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Vishal Goyal vs State Of Rajasthan on 8 October, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Petition No.2232/2018

Vishal Goyal s/o Pusharam Goyal, Aged About 30 Years, B/c
Darji, R/o Near Rajmahal Girls Middle School, Ajay Chowk,
Khinvasar Ki Haweli Inside Nagori Gate, Jodhpur. At Present
Dadhimati Nagar, Near 80 ft. Road, Bhadwasiya, Jodhpur.
—-Petitioner
Versus
1. State Of Rajasthan, Through the Public Prosecutor.

2. Miss Rosen Gusar d/o Madanlal Gusar, Aged About 30
Years, Near Bhagat Singh Circle, Nehru Colony, Balotra,
Barmer.
—-Respondents

For Petitioner(s) : Mr.Mahesh Bora, Senior Advocate
assisted by Mr.Ajay Vyas
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
Mr.Ugam Singh
Ms.Rosen Gusar, respondent No.2
present in person.

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 01/10/2018

Pronounced on 08/10/2018

1. This criminal misc. petition under Section 482 Cr.P.C.

has been preferred claiming the following relief:
“It is, therefore, most humbly and respectfully
prayed on behalf of the petitioner that present misc.
petition may kindly be allowed, FIR No.23/2018 dated
12.05.2018 lodged at Police Station, Ramdevra,
District Jaisalmer, registered against the petitioner for
offence under Sections 376, 313, 384 IPC and
Sections 3(1)(b), 3(2)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989
may kindly be quashed and set aside.
(2 of 42) [CRLMP-2232/2018]

Any other appropriate order or direction which
may be deemed just and proper in the facts and
circumstances of the case may be passed in favour of
the petitioner.”

2. Brief facts of this case necessary for disposal of the

present writ petition are that the complainant/respondent No.2

filed a complaint against the petitioner before the SHO, Police

Station, Balotra, District Barmer regarding making false promise

to marry and establishing sexual relationship on the pretext of

such false promise of marriage.

3. The complainant had alleged in the complaint that four

years ago, while the complainant was coming from her exams at

Marwar Engineering College, she received a message from the

petitioner on her mobile phone. The petitioner had enquired about

her exams and further gave a missed call to the complainant,

upon which the complainant called back to enquire from the

petitioner as to who he was. The complainant further alleged in

the complaint that the petitioner asked her if she was married or

not, and upon being told that she was unmarried, the petitioner

proposed her for marriage.

4. The complainant also stated in the complaint that she

told the petitioner that she will consult her family members and

thereafter let him know. The complainant thereafter, met the

petitioner when she came to Jodhpur, while the complainant’s

sister was undertaking an Exam of B.Ed., and they both decided to

get married, which was also acceptable to the mother of the

complainant. The complainant has further averred in the complaint

that the petitioner and the complainant went together to Ratanada

Ganesh Mandir, and second time they went to find hostel for the
(3 of 42) [CRLMP-2232/2018]

complainant’s sister. It was further averred that they went to see

movie, also went to a guest house, Mandor Garden, Santoshimata

Mandir, a Restaurant at Mahamandir, Machia Safari Park, Jodhpur

Fort etc. The fact of the petitioner and the complainant going to

Ramdevra and checking into a hotel, where the petitioner made

physical relations with the complainant by making a false promise

of marriage, inspite of the complainant not giving any consent to

make such relation, has also been averred.

5. As per the complainant, physical relations thereafter

continuously remained between the petitioner and the

complainant, and the petitioner has consented that he shall marry

the complainant. The complainant further alleged that she became

pregnant and had to abort such pregnancy in about two months.

The complainant further stated that her mother also enquired

from the petitioner about the proposal for marriage, whereupon

the petitioner accepted that he shall marry the complainant as

soon as the petitioner gets a job. Thereafter, the petitioner’s

phone started remaining busy and he stopped taking calls from

the complainant, and also he backed out from the promise of

marriage.

6. Thereafter, FIR No.07/2018 was lodged at Police

Station, Balotra, District Barmer for the offences under Sections

376, 313 384 IPC and Sections 3(1)(b) 3(2)(v) of the

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)

Act, 1989.

7. Mr.Mahesh Bora, learned Senior Counsel assisted by

Mr.Ajay Vyas appearing for the petitioner has shown to this Court

some of the messages of the complainant, which reflect that she

initially wanted to marry one Mukesh and when Mukesh did not
(4 of 42) [CRLMP-2232/2018]

marry her, she sent messages to the petitioner and told the

petitioner to help her to marry Mukesh.

8. Learned Senior Counsel for the petitioner further stated

that the petitioner thereafter established consensual sexual

relationship with the complainant, as reflected in the FIR itself,

and when the girl forced the petitioner to marry, he refused, upon

which the present FIR has been lodged.

9. Learned Senior Counsel for the petitioner has drawn

the attention of this Court towards the earlier orders passed by

this Hon’ble Court on 01.08.2018, 10.08.2018, 18.08.2018 and

30.08.2018 in the present petition, which read as under:-

“01/08/2018

This criminal misc. petition under Section 482
Cr.P.C. has been filed by the petitioner with a prayer
for quashing of FIR No.23/2018 of Police Station
Ramdevra, District Jaisalmer.

It appears that the petitioner has earlier filed
S.B. Criminal Misc. Petition No.1844/2018 before
this Court with a prayer for quashing the impugned
FIR, however, this Court has disposed of the said
petition vide order dated 20.06.2018 while granting
liberty to the petitioner to submit his representation
along with the necessary documents before the
Investigating Officer. It was specifically ordered that
the Investigating Officer shall consider the
said representation and documents before
completing the investigation. It is also ordered that if
the concerned Investigating Authority arrests the
petitioner then the petitioner shall be given fifteen
days prior notice before making such arrest.

Learned counsel for the petitioner has submitted
that though pursuant to the order dated 20.06.2018,
he has submitted the copy of the text messages
exchanged between the petitioner and the
respondent No.2 to the Investigating Officer but the
Investigating Officer has not conducted any
investigation in that regard and issued fifteen days
notice to the petitioner to arrest him.
(5 of 42) [CRLMP-2232/2018]

Learned Public Prosecutor has submitted the
factual report, wherein it is mentioned that the
petitioner has produced copy of text messages but it
is nowhere mentioned that the Investigating Officer
has conducted any investigation in respect of those
text messages.

In view of the above, it is clear that the
Investigating Officer has not conducted the
investigation as directed by this Court vide order
dated 20.06.2018 passed in S.B. Criminal Misc.
Petition No.1844/2018.

The Investigating Officer is directed to remain
present before this Court on 10.08.2018.

Meanwhile, no coercive action shall be taken
against the petitioner till the next date.”

“10/08/2018

The Investigating Officer, present in person, has
submitted that he will submit a detail report
regarding the investigation conducted by him in
relation to documentary evidence such as text
massage exchanged between the petitioner and the
respondent No.2.

List on 18th August, 2018. Interim order, if any,
to continue till then.”

“18/08/2018

Pursuant to the direction given by this Court on
10.8.2018, the Investigating Officer, present in
person, has submitted a detailed report regarding
the investigation conducted by him in relation to
documentary evidence such as text massage
exchanged between the petitioner and the
respondent No.2. The same be taken on record.

Put up on 30.8.2018 as prayed. Interim order, if
any, to continue till then.”

“30/08/2018

Learned counsel for the respondent No.2 prays
for some time to argue the matter.

List on 10th September, 2018.

Learned Public Prosecutor is directed to procure
the case diary on the next date of hearing.
(6 of 42) [CRLMP-2232/2018]

Interim order, if any, to continue till the next
date.”

10. In support of his submissions, learned Senior Counsel

for the petitioner relied upon the precedent law laid down by the

Hon’ble Apex Court in Prashant Bharti Vs. State of NCT of

Delhi, reported in AIR 2013 SC 2753, relevant paras 19 to 22

of which read as under:-

“19. The proposition of law, pertaining to quashing of
criminal proceedings, initiated against an accused by a High
Court under Section 482 of the Code of Criminal Procedure
(hereinafter referred to as “the Code of Criminal Procedure”)
has been dealt with by this Court in Rajiv Thapar and Ors. v.
Madan Lal Kapoor (Criminal Appeal No… of 2013, arising out
of SLP (Crl.) No. 4883 of 2008, decided on 23.1.2013)
wherein this Court inter alia held as under:
22. The issue being examined in the instant case is
the jurisdiction of the High Court under Section 482
of the Code of Criminal Procedure, if it chooses to
quash the initiation of the prosecution against an
accused, at the stage of issuing process, or at the
stage of committal, or even at the stage of framing
of charges. These are all stages before the
commencement of the actual trial. The same
parameters would naturally be available for later
stages as well. The power vested in the High Court
under Section 482 of the Code of Criminal
Procedure, at the stages referred to hereinabove,
would have far reaching consequences, inasmuch
as, it would negate the prosecution’s/complainant’s
case without allowing the prosecution/complainant
to lead evidence. Such a determination must always
be rendered with caution, care and circumspection.
To invoke its inherent jurisdiction under Section
482 of the Code of Criminal Procedure the High
Court has to be fully satisfied, that the material
produced by the accused is such, that would lead to
the conclusion, that his/their defence is based on
sound, reasonable, and indubitable facts; the
material produced is such, as would rule out and
displace the assertions contained in the charges
levelled against the accused; and the material
produced is such, as would clearly reject and
overrule the veracity of the allegations contained in
the accusations levelled by the
prosecution/complainant. It should be sufficient to
(7 of 42) [CRLMP-2232/2018]

