Full Judgment Text
2024 INSC 481
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1552 OF 2023
SHIV PRATAP SINGH RANA APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH & ANR. RESPONDENT(S)
J U D G M E N T
UJJAL BHUYAN, J.
This criminal appeal by special leave is directed
against the judgment and order dated 03.10.2019 passed by
the High Court of Madhya Pradesh at Gwalior (the ‘High
Court’ hereinafter) dismissing Criminal Revision No. 2288 of
2019 filed by the appellant. The aforesaid criminal revision
petition was filed by the appellant before the High Court
th
assailing the order dated 24.04.2019 passed by the X
Additional Sessions Judge, Gwalior (‘Sessions Judge’
Signature Not Verified
Digitally signed by
satish kumar yadav
Date: 2024.07.08
18:19:31 IST
Reason:
hereinafter) in Sessions Trial No. 505 of 2018 whereby
charges under Section 376(2)(n) and 506 of the Indian Penal
Code, 1860 (IPC) were framed against the appellant and the
application for discharge filed by the appellant was rejected.
2 . The case of the prosecution is that the prosecutrix
had lodged a first information report (FIR) on 06.09.2018
alleging that in the year 2016, the accused (appellant herein)
used to show photographs of hers and telling her to come to
Gwalior with him otherwise her photographs would be
uploaded on Whatsapp. It was due to fear that she came to
Gwalior alongwith the appellant by train from Dabra. One boy
from Anupam Nagar came to the railway station to receive
her. On his motorbike, the prosecutrix and the appellant went
to Anupam Nagar city centre where the appellant was living in
rented premises. There, the appellant forcefully committed
wrongful act on her. Thereafter, the appellant forcefully took
the signature of the prosecutrix on an affidavit. It was
mentioned in the affidavit that the prosecutrix would live with
the appellant for life. After that she came to Dabra with the
appellant and went home. Appellant used to tell her again and
again about having a relationship. He told her that he would
Page 2 of 26
marry her after the marriage of his brother. But after the
marriage of his brother when the prosecutrix broached the
topic of marriage, the appellant told her that his brother had
received Rs. 15 lakhs in marriage; if her family would give Rs.
15 lakhs then only he would marry her, otherwise not. Her
parents went to the residence of the appellant with a marriage
proposal but his family members turned out the proposal. In
the FIR, it was alleged that the appellant while having
relationship with the prosecutrix took money from her on
various occasions totalling Rs. 90,000/-; besides jewellery
were also taken. When the appellant started threatening the
prosecutrix, she filed the FIR before the Vishwavidhyalaya
Police Station, District Gwalior.
3 . The FIR was registered as Crime No. 401 of 2018
under Sections 376 and 506 IPC.
4 . Police carried out the investigation during the
course of which statement of the prosecutrix under Section
161 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was
recorded on 11.09.2018. That apart, statement of the
Page 3 of 26
prosecutrix was also recorded on 12.09.2018 under Section
164 Cr.P.C. On completion of the investigation, chargesheet
was filed against the appellant under Sections 376 and 506 of
IPC.
5 . Appellant filed an application under Section 227
Cr.P.C. before the Sessions Judge seeking his discharge. By
the order dated 24.04.2019, the Sessions Judge took the view
that prima-facie the chargesheet discloses sufficient evidence
to frame charge against the appellant. In such circumstances,
the accused (appellant) could not be discharged from the trial
for the offences under Sections 376 and 506 of IPC.
Consequently, the application filed by the appellant under
Section 227 Cr.P.C. was dismissed.
6 . Aggrieved by the aforesaid order of the Sessions
Judge, appellant filed a criminal revision petition under
Section 397 Cr.P.C. The said petition was registered as
Criminal Revision No. 2288 of 2019. By the judgment and
order dated 03.10.2019, the High Court took the view that
trial needs to be conducted for unearthing the truth and that
Page 4 of 26
no case for interference was made out. Consequently, the
criminal revision petition was dismissed.
7 . Assailing the aforesaid decision of the High Court,
appellant preferred Special Leave Petition (Criminal) No.
11671 of 2019 before this Court. By order dated 07.01.2020,
this Court issued notice and passed an interim order staying
further proceedings in Sessions Trial No. 505 of 2018 pending
before the Sessions Judge. Subsequently by order dated
12.05.2023, this Court granted leave and directed
continuance of the interim order during the pendency of the
criminal appeal, which came to be registered as Criminal
Appeal No. 1552 of 2023.
