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Rajeev Sharma vs The State Of Madhya Pradesh on 27 April, 2018

THE HIGH COURT OF MADHYA PRADESH
MCRC-24512-2017
(RAJEEV SHARMA Vs THE STATE OF MADHYA PRADESH)

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Jabalpur, Dated : 27-04-2018
Shri Jitendra Arya, learned counsel for the petitioner.
Shri Mohit Nayak, learned GA for respondent No.1/State.

Shri Rahul Singh Rajput, learned counsel for respondent No.2.
The petitioner, Rajeev Sharma has preferred this application

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under Section 482 of Cr.P.C. to invoke the inherent jurisdiction of this

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Court and to quash the FIR at Crime No.156/2017 dated 19/03/2017,

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registered at Police Station Ashoka Garden, Bhopal for offence under
Section 376 of the IPC.

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2. The prosecution story in brief is that, the respondent No.2 has
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lodged a report before the police station Ashoka Garden, Bhopal,
alleging that, she is a ‘dance teacher’ and running dance classes. She
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had occasioned to develop friendship with the petitioner Rajeev
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Sharma through Facebook in the year 2013. Rajeev Sharma then came
to her with a proposal to marry. She said that, he should speak to her
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family members. When the marriage negotiation was initially on, the
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mother of Rajeev Sharma was not prepared for the marriage. After
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several requests, she agreed with the proposal of marriage.
Complainant’s marriage was fixed with the petitioner Rajeev Sharma.
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He used to visit the house of the prosecutrix. Rajeev Sharma then used
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to visit her house when her parents were not present. When Rajeev
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Sharma approached her for physical relationship, she refused. Rajeev
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Sharma insisted her by saying that, their marriage has been fixed,
therefore, she consented. On the pretext of marrying her, the
petitioner/Rajeev Sharma established physical relationship with her.
Later, he backed out. Therefore, the prosecutrix and her family
members fixed the engagement date and engagement ceremony was
performed. Marriage was to be solemnized in the month of February.

3. However, when the family of the prosecutrix were preparing
for the marriage, on 28th January, she received a phone call from
Rajeev Sharma who insisted to marry her on the same day. When she
refused and said that, why did not he said about this earlier. Then she
insisted to marry in a temple but Rajeev Sharma did not agree. He
stopped calling her phone. 200 invitation cards of the marriage were
already distributed by them. Rajeev Sharma then did not contact the
prosecutrix and fled away. When the prosecutrix called the mother of
the prosecutrix, she did not respond. Then complainant called
Abhishek Sharma, the brother-in-law of the Rajeev Sharma. He said
that they do not know where about of Rajeev Sharm. After search for
Rajeev Sharma was in vain.

4. On 1st February, Rajeev Sharma rang up to her and informed

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her that, he is at Delhi and asked her to come to Delhi so that, they can

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go for marriage. The prosecutrix insisted Rajeev Sharma to come to

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Bhopal and perform the marriage at Bhopal. Since then, Rajeev

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Sharma did not contact the respondent No.2.

5. The petitioner claimed that, all the allegations levelled against
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the petitioner are not true. A complaint was made on 18/12/2016
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before the Police by the respondent No.2 stating that, Rajeev Sharma
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is being harassed unnecessarily by the family members but the
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prosecutrix was living in the house of Rajeev Sharma on her own will
and her parents unnecessarily alleging Rajeev Sharma and the
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allegation levelled against the family members of Rajeev Sharma is
also not correct.

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6. On behalf of the petitioner, it is also contended that, the
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prosecutrix was threatening the petitioner and his mother to implicate
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of false case and abused them by obscene words. It is contended that,
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the petitioner was being harassed unnecessarily by the complainant,
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therefore the FIR and consequent challan is liable to be quashed.
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7. On behalf of the respondent No.1/State, the petition is
opposed vehemently and contended that the engagement ceremony
was held. After that, the marriage was to be performed in February
2017. The petitioner gone underground, itself indicate that with pretext
of marriage, he had committed the crime.

8. On behalf of the respondent No.2/complainant, the application
is opposed vehemently and submitted that, the written complaint made
on 19/03/2017 before the Police Station Ashoka Garden itself speaks
volumes. With the promise to marry, the petitioner committed rape
with the prosecutrix. It is also contended that, the petitioner had never
any intention to marry but with this false promise has induced and
allured the prosecutrix to ‘consent’ for the sexual relationship and
thereby committed the crime.

