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Ramprasad Bediya vs The State Of Madhya Pradesh on 1 August, 2018

(1) Cr.R. No.1651/2018



Ramprasad Bediya, S/o Sarju
Prasad Bediya, aged about 33
years, R/o – Village Mohai,
Police Station Simariya, District
Panna (M.P.)

State of Madhya Pradesh
Through Police Station
Dharampur,District Panna (M.P.)

Present:- Hon’ble Shri Justice C.V. Sirpurkar
Shri Basant Raj Pandey, counsel for the petitioner.
Shri Ravindra Parihar, Panel Lawyer for the
Shri P.K. Dubey, counsel for the complainant.


1. This criminal revision is directed against the order dated
27.03.2018 passed by the Court of Special Judge, Panna, in
Sessions Trial No.32 of 2018; whereby a charge under Sections
376 (2)(n), 294 and 506 (Part II) of the Indian Penal Code was
framed against petitioner Ramprasad Bediya.

2. The facts necessary for disposal of this criminal revision
may be summarized as hereunder: The prosecutrix is a 33 years
(2) Cr.R. No.1651/2018

old divorcee, who is Superintendent of Girls Hostel at Nardaha
District Panna. She lodged a written first information report in
P.S. Dharampur, District Panna, on 17.01.2018 to the effect that
between the years 2010 and 2015, she was Superintendent of
Girls Hostel, Kakra. In the year 2014, she came in contact with
petitioner Ramprasad in connection with her official work.
Gradually, the acquaintance turned into love. The petitioner
proposed to marry her. Thereafter, at the insistence of the
petitioner, they started to live as husband and wife. The
petitioner used to demand money out of her salary. Since, the
petitioner was her husband, she used to provide money to him;
however, gradually, he started to extract money from her.
Whenever the prosecutrix reminded him about his promise to
marry her, he would avoid the subject and would abuse and beat
the prosecutrix. On 23.06.2015, she was transferred to Nardaha.
The petitioner went along with prosecutrix to Nardaha and told
everyone that the prosecutrix was his wife. They started to live
at Nardaha as husband and wife. The petitioner would go to her
residence at Nardaha and would forcibly establish physical
relations with her. Number of times the prosecutrix asked the
petitioner to marry her; however, he did not oblige and beat her
several times. On 08.12.2017, when the prosecutrix was at
Amanganj, the petitioner came along with his sister-in-law
(Bhabi) Vinita and started to filthily abuse the prosecutrix. He
threatened that if she lodges the report he would kill her by
pouring petrol upon and setting her afire. After that, the
petitioner allured the prosecutrix and took her to a hotel at
(3) Cr.R. No.1651/2018

Amanganj. At that place, on the promise of marriage, he
established physical relations with her against her wishes. In
the morning, the petitioner turned her out. The prosecutrix
returned to Nardaha on 11.12.2017. The prosecutrix lodged a
report against the petitioner with Superintendent of Police,
Panna, whereafter on 17.12.2017, the petitioner came
accompanied by six persons to Nardaha hostel and proposed a
compromise. He threatened that otherwise he would kill her.
The prosecutrix was terrified on seeing so many persons. At
night, the petitioner again established physical relations with
her under threat to kill. On 18.12.2017, the petitioner took the
prosecutrix to Panna. On account of fright and pressure, the
prosecutrix signed the compromise deed with the petitioner
stating that she did not want any action against the petitioner.
However, after signing the compromise deed, the petitioner
turned her out and threatened that if she lodged any report, he
would kill her.

3. Learned counsel for the petitioner has assailed the order
framing charge mainly on the ground that the story narrated by
the prosecutrix in the first information report and statements
under Sections 161 and 164 of the Code of Criminal Procedure
is highly improbable. The prosecutrix is a 33 years old divorcee,
who is a Government servant being Superintendent of a Girls
Hostel. She is well versed in the ways of life. Yet, she claimed
that she succumbed to the promise of marriage made by the
petitioner and continued to submit to sexual intercourse for a
period of about 4 years. In these circumstances, it cannot be
(4) Cr.R. No.1651/2018

said that the consent given by the prosecutrix to sexual
intercourse was based upon misconception of facts and she
cannot take recourse to Section 90 of the Indian Penal Code.
This is a clear case of relationship between two consenting
adults for mutual sexual gratification. Therefore, it has been
prayed that the charge framed under Section 376(2)(n) of the
Indian Penal Code be quashed.

4. Learned Government Advocate for the respondent/State as
well as learned counsel for the prosecutrix have vehemently
opposed the application. Learned counsel for the prosecutrix
has invited attention of the Court to the judgment rendered by a
coordinate bench of this Court dated 27.03.2018 passed in
M.Cr.C. No.19711/2017 (Sharad Khare Vs State). It has been
contended on their behalf that the consent to the sexual
intercourse accorded by the prosecutrix was on account of false
promise of marriage held out by the petitioner. Therefore, the
consent was vitiated and the sexual intercourse committed by
the petitioner would fall under the purview of rape. It has also
been submitted that at any rate, such question of fact which
depends upon the evidence of the parties, cannot be considered
at the stage of charge, as every case has to be judged on its own

5. On perusal of the record and due consideration of the rival
contentions, the Court is of the view that this criminal revision
must succeed for the reasons hereinafter stated.