rule out, reject and discard the accusations levelled
by the prosecution/complainant, without the
necessity of recording any evidence. For this the
material relied upon by the defence should not have
been refuted, or alternatively, cannot be justifiably
refuted, being material of sterling and impeccable
quality. The material relied upon by the accused
should be such, as would persuade a reasonable
person to dismiss and condemn the actual basis of
the accusations as false. In such a situation, the
judicial conscience of the High Court would
persuade it to exercise its power under Section 482
of the Code of Criminal Procedure to quash such
criminal proceedings, for that would prevent abuse
of process of the court, and secure the ends of
justice.
23. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps
to determine the veracity of a prayer for quashing,
raised by an accused by invoking the power vested
in the High Court under Section 482 of the Code of
Criminal Procedure:
(i) Step one, whether the material relied upon by
the accused is sound, reasonable, and indubitable,
i.e., the material is of sterling and impeccable
quality?
(ii) Step two, whether the material relied upon by
the accused, would rule out the assertions
contained in the charges levelled against the
accused, i.e., the material is sufficient to reject and
overrule the factual assertions contained in the
complaint, i.e., the material is such, as would
persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as
false.
(iii) Step three, whether the material relied upon by
the accused, has not been refuted by the
prosecution/complainant; and/or the material is
such, that it cannot be justifiably refuted by the
prosecution/complainant?
(iv) Step four, whether proceeding with the trial
would result in an abuse of process of the court,
and would not serve the ends of justice?

If the answer to all the steps is in the affirmative,
judicial conscience of the High Court should
persuade it to quash such criminal-proceedings, in
exercise of power vested in it under Section 482 of
the Code of Criminal Procedure. Such exercise of
power, besides doing justice to the accused, would
save precious court time, which would otherwise be
(8 of 42) [CRLMP-2232/2018]

wasted in holding such a trial (as well as,
proceedings arising therefrom) specially when, it is
clear that the same would not conclude in the
conviction of the accused.
20. The details in respect of each aspect of the matter,
arising out of the complaints made by Priya on 16.2.2007
and 21.2.2007 have been examined in extensive detail in
the foregoing paragraphs. We shall now determine whether
the steps noticed by this Court in the judgment extracted
hereinabove can be stated to have been satisfied. In so far
as the instant aspect of the matter is concerned, the factual
details referred to in the foregoing paragraphs are being
summarized hereafter. Firstly, the Appellant-accused was in
Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007.
He was at Noida before 7.55 pm. He, thereafter, remained
at different places within Noida and then at Shakarpur,
Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30
pm on 15.2.2007, he remained present at a marriage
anniversary function celebrated at Rangoli Lawns at
Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect
filed by the Appellant-accused was found to be correct by
the investigating officer on the basis of his mobile phone call
details. The accused was therefore not at the place of
occurrence, as alleged in the complaint dated 16.2.2007.
Secondly, verification of the mobile phone call details of the
complainant/prosecutrix Priya revealed, that on 15.2.2007,
no calls were made by the Appellant-accused to the
complainant/prosecutrix, and that, it was the
complainant/prosecutrix who had made calls to him. Thirdly,
the complainant/prosecutrix, on and around the time
referred to in the-complaint dated 16.2.2007, was at
different places of New Delhi i.e., in Defence Colony, Greater
Kailash, Andrews Ganj and finally at Tughlakabad Extension,
as per the verification of the investigating officer on the
basis of her mobile phone call details. The complainant was
also not at the place of occurrence, as she herself alleged in
the complaint dated 16.2.2007. Fourthly, at the time when
the complainant/prosecutrix alleged, that the Appellant-
accused had misbehaved with her and had outraged her
modesty on 15.2.2007 (as per her complaint dated
16.2.2007), she was actually in conversation with her
friends (as per the verification made by the investigating
officer on the basis of her mobile phone call details). Fifthly,
even though the complainant/prosecutrix had merely alleged
in her complaint dated 16.2.2007, that the accused had
outraged her modesty by touching her breasts, she had
subsequently through a supplementary statement (on
21.2.2007), levelled allegations against the accused for
offence of rape. Sixthly, even though the
complainant/prosecutrix was married to one Manoj Kumar
Soni, s/o Seeta Ram Soni (as indicated in an affidavit
(9 of 42) [CRLMP-2232/2018]

appended to the Delhi police format for information of
tenants and duly verified by the investigating officer,
wherein she had described herself as married), in the
complaint made to the police (on 16.2.2007 and 21.2.2007),
she had suggested that she was unmarried. Seventhly, as
per the judgment and decree of the Civil Judge (Senior
Division), Kanpur (Rural) dated 23.9.2008, the complainant
was married to Lalji Porva on 14.6.2003. The aforesaid
marriage subsisted till 23.9.2008. The allegations made by
the complainant dated 16.2.2007 and 21.2.2007 pertain to
occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and-
15.2.2007, i.e., positively during the subsistence of her
marriage with Lalji Porwal. Thereafter, the complainant Priya
married another man Manoj on 30.9.2008. This is evidenced
by a “certificate of marriage” dated 30.9.2008. In view of
the aforesaid, it is apparent that the complainant could not
have been induced into a physical relationship, based on an
assurance of marriage. Eighthly, the physical relationship
between the complainant and the accused was admittedly
consensual. In her complaints Priya had however asserted,
that her consent was based on a false assurance of marriage
by the accused. Since the aspect of assurance stands
falsified, the acknowledged consensual physical relationship
between the parties would not constitute an offence under
Section 376 Indian Penal Code. Especially because the
complainant was a major on the date of occurrences, which
fact emerges from the “certificate of marriage” dated
30.9.2008, indicating her date of birth as 17.7.1986.
Ninthly, as per the medical report recorded by the AIIMS
dated 16.2.2007, the examination of the complainant did not
evidence her having been poisoned. The instant allegation
made by the complainant cannot now be established
because even in the medical report dated 16.2.2007 it was
observed that blood samples could not be sent for
examination because of the intervening delay. For the same
reason even the allegations levelled by the accused of
having been administered some intoxicant in a cold drink
(Pepsi) cannot now be established by cogent evidence.
Tenthly, The factual position indicated in the charge-sheet
dated 28.6.2007, that despite best efforts made by the
investigating officer, the police could not recover the
container of the cold drink (Pepsi) or the glass from which
the-complainant had consumed the same. The allegations
made by the complainant could not be verified even by the
police from any direct or scientific evidence, is apparent
from a perusal of the charge-sheet dated 28.6.2007.
Eleventhly, as per the medical report recorded by the AIIMS
dated 21.2.2007 the assertions made by the complainant
that the accused had physical relations with her on
23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise be
verified as opined in the medical report, on account of delay
between the dates of occurrences and her eventual medical
(10 of 42) [CRLMP-2232/2018]

examination on 21.2.2007. It was for this reason, that
neither the vaginal smear was taken, nor her clothes were
sent for forensic examination.

21. Most importantly, as against the aforesaid allegations,
no pleadings whatsoever have been filed by the
complainant. Even during the course of hearing, the material
relied upon by the accused was not refuted. As a matter of
fact, the complainant/prosecutrix had herself approached
the High Court, with the prayer that the first information
lodged by her, be quashed. It would therefore be legitimate
to conclude, in the facts and circumstances of this case, that
the material relied upon by the accused has not been refuted
by the complainant/prosecutrix. Even in the charge sheet
dated 28.6.2007, (extracted above) the investigating officer
has acknowledged, that he could not find any proof to
substantiate the charges. The charge-sheet had been filed
only on the basis of the statement of the
complainant/prosecutrix under Section 164 of the Code of
Criminal Procedure.
22. Based on the holistic consideration of the facts and
circumstances summarized in the foregoing two paragraphs;
we are satisfied, that all the steps delineated by this Court in
Rajiv Thapar’s case (supra) stand-satisfied. All the steps can
only be answered in the affirmative. We therefore have no
hesitation whatsoever in concluding, that judicial conscience
of the High Court ought to have persuaded it, on the basis of
the material available before it, while passing the impugned
order, to quash the criminal proceedings initiated against the
accused-Appellant, in exercise of the inherent powers vested
with it under Section 482 of the Code of Criminal Procedure.
Accordingly, based on the conclusions drawn hereinabove,
we are satisfied, that the first information report registered
under Sections 328, 354 and 376 of the Indian Penal Code
against the Appellant-accused, and the consequential
chargesheet dated 28.6.2007, as also the framing of charges
by the Additional Sessions Judge, New Delhi on 1.12.2008,
deserves to be quashed. The same are accordingly quashed.
Disposed of in the aforesaid terms.”

