Allowed

Smit S/O Govardhan Teltumbade v. State of Mah. Thr. Pso Ps Wani Tah. Wani Dist.Yavatmal and Another

Bombay HC8 Dec 2023APL/169/2023

Case brief

AI extract

What is this about?

The Nagpur Bench quashed the charge-sheet in Crl. APL No. 169/2023. The court held that the prosecution failed to establish that the applicant obtained the victim's consent through a false promise of marriage made in bad faith. The relationship was found to be consensual amidst allegations of broken engagement and threats.

What did the court decide?

Application allowed and charge-sheet arising out of Crime No. 966/2021 quashed and set aside.

Smit S/O Govardhan Teltumbade Vs State of Mah. Thr. Pso Ps… — Quashing and FIR | Bombay HC (2023)

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2023:BHC-NAG:16952-DB

Judgment

902 apl 169.23

IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR.

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CRIMINAL APPLICATION (APL) NO. 169/2023

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Smit s/o Govardhan Teltumbade,
Aged about 29 yrs., Occ. Student,
R/o. Manish Nagar, Ward No.1,
Wani, Tah. Wani, Dist. Yavatmal.

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 …. APPLICANT

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VERSUS

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1. State of Maharashtra, through Police Station Officer, Police Station Wani, Tah. Wani, Dist. Yavatmal.

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2. XYZ, (Victim in Crime No. 966/2021) Registered at Police Station, Wani, Tah. Wani, Dist. Yavatmal.

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…NON-APPLICANTS

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Mr. S.V. Sirpurkar, Advocate for applicant.
Mr. A. B. Badar, Addl. Public Prosecutor (‘APP’) for non-applicant
No.1.

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Mr. R.R. Dawada, Advocate for non-applicant No.2

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 CORAM: VINAY JOSHI AND
 M. W. CHANDWANI, JJ.

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 DATE: 08.12.2023.

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ORAL JUDGMENT (PER VINAY JOSHI, J.) :

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Heard.

Judgment

902 apl 169.23

2. Admit .

3.The matter is taken up for final disposal with the consent
of learned counsel appearing for the parties. By this application
under Section 482 of the Code of Criminal Procedure (‘Code’), the
applicant is seeking to quash charge-sheet arising out of Crime
No. 966/2021 registered with Wani Police Station, Dist. Yavatmal for
the offence punishable under Sections 376(2)(h)(n), 417, 506 of the
Indian Penal Code.

¶24

4.At the instance of report lodged by informant married
lady aged 38 years, crime has been registered. It is informant’s case
that she got married long back having two school going daughters.
She was running beauty parlor. In the month of July 2019, she got
acquainted with the applicant aged 28 years through face-book.
Frequently, they used to meet each other and developed close
relationship.

¶25

5.Informant stated that on 10.08.2019, the applicant came
to her house and sexually exploited by emotional talk. The applicant
shown her a rosy future and under said pretext, had sexual
intercourse on various occasions. On 10.11.2019, the informant
disclosed that she is pregnant from the applicant, on which he agreed

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Judgment 902 apl 169.23

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to marry and asked her to continue the pregnancy. The informant
stated that on 13.06.2020 and thereafter, the applicant had sexual
intercourse with her in his four-wheeler. The informant came to
know that the applicant had affair with some other lady. It is her
case that on 29.06.2020, she has delivered a baby, however the
applicant denied paternity. On the contrary, the applicant has
disclosed their relation to her husband, who in turn, drove the
informant from his house. The informant stated that the applicant
used to threaten her that he would defame her and therefore, the
report.

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6.The learned counsel appearing for applicant vehemently
argued that it is a pure case of consensual relation in between two
adults. It is argued that the informant is married lady having two
daughters. In the circumstances, it is very difficult to believe that on
account of marital promise, she has submitted herself to the
applicant. It is argued that the reading of First Information Report
(‘FIR’) does not disclose that under false pretext of marriage, the
applicant has sexually abused her. It is submitted that the
relationship was going on for long three years and thus, by any

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902 apl 169.23

stretch of imagination, it cannot be termed that it is a case of rape.

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7.On the other hand, learned APP and learned counsel
appearing for informant resisted the application. It is submitted that
the informant has specifically stated that the applicant has
emotionally made her weak and enjoyed the relation. The applicant
also shown her a better future and under such promise, had
maintained the relations. It is argued that the applicant had relation
with one other lady for which our attention has been invited to the
statement of one lady. In substance, it is contended that the consent
obtained for sexual relation vitiates since it was obtained under
misconception of facts.