6. Before adverting to the fact situation as prevailing in the
case, it would be appropriate to take a look at the legal position
(5) Cr.R. No.1651/2018

in this regard. As per Section 375 and 376 of the Indian Penal
Code, sexual intercourse without consent of a woman
constitutes offence of rape. Section 90 of the Indian Penal Code
explains that 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 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 misconception.

7. With regard to consent in the case of rape, the Supreme
Court in the case of Uday vs State Of Karnataka, AIR 2003
SC 1639 has observed as follows:

In Stroud’s Judicial Dictionary (Fifth Edition) page 510 “consent” has
been given the following meaning :-

“Consent is an act of reason, accompanied with deliberation, the mind
weighing, as in a balance, the good and evil on each side.”
It refers to the case of Holman v. The Queen : (1970) WAR 2 wherein it was held
that “there does not necessarily have to be complete willingness to constitute
consent. A woman’s consent to intercourse may be hesitant, reluctant or grudging,
but if she consciously permits it there is consent’ “. Similar was the observation in
R. v. Olugboja : (1981) 3 WLR 585 wherein it was observed that “consent in rape
covers states of mind ranging widely from actual desire to reluctant acquiescence,
and the issue of consent should not be left to the jury without some further
direction”. Stephen, J. in Queen v. Clarence (1888) 22 QBD 23 observed – “It
seems to me that the proposition that fraud vitiates consent in criminal matters is
not true if taken to apply in the fullest sense of the word, and without qualification.
It is too short to be true, as a mathematical formula is true.” Wills, J. observed –
“the consent obtained by fraud is not consent at all is not true as a general
proposition either in fact or in law. If a man meets a woman in the street and
knowingly gives her bad money in order to procure her consent to intercourse with
him, he obtains her consent by fraud, but it would be childish to say that she did
not consent.”

11. Some of the decisions referred to in Words and Phrases – Permanent
Edition Volume 8A at page 205 have held “that adult female’s understanding of
nature and consequences of sexual act must be intelligent understanding to
constitute ‘consent’. Consent within penal law, defining rape, requires exercise of
intelligence based on knowledge of its significance and moral quality and there
must be a choice between resistance and assent. Legal consent, which will be held
sufficient in a prosecution for rape, assumes a capacity to the person consenting to
understand and appreciate the nature of the act committed, its immoral character,
(6) Cr.R. No.1651/2018

and the probable or natural consequences which may attend it. (See : People v.
Perry, 26 Cal. App. 143).

8. With regard to sexual intercourse on the promise of
marriage, the Supreme Court has held in the case of Uday
(supra) that:

In a case of this nature two conditions must be fulfilled for the application
of S. 90, I. P. C. 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.

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.

9. Likewise, in the case of Deepak Gulati Vs. State of
Haryana, AIR 2013 SC 2071, the Supreme Court has held that:

There is a clear distinction between rape and consensual sex and in a case
where there is promise of marriage, the Court must very carefully 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
(7) Cr.R. No.1651/2018

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. The “failure to keep a promise made with respect
to a future uncertain date, due to reasons that are not very clear from the evidence
available, does not always amount to misconception of fact. In order to come
within the meaning of the term misconception of fact, the fact must have an
immediate relevance.” S. 90, IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten criminal liability on the other, unless
the Court is assured of the fact that from the very beginning, the accused had
never really intended to marry her.

10. In the case of Pradeep Kumar Verma Vs. State of Bihar, AIR
2007 SC 3059, the Supreme Court has observed as hereunder:

A representation deliberately made by the accused with a view to elicit the
assent of the victim without having the intention or inclination to marry her, will
vitiate the consent. If on the facts it is established that at the very inception of the
making of promise, the accused did not really entertain the intention of marrying
victim and the promise to marry held out by him was a mere hoax, the consent
ostensibly given by the victim will be of no avail to the accused to exculpate him
from the ambit of S. 375 clause second.

11. In the case of Yedla Srinivasa Rao Vs. State of Andhra
Pradesh, (2006) 11 SCC 615, the Supreme Court haD held the consent
to be vitiated because it was accorded on misconception of facts;
however, the Supreme Court has held 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 persuading
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 invoked unless the court can be assured that from the inception the
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 a fully grown-up girl who gave the
consent then it is a different case but a girl whose age is very tender and she is
(8) Cr.R. No.1651/2018

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

However, it may be noted that in aforesaid case, the girl was
only 19 years old.

12. In the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar,
AIR 2005 SC 203, the Supreme Court had held that where a girl aged
16 years was raped with her consent even before the promise of
marriage was given, consent by the victim girl cannot be said to be
given on misconception under Section 90 of the IPC and the accused
was entitled to be acquitted. However, the accused had made breach of
promise to marry and was therefore; accountable for the damages.