11. Learned Senior Counsel for the petitioner has also

placed reliance on the precedent law laid down by he Hon’ble

Rajasthan High Court in Anup K. Paul Vs. State of Rajathan

Anr., reported in 2016(1) RCC (Raj.) 5, relevant portion of

which reads as under:-
(11 of 42) [CRLMP-2232/2018]

“4. Learned counsel for the petitioner has challenged
the impugned FIR by raising the following arguments:
(i) That the impugned FIR is highly belated and filed
by respondent No.2 only with a prayer that the
petitioner be restrained from marrying another girl on
29.09.2014 at Kerala. It is argued that as per the
impugned FIR, the petitioner has refused to marry the
respondent No.2 in April, 2013 but for the first time, the
complaint was lodged on 29.09.2014, however, no
explanation of lodging the complaint after delay of 17
months has been given.

(ii) That even if the contents of the impugned FIR are
read in its entirety and all the contents are accepted to
be true, then also no offence under section 376 IPC is
made out against the petitioner. It is contended that
the petitioner and the respondent No.2 both are adult
and by their own free will they entered into intimate
relations with each other, hence, consensual relation
does not fall within the definition of ‘rape’ as given in
section 375 IPC. It is further argued that the impugned
FIR does not contain any allegation to the effect that the
respondent No.2 was forced to get intimate with the
petitioner or does not contain any allegation that the
petitioner has no intention to marry the respondent
No.2 since beginning. In such circumstances, it cannot
be held that the petitioner made physical relation with
respondent No.2 by giving her false promise to marry.
Learned counsel for the petitioner has further argued
that making physical relation on promise to marry does
not constitute any offence punishable under section 376
IPC when there is no material to suggest that a boy,
who made physical relation with a girl, with promise to
marry, has no intention of not marrying her since
beginning. In support of above arguments, learned
counsel for the petitioner has placed reliance on
decisions of Hon’ble Supreme Court in Uday vs. State
of Karnataka, 2003 CRI.L.J.1539; Pradeep Kumar
Verma vs. State of Bihar Anr., AIR 2007 SC
3059; Prashat Bharti vs. State of NCT of Delhi,
2013 CRI.L.J. 3839; Deepak Gulati vs. State of
Haryana, 2013 CRI.L.J. 2990 and of this Court in
Farook Ahmed (DR.) vs. State of Rajasthan Anr.,
2013(3) Cr.L.R. (Raj.) 1273.

(iii) That from bare reading of the contents of the FIR,
no offence under section 313 IPC is made out against
the petitioner as the respondent No.2 has not stated in
her complaint that the petitioner got aborted the child
without her consent.

5. On the strength of above arguments, learned
counsel for the petitioner has prayed that this criminal
(12 of 42) [CRLMP-2232/2018]

misc. petition may be allowed and the impugned FIR and
further investigation conducted by the police may be
quashed and set aside.
6. Per contra, learned Public Prosecutor and the
counsel appearing on behalf of the respondent No.2 have
opposed the petitioner. Learned Public Prosecutor has
informed this Court that the police has concluded the
investigation and proposed to file charge-sheet against the
petitioner for the offences punishable under sections 376(2)
(n), 313 and 420 IPC. It is submitted by the learned Public
Prosecutor that during the course of investigation, the police
found that the petitioner has repeatedly committed offence
of rape upon the respondent No.2 by making a false
promise of marriage and as such he committed offence
punishable under section 376(2)(n) IPC. The learned Public
Prosecutor has further submitted that the petitioner has
also got aborted the child of the respondent No.2 and as
such committed the offence punishable under section 313
IPC. It is also submitted that the petitioner has promised
the respondent No.2 to marry her on 13.05.2013 and for
that purpose the father of respondent No.2 has booked
tent, band etc. and also made several arrangements but
just before the marriage, the petitioner had refused to
marry the respondent No.2 and as such, he has also
committed the offence punishable under section 420 IPC.
Learned Public Prosecutor has also argued that in her
statement recorded under section 164 CrPC, the respondent
No.2 has specifically alleged that the petitioner has
repeatedly committed rape upon her by making false
promise of marriage and in view of the material collected by
the police during the course of investigation, no case for
quashing the impugned FIR and further investigation is
made out.
7. Learned counsel appearing for respondent No.2
has argued that from the allegations levelled in the
impugned FIR, statement of respondent No.2 recorded
under section 164 CrPC as well as from the statement of
other witnesses recorded by the police during the course of
investigation and the material collected by it, the case
against the petitioner for commission of offences punishable
under sections 376(2)(n), 313 and 420 IPC are made out.
Hence, no interference is called for by this Court while
exercising inherent powers under section 482 CrPC and this
criminal misc. petition is liable to be dismissed.
8. Heard learned counsel for the rival parties and
perused the case diary made available by learned Public
Prosecutor.
9. There is no doubt that the Court should be very
careful while exercising the powers under section 482 CrPC
particularly in the matters of quashing of criminal
complaints.
(13 of 42) [CRLMP-2232/2018]

10. The Hon’ble Supreme Court in plethora of
judgments has laid down the guidelines with regard to
exercise of jurisdiction by the High Courts under section 482
CrPC. In State of Haryana v. Bhajan Lal 1992 Supp(1)
SCC 335, the Hon’ble Supreme Court has listed the
categories of cases when the power under section 482 CrPC
can be exercised by the High Courts. The law laid down by
the Hon’ble Supreme Court in State of Haryana v. Bhajan
Lal (supra) has later on followed in various decisions. To
mention a few — Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692;
State of Haryana v. Bhajan Lal,1992 Supp (1) SCC
335; Rupan Deol Bajaj v. Kanwar Pal Singh Gill
(1995) 6 SCC 194; Central Bureau of Investigation v.
Duncans Agro Industries Ltd (1996) 5 SCC 591; State
of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164,
Rajesh Bajaj v. State NCT of Delhi,(1999) 3 SCC 259;
Medchl Chemicals Pharma (P) Ltd. v. Biological E.
Ltd(2000) 3 SCC 269 Hridaya Ranjan Prasad Verma v.
State of Bihar (2000) 4 SCC 168, M. Krishnan v. Vijay
Singh (2001) 8 SCC 645 and Zandu Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque( 2005) 1 SCC
122. The principles relevant are as under:

“(i) A complaint can be quashed where the
allegations made in the complaint, even if they are
taken at their face value and accepted in their
entirety, do not prima facie constitute any offence
or make out the case alleged against the accused.

For this purpose, the complaint has to be
examined as a whole, but without examining the
merits of the allegations. Neither a detailed inquiry
nor a meticulous analysis of the material nor an
assessment of the reliability or genuineness of the
allegations in the complaint, is warranted while
examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when
the criminal proceeding is found to have been
initiated with mala fides/malice for wreaking
vengeance or to cause harm, or where the
allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be
used to stifle or scuttle a legitimate prosecution.
The power should be used sparingly and with
abundant caution.
(14 of 42) [CRLMP-2232/2018]

(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid
in the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of
the complaint is warranted only where the
complaint is so bereft of even the basic facts which
are absolutely necessary for making out the
offence.

(v) A given set of facts may make out: (a) purely
a civil wrong; or (b) purely a criminal offence; or
(c) a civil wrong as also a criminal offence. A
commercial transaction or a contractual dispute,
apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal
offence. As the nature and scope of a civil
proceeding are different from a criminal
proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of
contract, for which a civil remedy is available or
has been availed, is not by itself a ground to
quash the criminal proceedings. The test is
whether the allegations in the complaint disclose a
criminal offence or not.”
11. Recently the Hon’ble Supreme Court in Rishipal
Singh vs. State of U.P. and Anr., AIR 2014 SC 2567
has held as under:
“12. This Court in plethora of judgments has laid
down the guidelines with regard to exercise of
jurisdiction by the Courts under Section 482,
Cr.P.C. In State of Haryana v. Bhajan Lal 1992
Supp(1) SCC 335, this Court has listed the
categories of cases when the power under Section
482 can be exercised by the Court. These
principles or the guidelines were reiterated by this
Court in Central Bureau of Investigation v.
Duncans Agro Industries Ltd. 1996 (5) SCC 591;
Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC
259 and; Zandu Pharmaceuticals Works Ltd. v.
Mohd. Sharaful Haque Anr (2005) 1 SCC 122.
This Court in Zandu Pharmaceuticals Ltd.,
observed that:
“The power under Section 482 of the Code
should be used sparingly and with to prevent
abuse of process of Court, but not to stifle
legitimate prosecution. There can be no two
opinions on this, but if it appears to the trained
judicial mind that continuation of a prosecution
would lead to abuse of process of Court, the
(15 of 42) [CRLMP-2232/2018]

