Ramprasad Bediya vs State Of Madhya Pradesh

This criminal revision is directed against the order dated 27. 03.2018 passed by the Court of Special Judge, Panna, in Sessions Trial No.32 of 2018;

whereby a charge under Sections 376 (2)(n), 294 and 506 (Part II) of the Indian Penal Code was framed against petitioner Ramprasad Bediya.

The facts necessary for disposal of this criminal revision may be summarized as hereunder: The prosecutrix is a 33 years old divorcee, who is

Superintendent of Girls Hostel at Nardaha District Panna. She lodged a written first information report in P.S. Dharampur, District Panna, on

17.01.2018 to the effect that between the years 2010 and 2015, she was Superintendent of Girls Hostel, Kakra. In the year 2014, she came in contact

with petitioner Ramprasad in connection with her official work. Gradually, the acquaintance turned into love. The petitioner proposed to marry her.

Thereafter, at the insistence of the petitioner, they started to live as husband and wife. The petitioner used to demand money out of her salary. Since,

the petitioner was her husband, she used to provide money to him; however, gradually, he started to extract money from her. Whenever the

prosecutrix reminded him about his promise to marry her, he would avoid the subject and would abuse and beat the prosecutrix. On 23.06.2015, she

was transferred to Nardaha. The petitioner went along with prosecutrix to Nardaha and told everyone that the prosecutrix was his wife. They started

to live at Nardaha as husband and wife. The petitioner would go to her residence at Nardaha and would forcibly establish physical relations with her.

Number of times the prosecutrix asked the petitioner to marry her; however, he did not oblige and beat her several times. On 08.12.2017, when the

prosecutrix was at Amanganj, the petitioner came along with his sister-in-law (Bhabi) Vinita and started to filthily abuse the prosecutrix. He

threatened that if she lodges the report he would kill her by pouring petrol upon and setting her afire. After that, the petitioner allured the prosecutrix

and took her to a hotel at Amanganj. At that place, on the promise of marriage, he established physical relations with her against her wishes. In the

morning, the petitioner turned her out. The prosecutrix returned to Nardaha on 11.12.2017. The prosecutrix lodged a report against the petitioner with

Superintendent of Police, Panna, whereafter on 17.12.2017, the petitioner came accompanied by six persons to Nardaha hostel and proposed a

compromise. He threatened that otherwise he would kill her. The prosecutrix was terrified on seeing so many persons. At night, the petitioner again

established physical relations with her under threat to kill. On 18.12.2017, the petitioner took the prosecutrix to Panna. On account of fright and

pressure, the prosecutrix signed the compromise deed with the petitioner stating that she did not want any action against the petitioner. However, after

signing the compromise deed, the petitioner turned her out and threatened that if she lodged any report, he would kill her.

Learned counsel for the petitioner has assailed the order framing charge mainly on the ground that the story narrated by the prosecutrix in the first

information report and statements under Sections 161 and 164 of the Code of Criminal Procedure is highly improbable. The prosecutrix is a 33 years

old divorcee, who is a Government servant being Superintendent of a Girls Hostel. She is well versed in the ways of life. Yet, she claimed that she

succumbed to the promise of marriage made by the petitioner and continued to submit to sexual intercourse for a period of about 4 years. In these

circumstances, it cannot be said that the consent given by the prosecutrix to sexual intercourse was based upon misconception of facts and she cannot

take recourse to Section 90 of the Indian Penal Code. This is a clear case of relationship between two consenting adults for mutual sexual

gratification. Therefore, it has been prayed that the charge framed under Section 376(2)(n) of the Indian Penal Code be quashed.

Learned Government Advocate for the respondent/State as well as learned counsel for the prosecutrix have vehemently opposed the application.

Learned counsel for the prosecutrix has invited attention of the Court to the judgment rendered by a coordinate bench of this Court dated 27.03.2018

passed in M.Cr.C. No.19711/2017 (Sharad Khare Vs State). It has been contended on their behalf that the consent to the sexual intercourse accorded

by the prosecutrix was on account of false promise of marriage held out by the petitioner. Therefore, the consent was vitiated and the sexual

intercourse committed by the petitioner would fall under the purview of rape. It has also been submitted that at any rate, such question of fact which

depends upon the evidence of the parties, cannot be considered at the stage of charge, as every case has to be judged on its own merits.

On perusal of the record and due consideration of the rival contentions, the Court is of the view that this criminal revision must succeed for the

reasons hereinafter stated.

Before adverting to the fact situation as prevailing in the case, it would be appropriate to take a look at the legal position in this regard. As per

Section 375 and 376 of the Indian Penal Code, sexual intercourse without consent of a woman constitutes offence of rape. Section 90 of the Indian

Penal Code explains that 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 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

misconception.

With regard to consent in the case of rape, the Supreme Court in the case of Uday vs State Of Karnataka, AIR 2003 SC 1639 has observed as

follows:

In Stroud's Judicial Dictionary (Fifth Edition) page 510 ""consent"" has been given the following meaning :-

Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side.

It refers to the case of Holman v. The Queen : (1970) WAR 2 wherein it was held that ""there does not necessarily have to be complete willingness to

constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent' "".

Similar was the observation in R. v. Olugboja : (1981) 3 WLR 585 wherein it was observed that ""consent in rape covers states of mind ranging widely

from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction"". Stephen, J. in

Queen v. Clarence (1888) 22 QBD 23 observed - ""It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken

to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true."" Wills, J. observed - ""the

consent obtained by fraud is not consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and

knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say

that she did not consent.

Some of the decisions referred to in Words and Phrases - Permanent Edition Volume 8A at page 205 have held ""that adult female's 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. Legal

consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature

of the act committed, its immoral character, and the probable or natural consequences which may attend it. (See : People v. Perry, 26 Cal. App. 143).