8 . Learned counsel for the appellant submits that the
relationship between the appellant and the prosecutrix was
purely consensual. Therefore, there is no question of any
offence committed by the appellant either under Section 376
IPC or under Section 506 IPC. A bare reading of the FIR and
the chargesheet would go to show that there is no criminal
element involved in the case. Therefore, it would be contrary
Page 5 of 26
to the principles of justice if the appellant is made to suffer
the ordeal of a long-drawn criminal trial and in the process
suffer ignominy which would have irreparable consequences.
This aspect of the matter was overlooked by the Sessions
Judge as well as by the High Court. He, therefore, seeks
quashing of the orders passed by the Sessions Judge and the
High Court and further to quash the proceedings in Sessions
Trial No. 505 of 2018 pending before the Sessions Judge.
9 . Learned counsel for respondent No. 1 on the other
hand submits that on the information of the prosecutrix,
police registered FIR under Sections 376 and 506 IPC against
the accused (appellant). Police investigated the case and
collected materials. Having considered the medical records,
statement of the prosecutrix under Section 164 Cr.P.C. and
other corroborating materials, a report under Section 173
Cr.P.C. was filed to prosecute the accused (appellant) under
the aforesaid provisions of IPC.
9.1 . Learned counsel further submitted that there were
sufficient materials for the learned Sessions Judge to frame
Page 6 of 26
charges against the appellant. It is trite law that at the stage
of framing charge, a full-fledged trial is not required. The
court is required to take a prima-facie view based on the
materials available on record as to whether the case is fit to
stand trial. Trial court found sufficient material to frame
charge against the appellant. The High Court while exercising
revisional jurisdiction, examined the case in detail and found
no merit in the application of the appellant. Appellant had
committed rape on the prosecutrix on the false promise of
marriage and threatening to make public her photographs.
Thus, it is a fit case which comes within the ambit of the
definition of rape under Section 375 IPC. Inducing a woman
to have a sexual relationship on the basis of false promise of
marriage would be rape within the meaning of Section 375
IPC. At this stage, the prosecution case is supported by the
statement of the prosecutrix recorded under Section 164
Cr.PC. and other corroborating material. It is not a case where
the trial should be nipped in the bud. At least a triable case is
made out where the appellant would have all the opportunity
Page 7 of 26
to defend himself to prove his innocence. He, therefore,
submits that no case is made out for interference by this
Court in the impugned order of the High Court and the appeal
is liable to be dismissed.
10 . After narrating the factual matrix, learned counsel
for respondent No. 2 (prosecutrix) submits that appellant took
advantage of the friendly nature of the prosecutrix in the
context of appellant being the friend of her younger brother.
Taking advantage of her vulnerability, appellant took private
photographs of hers when she was changing her clothes after
taking bath near a temple compound which they had visited
together. Appellant later on showed such pictures to the
prosecutrix and blackmailed her to indulge in a physical
relationship with him. He threatened her that if she refused
his demand, he would upload her private pictures on social
media and also show them to her father. It is under such
circumstances that the prosecutrix travelled with the
appellant to Gwalior where he forced himself upon her in his
tenanted premises. He asserts that compelling the prosecutrix
Page 8 of 26
to have intercourse with the appellant under the fear that he
would leak her photographs would be in essence a consent
vitiated by coercion. Such a consent is no consent at all. It is
a clear case which would come within the ambit of the
definition of rape.
10.1 . To pacify the prosecutrix and to keep on exploiting
her physically and mentally, appellant swore an affidavit on
28.09.2016 stating therein that he loved the prosecutrix and
would take care of her under all circumstances. According to
learned counsel, the physical relationship between the two
was on the basis of consent of the prosecutrix which was
obtained under ‘misconception of fact’ on the false promise of
marriage. Intention of the appellant was quite clear. He
deceived the prosecutrix on the pretext of marriage to have
and maintain a physical relationship.
10.2 . He submitted that appellant had obtained a stamp
paper dated 07.07.2017 wherein he expressed his desire to
marry the prosecutrix. According to learned counsel for
respondent No. 2 i.e. the prosecutrix, that was done with the
Page 9 of 26
intention of procuring financial support for his
malafide
‘purported’ business investment from her because of which
respondent No. 2 had handed over various articles to the
appellant amounting to Rs. 90,000/-.
