Allahabad High Court: In an application filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of chargesheet and the entire criminal proceedings in case under Sections 376 and 386 of the Penal Code, 1860, Anish Kumar Gupta, J. while quashing the criminal proceedings against the accused, said that the informant, a mature woman with adult sons, initiated a physical relationship with the accused while her husband was still alive, raising significant questions about her legal capacity to engage in a new commitment. Given her marital status, any promise of marriage made by the accused may lack legal validity, as she was not in a position to marry at that time. Furthermore, her involvement in the relationship appears to have been driven by her own desire, suggesting she cannot claim victimhood in the context of a breach of promise, as the promise itself was not non-est at that time of beginning of the relationship between them.
Background:
On 21-03-2018, the informant lodged an FIR for the offences under Section 376 and 386 Penal Code, 1860 at the Woman Police Station. It was alleged that her husband had been suffering from diabetes for the last 15 years and was unable to move frequently and despite various treatments given the same could not improve his condition. In the meantime, her husband introduced the accused and told the informant that he is a faithful person, and he will take care of her after him.
Gradually, the accused became very close to the informant and allegedly told the informant that her husband would be alive only for a few more days, thereafter, both of them would marry. Taking the informant in his confidence and promising her to marry in future, he started to have a physical relationship with the informant. The husband of the informant died on 29-05-2017 and even after the death of her husband the accused continued to visit and have physical relationship with her.
The informant asked him to marry her, but he avoided the marriage saying that first let her sister be married and thereafter he will marry her. Subsequently, the informant came to know about the engagement of the accused with some other lady on 31-12-2017.
It was also alleged that the accused under pretext of marriage continued to rape her and even recorded her video. He further demanded Rs. 50,00,000/- within 15 days and threatened that if his demand is not fulfilled, he will kill her sons and make the video clip public.
Analysis and Decision:
The Court noted that during the investigation the Call Detail Records were also received and wherefrom the Investigation Officer has concluded that the place of incident as alleged in the FIR, the CDR report of the accused and the informant were negative and it was further stated that the informant is a fifty year old woman, who has two sons of 27 years and 25 years of age and the accused is also aged about 26 years. After the death of the husband of the informant, her son was running the business of his father, and he was liable to make a payment of Rs. 1,00,00,000/- to the accused.
The Court took note of Sections 375 and 90 IPC and said that for the purpose of the offence under Section 375 IPC, the consent needs the voluntary participation of the prosecutrix in the physical relationship with the accused. The consent of such physical relationship would only be vitiated when it was given under some misconception of fact or under fear of injury to the victim or any person in whom the victim was interested.
The Court further said that in the instant case, at the time of initiation of the physical relationship with the accused, the informant’s husband was alive. Therefore, the allegation that the accused had promised her to marry was of no consequence as the informant herself was not having any capacity to marry with the accused at the relevant time and such consensual physical relationship between them had continued for about 12-13 years without any objection on the part of the informant. Thus, the Court opined that the aforesaid physical relationship between the accused and the informant was a long-standing consensual adulterous physical relationship, which would not amount to rape within the meaning of Section 375 IPC.
The Court further interpreted promise to marry after referring to various judgments, and said that each promise of marriage would not be considered as a fact of misconception for the purpose of consensual sexual intercourse unless it is established that such promise of marriage was a false promise of marriage on the part of the accused since the beginning of such a relationship. Unless it is alleged that from the very beginning of such relationship there was some element of cheating on the part of the accused while making such promise, it would not be treated as a false promise of marriage. Once, a promise was made in good faith and subsequently after change of circumstances when the relationship between the parties went wrong for various other reasons, such breach of promise would not be treated as misconception for the purpose of consent of establishing physical relationships.
The Court added that when a woman of competent age, who has sufficient understanding of the physical activities in which she is involving herself based on such promise of marriage, understands the risk of such physical relationship, there is big difference between marriage and promise of marriage.
The Court reiterated that if the parties were having long-standing continuous consensual physical relationship without there being any element of cheating from the inception, such relationship would not amount to rape.
Thus, the Court concluded that the allegation that the promise of marriage was made which was dependent on the death of the husband of the informant, was an excuse given by her. Even if the accused had promised to marry after the death of the Informant’s husband, it was a no promise in law and she was a mature woman, having two adult children, had deliberately and consciously entered such a relationship with the accused.
The Court stated that it is apparent that the informant had allured the accused as he was financially dependent on her family and due to the aforesaid dependency, she had allured and forced him to enter such a relationship, which was with the clear and categorical consent and will of the informant , therefore, such relationship would amount to rape within the meaning of Section 375 IPC.
The Court opined that in the instant case no offence of rape is made out against the accused and the instant FIR was lodged by the informant after being annoyed regarding the engagement of the accused with some other lady and she was not willing to leave him, therefore, the subsequent incident of forcible rape has been concocted by her only for the purpose of lodging the FIR, which is not substantiated during the investigation.
Therefore, the Court quashed the criminal proceedings against the accused.
[Shrey Gupta v State of UP, 2024 SCC OnLine All 5841, decided on 01-10-2024]
Advocates who appeared in this case :
Counsel for Applicant: Irfan Hasan,Vijit Saxena
Counsel for Opposite Party: G.A.,Jagdev Singh
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