Ramdatta Pandey vs The State Of Madhya Pradesh on 25 July, 2017

MCRC-14835-2015
(RAMDATTA PANDEY Vs THE STATE OF MADHYA PRADESH)

25-07-2017
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

M.Cr.C.No.14835/2015

Ramdatta Pandey…………………………………………. Petitioner
Versus
State of Madhya Pradesh……………………………… Respondent

For the petitioner : Mr.Sankalp Kochar and Mr.O.P.Mishra,
Advocate
For the respondent: Mr.Dilip Shrivastava, Panel Lawyer
No.1
For the respondent: Mr.Aditya Adhikari, Senior Advocate
No.2 with Mr.S.C.Chaturvedi, Advocate

Present: Hon’ble Mr.Justice Sushil Kumar Palo
———————————————————————————————
ORDER

[25/07/2017]

This petition under section 482 of the Code of Criminal Procedure
has been filed to invoke the extraordinary jurisdiction of this Court
to quash the First Information Report, of Crime No.28/2015,
registered at Police Station, Mahila Thana, Bhopal for offence
under section 376 of the Indian Penal Code (for short “I.P.C.”) read
with section 3(1)(xii), 3(1)(x) of the Scheduled Caste Scheduled
Tribes (Prevention of Atrocities) Act, 1989 [for brevity “1989 Act”]
lodged at the instance of respondent No.2.

2. Brief facts of the case are that the complainant, belonging to
reserved category, was posted as Sub Inspector of Police. The
petitioner was also posted as Platoon Commandar at Chhatarpur.
The petitioner approached the complainant and initiated friendship
and invited the complainant to his room and promised to marry
her. Subsequently, they developed friendship which culminated
into “live in relationship”. The petitioner promised that even if
there is opposition from his family, he would marry her. The
petitioner subsequently established sexual relationship. This affair
continued till 05.1.2015. On 03.1.2015 the petitioner had gone to
Sagar. When he returned, he avoided the complainant. On
15.1.2015, when the complainant insisted, the petitioner informed
her that his “engagement ceremony” has been performed and he
is not going to marry the complainant.

3. On 17.1.2015, the complainant had gone to petitioner’s room to
meet her mother. When the complainant narrated the incicents to
her, she bluntly refused to perform her son’s marriage with the
complainant stating that complainant does not belong to Brahmin
caste and she will per her son’s marriage with a Brahmin girl. She
will not allow her son to marry with the “tribal girl”. The petitioner
threatened her to make public the material in his mobile, if she
goes to lodge report against the petitioner. On 23.1.2015, she
received a call from the mother of the petitioner at about 5.15
a.m. stating that she has fallen sick and the petitioner (Ramdatt
Pandey) is not present at home. She is required to be taken to the
hospital. When the complainant reached the room of the
petitioner, she found that petitioner(Ramdatt) was very much
present with his mother. His mother was not sick. When the
complainant asked why she has been called on false pretext,
mother of the petitioner said that you have different God and she
humiliated her by calling her caste name as she belongs to tribe
community. The complainant told that on 03.12.2014 by putting
vermilion on her head the petitioner had performed marriage. How
the petitioner can go for engagement ceremony with another
woman? She lived with the petitioner as husband and wife for so
much time. Why she was called her on a false pretext? She was
humiliated because she belonged to Scheduled Tribe community.
On her report, a crime has been registered and investigation was
set into motion.

4. On behalf of the petitioner it is claimed that the respondent
No.2 is an adult, well educated woman and serving in police.
Therefore, she established relations with the petitioner. They lived
in “live-in-relationship”. The respondent’s complaint and further
prosecution against the petitioner on the given story has a bleak
chance of conviction. Placing reliance on certain decisions of the
Apex Court and this Court, it is submitted to quash the First
Information Report of Crime No.28/2015, in the interest of justice.

5. On behalf of the respondent/State, the petition has been
opposed vehemently. It is contended that the petitioner is taking
advantage of the situation. He had given false promise to marry
with the complainant right from the beginning and committed
sexual intercourse and later has refused to marry. Considering the
facts of the case, it is not a valid consent. It is vehemently
contended by learned counsel for the petitioner that when the
petitioner allegedly refused to marry her in January, 2015, she
lodged report in March, 2015, i.e. after lapse of 45 days, which is
unexplained.

