17, 254 that a consent obtained by fraud would not be sufficient to justify the taking of a minor. See also Halsbury’s Laws of England, Volume 9, page 623. In Stephen’s Digest of the Criminal Law of England (sixth edition, page 217), the learned author says with reference to the law relating to “abduction of girls under sixteen”: “thus …… If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person.”……. Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 Indian Penal Code is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence.” This decision is an authority for the proposition that a misrepresentation as regards the intention of the person seeking consent, i.e. the accused, could give rise to the misconception of fact. This view of the Madras High Court was accepted by a Division Bench of Bombay High Court in Purshottam Mahadev v. State of Bombay, AIR 1963 Bombay 74. Applying that principle to a case arising under Section 375, consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375 Indian Penal Code, we have the decision of Division Bench of Calcutta High Court in Jayanti Rani Panda v. State of West Bengal, 1984 Crl. L.J. 1535. The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at Para 7: “Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is …… why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.” The discussion that follows the above passage is important and is extracted hereunder: “The failure to keep the promise at a future uncertain date due to reasons not every clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 Indian Penal Code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her.” (Emphasis supplied) The learned Judges referred to the decision of Chancery Court in Edgomgtpm v. Fotz’airoce, (1885) 29 Ch. D 459 and observed thus: “This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect : “There must be a misstatement of an existing fact.” Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Section 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact.” After referring to the case law on the subject, it was observed in Uday, supra at paragraph 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 the he would marry her on a later date, cannot be said to be given under 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 strait – jacket 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 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.” 25. The first two sentences in the above passage need some explanation. 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.” 25. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda, supra which was approvingly referred to in Uday’s case (supra). The Calcutta high Court rightly qualified the proposition which it stated earlier by adding the qualification at the end – “unless the Court can be assured that from the very inception, the accused never really intended to marry her.” In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu’s case, supra (vide passage quoted supra). By making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautions enough to add a qualification that no strait-jacket formula could be evolved for determining whether the consent was given under a misconception of fact. The observations following the aforesaid sentence are also equally important. The Court was cautions enough to add a qualification that no strait-jacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday’s case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused’s intention to marry cannot be ruled out.” (ii) The Hon’ble Supreme Court in case of Deepak Gulati Vs. State of Haryana, 2013 (7) SCC 675 has held as under: “17. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. 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. 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.” (iii) The Hon’ble Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra & Ors. AIR 2019 SC 327 has held 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 had 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 mala fide intention and if he had clandestine motives, it is a clear case of rape. Such cases must be treated differently. If the complainant had any mala fide 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.” (iv) The Hon’ble Supreme Court in case of Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr. AIR 2019 SC 4010 has held as under: “12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction under Section 482, this Court observed: “15........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.” This understanding was also emphasized in the decision of this Court in Kaini Rajan v State of Kerala. “12. ...... “Consent” for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and asset. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” “xxx” “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. 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. In Deepak Gulati this Court observed: “21......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 misrepresentation 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. ........ 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reason that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance.” 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.” “xxx” “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 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.” (v) The Hon’ble Supreme Court in case of Naim Ahamed Vs. State (NCT of Delhi), has held as under: “.....In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix 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 a 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.” xxxx “21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the Court, are taken on their face value, then also to construe such allegations as ‘rape’ by the appellant, would be stretching the case too far. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the Court, are taken on their face value, then also to construe such allegations as ‘rape’ by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to say with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr.P.C. had stated that she had filed the complaint as he refused to fulfill her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC.” (vi) The Hon’ble Supreme Court in case of Vinod Kumar Vs. State of Kerala, AIR 2014 SC (Criminal) 1105 has held as under: “10. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship. 11. The Appellant is not an innocent man inasmuch as he had willynilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration for an offence for which he is not culpable, he should realize that retribution in another form has duly visited him. It can only be hoped that his wife Chitralekha will find in herself the fortitude to forgive so that their family may be united again and may rediscover happiness, as avowedly the prosecutrix has found.” Anyalsis (Re law) 13. Rape is a reprehensible crime, both morally and physically. Society is held together on the shared grounds of association, mutual co-existence and conviviality; a definite joie de vivre is the foundational endowment of a thriving, just and dynamic society. The fabric of society becomes most enduring when treatment and behaviours that the members of society are expected to share and reciprocate towards one another are dependable, scrupulous and conscientious. The Sexual violation of a woman is a reprehensible and despicable act of crime; it is soul crushing for the victim; the absolute abject lowest point of humanity that the perpetrator has descended to. The Sexual violation of a woman is a reprehensible and despicable act of crime; it is soul crushing for the victim; the absolute abject lowest point of humanity that the perpetrator has descended to. Sexual violation is not only a heinous crime against the victim, but such an act will have a corrosive effect on the social fabric, a rot that will shake the foundations of our society. The rape of a woman should not only make, the fair humanity abhor the act but it ought to rattle the very conscience of the society. Masculinity is not a conduit of misguided sense of power, dominance or spreading menace; but a purveyor of self-belief, confidence, and even making sacrifices for the greater good. Toxic masculinity is a threat to the society and it is incumbent upon the collective of men to reject it, jettison it wholly; lest it affects the women folk with a sense of impending doom, nightmarish life-circumstances and disquiet. Ergo, the offence of rape needs to be dealt with iron hand by the Courts. 13.1 The offence of rape is essentially edificed on the concept of “Consent” by victim. The term “Consent” has not been positively define in statutory provisions albeit what cannot be construed as consent is explained under Section 90 of IPC. It goes without saying that consent given under fear of injury of coercion is no consent, a mere act of helpless resignation in face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent in any civilization. Every consent involves submission, but the converse is not true. Submission of the body under fear or terror cannot be termed as consent by any stretch of imagination. However, the conundrum, that often arises, lies with consent under misconception of fact. Such misconception, indubitably, includes misrepresentation, leading to misconception of facts. This court is faced with incessant stream of cases wherein allegations of rape etc. are based, primarily, on promise to marry. Hon’ble Supreme Court in case of Deelip Singh @ Dilip Kumar’s(supra) has, splendaciously, dealt with conception of consent & has held that promise to marry without anything more would not tantamount to misconception of fact unless the court can be assured that, from the very inception the accused never really intended to marry the victim. Hon’ble Supreme Court in case of Deelip Singh @ Dilip Kumar’s(supra) has, splendaciously, dealt with conception of consent & has held that promise to marry without anything more would not tantamount to misconception of fact unless the court can be assured that, from the very inception the accused never really intended to marry the victim. Further, it has been clarified in the dicta of the judgment of Supreme Court in case of Deepak Gulati (supra) as also Dr. Dhruvaram Murlidhar Sonar (supra) that there is a marked difference between mere breach of promise and not fulfilling a false promise. There may be instances where the victim agrees for a sexual relationship on account of her love and passion for the accused and not solely on account of misrepresentation extended by accused to her or where the accused, on account of unforeseen circumstances, could not fulfill his promise to marry the victim. Therefore, it would be a fallacy to consider every breach of promise to marry as one inviting culpability as held by the Hon’ble Supreme Court in case Naim Ahamed (supra). It thus follows that consent, for the purposes of section 375 of IPC, requires voluntary participation not only after exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Consent involves an active understanding of the circumstances, actions and consequences of the proposed act & a well deliberated choice after evaluating various alternative actions as well as various possible consequences emanating therefrom as held by Hon’ble Supreme Court in case of Pramod Suryabhan Pawar (supra). To hold that consent was vitiated by a misconception of fact emerging out of a promise to marry, the court must find viz., such promise was a false promise given in bad faith from the very inception & the woman’s decision to engage in the sexual act must have immediate relevance of direct nexus with such promise. 13.2 Cases involving extramarital relationships particularly when both the parties are aware of each other’s marital status, fall in a different realm. This aspect assumes more significance when the man as also the woman in question are both married. 13.2 Cases involving extramarital relationships particularly when both the parties are aware of each other’s marital status, fall in a different realm. This aspect assumes more significance when the man as also the woman in question are both married. The man may not be completely innocent in such circumstances but his act(s) may not be sufficient to attract culpability as held by Hon’ble Supreme Court in case of Vinod Kumar (supra). When mature, educated man and woman; while being married to different people and also parents to children with wedded partners; decide to enter into an extramarital relationship, it cannot be treated as a contingent happenstance. Even if such a relationship is based on some romantic ideals or irrational assumptions of a fairy tale script or, especially, for companionship, mutuality and reciprocity, such relations between consenting adults cannot but be formed with such awareness of the consequences and reverberating effects. Regardless, any disillusionment or disappointment in expectations which may follow are not antonymous to the very nature of such a complex entanglement. Even if the consenting adults, at some point in their relationship, thought about parting with their wedded partners to proceed towards legalizing their extramarital relationship; while one of them decides to not