power under Section 482 of the Code must be
exercised and proceedings must be quashed”.
Also see Om Prakash and Ors. V. State of
Jharkhand 3012 (12) SCC 72.
What emerges from the above judgments is
that when a prosecution at the initial stage is
asked to be quashed, the tests to be applied by
the Court is as to whether the uncontroverted
allegations as made in the complaint prima facie
establish the case. The Courts have to see
whether the continuation of the complaint
amounts to abuse of process of law and whether
continuation of the criminal proceeding results in
miscarriage of justice or when the Court comes to
a conclusion that quashing these proceedings
would otherwise serve the ends of justice, then
the Court can exercise the power under Section
482, Cr.P.C. While exercising the power under the
provision, the Courts have to only look at the
uncontroverted allegation in the complaint
whether prima facie discloses an offence or not,
but it should not convert itself to that of a trial
Court and dwell into the disputed questions of
fact.”
12. As per law laid down by the Hon’ble Supreme
Court in the above referred cases, the High Court should be
very careful while exercising power under section 482 CrPC,
however, at the same time, it should not allow a litigant to
file vexatious complaints to otherwise settle his or her
scores by setting the criminal law into motion, which is a
pure abuse of process of law and it has to be interdicted at
the threshold.
13. In view of the above legal position well settled by
the Hon’ble Supreme Court, I would like to deal with the
facts of the present case, which lead to file the impugned
FIR against the petitioner for the offences punishable under
sections 376 and 313 IPC.
14. Initially, the respondent No.2 has filed a written
complaint before the SHO, Police Station, Bajaj Nagar,
Jaipur on 29.09.2014 with a prayer to stop the petitioner
from marrying another girl on 29.09.2014 at Kerala. In the
said complaint, it is stated that the respondent No.2 was
doing job in Jodhpur in 2011, where she met with the
petitioner and gradually they became friends, thereafter, by
giving a false promise of marriage, he developed physical
relations with her and she became pregnant in 2012 and
the petitioner got her pregnancy terminated by giving her
contraceptive pills while stating that at present he has no
money for marriage but later on, with the consent of the
parents, they would marry with each other. It is further
stated that thereafter with the consent of their parents, the
marriage was fixed in May, 2013, however, the petitioner
(16 of 42) [CRLMP-2232/2018]

did not inform to anybody about her pregnancy. In April,
2013, the parents of the petitioner refused to marry but he
used to talk to her and assured that he would marry her
only and not marry to anyone else but now he is going to
marry some another girl at Kerala on 29.09.2014. In the
bottom of the said written complaint, one line is also written
that he has sexually exploited her.
15. At this stage, it will be useful to make a reference
of the definition of rape as defined in section 375 IPC as it
stood prior to coming into force of Criminal Law
(Amendmend) Act, 2013 and thereafter section 375 IPC as
it stood prior to coming into force of Act of 2013.
“375. Rape.– A man is said to commit “rape”
who, except in the case hereinafter excepted,
has sexual intercourse with a woman under
circumstances falling under any of the six
following descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent
has been obtained by putting her or any person
in whom she is interested in fear of death or of
hurt.
Fourthly.- With her consent, when the man
knows that he is not her husband, and that her
consent is given because she believes that he is
another man to whom she is or believes herself
to be lawfully married.
Fifthly.- With her consent, when, at the time of
giving such consent, by reason of unsoundness
of mind or intoxication or the administration by
him personally or through another of any
stupefying or unwholesome substance, she is
unable to understand the nature and
consequences of that to which she gives
consent.
Sixthly.- With or without her consent, when she
is under sixteen years of age.
Explanation.- Penetration is sufficient to
constitute the sexual intercourse necessary to
the offence of rape.
Exception.- Sexual intercourse by a man with his
own wife, the wife not being under fifteen years
of age, is not rape.”
16.Section 375 IPC as it exists after coming into force of
Criminal Law (Amendment) Act, 2013 reads as under:
“[375. Rape.-A man is said to commit “rape” if
he—
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman
or makes her to do so with him or any
other person; or
(17 of 42) [CRLMP-2232/2018]

(b) inserts, to any extent, any object or a part
of the body, not being the penis, into the
vagina, the urethra or anus of a woman or
makes her to do so with him or any other
person; or
(c) manipulates any part of the body of a
woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with
him or any other person; or
(d) applies his mouth to the vagina, anus,
urethra of a woman or makes her to do so
with him or any other person, under the
circumstances falling under any of the
following seven descriptions:–
First.–Against her will.
Secondly.–Without her consent.
Thirdly.–With her consent, when her consent
has been obtained by putting her or
any person in whom she is interested,
in fear of death or of hurt.
Fourthly.–With her consent, when the man
knows that he is not her husband
and that her consent is given
because she believes that he is
another man to whom she is or
believes herself to be lawfully
married.
Fifthly.– With her consent when, at the time
of giving such consent, by reason of
unsoundness of mind or intoxication
or the administration by him
personally or through another of any
stupefying or unwholesome
substance, she is unable to
understand the nature and
consequences of that to which she
gives consent.
Sixthly.–With or without her consent, when
she is under eighteen years of age.
Seventhly.–When she is unable to
communicate consent.
Explanation I.–For the purposes of this
section, “vagina” shall also include labia
majora.
Explanation 2.–Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of
verbal or non-verbal communication,
communicates willingness to participate in the
specific sexual act:
(18 of 42) [CRLMP-2232/2018]

Provided that a woman who does not
physically resist to the act of penetration shall
not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception I.–A medical procedure or
intervention shall not constitute rape.
Exception 2.–Sexual intercourse or sexual
acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape.]
17. As per section 375 IPC as it stood prior to Criminal
Law (Amendment) Act, 2013 and as it exists thereafter,
consent of a woman is the prime consideration in the cases
involving allegations of rape.
18. Now the question, which comes for consideration,
is whether the petitioner has obtained the consent of the
respondent No.2 with the sole intention to seduce her to
indulge in sexual act by making false promise to marry her
without intention to do so since beginning or whether he
has obtained her consent fraudulently. The Hon’ble
Supreme Court has considered this aspect of the matter
extensively in various judgments. In Uday vs. State of
Karnataka (supra), the Hon’ble Supreme Court while
deciding a case having almost similar facts as of instant
case has held as under:
“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
(19 of 42) [CRLMP-2232/2018]

offence, absence of consent being one of
them.”
[Emphasis supplied]
19. Later on, the Hon’ble Supreme Court in case of
Pradeep Kumar Verma vs. State of Bihar Anr.
(supra) while taking into consideration the decision passed
by it in Uday vs. State of Karnataka (supra) has held as
under:
“9. The crucial expression in Section 375
which defines rape as against her will. It
seems to connote that the offending act was
despite resistance and opposition of the
woman. IPC does not define consent in
positive terms. But what cannot be regarded
as consent is explained by Section 90 which
reads as follows:
“consent given firstly under fear of injury
and secondly under a misconception of fact is
not consent at all.”
That is what is explained in first part of
Section 90. There are two grounds specified
in Section 90 which are analogous to coercion
and mistake of fact which are the familiar
grounds that can vitiate a transaction under
the jurisprudence of our country as well as
other countries. The factors set out in first
part of Section 90 are from the point of view
of the victim and second part of Section 90
enacts the corresponding provision from the
point of view of the accused. It envisages that
the accused has knowledge or has reason to
believe that the consent was given by the
victim in consequence of fear of injury or
misconception of fact. Thus the second part
lays emphasis on the knowledge or
reasonable belief of the person who obtains
the tainted consent. The requirements of both
the parts should be cumulatively satisfied. In
other words, the Court has to see whether the
person giving the consent has given it under
fear or misconception of fact and the court
should also be satisfied that the person doing
the act i.e. the alleged offender is conscious
of the fact or should have reason to think that
but for the fear or misconception, the consent
would not have been given. This is the
scheme of Section 90 which is couched in
negative terminology. As observed by this
Court in Deelip Singh @ Dilip Kumar v. State
of Bihar (2005 (1) SCC 88), Section 90
cannot be considered as an exhaustive
(20 of 42) [CRLMP-2232/2018]

definition of consent for the purposes of IPC.
The normal connotation and concept of
consent is not intended to be excluded.
10. In most of the decisions in which the
meaning of the expression consent under the
IPC was discussed, reference was made to the
passages occurring in Strouds Judicial
Dictionary, Jowitts Dictionary on English Law,
Words and Phrases, Permanent Edn. and
other legal dictionaries. Stroud defines
consent “as an act of reason, accompanied
with deliberation, the mind weighing, as in a
balance, the good and evil on each side”
Jowitt, while employing the same language
added the following:
“Consent supposes three things a physical
power, a mental power and a free and serious
use of them. Hence it is that if consent be
obtained by intimidation, force, meditated
imposition, circumvention, surprise, or undue
influence, it is to be treated as a delusion,
and not as a deliberate and free act of the
mind.”
11. In Words and Phrases, Permanent
Edn., Vol. 8-A, the following passages culled
out from certain old decisions of the American
courts are found:
“…adult females 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…”
12. It was observed in Uday v. State of
Karnataka (2003 (4) SCC 46) as under:
“12. The courts in India have by and large
adopted these tests to discover whether the
consent was voluntary or whether it was
vitiated so as not to be legal consent.”
13. There is a good analysis of the
expression consent in the context of Section
375 IPC in Rao Harnarain Singh Sheoji Singh
v. State (AIR 1958 Punj 123). The learned
Judge had evidently drawn inspiration from
the above passages in the law dictionaries.
(21 of 42) [CRLMP-2232/2018]

