Consent obtained under false promise to marry could be a consent based on misconception of fact, and such consent would not excuse the offender.

JUDGMENT

G.A. Sanap, J. - The applicant has made this application under Section 482 of the Code of Criminal Procedure (for short, "Cr.P.C") and prayed to quash and set aside the First Information Report No.0573/2021 dated 01/08/2021 registered at Umred Police Station, Nagpur, for the offencecs punishable under Sections 376 and 417 of the Indian Penal Code (for short, "IPC").

The facts leading to the filing of this application are stated in brief as under :-

2. The First Information Report / crime has been registered on the basis of the report lodged by the non-applicant No.2 against the applicant/accused. The non-applicant No.2 stated in the report that the applicant and the non-applicant No.2 got engaged on 22/02/2021 at Wadsa, Tq. Wadsa, Dist. Gadchiroli. The engagement function was celebrated at Saint Gajanan Mandir at Wadsa. The marriage was fixed on 13/04/2021. The applicant had made the necessary booking of lawn, etc. However, due to second wave of Covid-19 Pandemic and the lockdown declared by the Government, the marriage was postponed. The marriage was again fixed on 03/05/2021. However, at that time, the non-applicant No.2 was detected Covid positive and therefore, their marriage could not be performed.

3. It is stated in the report that on 01/06/2021, the applicant had arranged a party at Jungle Retreat Resort at Karandala, Near Umred. The applicant, non-applicant No.2 and their friends with family had been to the said Resort. They enjoyed the party. After party, the non-applicant No.2 went to the room of applicant with luggage. The applicant was in drunken condition. The applicant complained that he had headache and therefore, the non-applicant No.2 gave head message to him. The non-applicant No.2 slept in the said room in the night. The applicant had sexual intercourse with the non-applicant No.2 against her consent and under the pretext that the non-applicant No.2 would be her wife after few days. Similarly, in the morning of 02/06/2021, the applicant had sexual intercourse with the non-applicant No.2. In the morning, the applicant left the said Resort. The non-applicant No.2 came to Nagpur with friends and their family.

4. It is stated that after this incident, the applicant started avoiding and neglecting the non-applicant No.2. On being questioned about it by the non-applicant No.2, the applicant started avoiding her. The applicant sought 8 days time for fixation of the date of the marriage. Gradually, he stopped interacting with the non-applicant No.2. It is stated that on 22/06/2021, the applicant with his family members and friends came to the house of the non-applicant No.2. The applicant told that the non-applicant No.2 is addicted to liquor and her mental condition is such that she could not be shown pity. The applicant, therefore, refused to perform the marriage with the non-applicant No.2. It is stated that the applicant/accused under the false promise to marry, established the sexual relations with the non-applicant No.2. He refused to marry with the non-applicant No.2 and cheated non-applicant No.2.

5. On the basis of this report, crime as above, was registered. In this application, it is the case of the applicant that he has not committed crime. The applicant/accused has admitted that he and the non-applicant No.2 with friends and their family had gone to Jungle Retreat Resort at Karandala to celebrate the birthday of non-applicant No.2 which was on 23/05/2021. After engagement, the applicant found that the non-applicant No.2 was not interested in him. She used to quarrel with him on small issues. He found that there was compatibility issue between him and the non-applicant No.2. He found it difficult to spend his entire life with the non-applicant No.2. The non-applicant No.2 used to raise doubt on each and every issue. On 15/06/2021, the applicant received call on his mobile phone from unknown phone number and the caller threatened him that he should call off the marriage, else they will see that his mar