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8.The learned counsel appearing for the applicant would
submit that there is a marked distinction between the false promise
and breach of promise. Unless there was deceitful intention from
inception, it cannot be said that the consent vitiates. In order to
substantiate said contention, the applicant relied on the following
decisions:-

¶36

(I) Naim Ahamed Vs. State (NCT of Delhi), (Criminal
Appeal No. 257/2023 [arising out of SLP (Crl.) No.
8586/2017] decided on 30.01.2023.

Judgment

902 apl 169.23

(II) Pramod Suryabhan Pawar Vs. State of
Maharashtra, (2019) 9 SCC 608.

¶41

(III) Dr. Dhruvaram Sonar Vs. State of Maharashtra,
2018 SCC Online SC 3100.

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(IV) Sonu @ Subhash Kumar Vs. State of Uttar
Pradesh and anr. 2021 AIR (SC) 1405.

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9.The Supreme Court has occasion to deal the same issue

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in several cases. The observations made in this regard would provide
us a guiding factor. In case of Deepak Gulati vs. State of Haryana
(2013) 7 SCC 675, specific observations were made in paragraph 21
of the judgment, which reads as follows :

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“21. 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

Judgment

902 apl 169.23

indulgence. There may be a case where the prosecutrix
agrees to have sexual intercourse on account of her love
and passion for the accused, and not solely on account of
mis-representation made to her by the accused, or where
an accused on account of circumstances which he could
not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do
so. Such cases must be treated differently. An accused
can be convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala
fide, and that he had clandestine motives.”

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10. On the same line, we may refer the decision of the

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Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar vs. State
of Maharashtra and ors. supra with emphasis on paragraph 23 of the

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decision, which reads as below :

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“23. Thus, there is a clear distinction
between rape and consensual sex. The court, in
such cases, must very carefully examine whether
the complainant had actually wanted to marry the
victim or had 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 also a distinction between mere
breach of a promise and not fulfilling a false
promise. If the accused has not made the promise
with the sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act would not
amount to rape. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused and
not solely on account of the misconception created
by accused, or where an accused, on account of

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902 apl 169.23

circumstances which he could not have foreseen or
which were beyond his control, was unable to
marry her despite having every intention to do.
Such cases must be treated differently. If the
complainant had any mala fide intention and if he
had clandestine motives, it is a clear case of rape.
The acknowledged consensual physical relationship
between the parties would not constitute an offence
under Section 376 of the IPC.”

¶58

11.In said case the Supreme Court has considered its earlier
pronouncement in case of Uday .vrs. State of Karnataka – [2003] 4
SCC 46, and reiterated the principle that there is a clear distinction
between rape and consensual sex. It was considered that there can
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 misconception created by the accused or the
circumstances are beyond his control. It is expressed that the Court
shall very carefully examine all the aspects in like cases.

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12.It emerges from the above exposition of law that
“consent” of a woman must involve an active and reasoned
deliberation towards the proposed act to attract the penal
consequence. The promise of marriage must have been a false
promise given in bad faith and with no intention to adhere the

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902 apl 169.23

promise.

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13. Section 90 of the Indian Penal Code defines “consent

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known to be given under fear or misconception”, reads as below :

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“Section 90 – Consent known to be given under fear
of misconception – A consent is not such a consent as
is intended by any section of this Code, if the consent
is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception;
or”

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14.Section 90 of the Code, though does not define the term
‘consent’, but, in negative manner it describes what does not amount
to consent. True, consent may be expressed or implied, must
actuated, obtained through deceit or fraud. If the consent is given
under misconception of fact, it vitiates. In order to come out from
the clutches of Section 375 of the Indian Penal Code, the consent
requires voluntary participation and not on some deceitful
misrepresentation. In case at hand undoubtedly there was no
resistance for physical intercourse but, as per the victims case there
was love relationship.

Judgment

902 apl 169.23

15.In case of Pramod Pawar (supra), once again the

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Supreme Court has summarized the position in paragraph 22, which
reads as below :

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“22.To summarise the legal position that
emerges from the above cases, the “consent” of a
woman with respect to Section 375 must involve an
active and reasoned deliberation towards the
proposed act. To establish whether the “consent” was
vitiated by a “misconception of fact” arising out of a
promise to marry, two propositions must be
established. The promise of marriage must have been
a false promise, given in bad faith and with no
intention of being adhered to at the time it was
given. The false promise itself must be of immediate
relevance, or bear a direct nexus to the woman’s
decision to engage in the sexual act.”

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16. Incidentally, our attention has been invited to the case of

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Naim Ahamed (supra), wherein the facts are quiet similar. In the
said case, the victim was married woman having three children. She
had long standing relation with the accused. In that context, it is
observed that by any stretch of imagination, it cannot be held that
the victim had given her consent for sexual relation under
misconception of facts.

Judgment

902 apl 169.23

17.In case at hand also equally the informant (victim) was well
grown-up lady aged 38 years. She was married long back and having two
school going daughters. Undisputedly, her marriage is still in subsistence.
She was not residing with from her husband when the alleged occurrence
took place in the year 2019. Moreover, it reveals from the prosecution
case itself that the relationship was on account of emotional talk and a
better future projected by the applicant. It is not the case that the
applicant has promised for marriage and on believing such promise, she
has consented for relation.

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18.The learned counsel appearing for the informant relied on the
decision of the Pramod Pawar (supra) to impress that the intention of
accused at the time of making promise itself was to deceive therefore the
consent vitiates. There can be no two opinions about said proposition. In
case of false promise, the accused right from the beginning would not have
any intention to marry the victim. In case at hand, even there are no
allegation that under pretext of marriage, the accused has sexually
exploited the victim. Though the learned counsel for informant relied on
the decision of this Court in case of Navneet s/o Ashok Bangalkar Vs. State
of Maharashtra and anr. 2022 AII MR (Cri) 2095. However, the case is
distinguishable on facts. The learned counsel for informant also relied

Judgment

902 apl 169.23

on the decision of this Court in case of Vinay s/o. Pradeep Chawhare
Vs. State of Maharashtra & anr., 2022 ALL MR (Cri) 1970. The said
decision equally relates to the facts of that case. In the said case, the
couple was engaged, but after enjoying sexual relation, the accused has
refused for marriage.

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19.The learned counsel appearing for the informant would
submit that there are allegations of rape on woman knowing that she was
pregnant. Moreover, our attention has been invited that DNA profiling
matches to the paternity of the applicant with a child. We are not
impressed with this submission because unless the act of the applicant
amount to “rape”, it has no consequence about having sexual intercourse
with the pregnant lady. Secondly, though the applicant is a biological
father, however a convincing case of sexual relation with consent has been
made out. Therefore, we do not find any substance in above submission.

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20.In case at hand, already the informant was married and her
marriage was in subsistence when the things were going on. After
examining the entire material, the following fact emerges :-

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(I) The informant was married woman aged 38 years.
(II) The informant had two grown-up daughters.
(III) The informant’s marriage was in subsistence when

Judgment

902 apl 169.23

the occurrence took place.

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(IV) The informant continued relationship for long three years.

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(V) The informant delivered a baby from the applicant.

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(VI) The informant never alleges that under promise to marry, she was sexually exploited.

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(VII) There was vast difference as lady was quiet older than the boy.

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21.In view of settled position of law, by any stretch of
imagination, it cannot be said that the consent was obtained under
misconception. It requires to be noted that informant was 38 years of age
whilst the applicant was 28 years of age only. Their relationship was
going on since long. It emerges from the material that when the
relationship was exposed, informant was drivenaway by her husband. All
the above facts clearly indicates that it is a case of consensual relationship.
We do not see that the consent was obtained by deceiving informant on
account of false promise. We find it impossible to see essentials to
constitute the offence of rape. Certainly, continuation of such prosecution
amounts to abuse of the process of the Court. Discretion is vested with
this Court under Section 482 of the Code to pass appropriate order to
meet the ends of justice and to avoid the abuse of the process of the Court.
We deem it fit to invoke our inherent powers in above facts.

Judgment

902 apl 169.23

22. In view of above, application is allowed. We hereby quash
and set aside charge-sheet arising out of Crime No. 966/2021
registered with Wani Police Station, Dist. Yavatmal for the offence
punishable under Sections 376(2)(h)(n), 417, 506 of the Indian
Penal Code.

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(M. W. CHANDWANI, J.) (VINAY JOSHI, J.)

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Gohane

Smit S/O Govardhan Teltumbade v. State of Mah. Thr. Pso Ps Wani Tah. Wani Dist.Yavatmal and Another

Case brief

What is this about?

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Smit S/O Govardhan Teltumbade v. State of Mah. Thr. Pso Ps Wani Tah. Wani Dist.Yavatmal and Another

Case brief

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