6. On behalf of the respondent no.2/complainant, referring to
certain portion of statements and the report it is submitted that
there is clear distinction between rape and consensual sex and in
case when there is promise of marriage the Court must carefully
examine whether the accused had actually wanted to marry the
victim or had the malafide motive and had made false promise to
this effect only to satisfy his lust. As the latter falls in the ambit of
cheating and deception, it is not free consent. Therefore, offence
under section 376 of I.P.C. is made out prima facie.

7. Learned counsel for the petitioner argued that there is no
evidence except the version of the prosecutrix. If at all, assuming
that there was some assurance to marriage, even then mere
breach of promise will not consititute the offence under section
376 of I.P.C. He relied on the decision in the case of Sachin @
Devendra Gajanand vs. State of Gujarat decided on 26.3.2015
in Criminal Misc. Application No.15688/2014. Placing reliance on
the decisions rendered in the cases of Uday vs. State of
Karnataka, AIR 2003 SC 1639, Deelip Singh alias Dilip Kumar
vs. State of Bihar, AIR 2005 SC 203, Prashant Bharti vs. State
(NCT of Delhi), (2013) 9 SCC 293, it is argued that material relied
upon by the petitioner in support of his plea for quashing the First
Information Report is sound, reasonable and indubitably the
factual assertion contained in the charge levelled against him.

8. The petitioner also placed reliance on the decision in the case of
Yedla Srinivasa Rao vs. State of A.P., (2006) 11 SCC 615 and
contended that consent of the victim is a voluntarily consent. What
is voluntary consent or what is not would depend on the facts of
each case. The factors like the age of girl, her education, her social
status and likewise the social status of the boy has to be
considered. The Court should closely scrutinize the evidence while
taking into consideration the said factors. If the attending
circumstances lead to conclusion that it was not only the accused,
but the prosecutrix also was equally keen, then in that case the
offence is condoned as it is a voluntarily consent.

9. As far as the submission of delay in lodging the report is
concerned, it is observed that this reasoning would not be of any
help to the petitioner, because it is not claimed that the incident
took place in January, 2015. The respondent No.2 refused for
marriage. This delay of lodging report cannot be considered in the
present petiton under section 482 of the Code of Criminal
Procedure.

10. This Court has analyzed the evidence available on record. It is
indicated that it was the petitioner who first initiated the
relationship. He not only promised her to marry, but when she
opposed that his family would not allow him to marry her, he told
that she is to marry him and not with his family. She was assured
of and on that petitioner will marry her. The petitioner also applied
vermilion on her head, which is a traditional, customary symbolic
marriage amongst Hindus. She was given to understand and belief
that the petitioner is going to marry her. In such circumstances,
the consent given by the complainant was with the belief that she
is going to marry him. In a similar case of Yedla Srinivasa Rao
(supra) the Apex Court has held as under:-

“10. It appears that the intention of the accused as
per the testimony of PW.1 was, right from the
beginning, not honest and he kept on promising
that he will marry her, till she became pregnant.
This kind of consent obtained by the accused cannot
be said to be any consent because she was under a
misconception of fact that the accused intends to
marry her, therefore, she had submitted to sexual
intercourse with him. This fact is also admitted by
the accused that he had committed sexual
intercourse which is apparent from the testimoney
of Pws 1, 2 and 3 and before the panchayat of
elders of the village. It is more than clear that the
accused made a false promise that he would marry
her. Therefore, the intention of the accused right
from the beginning was not bonafide and the poor
girl submitted to the lust of the accused, being
completely misled by the accused who held out the
promise for marriage. This kind of consent taken by
the accused with clear intention not to fulfil the
promise and persuaded the girl to believe that he is
going to marry her and obtained her consent for the
sexual intercourse under total misconception,
cannot be treated to be a consent.”

The Apex Court in paragraph 17 of the aforesaid case has further
held as under:-

“17. In the present case, in view of the facts as
mentioned above we are satisfied that the
consent which had been obtained by the accused
was not a voluntary one which was given by her
under misconception of fact that the accused
would marry her but this is not a consent in law.
This is more evident from the testimony of PW.1
as well as PW.6 who was functioning as the
panchayat where the accused admitted that he
had committed sexual intercourse and promised
to marry her but he abscnded despite the
promise made before the panchayat. That shows
that the accused had no intention to marry her
right from the beginning and committed sexual
intercourse totally under the misconception of
fact by the prosecutrix that he would marry her.”