proceed with the idea, it may very well lead to utter disappointment for the other person in the extramarital affair but it would be sheer far fetched to term the consensual extramarital relation as anything but that. For a married woman, who has willingly formed consensual extramarital relationship with a man, wherein the said man is married to another woman with children born out of the wedlock, it is seemingly preposterous to expect that the said man would divorce his wife to marry her, while she continues in her marital relationship and family life with children. The convoluted expectations placed upon the man and the accusation of having sexual relationship on pretext of marriage are seemingly duplicitous as well as disparaging much less culpable to invite criminal prosecution. In such like cases, the presumption stipulated under Section 114-A of Indian Evidence Act, 1872 cannot come to the aid of the prosecution/complainant. The convoluted expectations placed upon the man and the accusation of having sexual relationship on pretext of marriage are seemingly duplicitous as well as disparaging much less culpable to invite criminal prosecution. In such like cases, the presumption stipulated under Section 114-A of Indian Evidence Act, 1872 cannot come to the aid of the prosecution/complainant. 13.3 It goes without saying that it is neither pragmatic nor feasible to lay any universal exhaustive yardstick or inexorable set of guidelines for adjudication of rape cases involving promise to marry for every case has its own unique factual conspectus, which has to be taken into account by the court which is seisin of the matter in question. It was said by Lord Denning, which observation met with approval by the Hon’ble Supreme Court, that: “.....Each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. In deciding such case, one should avoid the temptation to decide cases (As said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, its broad resemblance to another case is not at all decisive.” 14. As a sequel to the above said discussion, the following postulates emerge: I. The Consent of a woman; in context of Section 375 of IPC, 1860; must involve an active and reasoned deliberation towards the proposed act. II. For a court to hold that the “Consent” of a woman was marred by ‘misconception of fact’ on account of a promise to marry; it must emerge from the factual conception of a given case that, firstly such promise was false from inception itself with no intention to upkeep it and secondly, such false promise must be of immediate relevance in terms of time or bear a direct nexus to the woman’s decision to engage in physical relation(s). III. III. In a case pertaining to rape, based upon promise to marry and/or involving extra marital relationship (wherein the man or woman or both are married to other persons), the Court ought to take into account the entirety of facts/circumstances of such case, including but not limited to, comparative age of accused and victim; educational, social and economic background of the accused and the victim; the nature of professional work/avocation being undertaken by accused and victim in their respective lives etc. It is neither axiomatic nor fathomable to lay any exhaustive set of guidelines in this regard as every case has its own peculiar factual matrix. Analysis (Re facts of present case) 15. The prime case set by the complainant/victim is that she had met the petitioner (accused) on 07.08.2016 at Delhi airport and that she has been interacting with the petitioner-accused even before that on telephone/social media; the conversation(s) between them used to take place primarily at night; the petitioner(accused) firstly raped the victim/complainant in August, 2016; later on the petitioner(accused) had introduced her to his family when father of the petitioner(accused) was hospitalized, even after that, they stayed together for few days wherein she was again raped; she was called for to the last rites ceremony (kirya) of the father of the petitioner (accused) at Jhansi wherein she was again raped; the petitioner (accused) and the victim were continuing to talk on telephone thereafter; a complaint was made in the year 2020 by the children of the petitioner (accused) to a senior CRPF Officer that the victim and the petitioner (accused) were living together without being related; the petitioner (accused) has been even thereafter assaulting the victim & later on the petitioner (accused) has blocked the telephone number of the victim. The petitioner (accused) is aged more than 50 years and is serving as an officer in CRPF, he is married and blessed with children whereas the complainant/victim is a lady also aged more than 50 years, she is educated and is working in a private company and is married as is also blessed which children. The allegations of rape, on multiple occasions, pertain to the period since the year 2015/2016 whereas the FIR was got registered by the complainant/victim in the year 2021. The allegations of rape, on multiple occasions, pertain to the period since the year 2015/2016 whereas the FIR was got registered by the complainant/victim in the year 2021. 15.1 Perusal of the version of the complainant in her statement recorded under section 164 of the Code of Criminal Procedure Code makes it manifestly clear that the relationship between the complainant and the petitioner started on a consensual note. Both of them despite being of mature age, being married to their respective spouse, having adult children, decided to be in relationship on their own quixotic notions. The complainant for the first time, after being in long standing social media and telephonic conversation with the petitioner, met him at Delhi Airport. She stated that when they both started from the Airport together to see the ailing father of petitioner, there was a hotel on the way, but they did not went there, because on her Aadhar Card name of her husband was mentioned, that may had caused problem. So, they decided to go to Jharoda. By that time it was 11.30 PM-12.00AM. She stated that then petitioner despite her refusal made physical relation with her. She tried to reason out with the petitioner that whether they have come for that purpose only. He instructed her not to speak in loud voice as at that place persons known to him also living. Then in the morning they called a cab and petitioner went to Medanta Hospital to see his ailing father, and dropped her at near sector 31-A bridge. The conduct of the complainant in this entire episode narrated by her in her statement under section 164 of the Code of Criminal Procedure makes it clear as crystal that the engagement by both the parties in physical relationship was mutual and wilful exercise of choice by both of them, without their being any element of force involved in the incident. 