High Court
Legal Reasoning
{1} CRAPLN 1757.23 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 1757 of 2023Vinod s/o. Raosaheb Shinde,age 32 ears, Occ. Labour,R/o. Marwadi, Tq. Jintur,Dist. Parbhani... APPLICANTS.VERSUS1.The State of Maharashtrathrough the officer in charge,Bori Police Station,Dist. Parbhani.2.XYZ.. RESPONDENTS.Mr. K.P. Rodge, Advocate for applicant,Mr. S.A. Gaikwad, APP for respondent Ms. Mayuri Kasturkar Kulkarni, Advocate for respondent No.2 CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. DATE : 4th SEPTEMBER, 2024. JUDGMENT [ PER S.G. CHAPALGAONKAR, J]:-1.The applicant has approached this court under Section 482of Cr.P.C., thereby praying to quash and set aside the FIR in Crime No.181 of 2017 registered with police Station, Bori, District Parbhani for theoffences punishable under Sections 376 and 417 of IPC as well as toquash and set aside the consequential criminal proceeding, in SessionsCase No. 220 of 2022 pending before the Sessions Court at Parbhani.
Legal Reasoning
{2} CRAPLN 1757.23 R.odt2.On 26.9.2017, respondent No.2 filed report to police station,Bori, alleging that she resides with mother since she is deserted by herhusband. She has a daughter out of her matrimonial relationship. Theapplicant/accused was residing with his family in same locality. He usedto visit her maternal home, as such, she got acquaintance with him.Being deserted by her husband, the applicant under the pretext ofperforming marriage, induced her for sexual relation. He frequentlycalled her and established sexual relationship. A month before festival ofNag Panchanami, applicant had sexual intercourse with her,consequently, she conceived pregnancy. Although applicant himself ismarried and having two daughters out of his matrimonial relationship,he assured her for taking care of child and also marry with her. On11.8.2017, he fled away with his wife and two daughters causing mentaltrauma to her.On the basis of aforesaid information, crime No. 181 of 2017 hasbeen registered with Police Station, Bori. The investigation progressedand charge sheet has been filed against the applicant for the offencespunishable under Sections 376 and 417 of IPC.3.Mr. K.P. Rodge, learned advocate for the applicant submitsthat the respondent No.2 is a married woman having a daughter out ofher matrimonial relationship. Her husband has deserted her. Therefore,she was residing at her matrimonial home. The applicant is herneighbour. He is also a married person having two daughters. Duringthe passage of time, intimacy developed between the applicant andrespondent No.2. They had consensual sexual relationship. However, {3} CRAPLN 1757.23 R.odtonce the respondent No.2 conceived pregnancy, she lodged the report topolice station. He would submit that from the contents of FIR ormaterial in charge sheet, the offence of cheating or rape cannot be madeout. He would, therefore, urge to quash and set aside the FIR andconsequential criminal proceeding in Sessions Case NO. 220 of 2022pending before the Sessions Judge at Parbhani.4.Per contra, Mr. S.A. Gaikwad, learned APP and Ms. MayuriKasturkar, learned advocate appearing for respondent No.2, vehementlyopposes the prayer in the application. They would submit that theapplicant is a married person having two daughters. However, takingdisadvantage of the fact that respondent No.2 who deserted by herhusband, cunningly established sexual relationship with her underpromise marriage. However, when she conceived pregnancy, theapplicant disowned his responsibility. According to them, acts ofapplicant constitute cheating within the meaning of Section 417 of IPC aswell as rape under Section 376 under false promise of marriage. Theywould submit that the charge sheet is already filed. The case iscommitted to Sessions Court. At this stage, there is no occasion toexercise inherent powers of this court.5.We have considered the submissions advanced by learnedadvocates for respective parties. We have carefully gone through thecontents of the FIR and material in the charge sheet. The factual matrixas stipulated in the FIR is not seriously controverted. Apparently,respondent No.2 is a matured lady having a daughter out of hermatrimonial relationship. However, after desertion by the husband, shewas residing at her maternal home alongwith her mother and daughter {4} CRAPLN 1757.23 R.odtfor more than six years. The applicant is a neighbour of parental home ofrespondent No.2 and since December, 2016 he was on visiting terms withher mother. The acquaintance of respondent No.2 with applicantculminated into physical intimacy and frequent sexual relationship.Eventually, respondent No.2 conceived pregnancy.6.Respondent No.2 alleges that applicant promised her toperform marriage. If the sequence of events narrated in the FIR isconsidered, it discernible that applicant as well as respondent No.2 werealready married and having children out of respective wedlocks.Admittedly they were residing in one and the same locality, they wereaware about the marital status of each other. Despite knowledge ofrespective marital status, sexual relationship was developed betweenthem and continued for more than 10 months. In this background, it isdifficult to