With regard to sexual intercourse on the promise of marriage, the Supreme Court has held in the case of Uday (supra) that:

In a case of this nature two conditions must be fulfilled for the application of S. 90, I. P. C. Firstly, it must be shown that the consent was given under

a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was

given in consequence of such misconception.

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.

Likewise, in the case of Deepak Gulati Vs. State of Haryana, AIR 2013 SC 2071, the Supreme Court has held that:

There is a clear distinction between rape and consensual sex and in a case where there is promise of marriage, 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, 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. 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."" S. 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.

In the case of Pradeep Kumar Verma Vs. State of Bihar, AIR 2007 SC 3059, the Supreme Court has observed as hereunder:

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 victim 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 S. 375 clause second.

In the case of Yedla Srinivasa Rao Vs. State of Andhra Pradesh, (2006) 11 SCC 615, the Supreme Court haD held the consent to be vitiated

because it was accorded on misconception of facts; however, the Supreme Court has held as follows:

Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely

being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the

promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception,

cannot be treated to be a consent.

It was also observed that if a fully grown- up 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 and it was held that Section

90 IPC cannot be invoked unless the court can be assured that from the inception the accused never intended to marry her. Therefore, it depends on

case to case that what is the evidence led in the matter. If it is a fully grown-up girl who gave the consent then it is a different case but a girl whose

age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never

intended to fulfil right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked.

However, it may be noted that in aforesaid case, the girl was only 19 years old.

In the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar, AIR 2005 SC 203, the Supreme Court had held that where a girl aged 16 years

was raped with her consent even before the promise of marriage was given, consent by the victim girl cannot be said to be given on misconception

under Section 90 of the IPC and the accused was entitled to be acquitted. However, the accused had made breach of promise to marry and was

therefore; accountable for the damages.

Reverting back to the facts of the present case, we may note that the prosecutrix was not a minor. She cannot also be said to be of a tender or

impressionable age. She was a mature woman in her late twenties. She was also a divorcee and as such, had experienced man before. Thus, it cannot

be said that she was innocent and was oblivious of the facts of the life. She was also a responsible government servant and held responsible position

of Superintendent in Government Girls Hotal. In these circumstances, it can also not be said that she was unaware of the immorality of the acts she

had consented to. She can be presumed to be fully understanding the nature and consequences of sexual acts she had submitted to. She was free to

exercise her choice between resistance and assent. She consciously elected to exercise the latter option.

It is obvious from the averments made in the written report lodged by the prosecutrix herself that she was in love with the petitioner and was in

some sort of love-in-relationship with him for a period of about 4 years. During the course of aforesaid relationship, petitioner continued to have

common unhindered sexual access to her. Petitioner and the prosecutrix held themselves as husband and wife before the society. During the course of

such relationship, petitioner is said to have beaten, threatened and abused the prosecutrix several times but she continue to submit to his wishes. In

December, 2017 they entered into a compromise and notarized an agreement of marriage. The agreement is a part of prosecution documents. On the

basis of the conduct of the petitioner, as alleged in the first information report, any woman of common prudence would have realized long ago that the

petitioner does not intend to marry her but was only exploiting her physically and financially; yet, she chose to continue with the relationship for 4 long

years. The conclusion is inescapable that the consent for sex was not granted by the prosecutrix due to promise of marriage made by the petitioner but

was granted because the prosecutrix was also in love with the petitioner and wanted him for her biological needs. In these circumstances, she cannot

be allowed to turn around and claim that the consent was based on misconception of facts.

Now the question that remains for consideration is whether this Court can in exercise of its revisionary jurisdiction, interfere with framing of

charge under Section 376 (2) (n) of the IPC? It is true that ordinarily, at the stage of charge, the Court would not appreciate or marshal the material

on record but would only see whether all ingredients for constituting offence are made out? However, in the case of State of Maharashtra Vs. Priya

Sharan Maharaj and others, (1997) 4 SCC 393 has held that:

At Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging

therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited

purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed

to common sense or the broad probabilities of the case.

Likewise, in the case of Niranjan Singh Karan Singh Punjabi Vs. Jitendra Bhimraj Bijja and Ors., AIR 1990 SC 1962, it has been observed that:

It seems well settled that at the Ss.227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on

record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the

alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the

prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

In the case of Union of India Vs. Prafulla Kumar Samal and anr., AIR 1979 SC 366, the Supreme Court observed that:

In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a Post-

Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents

produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving

enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

In view of the aforesaid authoritative pronouncement, it is clear that at the stage of charge, what prosecution states cannot be taken as a gospel

truth. The Court is not merely a bystander and cannot act merely as post office or mouth piece of the prosecution either. It is the duty bound to

consider the broad probabilities of the case and effect of the material produced by the prosecution in its entirety. It may also appreciate basic

infirmities and inherent improbabilities in the prosecution case.

As observed earlier, the consent of the prosecutrix to repeated incidents of sexual intercourse over a period of about 4 years was not vitiated by

misconception of fact and; therefore, section 90 of the IPC was not attracted. Even from the averments made in the first information report, it

obviously was a legal consent, which bound her. As such, sexual acts between the petitioner and the prosecutrix were consensual episodes of sex

between two adults, who were free agents. In these circumstances, the trial Court erred in framing charge under Section 376 (2) (n) of the IPC. This

Court has jurisdiction to quash that charge in exercising its revisionary jurisdiction.

Consequently, this criminal revision is partly allowed. The charge framed by the trial Court under Section 376 (2) (n) of the IPC against the

petitioner is quashed.

The case shall proceed for the charges under Sections 294 and 506 (Part-II) of the IPC in accordance with law. Certified copy as per rules.