15.2 As per the statement of complainant under section 164 Code of Criminal Procedure, after 2 days of the incident, she went to hospital, with younger brother of the petitioner, to see the ailing father of the petitioner. There she met all the family members of the petitioner. On her return from hospital she accompanied petitioner and stayed with him for 12 days at Dharuheda and during this period they made physical relations many times. There she met all the family members of the petitioner. On her return from hospital she accompanied petitioner and stayed with him for 12 days at Dharuheda and during this period they made physical relations many times. 15.3 As per allegations of the complainant, she remained with the petitioner at his house at Jhansi also. They went in physical relationship at Orcha in a resort after the death of the father of petitioner. She was introduced to all his relatives by the petitioner. She was called by the Petitioner at his CRPF Unit and they stayed there for 20 days and everything happened in between them there also. The complainant transferred an amount of Rs.2 lacs to the petitioner. The petitioner kept her with him only and even did not let her go on the death of her mother also. At his CRPF Unit the petitioner was having a paper with him, about which he told the complainant, that he is going to seek divorce. 15.4 However, perusal of statement of complainant shows that after reiterating her above-mentioned statement, she stated that on the next day of their staying at Jharoda and making physical relations, she told the petitioner that what he has done is not right. On this petitioner told her that he will marry her. However, in her FIR she stated that the petitioner stated to marry her when they were interacting telephonically and through social media. In the FIR she stated that after the incident of their first physical relationship the petitioner told her to keep mum and stated that he will seek divorce and then marry her. 15.5 From the above stated prosecution story and the version of the complainant there is nothing on record of the case to even remotely suggest, from the perspective of a common prudent man, that the complainant in real sense communicated any serious unwillingness to the petitioner, when they both entered physical relationship for the first time. Rather, the conduct of the complainant and the attending circumstances of the incident, speak volumes about the fact that the complainant had willingly, after being in the full knowledge of the repercussions of her act, entered into physical relationship with the petitioner. Rather, the conduct of the complainant and the attending circumstances of the incident, speak volumes about the fact that the complainant had willingly, after being in the full knowledge of the repercussions of her act, entered into physical relationship with the petitioner. The facts that they didn’t went to the hotel at their first meeting, because her Aadhar Card was bearing the name of her husband and further at Jharoda, when the petitioner told her not to speak loudly, she abided, and stayed there with the petitioner whole night, went into physical relationship with the petitioner and then left the said premises, in the company of the petitioner in a common cab, makes the falsity of the case of prosecution abundantly clear. 15.6 Now, coming to the part of the misconception in the mind of the complainant at the time of conveying her consent as alleged by her. Perusal of her statement under Section 164 of the Code of Criminal Procedure shows that she has not alleged any such circumstance in it. Her statement made to police, under Section 161 of the Code of Criminal Procedure, mentions that the petitioner prior to meeting with her, when they were in telephonic and social media conversations with each other, conveyed her that he loves her and wants to marry her. However, the date and time of any such communication, is conspicuously missing in her statement. It is not mentioned in her statement that her consent and willingness to be in physical relationship with the petitioner had any proximity with alleged promise to marry her made by the petitioner. 15.7 The parties were in a relationship for about 5½ years. They both were married separately, having their own fully grown-up children from their respective legally marital relationships. Complainant herself is a lady of advanced age of 51 years at the time of lodging of the present FIR. In these circumstances it cannot be legally and validly construed that there was any alleged promise to marry on part of the petitioner, which made the complainant vary her stand and communicate her consent to make physical relations with the petitioner. So far as the allegations regarding other offences are concerned, the same are generic in nature. In these circumstances it cannot be legally and validly construed that there was any alleged promise to marry on part of the petitioner, which made the complainant vary her stand and communicate her consent to make physical relations with the petitioner. So far as the allegations regarding other offences are concerned, the same are generic in nature. The financial transactions, if any, between the parties during the long period of more than five years of relationship cannot, by any stretch of imagination, be construed as a criminal act on part of the petitioner. It is a matter of common knowledge, judicial notice whereof can be taken, that the parties in the course of taking criminal action(s) against each other, in order to vent their ire, often tend to exaggerate the allegations so as to add severity thereto. As such, the charges framed against the petitioner-accused under Sections 323/406/506 of IPC also are bereft of cogent material and hence are not sustainable. 15.8 Keeping in view the entirety of facts and circumstances of the case, the petitioner ought not to be arraigned as an accused for offence under Section 323/376(2)(n)/406/506 of IPC. Therefore, the impugned order passed by the trial Court deserves to be set aside. Decision 16. The present revision petition is accepted; the impugned order dated 14.07.2022 passed by Learned Additional Sessions Judge, Gurugram, Haryana is set aside and the accused is discharged from FIR No. 0097 dated 25.05.2017 registered at Police Station Sector 65, District Gurugram registered under Sections 323, 376(2)(n), 406, 506 of IPC. 17. Pending applications, if any, shall also stand disposed off.