The observation of the learned Judge is as
follows:
“there is a difference between consent
and submission and every consent involves a
submission but the converse does not follow
and a mere act of submission does not
involve consent”,
14. The said proposition is virtually a
repetition of what was said by Coleridge, J. in
R. v. Day (173 E.R. 1026) in 1841 as quoted
in Words and Phrases (Permanent Edn.) at p.
205. The following remarks in Harnarains
case (supra) are also pertinent:
“Consent is an act of reason accompanied
by deliberation, a mere act of helpless
resignation in the face of inevitable
compulsion, non- resistance and passive
giving in cannot be deemed to be consent.”
15. The passages occurring in the above
decision were either verbatim quoted with
approval or in condensed form in the
subsequent decisions: vide Anthony, In Re
(AIR 1960 Madras 308), Gopi Shanker v.
State of Rajasthan (AIR 1967 Rajasthan 159),
Bhimrao v. State of Maharashtra (1975
Mah.LJ 660) and Vijayan Pillai v. State of
Kerala (1989 (2) KLJ 234). All these decisions
have been considered in Uday’s case (supra).
The enunciation of law on the meaning and
content of the expression consent in the
context of penal law as elucidated by
Tekchand, J. in Harnarains case (supra)
(which in turn was based on the above
extracts from law dictionaries) has found its
echo in the three-Judge Bench decision of this
Court inState of H.P. v. Mango Ram (2000 (7)
SCC 224). It was observed as follows:
“Submission of the body under the fear of
terror cannot be construed as a consented
sexual act. Consent for the purpose of Section
375 requires voluntary participation not only
after the exercise of intelligence based on the
knowledge of the significance and moral
quality of the act but after having fully
exercised the choice between resistance and
assent. Whether there was consent or not, is
to be ascertained only on a careful study of all
relevant circumstances.”
(22 of 42) [CRLMP-2232/2018]

16. On the facts, it was held that there
was resistance by the prosecutrix and there
was no voluntary participation in the sexual
act. That case would, therefore, fall more
appropriately within clause first of Section
375.
17. It would be appropriate to deal with
the specific phraseology of Section 90 IPC.
We have an illuminating decision of the
Madras High Court rendered in 1913 in N.
Jaladu, Re (ILR (1913) 36 Madras 453) in
which a Division Bench of that Court
considered the scope and amplitude of the
expression misconception of fact occurring in
Section 90 in the context of the offence of
kidnapping under Section 361 IPC. The 2nd
accused in that case obtained the consent of
the girls guardian by falsely representing that
the object of taking her was for participating
in a festival. However, after the festival was
over, the 2nd accused took her to a temple in
another village and married her to the 1st
accused against her will. The question arose
whether the guardian gave consent under a
misconception of fact. While holding that
there was no consent, Sundara Ayyar, J.

speaking for the Bench observed thus:

We are of opinion that the expression
‘under a misconception of fact’ is broad
enough to include all cases where the consent
is obtained by misrepresentation; the
misrepresentation should be regarded as
leading to a misconception of the facts with
reference to which the consent is given. In
Section 3 of the Evidence Act Illustration (d)
that a person has a certain intention is
treated as a fact. So, here the fact about
which the second and third prosecution
witnesses were made to entertain a
misconception was the fact that the second
accused intended to get the girl married. In
considering a similar statute, it was held in
England in R. V. Hopkins (1842) Car M 254
that a consent obtained by fraud would not be
sufficient to justify the taking of a minor. See
also Halsburys Laws of England, Vol. 9, p.

623. In Stephens Digest of the Criminal Law
of England (6th Edn.,p. 217) the learned
author says with reference to the law relating
to abduction of girls under sixteen thus … if
the consent of the person from whose
(23 of 42) [CRLMP-2232/2018]

possession the girl is taken is obtained by
fraud, the taking is deemed to be against the
will of such a person. Although in cases of
contracts a consent obtained by coercion or
fraud is only voidable by the party affected by
it, the effect of Section 90 IPC is that such
consent cannot, under the criminal law, be
availed of to justify what would otherwise be
an offence.”

18. This decision is an authority for the
proposition that a misrepresentation as
regards the intention of the person seeking
consent i.e. the accused, could give rise to
the misconception of fact. This view of the
Madras High Court was accepted by a Division
Bench of the Bombay High Court in
Parshottam Mahadev v. State (AIR 1963
Bombay 74). Applying that principle to a case
arising under Section 375, consent given
pursuant to a false representation that the
accused intends to marry, could be regarded
as consent given under misconception of fact.

19. On the specific question whether the
consent obtained on the basis of promise to
marry which was not acted upon, could be
regarded as consent for the purpose of
Section 375 IPC, was dealt with by a Division
Bench of the Calcutta High Court in Jayanti
Rani Panda v. State of WB (1984 Cr.L.J.
1535). The relevant passage in this case has
been cited in several other decisions. This is
one of the cases referred to by this Court in
Uday’s case (supra) approvingly. Without
going into the details of that case, the crux of
the case can be discerned from the following
summary given at para 7:

“Here the allegation of the complainant is
that the accused used to visit her house and
proposed to marry her. She consented to
have sexual intercourse with the accused on a
belief that the accused would really marry
her. But one thing that strikes us is … why
should she keep it a secret from her parents if
really she had belief in that promise.
Assuming that she had believed the accused
when he held out a promise, if he did at all,
there is no evidence that at that time the
accused had no intention of keeping that
promise. It may be that subsequently when
the girl conceived the accused might have felt
(24 of 42) [CRLMP-2232/2018]

otherwise. But even then the case in the
petition of complainant is that the accused did
not till then back out. Therefore it cannot be
said that till then the accused had no
intention of marrying the complainant even if
he had held out any promise at all as
alleged.”

The discussion that follows the above
passage is important and is extracted
hereunder:

“The failure to keep the promise at a
future uncertain date due to reasons not very
clear on the evidence does not always amount
to a misconception of fact at the inception of
the act itself. In order to come within the
meaning of misconception of fact, the fact
must have an immediate relevance. The
matter would have been different if the
consent was obtained by creating a belief that
they were already married. In such a case the
consent could be said to result from a
misconception of fact. But here the fact
alleged is a promise to marry we do not know
when. If a full-grown 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. Section 90
IPC cannot be called in aid in such a case to
pardon the act of the girl and fasten criminal
liability on the other, unless the court can be
assured that from the very inception the
accused never really intended to marry her.”

(Emphasis supplied)
The learned Judges referred to the
decision of the Chancery Court in Edgington
v. Fitzmaurice (1885 (29) Ch.D.459) and
observed :

“This decision lays down that a
misstatement of the intention of the
defendant in doing a particular act may be a
misstatement of fact, and if the plaintiff was
misled by it, an action of deceit may be
founded on it. The particular observation at p.
483 runs to the following effect: There must
be a misstatement of an existing fact.
Therefore, in order to amount to a
misstatement of fact the existing state of
things and a misstatement as to that
(25 of 42) [CRLMP-2232/2018]

becomes relevant. In the absence of such
evidence Section 90 cannot be called in aid in
support of the contention that the consent of
the complainant was obtained on a
misconception of fact.”

After referring to the case-law on the
subject, it was observed in Uday’s case
(supra):

“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.”

20. The first two sentences in the above
passage need some explanation. While we
reiterate that a promise to marry without
anything more will not give rise to
misconception of fact within the meaning of
(26 of 42) [CRLMP-2232/2018]

Section 90, it needs to be clarified that 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 her 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 Section 375 clause second.
This is what in fact was stressed by the
Division Bench of the Calcutta High Court in
the case of Jayanti Rani Panda’s case (supra)
which was approvingly referred to in Uday’s
case (supra). The Calcutta High Court rightly
qualified the proposition which it stated
earlier by adding the qualification at the end –
unless the court can be assured that from the
very inception the accused never really
intended to marry her. (emphasis supplied).
In the next para, the High Court referred to
the vintage decision of the Chancery Court
which laid down that a misstatement of the
intention of the defendant in doing a
particular act would tantamount to a
misstatement of fact and an action of deceit
can be founded on it. This is also the view
taken by the Division Bench of the Madras
High Court in Jaladu case (vide passage
quoted supra). By making the solitary
observation that a false promise is not a fact
within the meaning of the Code, it cannot be
said that this Court has laid down the law
differently. The observations following the
aforesaid sentence are also equally important.
The Court was cautious enough to add a
qualification that no straitjacket formula could
be evolved for determining whether the
consent was given under a misconception of
fact. Reading the judgment in Uday’s case as
a whole, we do not understand the Court
laying down a broad proposition that a
promise to marry could never amount to a
misconception of fact. That is not, in our
understanding, the ratio of the decision. In
fact, there was a specific finding in that case
that initially the accused’s intention to marry
cannot be ruled out.”

(27 of 42) [CRLMP-2232/2018]

[Emphasis supplied]

20.Recently, the Hon’ble Supreme Court in Deepak Gulati
vs. State of Haryana (supra), while considering the
question whether the action of developing physical relation
while making promise to marry and later on not fulfilling
the said promise would amount to rape or not, has held as
under:

“13. Admittedly, the prosecutrix has never raised
any grievance before any person at any stage. In
fact, she seems to have submitted to the will of
the appellant, possibly in lieu of his promise to
marry her. . Thus, a question arises with respect
to whether, in light of the facts and circumstances
of the present case, the appellant had an intention
to deceive her from the very beginning when he
had asked the prosecutrix to leave for Kurukshetra
with him from Karnal.

14. The undisputed facts of the case are as under:
I. The prosecutrix was 19 years of age at the time
of the said incident.

