Order On Board

09/12/2021 Heard on admission.

02. The revision is admitted for hearing.

03. With the consent of the parties, the revision is heard finally.

04. Challenge in this revision petition filed under Section 397/401 of CrPC is to the order dated 27.9.2021 passed by First Additional Sessions Judge (FTC), Bemetara in Sessions Case No.66/2021 framing charge under Section 376(2)(n) of IPC against the applicant.

05. Allegation against the present applicant is that for about 6-7 years prior to 1.3.2021 he had been making forcible sexual intercourse with the prosecutrix on the pretext of marriage and subsequently, he refused to marry her and performed engagement with some other girl.

06. Learned counsel for the applicant submits that the impugned charge framing order is per se illegal. The FIR has been lodged with an inordinate delay on 13.3.2021 without any explanation. In fact, the physical relation between the applicant and the prosecutrix, who is a major lady of 28 years, was consensual which is evident from her statement recorded under Section 164 of CrPC. Therefore, in the given facts and circumstances of the case, it is evident that since inception there was no intention of the applicant not to marry the prosecutrix and as such, it cannot be said that the consent of the prosecutrix was obtained by misconception of fact as has been held by the Hon’ble Apex Court in catena of judgments. Even if the entire prosecution case is taken at its face value, no offence as charged is made out against the applicant. Therefore, the impugned order framing charge against the applicant under Section 376(2)(n) of IPC is liable to be set aside.

Reliance has been placed on the decisions in the matters of Pradeep Kumar Verma Vs. State of Bihar and another, AIR 2007 SCW 5532; Jamnalal alias Chimman Dhimar Vs. State of MP, 2002(2) MPLJ 169; Pramod Suryabhan Pawar Vs. State of Maharashtra and another, (2019) 9 SCC 608; Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra others, (2019) 18 SCC 191; and Maheshwar Tigga Vs. State of Jharkhand, (2020) 10 SCC

108.

07. On the other hand, learned State counsel has supported the impugned order.

08. Heard learned counsel for the parties and perused the material available on record.

09. In the matter of Pramod Suryabhan Pawar (supra), the Hon’ble Supreme Court held that the appellant’s failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean that promise itself was false. Allegations in FIR indicate that complainant was aware that there existed obstacles to marrying appellant since 2008 and that she and appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, complainant traveled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. Allegations in the FIR belie the case that she was deceived by the appellant’s promise of marriage. Therefore, even if facts set out in complainant’s statements are accepted in totality, no offence under Section 375 IPC has occurred. With these observations, the judgment and order of the High Court was set aside and the FIR against the appellant was quashed. The Hon’ble Supreme Court while dealing with Section 90 of IPC pertaining to consent under misconception of fact, held as under:

“Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the sa