10.3 . Though respondent No. 2 continuously requested
the appellant to solemnize their marriage but on one pretext
or the other, the appellant evaded the same. At the same time
he continued to physically exploit her. Initially, he had
assured the prosecutrix that he would marry her after the
marriage of his elder brother. But his malafide intention
became obvious when he raised a demand of Rs. 15 lakhs
saying that such amount was received by his elder brother in
marriage.
10.4 . In the course of his submissions, learned counsel
also relied upon Section 90 IPC to buttress the point that
consent of the prosecutrix was obtained on a ‘misconception
of fact’.
11 . In response to a query of the Court, learned
counsel for the State, i.e., respondent No. 1 submitted on
Page 10 of 26
instructions that neither the photographs nor the mobile
phone of the appellant have been seized. He also admits that
the affidavit dated 28.09.2016 and the stamp paper dated
07.07.2017 have also not been seized. No jewellery as alleged
by the prosecutrix to have been given to the appellant by her
has been recovered or seized from the appellant.
12 . Submissions made by learned counsel for the
parties have received the due consideration of the Court.
13 . At the outset, let us examine the statement of the
prosecutrix made before the police. In her statement under
Section 161 Cr.P.C., the prosecutrix stated that appellant was
not only a friend of her younger brother Mukul Rana but also
a distant brother of her brother-in-law Shailendra Rana.
Appellant used to run a competition coaching centre at
Dabra, which the prosecutrix used to attend alongwith her
brother Mukul during the years 2015 and 2016.On the
recommendation of the appellant, prosecutrix got a job of
receptionist in a company. In the year 2016, appellant
disclosed his affection towards the prosecutrix which was
Page 11 of 26
turned down by her on the ground that he was not only
younger to her but also friend of her younger brother Mukul.
However, they became friends. She stated that on one Monday
in the month of Savan of that year, appellant took her to a
forest outside Kitore village ahead of Gijorra where there was
a temple of Doodhkho Shankar Ji. There she took bath in the
waterfall. Later on, appellant showed her the photographs
which he had taken while she was changing her clothes in the
temple. Though the prosecutrix told the appellant to delete
the photographs, he did not do so. Thereafter, he started
blackmailing her by showing her the photographs because of
which the prosecutrix stated that she had left the coaching
centre and the job. Notwithstanding the same, appellant
continued to threaten her by saying that the photographs
would be made viral and that those would be shown to her
father. It was because of such threatening that she went with
the appellant by train from Dabra to Gwalior. On reaching
Gwalior, he took her to one place at Anoopam Nagar where he
forcefully made physical relationship with her. The place was
Page 12 of 26
taken on rent by a friend of the appellant Nitin Nagariya. On
28.09.2016, appellant obtained a stamp paper where he put
his as well as the signature of the prosecutrix. It was
mentioned in the stamp paper that he would support her
throughout her life. According to the prosecutrix, she told the
appellant many a times to marry her but on one pretext or the
other, he evaded the proposal. Later on, he said that he would
marry her after the marriage of his brother Jaideep.
Prosecutrix stated that she had given the appellant money on
several occasions after withdrawing from bank. On
16.06.2017, prosecutrix gave the appellant a cheque of Rs.
10,000/- of her mother. Appellant also stated that he had left
the coaching centre and wanted to do business of his own and
then his family members would be ready for marriage. On
07.07.2018, appellant had given the prosecutrix one e-stamp
in his name wherein it was mentioned that he would marry
her and on his assurance on 22.11.2017, prosecutrix took the
pendant of the mangalsootra of her sister and gave it to the
appellant. She went with the appellant to the bank where he
Page 13 of 26
mortgaged the pendant of the and took loan of
mangalsootra
Rs. 8,000/-. She further helped him in obtaining loan of Rs.
5,000/-. Later on, when she broached the topic of marriage
since marriage of his brother had taken place on 18.04.2018,
appellant told the prosecutrix that his brother had received
Rs. 15 lacs in marriage; therefore, if she paid Rs. 15 lacs, he
would marry her. However, when her family members talked
with the family members of the appellant at his house, they
refused. Though in the meeting of relatives, appellant was
ordered to return the jewellery and money to the prosecutrix
and also to marry her, he refused to do so. It was thereafter
that she lodged the FIR on 05.09.2018.
