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Umesh Lilani vs The State Of Madhya Pradesh on 18 July, 2019

M.Cr.C. No.16158/2019 1

THE HIGH COURT OF MADHYA PRADESH
Single Bench: Hon’ble Shri Justice S.K. Awasthi

Miscellaneous Criminal Case No.16158/2019
Umesh Lilani
vs.
The State of Madhya Pradesh Anr.

—————————————————————————
Shri Jalaj Pawar, learned counsel for the applicant.
Shri Pranay Joshi, learned Public Prosecutor for the respondent
No.1/State.
None for respondent No.2.
—————————————————————————

ORDER

(Passed on 18/07/2019)

Applicant/accused has preferred this petition under Section
482 of Code of Criminal Procedure, 1973 (in brevity ‘Cr.P.C’), for
quashment of FIR dated 30/08/2017 registered as Crime No.604/2017 at
Police Station Lasudiya, District Indore for offence under Section 376(2)

(n) and 506-II of IPC, 1860 and the consequential proceedings of S.T.
No.406/2018 pending in the Court of Additional Sessions Judge, Indore.

02. Facts necessary for disposal of this petition are that
prosecutrix lodged FIR at Police Station Lasudiya, District Indore on
30/08/2017 to the effect that she is a divorcee and she was an employee
in the applicant’s company as by holding marketing job in the year 2009,
therefore, she came in contact with the applicant. Gradually the
acquaintance turned into love. The applicant proposed to marry her and
established physical relationship with her regularly. On 29/08/2017,
when the prosecutrix asked the applicant about their marriage, then he

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 2

told her that she is only an employee of his company and asked her to
remain like that. He also threatened her that if she reported the matter to
anyone, then he would kill her. Thereafter, prosecutrix narrated the
incident to her sister and lodged a report. Police after registering the
FIR recorded the statement of prosecutrix and other witnesses.
Prosecutrix was sent to hospital for medical examination and after
completing the formalities submitted the charge-sheet against the
applicant.

03. Learned counsel for the applicant has submitted that even if
the entire allegations made by the prosecutrix are accepted as true, then
it would be clear that she was a consenting party and therefore, no
offence under Section 376 of IPC is made out. The prosecutrix is a 35
years old divorcee and she is well versed in the ways of life, yet she
claimed that she succumbed to the promise of marriage made by the
applicant and continued to submit sexual intercourse for a considerable
period. In these circumstances, it cannot be said that the consent given
by the prosecutrix to sexual intercourse was based on misconception of
facts. It is not a case of the prosecutrix that the applicant had physical
relations for once or twice, but according to her she had physical
relations with the applicant for a period of about seven years and
respondent no.2 knew this fact that the applicant is already married,
therefore, her marriage is not possible with him. Even then, if she had
consensual sex with the applicant, then it is not a case where consent of
the prosecutrix was obtained either by misrepresentation or
misconception of fact. This is a clear case of relationship between two
consenting adults for mutual sexual gratification, therefore, it is prayed
that this Court exercising the powers under Section 482 of ‘Cr.P.C’ can
quash the FIR as well as the consequential proceedings pending before
the Court of Additional Sessions Judge.

04. On the other hand, learned Public Prosecutor has vehemently
opposed the petition. It has been contended that the consent of sexual

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 3

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. It has also been contended that at any rate, such
question of fact which depends upon the evidence of the parties cannot
be considered at this stage. Thus counsel prayed for rejection of the
petition.

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

06. From the perusal of the FIR and the statement of the
prosecutrix recorded under Section 161 and 164 of ‘Cr.P.C’ it is evident
that applicant and the respondent No.2/prosecutrix fall in love about
seven years back i.e. in the year 2010. At that time, the prosecutrix was
aged about 28 years and she was major. She was also a divorcee,
therefore, it cannot be said that she was immature and was oblivious of
the fact of the life. She also knows that the applicant is already married
and there is bleak possibility of their marriage. Under these
circumstance it cannot be considered that she was unaware of
immorality of the 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 and 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.

07. During the arguments it is submitted by the learned Public
Prosecutor that even if it is assumed that on earlier occasions the
prosecutrix was a consenting party to the physical relations, even then
the last act of the applicant in having physical relationship with the
prosecutrix at false pretext of marriage would amount to rape as it
cannot be said that the consent given by the prosecutrix is a free consent
as defined under Section 90 of IPC, 1860.

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 4

08. In the context of the aforesaid arguments, from the statement
of the prosecutrix recorded under Section 164 of ‘Cr.P.C’, it appears that
when she requested the applicant to marry her, he refused to marry and
then on 26/07/2017, she had taken sleeping pills then the applicant took
her to the hospital and told her that she is pressurizing him by attempting
to commit suicide, even then he will not marry her. After that incident,
she regularly met the applicant, which clearly indicates that after the
refusal of the applicant to marry her, the prosecutrix choose to continue
the relationship with the applicant. Therefore, it is not a case that the
consent for sex was granted by the prosecutrix due to false promise of
marriage given by the applicant, but was granted because the prosecutrix
was also in love with the applicant and wanted to remain in his
company.

09. 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 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 5

conclusion that the intention of the accused was mala
fide, and that he had clandestine motives.

10. In the case of Tilak Raj vs. State of Himachal Pradesh
reported in AIR 2016 SC 406, the Hon’ble Apex Court has held as
under:

“19. We have carefully heard both the parties at length
and have also given our conscious thought to the material
on record and relevant provisions of The Indian Penal
Code (in short “the IPC”). In the instant case, the
prosecutrix was an adult and mature lady of around 40
years at the time of incident. It is admitted by the
prosecutrix in her testimony before the trial court that she
was in relationship with the appellant for the last two
years prior to the incident and the appellant used to stay
overnight at her residence. After a perusal of copy of FIR
and evidence on record the case set up by the prosecutrix
seems to be highly unrealistic and unbelievable.

20. The evidence as a whole including FIR, testimony
of prosecutrix and MLC report prepared by medical
practitioner clearly indicate that the story of prosecutrix
regarding sexual intercourse on false pretext of marrying
her is concocted and not believable. In fact, the said act
of the Appellant seems to be consensual in nature. The
trial court has rightly held thus:

“23. If the story set up by the prosecutrix
herself in the court is to be believed, it does
come to the fore that the two were in a
relationship and she well knew that the
accused was duping her throughout. Per the
prosecutrix, she had not succumbed to the
proposal of the accused. Having allowed
access to the accused to her residential
quarter, so much so, even having allowed
him to stay overnight, she knew the likely
outcome of her reaction. Seeing the age of
the prosecutrix which is around 40 years, it
can be easily inferred that she knew what
could be the consequences of allowing a
male friend into her bed room at night.

24. The entire circumstances discussed
above and which have come to the fore from
the testimony of none else but the
prosecutrix, it cannot be said that the sexual
intercourse was without her consent. The act
seems to be consensual in nature.

25. It is also not the case that the consent
had been given by the prosecutrix believing
the accused’s promise to marry her. For, her
testimony itself shows that the entire story

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 6

of marriage has unfolded after 05.01.2010
when the accused was stated to have been
summoned to the office of the Dy. S.P. Prior
to 05.01.2010, there is nothing on record to
show that the accused had been pestering the
prosecutrix for any alliance. The prosecutrix
has said a line in her examination-in-chief,
but her cross- examination shows that no
doubt the two were in relationship, but the
question of marriage apparently had not
been deliberated upon by any of the two.

After the sexual contact, come talk about
marriage had cropped up between the two.

Thus, it also cannot be said that the consent
for sexual intercourse had been given by the
prosecutrix under some misconception of
marriage.”

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 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 7

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 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 8

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 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.”

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 9

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 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 was deeply
in love with the applicant and she continued to have physical
relationship with him even after knowing very well that he is not in a
position to marry her. 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:44
M.Cr.C. No.16158/2019 10

15. Accordingly, this petition filed under Section 482 of ‘Cr.P.C’
is allowed and FIR dated 30/08/2017 bearing Crime No.604/2017
registered at Police Station Lasudiya, for offence under Section 376(2)

(n) and 506-II of IPC and the consequential proceedings pending in
Sessions Trial No.406/2018 before the Court of Additional Sessions
Judge, Indore are hereby quashed.

16. With the aforesaid, Miscellaneous Criminal Case No.
16158/2019 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: 18/07/2019 15:20:44

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