Present criminal revision under Section 397 r/w Section 401 of CrPC has been filed by applicant -Mohit Maheshwari being aggrieved by order of framing charges dated 02-12-2021 passed by Sixth Additional Sessions Judge, Gwalior in Sessions Trial No.511 of 2021, whereby the charges under Sections 376(2)

(n), 294, 506(2) of IPC have been framed against him.

(2) Facts of case in short are that on 29-06-2021 at around 01:45 pm prosecutrix (herein respondent No.2), aged about 30 years, resident of Kota Bala Mohalla, lodged a written complaint with Police Station Gwalior against the present petitioner alleging therein that she knows him for the last five years. Both of them used to love each other. He promised to marry her and under the false pretext of marriage, he used to meet her and made physical relationship against her wishes while she was alone in her house. It is further stated that she was working at Dewas and the petitioner used to meet her at there and also she used to meet him at Bhopal and meanwhile, the petitioner used to make physical relationship with her. When she used to tell him for solemnization of marriage, he denied to it and abused her and used to give a threat in this regard. On 28- 05-2021 at about 11:30 am, he called her by telephone to meet him and came to her house to meet her and told that he could not live without marrying her. When she objected to it and told him to discuss first with his family members regarding marriage, then he agreed to it. Without her wishes, he used to commit sexual intercourse with her and when she told him to get married, he told that his family members are not agreeing, therefore, he should not get her married. Afterwards, he used to harass her mentally. One day, in mobile phone she saw that he has a relationship with another girl and when she asked about this fact, then he said that she is my friend and you can do whatever you want. It is alleged that under the false pretext of marriage on so many occasions, he used to commit sexual intercourse with her. On the basis of such report, Crime No.406 of 2021 was registered against petitioner for offences under Sections 376 , 376(2)(n) of IPC and he was arrested on 30-06-2021. Matter was investigated. He was granted the benefit of bail vide order dated 16-07-2021 Signature Not Verified by this Court.

(3) It is submitted by counsel for the petitioner that as per the contents of FIR, the prosecutrix is a major lady and with her consent, she had made physical relationship with the petitioner many times so that allegations made against petitioner that under the false pretext of marriage he has committed sexual intercourse with her are absolutely baseless and incorrect, therefore, no offence under Section 376(2)(n) of IPC is made out. The impugned FIR has been lodged with a mala fide intention and ulterior motive in order to just to take advantage of benefit. As per the contents of FIR, the prosecutrix has stated that when the petitioner did not agree to get her married, she has lodged the FIR, therefore, the FIR is baseless and abuse of process of law. As per version of the prosecutrix, she was in relationship with the petitioner for the last so many years and made physical relationship with him with her own consent and volition and she became silent in this regard without making any complaint to anybody. The prosecutrix was well-aware of the fact that such relationship has been made with her consent and, therefore, ingredients of Section 376 of IPC are lacking. The Court below without taking into consideration the aforesaid facts has wrongly framed charges vide impugned order which is totally illegal and arbitrary and against the settled principle of law and the same is liable to be set aside. It is further submitted that as and when the petitioner called her, the prosecutrix used to meet her and made physical relationship with him according to her own wishes and therefore, it cannot be said that under false assurance given to her or under false pretext of marriage, he had committed sexual intercourse with her. Therefore, the whole allegations made against the petitioner are vitiated and no offence is madeout against him. Therefore, the impugned order of framing charges deserves to be set aside. To buttress his contentions, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 4 the learned counsel for the petitioner has relied upon the judgments passed by the Supreme Court in the case of Deepak Gulati vs. State of Haryana AIR 2013 SC 2071, Tilak Raj vs. State of Himachal Pradesh AIR 2016 SC 406, Uday vs. State of Karnataka ( 2003) 4 SCC 46, Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr. (2019) 3 SCC (Cri.) 903, Sonu @ Subhash Kumar Vs. State of Uttar Pradesh & Anr. AIR 2021 SC 1405 as well as the judgments passed by this Court in the case of Senjeet Singh Vs. State of M.P. and another 2020 (1) MPLJ (Cri.) 260, Abid Ali Vs. State of MP & Anr. passed on 18/5/2017 in M.Cr.C. No.11363/2016 and a judgment passed by a coordinate Bench of this Court in the case of Umesh Lilani Vs. The State of M.P. & Anr. passed on 18/7/2019 in M.Cr.C. No.16158/2019 (Indore Bench) as well as the order dated 28th March, 2022 passed by a Coordinate Bench of this Court in the case of Satendra Rathore vs. State of MP and Another passed in MCRC 45389 of 2021.

(4) From the plain reading of allegations made by the prosecutrix in the impugned FIR as well as statements made under Section 164 of CrPC, it is clear that the prosecutrix was in relationship with the petitioner for so many years i.e. more than four years. FIR has been lodged on 29-06-2021 while the initial incident was happened with her prior to five years of lodging of impugned FIR. Before lodging report, neither prosecutrix has neither made any complaint to anybody nor to any police authorities in this regard.

(5) The Hon'ble Apex Court in the matter of Deepak Gulati (supra) has held as under:-

Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. 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. We have serious doubts that the promise to marry induced the prosecutrix to Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 8 consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'ÃƒÂ‚Ã‚Â™clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 9 and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.'' The Hon'ble Apex Court in the case of Sonu @ Subhash Kumar (supra) has held as under:-

arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to thewoman's decision to engage in the sexual act."

T he Hon'ble Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. Naval Singh Rajput and others reported in 2019 (3) MPLJ (Cri.) SC 52 has held as under:-

On so many occasions, as and when the petitioner used to call her at the places concerned, the prosecutrix used to go that places to meet her where they made physical relationship according to own wishes. Thus, it cannot be said that her consent was obtained by misconception of fact. At the most, it can be said to be a breach of promise to marry. Near about more than four years are more than sufficient time for a prudent woman to realize as to whether the promise of marriage made by the petitioner is false from its very inception or there is a possibility of breach of promise. When the petitioner was not acceding to her request for marriage, then why she continued to make relationship with him till the date of lodging of FIR as alleged by prosecutrix. Thus, it is clear that at the most, it can be said that it is a case of breach of promise and, therefore, it cannot be said that the promise made by petitioner was obtained under fear or Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 15 misconception of fact.

(7) Thus, considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that no case is made out against petitioner. Accordingly, the order of framing charges dated 02-12-2021 passed by Sixth Additional Sessions Judge, Gwalior in Sessions Trial No. 511 of 2021 whereby the charges under Sections 376(2)(n) , 294 , 506(2) of IPC have been framed against the petitioner is quashed and as a consequence thereof, the impugned FIR vide Crime No.406 of 2021 registered at Police Station Gwalior is hereby quashed. Petitioner is discharged from all the charges levelled against him.

(8) A copy of this order be sent to the concerned Police Station as well as concerned Court for information.

(DEEPAK KUMAR AGARWAL) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM