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Govind Singh Rajput vs The State Of Madhya Pradesh on 27 February, 2020

M.Cr.C. No.49043/2019 1

THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.49043/2019

Govind Singh Rajput
vs

The State of Madhya Pradesh Anr.

—————————————————————————-

Shri Arpit Singh learned counsel for the applicant.
Shri Yogesh Kumar Gupta, learned Public Prosecutor
for the respondent No.1/State.
Ms. Pooja Murthy, learned counsel for the respondent
no.2.
———————————————————————————
ORDER

(Passed on 27/02/2020)

Applicant has preferred this petition under Section 482
of Code of Criminal Procedure, 1973 (for short ‘The Code’), for
quashment of First Information Report dated 18/09/2018 bearing
crime No.482/2018, registered at police station – Pardeshipura,
District -Indore, for commission of offence under Section 376(2)

(n), 506 and 509 of IPC, 1860 so also the consequential
proceedings pending in Sessions Trial No.70/2019 before the XI
Additional Sessions Judge, Indore.

02. Facts leading to filing of the present petition are that
the respondent No.2 made a written complaint to the Police
that upon death of her husband in the year 2013 she was
appointed as Personal Assistant on compassionate ground in

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 2

the office of the Deputy Commissioner (Audit) Customs and
Central Excise Department. The applicant was also posted as
Superintendent in the same department as a result the applicant
became acquainted with respondent No.2 and he started going
to the house of respondent No.2 situated at Street No.10,
Chouriya Ka Makam, Nandanagar, Indore frequently
developing good relation with respondent No.2 and her son . It
was also alleged that on 17/12/2014, the applicant went to the
house of the respondent no.2 and put vermilion (sindoor) upon
her forehead promising that as God is his witness he will fulfill
all the duties as her husband. However, in February 2015,
respondent no.2 went to the house of the applicant where she
came to know that the applicant is already married and he has
two kids, whereupon the applicant promised respondent no.2
that he will keep her as his second wife and purchased her
mangalsutra from D.P. Jewelers.

03. It is further alleged that on 30/04/2015, petitioner
married respondent No.2 in Suryamandir, Cant Road, P.S. Rau,
Indore. Thereafter he started going to the house of the
respondent no.2 where they had sexual intercourse and further
more they stayed at hotel in Indore and Bhopal where they
made physical relation. In October 2015, respondent no.2
shifted from Govt. Quarters to the building in which the
applicant was residing. Later on the applicant distanced
himself from respondent no.2 by threatening her and her son by
saying demeaning things about respondent no.2. On the basis
of the aforesaid allegation Police registered FIR bearing Crime
No.482/2018 at Police Station Pardeshipura, Indore against the

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 3

applicant and after completion of investigation charge-sheet
has been filed.

04. Learned counsel for the applicant has submitted that
even if the entire allegations made by the prosecutrix/respondent
are accepted as Gospel truth then also it would be clear that she
was a consenting party and therefore, no offence under Section 376
of IPC is made out against the applicant. Prosecutrix is currently
52 years old widow and well educated. She is also in service of
Central Excise and Customs Department, she is well versed in the
ways of life yet she claims that she succumbed to the promise of
marriage and believed that she was married to the applicant despite
she had prior knowledge about the fact that the applicant was
already married and having children out of the said wedlock, even
then she made sexual relationship with him. She also continued to
have sexual intercourse with the applicant for a considerable period
and went along with the applicant to hotels as per her own story.
She also claimed that the applicant married her at Surya Temple by
giving mangalsutra on 30/04/2015. Therefore, the allegations
made by the respondent no.2 that on the basis of false promise of
marriage the applicant made physical relationship with her is not
found to be trust worthy. In these circumstances it cannot be said
that the consent of the prosecutrix was obtained by the applicant
either by mis-representation or misconception of the fact. Under
these learned counsel prays for quashment of First Information
Report dated 18/09/2018 bearing crime No.482/2018, registered at
police station – Pardeshipura, District -Indore, for commission of
offence under Section 376(2)(n), 506 and 509 of IPC, 1860 so also
the consequential proceedings pending in Sessions Trial
No.70/2019 before the XI Additional Sessions Judge, Indore.

05. On the other hand learned Public Prosecutor as well as

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 4

the learned counsel for the respondent vehemently opposes the
application. It has been contended that the consent of sexual
intercourse accorded by the prosecutrix was on account of false
promise of marriage held out by the petitioner. Hence, the
consent was vitiated and the sexual intercourse committed by
the applicant would fall under the purview of rape. The grounds
raised by the present applicant for quashment of the FIR are
disputed question of facts which depends upon the evidence of
the parties and they cannot be considered at this stage. Under
these circumstances, counsel prayed for rejection of the petition.

