1 CRR No.3052/2017

(Aarif @ Aarif Iqbal vs. State of M.P.)

Gwalior, Dated: 28.11.2017
Shri Praveen Kumar Mishra, Counsel for the applicant.
Shri R.S. Yadav, 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 10-10-2017
passed by Xth A.S.J., Gwalior in S.T. No.315/2017 by which
the charge under Section 376(2)(n), 506 of I.P.C. has been
framed against the applicant.

The necessary facts for the disposal of the present
revision in short are that the complainant, lodged a F.I.R. to
the effect that the applicant came to the house of the
complainant on 15-3-2012 and expressed his willingness to
marry her. The parents of the prosecutrix informed that
since, the complainant is a handicapped person, therefore,
the applicant may not be able to marry her. It was replied
by the applicant, that he is not concerned about the
physical inability of the prosecutrix and he would marry her
as he likes her. Thereafter the applicant used to come to
the house of the prosecutrix and developed physical
relations with her on the promise of marriage. On several
occasions, she insisted for marriage but every time, the
applicant used to avoid by saying that at present he is
facing a murder trial, therefore, would marry her
immediately after getting acquitting in the same. On some
occasions, the applicant avoided the question of marriage
by saying that he is likely to get service in Railway and
would marry her after getting the job. On one day, the
prosecutrix called the applicant on his mobile and he
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replied that the complainant is a handicapped person and
he had used her and would not marry her. Thus, it was
alleged that during the period 2012 to 2015, the applicant
has sexually violated her on the false promise of marriage.

It is submitted by the Counsel for the applicant that if
the entire allegations are accepted, then it would be clear
that the prosecutrix herself was a consenting party and
knew that the marriage is not possible but still agreed for
physical relations therefore, it cannot be said that the
consent of the prosecutrix was obtained under the
misconception of fact.

Heard the learned Counsel of the applicant.
Section 90 of Penal Code 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; 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 – unless the contrary
appears from the context, if the consent is
given by a person who is under twelve
years of age.”

The centripetal question for determination in the
present case is that whether the consent of the prosecutrix
was obtained by misconception of fact or not”?

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The Supreme Court in the case of Uday Vs. State of
Karnataka reported in (2003) 4 SCC 46 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.”

Thus, a question would arise that whether the
prosecutrix was aware of the fact that the marriage is not
possible or she was in deep love and agreed for physical
relations are some questions which are required to be
answered.

As already held by the Supreme Court in the case of
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Uday (Supra) that facts of each and every case have to be
taken into consideration because a peculiar fact may have a
bearing on the question whether the consent was voluntary
or was given under a misconception of fact. In the present
case, the allegations are that the applicant had expressed
his willingness to the parents of the prosecutrix, to marry
her. Thus, it is not the case of the prosecutrix that she and
the applicant were friends but the applicant with a
deliberate intention expressed his willingness to the parents
of the prosecutrix to marry her. When the parents of the
prosecutrix expressed that the applicant may not marry her
because she is handicapped, then it was replied by
applicant that since, he likes the prosecutrix therefore, he
has nothing to do with the physical disability of the
prosecutrix. Both the parties belong to one religion
therefore, it cannot be said that the marriage between the
applicant and the prosecutrix was not possible. Under these
circumstances, where the confidence of the prosecutrix was
won by the applicant by making a proposal of marriage to
the parents of the prosecutrix, it can be said that there is a
strong suspicion against the applicant to the effect that by
making a false proposal of marriage before the parents of
the prosecutrix, the applicant from the very beginning knew
that he will not marry the prosecutrix, thus it can be said
that the consent of the prosecutrix was obtained under a
misconception of fact.

The Supreme Court in the case of Amit Kapoor Vs.
Ramesh Chander reported in (2012) 9 SCC 460 has held
as under :

“19. At the initial stage of framing of a
charge, the court is concerned not with
proof but with a strong suspicion that the
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accused has committed an offence,
which, if put to trial, could prove him
guilty. All that the court has to see is that
the material on record and the facts
would be compatible with the innocence
of the accused or not. The final test of
guilt is not to be applied at that stage.”

The Supreme Court in the case of State of
Rajasthan Vs. Fatehkaran Mehdu reported in (2017) 3
SCC 198 has held as under :

“26. The scope of interference and
exercise of jurisdiction under Section 397
CrPC has been time and again explained
by this Court. Further, the scope of
interference under Section 397 CrPC at a
stage, when charge had been framed, is
also well settled. At the stage of framing
of a charge, the court is concerned not
with the proof of the allegation rather it
has to focus on the material and form an
opinion whether there is strong suspicion
that the accused has committed an
offence, which if put to trial, could prove
his guilt. The framing of charge is not a
stage, at which stage final test of guilt is
to be applied. Thus, to hold that at the
stage of framing the charge, the court
should form an opinion that the accused
is certainly guilty of committing an
offence, is to hold something which is
neither permissible nor is in consonance
with the scheme of the Code of Criminal
Procedure.”

Considering the scope of interference under Section
397,401 of Cr.P.C. as well as the fact that whether consent
was obtained under misconception of fact is a disputed
question of fact, which is required to be proved in the Trial,
this Court is of the considered opinion, that there is a
strong suspicion against the applicant that he had obtained
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the consent by misconception of fact, therefore, the Trial
Court did not commit any mistake by framing charge under
Section 376(2)(n) and 506 of I.P.C.

Accordingly the order dated 10-10-2017 passed by
Xth A.S.J., Gwalior in S.T. No. 315/2017 is hereby 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
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

ALOK KUMAR
2017.11.29 16:27:14 +05’30’