11. At this point, the deicsion rendered by the Apex Court in the
case of State of U.P. Vs. Naushad, (2013) 16 SCC 651 need
referrence, in which, the Apex Court has raised the following issues
with regard to “consent”:-

“15.1 Whether the High Court has rightly
reversed the conviction and sentenced of the
accused for the offence of rape punishable under
Section 376 IPC?

2. Whether the trial court was correct in
convincing the accused for the offence of rape
punishable under Section 376 by holding that
the victim did not give her free consent to the
act of sexual intercourse but it was consent
given under misconception of fact?

15.3 Whether the trial Coiurt was right in holding
that the crime was of a very grave nature and
was thus justified in sentencing the accused to
the maximum punishment of life imprisonment as
provided for under Section 376 IPC?”

The Apex Court in the case of Naushad (supra) has further
observed in paragraph 17 as under:-

“17. Section 376 IPC prescribes the punishment
for the offence of rape. Section 375 IPC defines
the offence of rape, and enumerates six
descriptionns of the offence. The description
“secondly” speaks of rape “without her consent”.
Thus, sexual intercourse by a man with a woman
without her consent will constitute the offence of
rape. We have to examine as to whether in the
present case, the accused is guilty of the act of
sexual intercourse with the prosecutrix “against
her consent”. The prosecutrix in the case has
deposed on record that the accused promised
marriage with her and had sexual intercourse
with her on this pretext and when she got
pregnant, his family refused to marry him with
her on the ground that she is of “bad character”.

In the present case, fortunately for the complainant that she is not
pregnant. In paragraphs 18 19 of the aforesaid decision, the
Apex Court has examined the legal meaning of word “consent” and
observed as under:-

“18. How is “consent” defined? Section 90 IPC
defines ‘”consent” known to be given under “fear
or misconception” which 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 or misconception.”
Thus, if consent is given by the prosecutrix under
a misconception of fact, it is vitiated.

19. In the persent case, the accused had sexual
intercourse with the prosecutrix by giving false
assurance to the prosecutrix that he would marry
her. After she got pregnant, he refused to do so.
From this, it is evident that he never intended to
marry her and procured her consent only for the
reason of having sexual relations with her, which
act of the accused falls squarely under the
defintion of “rape” as he had sexual intercourse
with her consent which was “consent obtained
under a misconception of fact as defined under
Section 90 IPC”. Thus, the alleged consent said to
have been obtained by the accused was not
voluntary consent and this Court is of the view
that the accused indulged in sexual intercourse
with the prosecutrix by misconstruing to her his
true intentions. It is apparent from the evidence
that the accused only wanted to indulge in sexual
intercourse with her and was under no intention
of actually marrying the prosecutrix. He made a
false promise to her and he never aimed to marry
her.

Thus, the consent under misconception of fact is vitiated and

cannot be said to be a free consent.

12. This Court, therefore, on examining the record and the facts of
the case, safely reached to the opinion that the petitioner had
obtained the consent of the prosecutrix under misconception of
fact and this act of the petitioner amounts to offence, as alleged,
and the “consent” obtained is on the basis of misconception of fact
and the accused raped the prosecutrix. The prosecutrix was raped
from the period 03.2.2014 till 03.1.2015 brazenly by giving her
false assurance that he would marry her and when he got the
opportunity of marrying another girl, he performed “engagement
ceremony” at Sagar and refused to marry the
complainant/prosecutrix.

13. At this stage, it is apt to reproduce the words used by the Apex
Court in the case of Naushad (supra), in paragraph 23 of the
decision:-

“23. A woman’s body is not a man’s plaything and
he cannot take advantage of it in order to satisfy
his lust and desires by fooling a woman into
consenting to sexual intercourse simply because
he wants to indulge in it. The accused in this case
has committed the vile act of rape and deserves
to be suitably punished for it.”

14. On the above analysis of facutal and legal aspects, this Court is
of the opinion that the petitioner invaded the prosecutrix’s person
of indulging in sexual intercourse in order to appease his lust, all
the time knowing that he would not marry her. Thus, the petitioner
committed teh act of fraud leading her to believe that he would
marry her. Thus, this is not a fit case for interference.

15. In the result, the petition is dismissed.

(SUSHIL KUMAR PALO)
JUDGE

RM

Leave a Comment

Your email address will not be published. Required fields are marked *