06. Having heard learned counsel for the parties and
perused the record.

07. From the perusal of the FIR and the statement of the
prosecutrix recorded under Section 161 as well as 164 of Cr.P.C it
appears that the husband of the prosecutrix was working in the
Central Excise and Customs Department. In the year 2009 he died
on a road accident and the prosecutrix / respondent no.2 got
compassionate appointment in the said department at Bhopal in the
year 2012, as stenographer and in the year 2013 she got transferred
to Indore. In the year 2014, she was posted as Personal Assistant to
Deputy Commissioner, where the present applicant was working as
Inspector. The applicant knows the husband of the
prosecutrix/respondent No.2, therefore, he started conversing with
her and developed good relations with her and her son. He used to
visit the house of the prosecutrix and one day he put vermilion
(sindoor) on her forehead promising that he will fulfill all the
duties as her husband.

08. It is further alleged that the applicant got promoted as
Superintendent and then he invited her to his house to perform
pooja. When she reached his house, she came to know that the

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 5

applicant is a married person and having children. After getting the
knowledge about the applicant’s marriage, she talked to him then
the applicant assured her that he will keep her as his second wife.
Thereafter, she continued relation with the applicant and resided as
his second wife. In the year 2015, the applicant was transferred to
Bhopal, then he called the prosecutrix/respondent no.2 at Bhopal,
where she resided with him at Hotel Hansraj along with her son.
Thereafter when the prosecutrix/respondent no.2 shifted to the
residency area, Indore she came to know that the applicant’s wife
portrayed about the prosecutrix/respondent No.2 in the colony as a
lady of unsound character. Thereafter, the prosecutrix’s son went
into depression and when she tried to contact the applicant he
refused to reside with her.

09. Looking to the aforesaid, it is clear that the applicant is
already married and even then she decided to live with the
applicant, therefore, it is clear that she was aware of the immoral
acts she had consented to, and she been presumed to be fully
understanding the nature and consequences of sexual acts, she
had submitted to. She was free to exercise her choice between
resistance assent and consciously elected to exercise later
option. Therefore, it cannot be said that her consent was
obtained by misconception of fact or by misrepresentation

10. With regard to consent in the case of rape the
Supreme Court in the case of Deepak Gulati vs. State of
Haryana reported as AIR 2013 SC 2071 has held as under:-

“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

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 6

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. 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.

11. In the case of Yedla Srinivasa Rao vs. State of
Andhra Pradesh, reported in (2006) 11 SCC 615, the Hon’ble
Apex Court has observed as follows:

” Therefore, the intention of the accused
right from the beginning was not bona fide and
the poor girl submitted to the lust of the accused
completely being 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.

It was also observed that if a fully grown
up 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
and it was held that Section 90 IPC cannot be

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 7

invoked unless the court can be assured that from
the inception accused never intended to marry
her. Therefore, it depends on case to case that
what is the evidence led in the matter. If it is
fully grown up girl who gave the consent then it
is different case but a girl whose age is very
tender and she is giving a consent after
persuasion of three months on the promise that
the accused will marry her which he never
intended to fulfil right from the beginning which
is apparent from the conduct of the accused, in
our opinion, Section 90 can be invoked.”

12. Reference can also be made to the case of Uday vs.
State of Karnataka reported as (2003) 4 SCC 46 wherein the
Hon’ble Supreme Court in 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 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 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.

23. Keeping in view the approach that the
Court must adopt in such cases, we shall now
proceed to consider the evidence on record. In

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 8

the instant case, the prosecutrix was a grown up
girl studying in a college. She was deeply in love
with the appellant. She was however aware of the
fact that since they belonged to different castes,
marriage was not possible. In any event the
proposal for their marriage was bound to be
seriously opposed by their family members. She
admits having told so to the appellant when he
proposed to her the first time. She had sufficient
intelligence to understand the significance and
moral quality of the act she was consenting to.
That is why she kept it a secret as long as she
could. Despite this, she did not resist the
overtures of the appellant, and in fact succumbed
to it. She thus freely exercised a choice between
resistance and assent. She must have known the
consequences of the act, particularly when she
was conscious of the fact that their marriage may
not take place at all on account of caste
considerations. All these circumstances lead us to
the conclusion that she freely, voluntarily, and
consciously consented to having sexual
intercourse with the appellant, and her consent
was not in consequence of any misconception of
fact.