13. Reverting back to the facts of the present case, we may note that
the prosecutrix was not a minor. She cannot also be said to be of a
tender or impressionable age. She was a mature woman in her late
twenties. She was also a divorcee and as such, had experienced man
before. Thus, it cannot be said that she was innocent and was oblivious
of the facts of the life. She was also a responsible government servant
and held responsible position of Superintendent in Government Girls
Hotal. In these circumstances, it can also not be said that she was
unaware of the immorality of the acts she had consented to. She can
be 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 and assent. She consciously elected to exercise the
latter option.

(9) Cr.R. No.1651/2018

14. It is obvious from the averments made in the written report
lodged by the prosecutrix herself that she was in love with the
petitioner and was in some sort of love-in-relationship with him for a
period of about 4 years. During the course of aforesaid relationship,
petitioner continued to have common unhindered sexual access to her.
Petitioner and the prosecutrix held themselves as husband and wife
before the society. During the course of such relationship, petitioner is
said to have beaten, threatened and abused the prosecutrix several
times but she continue to submit to his wishes. In December, 2017 they
entered into a compromise and notarized an agreement of marriage.
The agreement is a part of prosecution documents. On the basis of the
conduct of the petitioner, as alleged in the first information report, any
woman of common prudence would have realized long ago that the
petitioner does not intend to marry her but was only exploiting her
physically and financially; yet, she chose to continue with the
relationship for 4 long years. The conclusion is inescapable that the
consent for sex was not granted by the prosecutrix due to promise of
marriage made by the petitioner but was granted because the
prosecutrix was also in love with the petitioner and wanted him for her
biological needs. In these circumstances, she cannot be allowed to turn
around and claim that the consent was based on misconception of

15. Now the question that remains for consideration is whether this
Court can in exercise of its revisionary jurisdiction, interfere with
framing of charge under Section 376 (2) (n) of the IPC? It is true that
ordinarily, at the stage of charge, the Court would not appreciate or
marshal the material on record but would only see whether all
(10) Cr.R. No.1651/2018

ingredients for constituting offence are made out? However, in the case
of State of Maharashtra Vs. Priya Sharan Maharaj and others,
(1997) 4 SCC 393 has held that:

At Sections 227 and 228 stage the Court is required to evaluate the
material and documents on record with a view to finding out if the facts emerging
therefrom taken at their face value disclose the existence of all the ingredients
constituting the alleged offence. The Court may, for this limited purpose, sift the
evidence as it cannot be expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to common sense or the
broad probabilities of the case.

16. Likewise, in the case of Niranjan Singh Karan Singh Punjabi
Vs. Jitendra Bhimraj Bijja and Ors., AIR 1990 SC 1962, it has been
observed that:

It seems well settled that at the Ss.227-228 stage i.e., stage of framing the
charge, the Court is required to evaluate the material and documents on record
with a view to finding out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the alleged offence. The
Court may for this limited purpose sift the evidence as it cannot be expected even
at that initial stage to accept all that the prosecution states as gospel truth even if
it is opposed to common sense or the broad probabilities of the case.

17. In the case of Union of India Vs. Prafulla Kumar Samal and
anr., AIR 1979 SC 366, the Supreme Court observed that:

In exercising his jurisdiction under Section 227 the Judge which under the
present Code is a senior and experienced court cannot act merely as a Post-Office
or a mouthpiece of the prosecution, but has to consider the broad probabilities of
the case, the total effect of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so on. This however does
not mean that the Judge should make a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a trial.

18. In view of the aforesaid authoritative pronouncement, it is clear
that at the stage of charge, what prosecution states cannot be taken as a
gospel truth. The Court is not merely a bystander and cannot act
merely as post office or mouth piece of the prosecution either. It is the
duty bound to consider the broad probabilities of the case and effect of
(11) Cr.R. No.1651/2018

the material produced by the prosecution in its entirety. It may also
appreciate basic infirmities and inherent improbabilities in the
prosecution case.

19. As observed earlier, the consent of the prosecutrix to repeated
incidents of sexual intercourse over a period of about 4 years was not
vitiated by misconception of fact and; therefore, section 90 of the IPC
was not attracted. Even from the averments made in the first
information report, it obviously was a legal consent, which bound her.
As such, sexual acts between the petitioner and the prosecutrix were
consensual episodes of sex between two adults, who were free agents.
In these circumstances, the trial Court erred in framing charge under
Section 376 (2) (n) of the IPC. This Court has jurisdiction to quash that
charge in exercising its revisionary jurisdiction.

20. Consequently, this criminal revision is partly allowed. The
charge framed by the trial Court under Section 376 (2) (n) of the IPC
against the petitioner is quashed.

21. The case shall proceed for the charges under Sections 294 and
506 (Part-II) of the IPC in accordance with law.

Certified copy as per rules.

(C.V. Sirpurkar)

Digitally signed by S
Date: 2018.08.01
17:57:45 +05’30’


Ramprasad Bediya

State of Madhya Pradesh


Post for : .08.2018


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