1 CRR No.636/2017
(Nihal Koli vs. State of M.P.)
17.08.2017
Shri Rajmani Bansal, Counsel for the applicant
Shri Girdhari Singh Chouhan, Public Prosecutor for
the respondent/State
Heard on the question of admission.
This Criminal Revision under Section 397,401 of
Cr.P.C. has been filed against the order dated 3-4-2017
passed by Xth A.S.J., Gwalior in Sessions Trial No.
97/2017 by which the charge under Section 376(2)(n) of
I.P.C. has been framed.
The necessary facts for the disposal of the present
revision in short are that the prosecutrix lodged a report
on 25-10-2016, alleging that the house of one Bharti Kol
is situated near her house. On 15-8-2016, the applicant
who is the relative of Bharti Kol came there. A good
friendship was developed between the prosecutrix and the
applicant. Thereafter till 27-8-2016, the applicant, on the
pretext of marriage, had physical relation with her. The
prosecutrix thereafter, informed her parents about the
relationship and when the parents of the prosecutrix
talked to the parents of the applicant, then they as well as
the applicant refused to marry her. On this complaint, the
police registered the offence under 376 of I.P.C.
The Police after completing the investigation, filed
the charge sheet against the applicant for offence under
Section 376 of I.P.C.
The Trial Court by order dated 3-4-2017, framed
charge under Section 376(2)(n) of I.P.C.
Challenging the order of the Trial Court, it is
submitted by the Counsel for the applicant, that as the
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prosecutrix herself was the consenting party, and was in
deep love with the applicant, therefore, if she entered into
physical relationship with the applicant, knowing fully well
the consequences of her own act, then it cannot be said
that the consent was obtained by misrepresentation. The
Counsel for the applicant relied upon judgment passed by
Supreme Court in the case of Deepak Gulat Vs. State of
Haryana reported in AIR 2013 SC 2071, Tilakraj Vs.
State of Himachal Pradesh reported in AIR 2016 SC
406, Uday Vs. State of Karnataka reported in (2003)
4 SCC 46, and judgment passed by this Court in the case
of Hemant Choubey Vs. State of Madhya Pradesh
reported in 2015 Cr.L.R. (M.P.) 153 and Order dated
18-5-2017 passed in the case of Abid Ali Vs. State of
M.P. and another (M.Cr.C. No. 11363/2016).
Per contra, it is submitted by the Counsel for the
State, that it is not a case, where the prosecutrix was in
relationship with the applicant for a very long time. The
prosecutrix came in contact with the applicant on 15-8-
2016 and till 27-8-2016, he had physical relations with the
prosecutrix on several occasions on the pretext of false
marriage and when the parents of the prosecutrix talked
to the parents of the applicant, then not only the parents
of the applicant, but the applicant also refused to marry
the prosecutrix, thus, it is clear that right from day one,
the sole intention of the applicant was to obtain her
consent by misrepresentation. The Counsel for the State
also submitted that in view of Section 90 of Penal Code,
the consent obtained by the applicant by misconception
cannot be said to be a free consent and thus, at present,
3 CRR No.636/2017
there is sufficient evidence available on record to frame
charge under Section 376(2)(n) of Penal Code. The
Counsel for the State relied upon the judgment of this
Court dated 21.6.2017 passed in Criminal Revision
No.970/2015 (Dr. Neeraj Kheda vs. State of M.P.
Anr.).
Heard the learned Counsel for the parties.
In the present case, the statement of the prosecutrix
has been recorded under Section 164 of Cr.P.C. It is
stated by her that She came in contact with the applicant
on 15-8-2016 and developed good friendship with him.
The applicant promised to marry her and accordingly, he
took her to the house of her maternal aunt where he had
physical relations with her. When the prosecutrix informed
her parents about the relationship, they talked to the
parents of the applicant who refused for marriage. The
case diary statement of the prosecutrix is also similar.
Thus, it appears from the allegations made against
the applicant that the friendship between the applicant
and the prosecutrix lasted for 12 days and during this
period, the applicant persuaded the prosecutrix to have
physical relations with him on the promise of marriage. It
is not a case, where the prosecutrix was in physical
relations with a person for months together and was
knowing the consequences of her own act. It appears that
the prosecutrix bonafidely believed on the promise made
by the applicant and agreed for having physical relations
with him. The prosecutrix also informed her parents
immediately after having physical relations with the
applicant, which shows that the prosecutrix was bonafidely
4 CRR No.636/2017
believing that the applicant would marry her.
The Supreme Court in the case of Uday (supra) has
held as under:-
“21. It therefore appears that the
consensus of judicial opinion is in
favour of the view that the consent
given by the prosecutrix to sexual
intercourse with a person with whom
she is deeply in love on a promise
that he would marry her on a later
date, cannot be said to be given
under a misconception of fact. A false
promise is not a fact within the
meaning of the Code. We are inclined
to agree with this view, but we must
add that there is no straitjacket
formula for determining whether
consent given by the prosecutrix to
sexual intercourse is voluntary, or
whether it is given under a
misconception of fact. In the ultimate
analysis, the tests laid down by the
courts provide at best guidance to
the judicial mind while considering a
question of consent, but the court
must, in each case, consider the
evidence before it and the
surrounding circumstances, before
reaching a conclusion, because each
case has its own peculiar facts which
may have a bearing on the question
whether the consent was voluntary,
or was given under a misconception
of fact. It must also weigh the
evidence keeping in view the fact that
the burden is on the prosecution to
prove each and every ingredient of
the offence, absence of consent being
one of them.
If the facts of this case are considered in the light of
the judgment passed by the Supreme Court in the case of
Uday (supra) then it would be clear that the friendship of
5 CRR No.636/2017
the applicant with the prosecutrix continued only for 12
days and during this period, the applicant not only made a
promise to marry the prosecutrix but also persuaded her
to have physical relations with him. If the conduct of the
prosecutrix is considered then it would be clear that after
having physical relations with the applicant, She
immediately informed her parents about the relationship
and the parents of the prosecutrix in their turn, talked to
the parents of the applicant for marriage, but the applicant
and his parents refused for marriage. There is no
reasonable cause for the applicant to refuse to marry the
prosecutrix. Thus, it is clear that from very inception, the
intention of the applicant was to some how obtain the
consent of the prosecutrix to have physical relations with
him. Thus, in the considered opinion of this Court, prima
facie it cannot be said that the consent of the prosecutrix
was not obtained under misconception of fact.
Under the facts and circumstances of this case, this
Court is of the considered opinion that evidence available
on record is sufficient to frame charges under Section 376
(2) (n) of I.P.C. Accordingly, the order dated 3-4-2017
passed by the Xth Additional Sessions Judge, Gwalior in
Sessions Trial No. 97/2017 is affirmed.
Before parting with this order, this Court find it
appropriate to issue a note of caution to the Trial Court. As
the matter was argued by the counsel for the applicant in
detail, therefore, in order to appreciate the submissions
made by the counsel for the applicant, it was necessary
for this Court to make certain observations in this order.
However, it is made clear that these observations have
6 CRR No.636/2017
been made considering the limited scope of interference at
the stage of framing of charges. The trial has to be
decided on the basis of evidence which would ultimately
come on record and, therefore, it is made clear that the
Trial Court should not get prejudiced by any of the
observation made by this Court in this order. The Trial
Court is further directed to decide the trial strictly on the
basis of the evidence which would ultimately come on
record.
With aforesaid note of caution, this revision is
dismissed.
(G.S. Ahluwalia)
(alok)* Judge
