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RAJASTHAN HIGH COURT
Farjand Ali, J.
Radhakrishan Meena and Ors. —Petitioners
versus
State of Rajasthan, Through P.P.
and Anr. —Respondents
S.B. Criminal Miscellaneous (Petition) No.4952 of 2020 connected with S.B. Criminal Miscellaneous (Petition) No.5612 of 2020
Decided on 23.2.2022
(A) Indian Penal Code, 1860 – Sections 375 and 376 – Rape – In every case of rape, act of sexual intercourse must be forcible and without consent of woman/lady – However, consent obtained by fraud amounts to no consent – If intercourse is done with consent but obtained by fraud, it would amount to rape – If an illiterate woman is given promise to marry and under that promise, her consent is obtained for sexual intercourse, then, it can be said that consent is obtained by fraud – If consent is obtained by hiding identity or impersonation, then it is a fraud – If a married man obtains consent of an unmarried girl under false pretext that he will marry her by concealing fact of his previous marriage, then consent given by young girl shall be construed to be a consent obtained fraudulently and it is no consent – When a woman is married and educated, then, depending on facts of each case, she is supposed to be well aware of consequences of having sexual intercourse with a man prior to solemnizing of marriage – In the event of a consent obtained by fraud, inducement is a necessary ingredient – There must be some material on record to hold prima facie that girl was induced by accused to such an extent that she was in agreement to have sexual intercourse with him. (Paras 15 and 16)
(B) Indian Penal Code, 1860 – Sections 90 and 375 – Rape – Misconception of fact – Breach of promise cannot be said to be a false promise – To establish a false promise, maker of promise should have had no intention of upholding his words at the time of giving it – Consent of a woman under Section 375 of IPC can be held vitiated only on the ground of misconception of fact where such misconception was basis of her surrender for establishing physical relationship. (Para 21)
(C) Indian Penal Code, 1860 – Sections 376-D, 418 and 506 – Criminal Procedure Code, 1973 – Section 482 – Sexual intercourse on false promise of marriage, cheating and criminal intimidation – Quashing petition – There is not an iota of evidence to show or suggest that right from inception, intent of accused petitioner was to deceive the woman to convince her to engage in sexual relationship – There are no allegations in FIR that at what point of time, petitioner made a false promise to marry complainant or whether it was done in bad faith or only with an intention to deceive her – Failure of accused in year 2020 to fulfill his promise made by him to prosecutrix in year 2018 cannot be construed to mean that promise itself was false – Allegations in FIR indicate that prosecutrix continued to engage in sexual relationship with petitioner for a long period of two years and several occasions have been reported when she was made to establish physical relationship – There is a major discrepancy and conflict between report submitted by prosecutrix to Women Commission at Jaipur and impugned FIR which got lodged after few days of moving complaint to Commission – Major alteration and embellishment made in FIR impugned also casts a serious doubt over genuineness of allegations – WhatsApp messages exchanged between parties completely negates story as set out in FIR impugned – Family members of complainant did not agree to solemnize her marriage with petitioner – Present is one of such cases where parties had consensual sexual relationship and were in love with each other, however, relationship become sour by lapse of time – Prosecutrix is an educated lady and serving as a lady jail guard – Prima facie there is no evidence to substantiate allegations regarding offence under Sections 418 and 506 IPC – FIR and all consequential proceedings undertaken in pursuance thereof, quashed and set aside. (Paras 9, 11, 12, 13, 14, 21 and 25)
(D) Criminal Procedure Code, 1973 – Section 482 – Quashing of criminal prosecution – Where allegations made in First Information Report or complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against accused, criminal proceedings can be quashed. (Para 23)
Result: Criminal Misc. Petitions allowed. FIR quashed.
JUDGMENT
By The Court:
The instant criminal misc. petitions have been preferred by the accused petitioners seeking quashing of FIR No. 36/2020 registered at P.S. Mahila Thana, Distt. Alwar for the offences under Sections 376-D, 418 and 506 IPC.
2. Bereft of elaborate details, the brief facts necessary for the disposal of these petitions are that at the behest of the complainant-respondent no.2, on 2.2.2020 the aforementioned FIR came to be lodged alleging inter alia that the prosecutrix is a jail guard deployed at Central Jail, Bikaner. In the year 2018, she was residing in a rented premises at Jaipur for the purpose of coaching for exams. One Dinesh Meena introduced her to the petitioner. One Siya Ram Meena, resident of village Nathalwada, who happens to be the relative of the complainant was also a tenant at the same premises. It is stated that said Dinesh Meena frequently used to visit the house where she and Siya Ram were residing and a good relationship had gradually developed between them. Dinesh Meena had taken her mobile number and often used to call on her mobile number. It is alleged in the FIR that Dinesh Meena told the prosecutrix that a boy named Radha Kishan Meena (the present petitioner) is serving in the Department of Customs at Gujarat and would be a suitable groom for her. The prosecutrix narrated all the things to her brother and other relatives. It is specifically mentioned in the FIR that brothers of the prosecutrix had bluntly refused to get the prosecutrix married with the present petitioner, rather the middleman Dinesh Meena was also sensitized not to make call to her in this regard. It is also alleged in the FIR that thereafter the accused petitioner frequently used to call her and she was coaxed to marry with him, for which ultimately the prosecutrix had consented. It is alleged that on 18.4.2018, she was called by the petitioner to meet with him, upon which she left her house and went outside the village, where the petitioner met her and she sat as a pillion rider on the motor cycle driven by the petitioner. It is alleged that she wanted to go to Jodhpur for physical examination related to recruitment process and for that purpose she asked the petitioner to drop her at Rajgarh Railway Station, but the accused did not stop the bike and took her away to Malviya Nagar, Alwar at the residence of a relative of accused petitioner. As per allegations, the prosecutrix was induced by the accused to develop physical relations and she surrendered herself before him on account of promise to marry her. The act of establishing the physical relationship, is alleged to have been done on 19.4.2018 at Malviya Nagar, Alwar at the residence of one Lekh Raj. After the incident, the prosecutrix was taken through a Motor Cycle to Bandikui Station, wherefrom she boarded to Jodhpur for the purpose of her physical examination on the post of Jail Constable. It is further alleged that after that incident, on several occasions, she was made to establish physical relation with the petitioner on account of the promise that the accused would marry her. Another incident, as shown in the FIR, is that when she was studying at Jaipur, on 18.6.2018, the accused came to her rented house and developed physical relationship with her. It is alleged that though she was not willing to surrender of her own accord but consented to it owing to the promise made by the petitioner that he would marry her, and that is why she submitted herself before the accused. It is further alleged that thereafter on several occasions, sexual inter-course was committed upon her at different places and lastly when she made a protest, she was threatened that an obscene video has been made with the petitioner in a compromising situation and if any report is moved, he will make the video viral in order to disrepute her in the society. After this incident, she has been continuously subjected to intercourse on account of threat of dire consequences. It is alleged i
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