II. She had inclination towards the appellant, and
had willingly gone with him to Kurukshetra to get
married.

III. The appellant had been giving her assurance
of the fact that he would get married to her.
IV. The physical relationship between the parties
had clearly developed with the consent of the
prosecutrix, as there was neither a case of any
resistance, nor had she raised any complaint
anywhere at any time despite the fact that she
had been living with the appellant for several
days, and had travelled with him from one place
to another.

V. Even after leaving the hostel of Kurukshetra
University, she agreed and proceeded to go with
the appellant to Ambala, to get married to him
there.

15. Section 114-A of the Indian Evidence Act,
1872 (hereinafter referred to as the ‘Act 1872’)
provides, that if the prosecutrix deposes that she
did not give her consent, then the Court shall
presume that she did not in fact, give such
consent. The facts of the instant case do not
warrant that the provisions of Section 114-A of
the Act 1872 be pressed into service. Hence, the
sole question involved herein is whether her
consent had been obtained on the false promise of
marriage. Thus, the provisions of Sections
417,375 and 376, IPC have to be taken into
(28 of 42) [CRLMP-2232/2018]

consideration, along with the provisions of Section
90 of the Act 1872. Section 90 of the Act, 1872
provides, that any consent given under a
misconception of fact, would not be considered as
valid consent, so far as the provisions of Section
375, IPC are concerned, and thus, such a physical
relationship would tantamount to committing
rape.

16. This Court considered the issue involved
herein at length in the case of Uday v. State of
Karnataka, AIR 2003 SC 1639: Deelip Singh alias
Dilip Kumar v. State of Bihar, AIR 2005 SC 203:
Yedla Srinivasa Rao v. State of A.P. (2006) 11
SCC 615; and Pradeep Kumar Verma v. State of
Bihar Anr., AIR 2007 SC 3059: and came to the
conclusion that in the event that the accused’s
promise is not false and has not been made with
the sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act(s) would not
amount to rape. Thus, the same would only hold
that where the prosecutrix, under a misconception
of fact to the extent that the accused is likely to
marry her, submits to the lust of the accused,
such a fraudulent act cannot be said to be
consensual, so far as the offence of the accused is
concerned.

17…………..

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,
(29 of 42) [CRLMP-2232/2018]

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.

19. In Deelip Singh (supra), it has been observed
as under:

“20. The factors set out in the first part of Section
90 are from the point of view of the victim. The
second part of Section 90 enacts the
corresponding provision from the point of view of
the accused. It envisages that the accused too has
knowledge or has reason to believe that the
consent was given by the victim in consequence of
fear of injury or misconception of fact. Thus, the
second part lays emphasis on the knowledge or
reasonable belief of the person who obtains the
tainted consent. The requirements of both the
parts should be cumulatively satisfied. In other
words, the court has to see whether the person
giving the consent had given it under fear of injury
or misconception of fact and the court should also
be satisfied that the person doing the act i.e. the
alleged offender, is conscious of the fact or should
have reason to think that but for the fear or
misconception, the consent would not have been
given. This is the scheme of Section 90 which is
couched in negative terminology.”

20. This Court, while deciding Pradeep Kumar
Verma (Supra), placed reliance upon the
judgment of the Madras High Court delivered in N.
Jaladu, Re ILR (1913) 36 Mad 453, wherein it has
been observed:

“We are of opinion that the expression “under a
misconception of fact” is broad enough to include
all cases where the consent is obtained by
misrepresentation; the misrepresentation should
be regarded as leading to a misconception of the
facts with reference to which the consent is given.
In Section 3 of the Evidence Act Illustration (d)
states that a person has a certain intention is
treated as a fact. So, here the fact about which
the second and third prosecution witnesses were
made to entertain a misconception was the fact
that the second accused intended to get the girl
married…….. “thus … if the consent of the person
from whose possession the girl is taken is
(30 of 42) [CRLMP-2232/2018]

obtained by fraud, the taking is deemed to be
against the will of such a person”. … Although in
cases of contracts a consent obtained by coercion
or fraud is only voidable by the party affected by
it, the effect of Section 90, IPC is that such
consent cannot, under the criminal law, be availed
of to justify what would otherwise be an offence.”

21. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time, i.e. at initial stage itself, the accused had no
intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. 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.”
Section 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.”

[Emphasis supplied]

21. From the above mentioned authoritative
pronouncements of the Hon’ble Supreme Court, the position
of law emerges that in the event that the accused’s promise
is not false and has not been made with the sole intention
to seduce the prosecutrix to indulge in sexual acts, such an
act would not amount to rape.

22.In the impugned FIR, the respondent No.2 has not
alleged that the petitioner has no intention to marry her
since beginning. I am convinced that from bare reading of
initial written complaint and the contents of the impugned
FIR, no offences under sections 376 and 313 IPC are made
out. However, since the police has carried out thorough
investigation and the learned Public Prosecutor as well as
the counsel for the respondent No.2 have argued that from
the investigation carried out by the police, the offences
punishable under sections 376(2)(n), 313 and 420 IPC are
made out against the petitioner, I have decided to go
through the case diary, which is made available by the
learned Public Prosecutor, to ascertain whether any case is
made out against the petitioner for the aforesaid offences
on the basis of evidence and material collected by the
police.

(31 of 42) [CRLMP-2232/2018]

During the course of investigation, the police has
got recorded the statement of respondent No.2 under
section 164 CrPC on 09.10.2014. The extract of the said
statement is as under:

A.C.J. M.M. No. C.R. No.
c;ku xokg
vkt vnkyr A.C.J. M.M. No 6 dke tksa/kiqj egkuxj vkSj
eqdnesa C.R. No. la- 229 lu 2014
uksV % xokg us fcuk fdlh Hk; ncko o mRizsj.kk ds c;ku viuh Lora
bPNk ls nsuk tkfgj fd;kA xokg dh LohdkjksfDr ij c;ku fy;s tk jgs
gSA
eSa o”kZ 2009 esa tks/kiqj esa Hkkjr Iyktk esa tkWc djus vkbZ FkhA tgka twu
2011 rd tkWc fd;kA ebZ 2011 esa blh Hkkjr Iyktk dEiuh esa esjh
eqykdkr vuwi dss ikWy ls gqbZ FkhA vuwi ds- ikWy us eqs izikst Hkh fd;k
FkkA tqykbZ 2011 esa eSaus Hkkjr Iyktk dEiuh NksMdj eSa t;iqj esjs ?kj
pyh xbZ rc vuwi eqs yxkrkj esjs eksckby ij Qksu djrk FkkA og esjs
ihNs 2 t;iqj Hkh vk x;k FkkA vuwi eqls ‘kknh djus dh ckr dgrk
FkkA
vuwi ds dgus ls eSa flrEcj 2011 esa okil tks/kiqj esa vkbZ ogka ij tkSgjh
fMftVy gsYi ds;j fyfeVsM] cksjkukMk esa tkWc djus yx xbZA eSa gkbZdksVZ
dkWykuh esa nks ekg fdjk;s dk edku ysdj jgha ogka vuwi vkrk tkrk jgrk
FkkA vuwi us idkj dkWyksuh esa viuh ppsjh cfgu ds ?kj dk dejk fdjk;s
ls fnyk;k Fkk] ogka Hkh og vkrk tkrk jgrk FkkA vuwi gh eqs vkWfQl ls ?
kj o ?kkj ls vkWfQl ykrkys tkrk FkkA ?kj dk dksbZ vko’;d dk;Z lCth]
nw/k oxSjk Hkh og eqs lkFk ys tkdj fnykrk FkkA og lHkh yksxksa us ;gh
dgrk Fkk fd eSa mldh iRuh gwaA og eqs fdlh vU; ls feyus ugha nsrk
FkkA vuwi dk jkst idkj dkWyksuh fLFkr ?kj esa vkuk tkuk jgrk FkkA mlh
nkSjku vuwi us eqls ‘kknh dk dgdj esjs lkFk esa ‘kkjhfjd lEca/k cuk;s
FksA vuwi us esjs lkFk lEca/k cuk;s] ftlls esjs cPpk Bgj x;kA fQj MkW-
js[kk tk[kM ds ;gka tkdj cPpk fxjok;k FkkkA vuwi eqs fdzlel dh
rS;kfj;ksa ds le; [kqn ds ?kj Hkh ysdj x;kA ogka eSa lkr fnuksa rd :dhA
vuwi us o eSaus vius2 ?kjksa esa gekjs fj’rs ds ckjs esa ckr dh FkhA tc gekjs
?kj okys jkth gks x,A rc vuwi us ekpZ 2013 esa eqs] t;iqj esjs ?kj ‘kknh
dh rS;kfj;ksa ds fy, Hkst fn;k FkkA eSa o esjs ?kj okys ‘kknh dh rS;kfj;ka
dj jgs Fks rc /khjs2 vuwi o mlds ifjokj okys fdlh u fdlh ckr dk
cgkuk cukdj euk djus yxsA 25 flrEcj 2014 dks tc eSa tks/kiqj vuwi
ds ?kj ‘kknh ds ckjs esa ckr djus vkbZ rc blds ?kj ij rkyk yxk FkkA
eSaus vkl ikl ds yksxksa ls iwNk rks irk pyk fd vuwi o mldk ifjokj
dsjy vuwi dh ‘kknh ds fy, x, gq, gSaA vuwi us eqs ‘kknh dk kalk
nsdj esjk nsg ‘kks”k.k fd;kA
uksV % xokg dks c;ku idj lquk;s o lek;s x,A c;ku lgh gksuk
Lohdkj dj gLrk{kj fd;sA”

