Ku. Renu Yadav vs Madhusudan Elawadi and Another

Uma Nath Singh, J. 1. This is a criminal revision against the order of discharge dated 26-2-2002, whereby the learned Special Judge, Bhopal, in Sessions Trial No. 67/2002 has recorded discharge of the non-applicant No. 1 from an offence u/s 376, IPC. Shri Datt appearing for the prosecutrix submits that, prima facie, there are sufficient materials on record to proceed against the non-applicant No. 1, u/s 376 in as much as in her statement u/s 161, Cr.PC the prosecutrix has mentioned that the applicant visited her college and impressed upon her to act as a model in his advertisements; and that the non-applicant No. 1 misrepresented that he is a bachelor which she believed in and consequently, succumbed to his lust. The applicant had sexual intercourse with non-applicant under mis-conception of facts that he was a bachelor and that he would be true to his promise and marry her. Thus, the applicant''s consent was not free from mis-conception and that is why, the moment, she came to know that the non-applicant No. 1 was a married man, she had strongly protested. Fearing prosecution, the non-applicant No. 1 threatened her with dire-consequences on the strength of his acquaintance with Police Officers and Politicians. The non-applicant also attempted to set her a fire and therefore, the prosecutrix lodged an FIR. Mr. Datt also submits that the materials on record and the attending circumstances do not indicate that the applicant''s consent was a true consent in terms of the provisions of Section 90 of the IPC. Mr. Datt to substantiate his submissions also cited a case of the Patna High Court, reported as Saleha Khatoon v. State of Bihar and Anr. (1989 Cr.LJ 202). Para 8 of the judgment reads as under:--

"Much emphasis was argued on behalf of opposite party No. 2 that in this case none of the ingredients aforesaid, prima facie, establish to show that an offence of rape was committed. The first point which attracts my attention is the second ingredient ''without her consent''. Consent always means free will or voluntary act. In this case, consent was obtained on the basis of some fraud and allurement or practising deception upon the lady on the pretext that ultimately she will be married and under that pretext she allowed opposite party No. 2 to have sexual intercourse with her. Therefore, this tainted consent or a consent of this nature which is based on deception and fraud, cannot be termed, prima facie, to conclude that it was ''with consent''. Had the lady known that ultimately she would be deserted, the facts and circumstances stated above and the materials placed would go to show that she would have refrained from giving such consent. Then a question would arise what was the purpose for which she gave consent. It was a fraud that was practised on her or she was deceived by giving false assurance. Such type of consent must be termed to be consent obtained without her consent. Consent obtained by deceitful means is no consent and comes within the ambit of ingredients of the definition of rape."

Under the circumstances, Mr. Datt submits that in view of sufficient materials on record, prima facie, a case of offence u/s 376 is clearly made out. On the other hand Shri Singh, learned Counsel for the non-applicant No. 1 submits that it is a case of sexual intercourse with consent. Mr. Singh to substantiate his submission placed reliance on a judgment of this Court in the matter of Dameshwar Kumar v. State of M.P. [1998 (II) MPWN 200] which, according to Mr. Singh is based on a judgment of the Calcutta High Court in the matter of Hari Majhi v. State (1990 Cr.LJ 650), Para 6, being the relevant para, of Hari Majhi reads as under:--

"It would be evident from the said evidence that the accused had sexual intercourse with She girl with her consent which she, being above the age of 16 years, was competent to give. The prosecution case is that she agreed to sexual intercourse because the accused promised to marry her. But on this ground he cannot be held guilty of rape. The prosecution case does not cover any of the circumstances in Section 375 of the Penal Code. In our view, the accused cannot be held guilty of tape for having sexual intercourse with P.W. 1 after having promised to marry her."

On due consideration of rival submissions, I am of the view that the submissions of Mr. Datt merit consideration, inasmuch as the judgment of Calcutta High Court cited by Mr. Singh, learned Counsel for the non-applicant No. 1, has been rendered against the order of conviction and not at the stage framing of charge whereas the judgment of Patna High Court has been passed in an application for quashing the charge u/s 376, IPC. From the materials on record like the statement of prosecutrix and other attending circumstances, if it appears to be, prima facie, a case of rape, the Trial Court is duty bound to frame such a charge. It is not a case of no material and at the charge stage materials are to be accepted as true and are not to be probed into. The Court is to apply its mind to question whether or not, there is any ground for presuming commission of offence by accused, as held by the Hon. Apex Court in the matter of State of Maharashtra v. Som Nath Thapa [(1996) 4 SC 615]. The aforesaid principle was further reiterated by the Apex Court in the case of State of Maharashtra v. Priya Sharan Maharaj and Ors. [1997 SCC (Cr.) 584]. In the instant case the applicant gave her consent under a misconception and the non-applicant No. 1 to whom it was given was aware of the existence of the misconception. As the non-applicant No. 1 misrepresented the fact about his marital status and obtained the consent of the applicant under a misconception of fact, it amounted to no consent as per provisions of Section 90, IPC. In the Williams'' case, reported in (1923) 1 KB 340, it was held that where a singing master had sexual intercourse with a girl telling her that it was a method to improve her voice, it amounted to rape as consent to sex act was obtained by deception and as the girl had given the consent under a misconception of fact, it was no consent under the law. In the instant case the applicant succumbed to the lust of the non-applicant No. 1 on a misrepresentation that he was a bachelor and that he would marry her. Thus, in view of the foregoing, the order of the learned Special Judge dated 26-2-2002 in Sessions Trial No. 67/2002 is hereby set aside and the matter is remanded to frame charges afresh. The learned Trial Judge shall not be influenced by the observations of this Court hereinabove.

Accordingly the criminal revision is hereby allowed.