9. Perused the record.

10. The petitioner had no intention to marry the prosecutrix but
he continued to make her believe that, he would marry her and after
his insistence, the date of marriage was fixed on 01/02/2017 but the
petitioner fled away before the date of marriage. His attempt to call the
prosecutrix to Delhi for performing marriage was also a tantrum,

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whereby he wanted to make fun of the prosecutrix.

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11. Counsel for the petition has placed reliance on Uday Vs.

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State of Karnataka reported as AIR (2003) SC 1639, wherein the

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defence of the prosecutrix is that, she gave consent under
misconception of fact was not accepted by the Court on the ground
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that, the prosecutrix started cohabiting with accused consciously and
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becomes pregnant. Consent given by prosecutrix to sexual intercourse
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cannot be said to be given under misconception of fact i.e. promise to
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marry, but she also desired for it.

12. Counsel for the petitioner has also placed reliance on
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Prashant Bharti Vs. State (NCT of Delhi) reported as AIR 2013 SC
2753, wherein the Apex Court has held that, “the allegation of sex on
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promise of marriage falsified by the fact that, the complainant was
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married at the relevant time and no other evidence to prove that rape
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is available as complaint of rape was made after several days”. These
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citations are not applicable the present case because both the parties
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in the present case were not married at the time of incident.
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13. Counsel for the petitioner further submitted that, as the
petitioner is not a criminal and no crime has been committed,
therefore, his prosecution in the case would be abuse of the process of
the Court. Therefore, he also cited State of Haryana Vs. Bhajjan Lal
reported as AIR 1992 SC 604.

14. As regarding the ‘consent’ part, it would be appropriate to
hold that, the prosecutrix and the petitioner are above 18 years. It was
the petitioner who proposed to marry her and with the promise to
marry her established sexual relationship with her.

15. In the present case the “consent” for sexual intercourse was
obtained by the petitioner inducing the belief to the prosecutrix that
the petitioner/accused would marry her. It seems to be fraud that was
practised on her or that she was deceived by giving false assurance.
The “consent” so obtained by deceitful means is not a “consent” and
the offence comes within the ambit and ingredients of definition of
rape.

16. Section 376 of I.P.C. provides punishment for the offence of
rape, whereas the definition of “rape” is provided under section 375 of
I.P.C., which enumerates the description of offence. The description

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consequently speaks of “rape” with her consent. Thus, sexual

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intercourse by a man with woman without her consent will constitute

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the offence of rape. In the present case it has to be examined, whether

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the petitioner has committed the act of sexual intercourse with the
prosecutrix against her consent. The prosecutrix/respondent No.2 has
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deposed on record under section 164 of the Code of Criminal
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Procedure that the petitioner with promise to marry her had committed
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sexual intercourse with her on false pretext.

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17. “Consent” is defined under Section 90 IPC reads as under:-
“Section 90 of I.P.C. Consent known to be given under fear or
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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
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injury, or under a misconception of fact, and if the person doing the
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act knows, or has reason to believe, that the consent was given in
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consequence of such fear or misconception.”
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Thus, if consent is given by the prosecutrix under a
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misconception of fact, it is vitiated.”
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18. In the present case, the accused had sexual intercourse with
the prosecutrix by giving false assurance to the prosecutrix that he
would marry her. 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 definition 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.

19. 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

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and this act of the petitioner amounts to offence, as alleged, and the

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“consent” obtained is on the basis of misconception of fact and the

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accused raped the prosecutrix. The prosecutrix was raped from the

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period one and half month prior to 08.5.2012 till 21.6.2017 brazenly
by giving her false assurance that he would marry her and when he got
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the opportunity of marrying another girl, he refused to marry the
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prosecutrix.

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20. In the case of State of U,P. Vs. Naushad, (2013) 16 SCC
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651 at paragraph 23, the Apex court has observed that:-

“23. A woman’s body is not a man’s plaything and he cannot
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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
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to indulge in it. The accused in this case has committed the vile act of
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rape and deserves to be suitably punished for it.”
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21. On the above analysis of factual and legal aspects, this
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Court is of the opinion that the petitioner invaded the prosecutrix’s
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person of indulging in sexual intercourse in order to appease his lust,
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all the time knowing that he would not marry her. Thus, the petitioner
committed the act of fraud leading her to believe that he would marry
her. Thus, this is not a fit case to exercise the powers under Section
482 of Cr.P.C.

22. In the result, the petition is dismissed.

(SUSHIL KUMAR PALO)
JUDGE

Digitally signed by
RASHMI RONALD VICTOR
Date: 2018.05.02 16:22:52

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