24.From the above statement also, it is clear that
respondent No.2 has nowhere alleged that the petitioner
has no intention to marry her since beginning. On the
(32 of 42) [CRLMP-2232/2018]

other hand, it is clearly stated that the petitioner had
proposed her and parents of both of them had agreed to
the marriage of them and the same was fixed in May, 2014,
however, later on, the petitioner and his parents refused for
it. In her statement recorded under section 164 CrPC, the
respondent No.2 has even stated that she had stayed at the
house of the petitioner for seven days for Christmas’s
preparation. During the course of investigation, the police
has recorded the statements of brother, father, mother and
other relatives of respondent No.2 and all of them have
stated that the mother and father of the petitioner had
visited Jaipur in October, 2012 to fix the marriage of the
petitioner and respondent No.2 and the date of the
marriage was fixed as 13.05.2014. The police has also
interrogated the petitioner, his mother and father and all of
them have stated that they had visited the house of
respondent No.2 at Jaipur to fix her marriage with the
petitioner and the date of marriage was fixed as
13.05.2014. In the interrogation note, the petitioner, his
mother and father have specifically stated that on account
of some dispute with the respondent No.2, proposal of
marriage could not be materialized and they have informed
the parents of the respondent No.2, who also agreed to it
and in June, 2014, mother of respondent No.2 had asked
them that they should marry their son to somewhere else,
so that they also marry their daughter in Indore, wherefrom
a proposal came.

25.From all the above material available on record, it is
clear that there is no iota of evidence available on record to
suggest that the petitioner had no intention to marry
respondent No.2 since beginning and made a false promise
of marrying her only with the intention to satisfy his lust. If
the petitioner had no intention to marry with the
respondent No.2 since beginning, there was no occasion for
him to bring her to his house for Christmas’s preparation
and to ask his parents to visit residents of parents of
respondent No.2 at Jaipur to fix his marriage with
respondent No.2. As stated earlier, respondent No.2, her
brother, parents and other relatives have stated in their
statements before the police that the petitioner and his
parents did visit their house to fix the marriage of the
petitioner and the respondent No.2 and date for their
marriage was also fixed.

26.Admittedly, the respondent No.2 had never raised any
grievance before any person at any stage and for the first
time filed the complaint against the petitioner in
September, 2014 i.e. after 17 months when the petitioner
had refused the marry her in April, 2013. It is also to be
noticed that the respondent No.2 has not informed her
parents and brother about her pregnancy, which was
terminated in the month of October, 2012. In their
statements recorded under section 161 CrPC, the parents
(33 of 42) [CRLMP-2232/2018]

and brother of the respondent No.2 have not mentioned
that respondent no.2 has ever informed them about her
pregnancy in October, 2012.

27.In the light of the above facts and circumstances of the
present case, it cannot be said that the petitioner had no
intention to marry the respondent No.2 from beginning or
the petitioner had any intention to deceive her from very
beginning. The respondent No.2 was 26 years of age at the
time of incident. She was in love with the petitioner and
both of them promised to marry each other. Even the
respondent No.2 has informed her brother and parents that
she is in love with the petitioner and wants to marry him.
Looking from all these angles, it cannot be said that the
petitioner had no intention to marry the respondent No.2
since beginning and developed physical relation with her
while making a false promise of marriage only with
intention to satisfy his lust.

28. It appears that the petitioner and the respondent
No.2 were in deep love, and their love translated into
physical relation. Their parents agreed to the marriage of
them but later on, due to some disputes between the
petitioner, his mother and respondent No.2, the marriage
could not be materialized and then the petitioner decided to
marry with some another girl in September, 2014. When
the respondent No.2 came to know about the same, she
filed the criminal complaint against the petitioner out of
vengeance.

Looking to overall facts and circumstances as
noted above, I have no hesitation in holding that no offence
under section 376 IPC is made out against the petitioner.
So far as offence punishable under section 420 IPC is
concerned, when this Court has already come to the
conclusion that the petitioner did not make any false
promise to marry the respondent No.2, no case of cheating
is made out against the petitioner.

29.So far as offence punishable under section 313 IPC is
concerned, it is important to note that the respondent No.2
in the impugned FIR has alleged that in the year 2012,
when she became pregnant, the petitioner got her child
aborted by giving her contraceptive pills. It is noticed that
in her statement recorded under section 164 CrPC the
respondent No.2 has stated that in October, 2012, she got
aborted her child through Dr. Rekha Jakhar at Jodhpur.
The police, during the course of investigation, has recorded
the statement of Dr. Rekha Jakhar and also collected the
prescription slip prepared by her on 01.10.2012. In her
statement recorded under section 161 CrPC, Dr. Rekha
Jakhar has stated that on 01.10.2012 one lady Mrs. Divya
visited her residence for the purpose of checking. She
checked Mrs. Divya and found her pregnancy test positive,
then that woman asked Dr.Rekha Jakhar that she does not
want this child. Despite making her understand by the
(34 of 42) [CRLMP-2232/2018]

Doctor, she insisted to get her child aborted while saying
that her job and studies would be disturbed. Dr. Rekha
Jakhar further stated that when the lady was not convinced,
then she asked her to come with her husband and she
again visited with her husband. Dr.Rekha Jakhar informed
them about ill effects of abortion but both of them told that
they want to abort this child. Then Doctor asked them to
give this in writing, on which both of them gave in writing
that they have been told about ill effects of abortion even
though, they want to get the child aborted and they will
only be held responsible for any mishappenings. The
prescription slip dated 01.10.2012 with the endorsement of
petitioner and respondent No.2 is the part of the case diary.
From the statement of Dr. Rekha Jakhar, it is clear that it
was the respondent No.2, who voluntarily caused
miscarriage of her child and there is no iota of evidence
that the petitioner had caused miscarriage of child of the
respondent No.2 without her consent and as such no
offence under section 313 IPC is made out against the
petitioner.

30.Looking to the above facts and circumstances of the
case, this Court is convinced that even if the FIR and the
evidence/material collected by the police is taken as it is,
then too the same is not sufficient to hold the petitioner
guilty of the offences punishable under sections 376, 313
and 420 IPC. Hence, the continuance of the impugned FIR
against the petitioner and other proceedings of the
impugned FIR will result in abuse of process of the Court
and the same is liable to be quashed.

31.Resultantly, this criminal misc. petition under section
482 CrPC is allowed. The impugned FIR No.229 dated
01.10.2014 of Police Station, Shashtri Nagar, Jodhpur and
ongoing investigations are quashed and set aside.
Stay petition stands disposed of.”

12. Learned Public Prosecutor as well as learned counsel for

the complainant/respondent No.2 alongwith Ms.Rosen Gusar,

complainant/respondent No.2 present in person have opposed the

submissions made on behalf of the petitioner stating that at the

inception itself the petitioner has entered into sexual relationship

with the complainant on the pretext of promise to marry her, and

therefore, has committed rape upon the complainant.

(35 of 42) [CRLMP-2232/2018]

13. Learned Public Prosecutor submitted that the

investigation has concluded that the offence against the petitioner

is made out, as he has induced a scheduled caste girl, the

complainant, on the pretext of marriage and has established

sexual relationship with her, and thus, committed rape upon her.

14. The complainant was also given an opportunity to

address the Court, and she submitted that she has been induced

into sexual relationship by the petitioner on the pretext of promise

of marriage, and thus, the petitioner is guilty of committing rape

upon the complainant, as he has forcefully established sexual

relationship with her on account of promise to marry.

15. Heard learned counsel for the parties as well as

perused the record of the case, alongwith the precedent laws cited

at the Bar.

16. At the time of hearing of the case, learned Public

Prosecutor has shown to this Court the case diary of the case.

