MADHYA PRADESH HIGH COURT
S.K. Palo, J.
Hemant Choubey —Petitioner
versus
State of M.P. —Respondent
Cri R No. 845 of 2014
Decided on 11.12.2014

IMPORTANT POINT
Consent given by a woman believing the man’s promise to marry, her would fall within the expression “without her consent” only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax.

Headnote:Indian Penal Code, 1860—Sections 376 and 506—Prosecutrix, a college student while staying in rented house owned by appellant developed love and on promise of marriage they maintained physical relations—Petitioner later on started threatening her and slapped her and prosecutrix lodged report—Petitioner on being charge-sheeted for offences, trial court framed charge—Revision—Question whether consent for sexual intercourse was to be said to be a consent under misconception—Record to show that prosecutrix agreed to marry petitioner after they had sexual relationship—Evidence revealed that she was also aware that their marriage may not take place at all in view of their caste barrier—Consent for sexual intercourse could not be construed to be consent under misconception and proceeding with trial would result in abuse of process of Court—Order impugned was liable to be quashed.

       Held: On perusal of the record, it is observed that in her statement under Section 161 Cr.P.C., the prosecutrix has repeated the same narration which she has made in the FIR. The statement recorded before the JMFC, Dabra under Section 164(5) of Cr.P.C. also is repetition of the earlier version. In the last line of the statement, the prosecutrix has stated that on 25.8.2014, the petitioner/accused came to her college and beaten her with his shoes and tried to take her in the vehicle. Therefore, she lodged the report. From the complaint itself, it is evident that the petitioner and the respondent No.2 belong to different caste and it is also significant that her ornaments ear tops and ring were taken by the petitioner about two and half years ago.

       It is also seen from the record that she agreed to marry him after they had sexual relationship. Under the impression that he would marry, she did not complaint to anybody. The prosecutrix has stated that she is 21 years old at the time of deposing before the JMFC on 26.8.2014. That means two and half years ago, she was above 18 years of age. Her statement indicates that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. Prospect of the marriage proposal not materializing had also entered her mind. The evidence also reveal that she took a conscious decision after active application of mind to the things that were happening. She was also aware that their marriage may not take place at all, in view of the caste barrier, which is an important factor. (Paras 4 & 5)

       In the present case it is difficult to say that the petitioner knew or had reason to believe that the prosecutrix had consented to have sexual relationship with him only as the consequence of her believe based on his promise that they will get marriage in due course. From the record the same is hardly seen. On the contrary, petitioner has reason to believe that the consent given by the prosecutrix was the result of their deep love for each other.

       In such case, the consent of the prosecutrix was obtained or given in consequence of misconception of a fact arising from his promise is difficult to impute. In any event it was not possible for the petitioner to know what was in her mind when she consented because there were more reasons then one for her consent. (Paras 7 & 8)

       In the present case, the material relied by the petitioner/accused is the document of the prosecution itself. This material rule out the assertion contained in the charges levelled against accused/petitioner. The material relied upon by the petitioner as said above is the document filed by the prosecution and relied upon by the prosecution. Lastly, the proceeding with the trial would result in abuse of process of the Court and would not serve the ends of justice.

       In view of the above, the learned Trial Court committed a mistake of law, in framing charge against the petitioner, therefore, this revision petition succeeds and: the impugned order dated 7.10.2014 passed by the learned 2nd Additional Sessions Judge, Dabra district Gwalior framing charge punishable under Section 376 of TPC against the petitioner Hemant Choubey is quashed. However, it is made clear that the Court may proceed with the other charges in accordance with law. (Para 11)

       Result: Revision allowed.