High Court · 2025
Facts
appln-3237-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3237 OF 2023Amit Rama ZendeAge: 40 years, Occu.: Agri.,R/o. Kakanagar, Sanja Road,Tq. And Dist. Osmanabad. .. ApplicantVersus1.The State of MaharashtraThrough Investigation Officer,Police Station, Anandnagar,Tq. And Dist. Osmanabad.2.X. Y. Z. .. Respondents…Mr. M. A. Tandale, Advocate for the applicant.Mr. S. A. Gaikwad, APP for respondent No.1/State.Mr. Akash D. Gade, Advocate for respondent No.2 (Appointed through Legal Aid).... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 04 JULY 2025 PRONOUNCED ON : 28 JULY 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present application has been filed for quashing the proceedings inCharge-sheet No.87 of 2022, pending before the Chief JudicialMagistrate, Osmanabad arising out of the FIR vide Crime No.185 of2022 dated 26.06.2022 registered with Anandnagar Police Station,District Osmanabad for the offences punishable under Sections 376(2)(n), 307, 324, 323, 504, 506 read with Section 34 of Indian Penal Code.[1] appln-3237-2023.odt2.Heard learned Advocate Mr. M. A. Tandale for the applicant,learned APP Mr. S. A. Gaikwad for respondent No.1/State and learnedAdvocate Mr. Akash D. Gade, who is appointed through Legal Aid, forrespondent No.2.3.Learned Advocate appearing for the applicant has taken usthrough the entire charge-sheet including the FIR and submits that theFIR has been lodged with ulterior motive and suppression of facts. Herelies on the affidavit filed by respondent No.2 before this Court at thetime of bail application, wherein she has stated that she had given theFIR due to misunderstanding. In fact, there was an agreement betweenthe applicant and herself in respect of live-in relationship for a period ofone year. During the course of live-in relationship there was sexualintercourse between them and, therefore, it cannot be stated to be arape as defined under Section 375 of the Indian Penal Code. Therelationship was consensual in nature. Now, the mother of theinformant/prosecutrix has also supported the FIR, but she was also partyto the agreement which was in fact entered into between the prosecutrix,her mother and the wife of the present applicant. It would be an abuseof process of law, if the applicant is asked to face the trial. 4.He relies on the decision in Dr. Dhruvaram Murlidhar Sonar v.State of Maharashtra and Ors., [AIR 2019 SC 327], wherein it is[2] appln-3237-2023.odtobserved that :-“There is a clear distinction between rape and consensualsex. The Court, in such cases, must very carefully examinewhether complainant had actually wanted to marry victim orhad mala fide motives and had made a false promise to thiseffect only to satisfy his lust, as later falls within ambit ofcheating or deception. There is also a distinction betweenmere breach of a promise and not fulfilling a false promise. Ifaccused has not made promise with sole intention to seduceprosecutrix to indulge in sexual acts, such an act would notamount to rape. There may be a case where prosecutrixagrees to have sexual intercourse on account of her love andpassion for accused and not solely on account ofmisconception created by accused, or where an accused, onaccount of circumstances which he could not have foreseenor which were beyond his control, was unable to marry herdespite having every intention to do. Such cases must betreated differently. If complainant had any mala fide intentionand if he had clandestine motives, it is a clear case of rape.Acknowledged consensual physical relationship betweenparties would not constitute an offence under Section 376 ofIndian Penal Code.”He also relies on the decision in Ajeet Singh v. State of UttarPradesh and Ors., [2024 ALL SCR (Cri.) 325], wherein it has been heldthat relationship between the appellant and the victim was consensualrelationship which culminated in marriage. Therefore, it cannot be saidthat there is sufficient ground for proceeding against the appellant onallegations of rape, made in the FIR and, therefore, the FIR was[3] appln-3237-2023.odtquashed. 5.Per contra, learned APP as well as learned Advocate Mr. Akash D.Gade, who is appointed through Legal Aid, strongly opposed theapplication and submit that from the entire FIR, it cannot be stated thatthere was consent on the part of respondent No.2 for sexual intercourse.Rather the present prosecutrix states that her services were taken by theapplicant as maid servant since five months prior to the FIR. She statesthat she was treated properly for about a month and, thereafter, theapplicant started abusing her. He had then assaulted her with stick, butsince she was in need of money, she had not disclosed anything toanybody. The first incident occurred four months prior to the FIR whenshe was mopping the floor in the new house of the applicant. She statesthat she was taken forcibly to the bedroom and the applicant hadcommitted forcible sexual intercourse with her and threat was given toher. Thereafter also, on several occasions, he had forcible sexualintercourse with her by giving threats. Even she was not allowed to stepout of the house. The last act stated to be committed on 22.06.2022 andthen she states that around 9.30 p.m. on 24.06.2022 when she toldapplicant and his family members that she has no intention to stay withthem, they should clear her salary, at that time, the applicant assaultedher and tried to strangulate her. On the next day, the mother of theprosecutrix had come to meet her, at that time, she disclosed everything.[4] appln-3237-2023.odtHer mother was accompanied by her friend and they both had taken herand admitted to hospital. The medical record of the prosecutrix showsthe injuries on her person. So also, the medical certificate shows thatthere were in all nine injuries on her person when she was examined on25.06.2022. The statements of mother and her friend Sarika aresupporting the FIR and, therefore, this is not a fit case where this Courtshould exercise its powers under Section 482 of the Code of CriminalProcedure.6.The fact which is on record cannot be denied that there appears tobe an affidavit filed by the informant before this Court, when the bailapplication of the applicant was pending. However, it is to be noted thateven in the grounds, the applicant is stating and the prosecutrix is alsostating that there was a written agreement between the informant andapplicant. It is stated to be in respect of live-in relationship for a periodof one year. It is then stated that the prosecutrix had agreed to stay inthe house of applicant for a period of one year and during that period,she was supposed to give birth to the child from the applicant and thesaid child would be the child of the applicant. The applicant states thathe had given some amount to the prosecutrix and at one place, it isdescribed as ‘consideration amount’. We are constrained to look into thatdocument, as reference of the same was made part of the affidavit. Aphotocopy of that agreement was produced, which shows that the[5]