25. There is yet another difficulty which faces
the prosecution in this case. In a case of this
nature two conditions must be fulfilled for the
application of Section 90 IPC. Firstly, it must be
shown that the consent was given under a
misconception of fact. Secondly, it must be
proved that the person who obtained the consent
knew, or had reason to believe that the consent
was given in consequence of such misconception.
We have serious doubts that the promise to marry
induced the prosecutrix to consent to having
sexual intercourse with the appellant. She knew,
as we have observed earlier, that her marriage
with the appellant was difficult on account of
caste considerations. The proposal was bound to
meet with stiff opposition from members of both
families. There was therefore a distinct
possibility, of which she was clearly conscious,
that the marriage may not take place at all despite
the promise of the appellant. The question still
remains whether even if it were so, the appellant
knew, or had reason to believe, that the
prosecutrix had consented to having sexual

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 9

intercourse with him only as a consequence of
her belief, based on his promise, that they will
get married in due course. There is hardly any
evidence to prove this fact. On the contrary the
circumstances of the case tend to support the
conclusion that the appellant had reason to
believe that the consent given by the prosecutrix
was the result of their deep love for each other. It
is not disputed that they were deeply in love.
They met often, and it does appear that the
prosecutrix permitted him liberties which, if at
all, is permitted only to a person with whom one
is in deep love. It is also not without significance
that the prosecutrix stealthily went out with the
appellant to a lonely place at 12 O’clock in the
night. It usually happens in such cases, when two
young persons are madly in love, that they
promise to each other several times that come
what may, they will get married. As stated by the
prosecutrix the appellant also made such a
promise on more than one occasion. In such
circumstances the promise loses all significance,
particularly when they are over come with
emotions and passion and find themselves in
situations and circumstances where they, in a
weak moment, succumb to the temptation of
having sexual relationship. This is what appears
to have happened in this case as well, and the
prosecutrix willingly consented to having sexual
intercourse with the appellant with whom she
was deeply in love, not because he promised to
marry her, but because she also desired it. In
these circumstances it would be very difficult to
impute to the appellant knowledge that the
prosecutrix had consented in consequence of a
misconception of fact arising from his promise.
In any event, it was not possible for the appellant
to know what was in the mind of the prosecutrix
when she consented, because there were more
reasons than one for her to consent.”

13. In the recent judgment dated 22/11/2018 in the case of
Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra
Ors., (Criminal Appeal No.1443/2018) the Hon’ble Apex Court has
held that there is a clear distinction between rape and consensual

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 10

sex. The Court in such cases, must very carefully examine whether
the complainant had actually wanted to marry the victim or had
malafide motives and had made a false promise to this effect only
to satisfy his lust, as the later falls within the ambit of cheating or
deception. There is also a distinction between mere breach of a
promise and not fulfilling a false promise. If the accused has not
made the promise with the sole intention to seduce the prosecutrix
to indulge in sexual acts, such an act would not amount to rape.
There may be a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the accused and
not solely on account of the misconception created by accused, or
where an accused, on account of circumstances which he could not
have foreseen or which were beyond his control, was unable to
marry her despite having every intention to do. Such cases must be
treated differently. If the complainant had any malafide intention
and if he had clandestine motives, it is a clear case of rape. The
acknowledged consensual physical relationship between the parties
would not constitute an offence under Section 376 of the IPC.

14. In view of the aforesaid pronouncements of the Hon’ble
Supreme Court, this Court is of the view that the
prosecutrix/respondent No.2 is a major lady and she had chosen to
live with the applicant even after knowing very well that he is
already married. Therefore, the prosecutrix cannot be held to turn
around and claim that the consent was based on misconception of
the facts. Even if the allegations made by the prosecutrix are taken
at their face value and accepted in their entirety, they did not make
a case against the applicant under Section 376(2)(n) and 506-II of
IPC, 1860

15. Accordingly, this petition filed under Section 482 of
‘Cr.P.C’ is allowed and FIR dated 18/09/2018 bearing crime

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25
M.Cr.C. No.49043/2019 11

No.482/2018, registered at police station – Pardeshipura, District –
Indore, for commission of offence under Section 376(2)(n), 506
and 509 of IPC, 1860 so also the consequential proceedings
pending in Sessions Trial No.70/2019 before the XI Additional
Sessions Judge, Indore are hereby quashed.

16. With the aforesaid, Miscellaneous Criminal Case No.
49043/2019 stands allowed. A copy of this order be sent to the
concerned Court for necessary information and compliance.

Certified copy as per Rules.

(S. K. AWASTHI)
Judge
sumathi

Digitally signed by Sumati Jagadeesan
Date: 27/02/2020 16:53:25

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