17. The case diary reflects the statement given by the girl

under Section 164 Cr.P.C. and the same is reproduced as

hereunder:-

“uksV% xokg ls iwNdj ;g lqfuf’pr fd;k x;k gS fd og viuh bPNk ls o fcuk
fdlh Hk; ;k ncko ds c;ku ns jgh gS%
‘kiFk fnykbZ xbZ%
o”kZ 2014 esa igyh ckj fo’kky xks;y ds lkFk Qksu ij esjh ckrphr ‘kq: gqbZA ge
efUnj esa feys FksA efUnj esa fo’kky us eqs ‘kknh dk izLrko fn;kA mlds ckn ge
vDlj feyk djrs FksA ge tc Hkh feyrs oks eqs ‘kknh dk dgrk fd eSa rqels ‘kknh
dj ywaxkA ml nkSjku gekjs ‘kkjhfjd lEca/k Hkh cusA fo’kky ,d ckj esjh eEeh ls
‘kknh dh ckr djus vk;k vkSj dgk fd esjs ?kjokys ;fn ugha ekusxsa rks Hkh ‘kknh dj
ywaxkA mlds ckn ge izk;% feyrs FksA dHkh gksVy esa dHkh ikdZ esaA tks/kiqj] jkensojk]
vtesj] lqesjiqj] ikyh vkfn txgksa ij ?kweus x, ogka gksVy esa ,d lkFk :dsA gksVy
(36 of 42) [CRLMP-2232/2018]

esa gekjs chp ‘kkjhfjd lac/k cuk, x,A fQj ,d ckj eqs jkensojk ysdj x;kvkSj
esjs lkFk ‘kkjhfjd lac/k cukus dk dgA eSaus euk fd;k rks eqs dgk fd eSa rqels
‘kknh dj ywaxk vkSj esjs lkFk tcjnLrh lac/k cuk,A eqs ‘kknh dk kalk nsdj
‘kkjhfjd lac/k cuk,A 2015 fnlEcj ;k 2016 tuojh eqs vkt vPNs sls ;kn ugha gS
eSa fo’kky ds cPps dh eka cuus okyh FkhA eSa xHkZorh gks xbZ FkhA fo’kky us eqs ,d
xksyh ykdj nh vkSj oks eSaus [kk yh ftlls xHkZ fxj x;kA eqs ‘kknh ds fy, Vkyrk
jgrk FkkA tuojh 2017 esa ‘kknh dh odhy ls ckr dh FkhA fQj vpkud mlus ‘kknh
ls bUdkj dj fn;kA eSaus vius ?kj ij crk;kA eSaus bldh otg ls dgha vksj ‘kknh
ugha dhA ‘kknh dk kalk nsdj esjs lkFk ‘kkjhfjd lac/k cukrk jgrk FkkA gksVy esa
esjh QksVk o fofM;ks cukbZ vkSj eqs /kedk;k fd eSa ;s QksVks o fofM;ks lHkh dks fn[kk
nwaxkA eqs /kedkrk gS fd rw ‘kknh djsxh rks rsjs ifr dks crk nwaxkA vc fo’kky us
eqls feyuk tqyuk can dj fn;kA eqs ;g Hkh dgrk Fkk fd eSa rqls ‘kknh ugha dj
ldrk fd rw gfjtu gS esjs ?kj okys ugha ekusaxsA eqs /kedkrk gS fd esjs firkth
dksVZ esa gS eSa rqs Qlk nwaxkA rsjs ?kj dks cckZn dj nwaxkA tks/kiqj esa lHkh txg ge
lkFk ?kwesA
iz’u % vkidks vkSj dqN dguk gS
mRrj % ugha
uksV’% xokg ds dFkukuqlkj c;ku esjs gkFk ys[kc) fd, x,A
vkj- vks- ,.M , lh
,l- Mh-

gLrk{kj U;kf;d eftLVªsV]
ckyksrjk ¼jkt-½ ”

18. The case diary contains certain messages, which reflect

intense relationship between the petitioner and the complainant,

and the same is admitted by the complainant herself, who is also

present in person before this Court alongwith the learned Public

Prosecutor and her counsel.

(37 of 42) [CRLMP-2232/2018]

19. This Court also finds that a bare reading of the FIR as

well as statement of the complainant recorded under Section 164

Cr.P.C., as quoted hereinabove, and the averments made by the

complainant herself in the Court, makes it amply clear that the

petitioner and the complainant were in an intense relationship.

The relationship was consensual in nature and the said consent of

course may have been given under the promise of marriage by the

petitioner. The fact of the abortion and the petitioner and the

complainant going to so many places, including Ratanada Ganesh

Mandir, movie, guest house, Mandor Garden, Santoshimata

Mandir, Restaurant at Mahamandir, Machia Safari Park, Jodhpur

Fort, Ramdevra etc. clearly establish that the consensual

relationship was in existence between the petitioner and the

complainant.

20. This Court has also carefully gone through WhatsApp

messages between the parties and the same have not been

refuted either by the complainant or the learned Public Prosecutor,

who are both present in the Court, which show the intense

consensual relationship between the complainant and the

petitioner.

21. Statement of the complainant/girl recorded by the

learned court below under Section 164 Cr.P.C. also clearly

indicates that the petitioner and the complainant are in

relationship for last four years. In the statement, the complainant

has categorically stated that the petitioner had given her a

proposal of marriage, and thereafter, they continuously started

meeting and established physical relationship. The complainant in

her statement has also stated that the petitioner had promised her
(38 of 42) [CRLMP-2232/2018]

mother that he would marry the complainant, even if the

petitioner’s family members do not agree.

22. The statement of the complainant recorded under

Section 164 Cr.P.C. further indicates that the petitioner and the

complainant continuously met in the parks and hotels in Jodhpur,

Ramdevra, Ajmer, Sumerpur, Pali etc. and various places where

they went and stayed together and remained in physical

relationship. It has also been stated that the petitioner and the

complainant also maintained physical relationship when they

visited Ramdevra, particularly when the complainant was under

continuous inducement and promise of marriage by the petitioner.

The abortion also happened in December, 2015 or January 2016,

which was done by consent of both the parties. The statement

under Section 164 Cr.P.C. also indicates that the petitioner

stopped meeting the complainant/girl and refused to marry her,

and thus, the present FIR was lodged.

23. Thus, it is clear from the case diary, which contains the

statement of the complainant recorded under Section 164 Cr.P.C.

as well as the messages alongwith lot of other record, that the

long term relationship resulted into the dispute between the

parties, as the petitioner refused to get married with the

complainant.

24. The definition of the term ‘rape’ as contained in Section 375

IPC reads as under:-

“[375. Rape.–A man is said to commit “rape” if
he–

(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
(39 of 42) [CRLMP-2232/2018]

makes her to do so with him or any other person;
or

(b) inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so
with him or any other person; or

(c) manipulates any part of the body of a woman
so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman
or makes her to do so with him or any other
person; or

(d) applies his mouth to the vagina, anus, urethra
of a woman or makes her to do so with him or any
other person,

under the circumstances falling under any of the
following seven descriptions:–

First.–Against her will.

Secondly.–Without her consent.

Thirdly.–With her consent, when her consent has
been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt,

Fourthly.–With her consent, when the man knows
that he is not her husband and that her consent is
given because she believes that he is another man
to whom she is or believes herself to be lawfully
married.

Fifthly.–With her consent when, at the time of
giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of that
to which she gives consent.

Sixthly.–With or without her consent, when she is
under eighteen years of age.

(40 of 42) [CRLMP-2232/2018]

Seventhly.–When she is unable to communicate
consent.

Explanation 1.–For the purposes of this section,
“vagina” shall also include labia majora.

Explanation 2.–Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:

Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as
consenting to the sexual activity.

Exception 1.–A medical procedure or intervention
shall not constitute rape.

Exception 2.–Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under
fifteen years of age, is not rape.”

25. If the present facts are applied as it is in the

aforequoted definition of the term ‘rape’, then on a bare reading of

the FIR alongwith the statement of the complainant recorded

under Section 164 Cr.P.C. as well as taking note of the averments

made by the complainant present in the Court and the messages

and other documents in the case diary, it is clear that the offence

of rape is not made out against the present petitioner.

26. The act of establishing physical relationship, as the

facts would reveal, is neither against the will of the complainant,

nor without her consent. Moreover, the consent has not been

obtained by putting her in fear of death or hurt. Neither the

complainant thought that she was lawfully married to the

petitioner; and the consent was not under the unsoundness of

mind or intoxication. The complainant is admittedly major and was

apparently able to communicate her consent.

(41 of 42) [CRLMP-2232/2018]

27. Thus, in the present facts and circumstances, the

petitioner was having a long term relationship with the

complainant, which was with the consent of both the parties, as is

clearly reflected in the FIR and the statement of the

complainant recorded under Section 164 Cr.P.C. as well as the

messages which are contained in the case diary. The messages

clearly indicate an intense relationship between the petitioner and

the complainant, and the complainant has admitted the same in

the Court, while saying that the same was done under the

inducement by the petitioner, while making the promise of

marriage. A long period of relationship between the petitioner and

the complainant also indicates that there was no fear or

extraneous consideration for the consent being given by the

complainant.

28. Thus, this Court finds that the precedent laws of

Prashant Bharti (supra) and Anup K. Paul (supra) are

absolutely applicable in the present case.

29. In light of the aforesaid discussion and looking to the

facts and circumstances of the case, this Court is convinced that

even if the FIR and the evidence/material collected by the police

are taken as it is, then too, the same are not sufficient to hold the

petitioner guilty of the offence punishable under Sections 376, 313

384 IPC and Sections 3(1)(b) 3(2)(v) of the Scheduled Caste

and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Hence,

the continuance of the impugned FIR against the petitioner and

other proceedings pursuant thereto will be nothing but an abuse

of process of the Court and the same are liable to be quashed.

(42 of 42) [CRLMP-2232/2018]

30. Resultantly, the present criminal misc. petition is

allowed and the impugned FIR No.23/2018 dated 12.05.2018

lodged at Police Station, Ramdevra, District Jaisalmer, registered

against the petitioner for offences under Sections 376, 313, 384

IPC and Sections 3(1)(b), 3(2)(v) of the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989, alongwith

entire proceedings pursuant to the said FIR, is hereby quashed

and set aside.

(DR. PUSHPENDRA SINGH BHATI),J

Skant/-

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