Legal Reasoning
appln-3237-2023.odtagreement appears to have been between the mother of the prosecutrix,prosecutrix and the wife of the present applicant. In that agreement, it isstated that the prosecutrix would stay with the applicant from 17.01.2022to 17.01.2023 in the form of live-in relationship (wrongly described asfyOg vWUM ykbZOg relationship) and then it is stated that if there would beson or daughter born to the prosecutrix, the custody of the same wouldbe given to the applicant and it is stated that some amount has beengiven. It is also stated that the prosecutrix will not claim any right overthe child that will be born out of the relationship. This agreement isagainst public policy, rather it amounts to agreement of surrogacy whichis not legalized in India. It is hard to believe that such agreement can beentered into by the wife of the applicant, whereby she was in a wayparting with her husband. No sane married lady would do it in such way.The prosecutrix appears to be an illiterate rustic lady. She states thatshe was married about 11 years prior to the FIR and she had one sonand one daughter from her husband, but since last three years prior tothe FIR, she was living separately i.e. with the mother due to quarrelsbetween herself and husband. This shows that she was in need ofmoney and under the pretext of giving money, it appears that such illegaldocument has been got executed from her. It cannot be stated that it isa live-in relationship agreement that was executed by understanding theconsequences in law. Prima facie we are of the opinion that such[6] appln-3237-2023.odtconsent under an illegal document cannot be a consent under Section90 of Indian Penal Code. Under such circumstance, the affidavit thatwas got executed from the prosecutrix will have to be then got explainedat the time of trial. It will not be out of place to mention here that thereare two more photocopies of documents those have been produced andmay be along with the affidavit that was filed by the prosecutrix in bailpetition or these two documents are produced by the petitioner, whichare stated to have been executed by the prosecutrix and her mother on21.06.2022 and 24.06.2022. Taking into consideration the writing andthe contents, it appears that they have been got executed deliberately.Of course, this is our prima facie opinion. Certainly, the documents onrecord would definitely show that the prosecutrix had sustained injuriesat the time of her medical examination and the friend of her mother isalso supporting the narration. Therefore, there is prima facie evidenceagainst the applicant in the present matter. 7.The ratio laid down in both the decisions relied by the learnedAdvocate for the applicant are not applicable to the present case asregards facts are concerned. However, in Dr. Dhruvaram MurlidharSonar (Supra), it has been observed that :-“14. Section 375 defines the offence of rape andenumerates six descriptions of the offence. The first Clauseoperates where the women is in possession of her senses and,[7] appln-3237-2023.odttherefore, capable of consenting but the act is done against herwill and the second where it is done without her consent; thethird, fourth and fifth when there is consent but it is not such aconsent as excuses the offender, because it is obtained byputting her, or any person in whom she is interested, in fear ofdeath or of hurt. The expression "against her “will'" means thatthe act must have been done in spite of the opposition of thewoman. An inference as to consent can be drawn if only basedon evidence or probabilities of the case. "Consent" is also statedto be an act of reason coupled with deliberation. It denotes anactive will in mind of a person to permit the doing of the actcomplained of.15. Section 90 of the Indian Penal Code defines"consent" known to be given under fear or misconception:Section 90:Consent known to be given under fear ormisconception.--A consent is not such a consent as itintended by any Section of this Code, if the consent isgiven by a person under fear of injury, or under amisconception of fact, and if the person doing the actknows, or has reason to believe, that the consent wasgiven in consequence of such fear or misconception.Thus, Section 90 though does not define "consent", butdescribes what is not "consent". Consent may beexpress or implied, coerced or misguided, obtainedwillingly or through deceit. If the consent is given by thecomplainant under misconception of fact, it is vitiated.Consent for the purpose of Section 375 requiresvoluntary participation not only after the exercise of[8] appln-3237-2023.odtintelligence based on the knowledge of the significanceand moral quality of the act, but also after having fullyexercised the choice between resistance and assent.Whether there was any consent or not is to beascertained only on a careful study of all relevantcircumstances.”8.Therefore, as aforesaid, when the surrogacy in such form isprohibited i.e. rather soliciting the surrogacy by making the payment ofamount is against the public policy, it was not a free consent. Hence, nocase is made out for exercise of powers under Section 482 of the Codeof Criminal Procedure. The application therefore stands rejected. [ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[9]