believe that the applicant induced respondent No. 2 for sexualrelationship under the promise of marriage. When the respondent No.2was aware about the subsisting marriage of the applicant and his familyconsisting of two children, it is difficult to believe that she maintainedphysical relationship with applicant in expectation of marriage. Thenarration in the FIR clearly stipulates that respondent No.2 visitedapplicant’s home and had consensual sex with him and similar episodescontinued for a period of 9 months. Perusal of the charge sheet suggeststhat the statement of witnesses are hear-say in nature and based onnarration given by respondent No.2 only. There is nothing in the chargesheet, depicting significant facet in favour of prosecution case so as tobring home ingredients of Sections 417 and 376 of IPC.7.At this stage, reference can be made to observations of {5} CRAPLN 1757.23 R.odtSupreme Court of India in case of Pramod Suryabhan Pawar vs. State ofMaharashtra and others reported in (2019) 9 SCC 608, wherein, theSupreme Court after considering the previous judgment in the subjectmatter, observed in para.18 as under :-“18.To summarise the legal position that emergesfrom the above cases, the “consent of a woman with respectto Section 375 must involve an active and reasoneddeliberation towards the proposed act. To establish whetherthe “consent” was vitiated by a “misconception of fact”arising out of a promise to marry, two propositions must beestablished. The promise of marriage must have been a falsepromise, given in bad faith and with no intention of beingadhered to at the time it was given. The false promise itselfmust be of immediate relevance or bear a direct nexus to thewoman’s decision to engage in the sexual act.”Similarly, in the case of “Dr. Dhruvaram Murlidhar Sonar Vs. State ofMaharashtra and others reported in (2019) 18 SCC 191, the SupremeCourt in para. 23 observed thus :-“23.Thus, there is a clear distinction between rape andconsensual sex. The court, in such cases, must very carefullyexamine whether the complainant had actually wanted to marrythe victim or had mala fide motives and had made a false promiseto this effect only to satisfy his lust, as the later falls within theambit of cheating or deception. There is also a distinctionbetween mere breach of a promise and not fulfilling a falsepromise. If the accused has not made the promise with the soleintention to seduce the prosecutrix to indulge in sexual acts, suchan act would not amount to rape. There may be a case where theprosecutrix agrees to have sexual intercourse on account of herlove and passion for the accused and not solely on account of themisconception created by accused, or where an accused, onaccount of circumstances which he could not have foreseen orwhich were beyond his control, was unable to marry her despitehaving every intention to do. Such cases must be treated {6} CRAPLN 1757.23 R.odtdifferently. If the complainant had any mala fide intention and ifhe had clandestine motives, it is a clear case of rape. Theacknowledged consensual physical relationship between theparties would not constitute an offence under Section 376 of theIPC.”8.In light of legal position laid-down by the Supreme Court wefind that unless women's decision to engage in the sexual relationship isoriented from man’s bad promise of marriage with no intention ormalafide motive to satisfy lust, offense under section 376 of IPC wouldnot constitute. From the factual matrix of the present case, it can begathered that the respondent No.2 had no reason to believe that theapplicant would be marrying with her since she was well aware that theapplicant had his own family consisting of his wife and two daughters.The intimacy was developed between the applicant and respondent No.2due to constant visits of the applicant to her maternal home. Shecontinued voluntary sexual relationship with the applicant. In thisbackground, it is difficult to believe that the because of false promise ofmarriage, the respondent No.2 had consented for maintaining sexualrelationship with the applicant. In that view of the matter, we are of theconsidered view that in facts of present case offenses under Section 376and 417 cannot be made out from FIR or the material in the chargesheet. Hence, applying the principles of law espoused in the case of Chi.Bhajanlal vs. State of Haryana, AIR 1992 S.C. 604, we find this to be fitcase to exercise powers under Section 482 of Cr.P.C. accordingly, weproceed to pass the following order :-O R D E R[a]The application is allowed; {7} CRAPLN 1757.23 R.odt[b]The FIR in Crime No. 181 of 2017 registered with policestation, Bori, Dist. Parbhani for the offences punishable under Sections376 and 417 of IPC, charge sheet No. 58 of 2018 and Sessions Case No.220 of 2022 pending before Sessions Court at Parbhani, is herebyquashed and set aside to the extent of applicant.[c]Mr. Mayuri Kasturkar Kulkarni, learned advocate isappointed through legal aid to represent respondent No.2, herremuneration is quantified at Rs. 7000/- to be paid through MaharashtraLegal Services Authority, Sub-Committee, Aurangabad.[d]The application stands disposed of.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-