14 . Let us now examine the statement of the
prosecutrix dated12.09.2018 made under Section 164 Cr.P.C.
15 . In her statement recorded under Section 164
Cr.P.C., prosecutrix stated that the incident was of the year
2016, in the month of Savan. However, as two years had
elapsed, she could not remember the date. She used to go to
coaching class along with the appellant, who was a distant
Page 14 of 26
brother of her . The coaching class used to be held in the
jijaji
house of cousin brother of the appellant. One day, the
appellant told the prosecutrix that a post of receptionist was
vacant in the office in which she could work. Thereafter, he
expressed his affection towards her which she turned down
on the ground that the appellant was the friend of her
younger brother and was also younger to her. After a few
days, in the month of Savan, appellant took the prosecutrix to
a temple near his village where she took bath under a water
fall. Appellant took her photographs while prosecutrix was
bathing. After 5/6 days, when she went to the coaching class,
appellant showed her the photographs. He also expressed his
desire of marrying her but the prosecutrix refused such
proposal of the appellant. At that time, the appellant told her
that if she continued to refuse his proposal, he would send
the photographs to her father.
15.1 . After a few days, appellant took her to Anupam
Nagar of Gwalior, where his friend Nitin was residing in a
rented premise. There the appellant forced himself upon the
Page 15 of 26
prosecutrix and when she refused, then he made physical
relation with her without her consent. On her request to
delete the photographs, the appellant told her that he would
do so only if she agreed to marry him. Thereafter, he dropped
the prosecutrix at Dabra and continued with the physical
relationship with her. On 28.09.2016, appellant gave a stamp
paper to the prosecutrix stating that he would support her
throughout her life. On 16.06.2017, appellant demanded
money from the prosecutrix, pursuant to which she gave him
a cheque of her mother amounting to Rs.10,000/-. Again on
07.07.2017, appellant gave a stamp paper to the prosecutrix
seeking her consent for marriage. Next when he asked for
more money, prosecutrix gave him jewellery of her mother and
sister as she was not having any money. Appellant mortgaged
the jewellery in a bank against which he withdrew some
money. Thereafter, she stated that when she withdrew money
from the bank to meet the demands of the appellant, her
family members came to know about the relationship.
Page 16 of 26
15.2 . Appellant told her before the marriage of his elder
brother in April, 2018, that her family members should not
come to his place till the marriage of his brother was over.
After the marriage was over, he told her that his brother had
received Rs.15 lacs in marriage and asked her whether her
family members would be in a position to furnish such an
amount. After the marriage of his brother, family members of
the prosecutrix went to the house of the appellant in the
month of June, 2018 but found his family members to be
evasive on the question of marriage. Though people of the
community told the appellant and his family members to
return the jewellery and also to marry the prosecutrix, they
did not do so. Thereafter, appellant switched off his mobile
phone and disappeared from Dabra. Brother of the appellant
told the prosecutrix that if she complained before the police,
she would be killed and that her brother would be implicated
in a false case. It was thereafter that she lodged the FIR on
05.09.2018.
Page 17 of 26
16 . From a perusal and comparison of the two
statements of the prosecutrix, one before the police under
Section 161 Cr.P.C. and the other under Section 164 Cr.P.C.,
that too recorded within a span of 24 hours, what is
noticeable is that not only are the statements contradictory in
themselves, those are contradictory to each other as well. The
fact that the appellant had lodged the FIR two years after the
alleged incident is itself suggestive of the consensual nature of
the relationship which had gone sour. It is inconceivable that
the prosecutrix, who was about 22 years of age at the time of
the alleged incident, would accompany the appellant to a
temple if she was being threatened by the appellant. She was
a major and, therefore, fully conscious of the consequences of
her own actions. It is not the case of the prosecutrix that the
appellant had forced her to have bath under the waterfall and
thereafter took her photographs. The act of the prosecutrix
having bath under the waterfall and changing her clothes
thereafter in the company of the appellant virtually rules out
any threat or coercion by the appellant on the prosecurtix.
Page 18 of 26
17 . In the course of the hearing, the Bench had put a
pointed query to learned counsel for the State as to whether
the mobile phone of the appellant or the photographs
allegedly taken by the appellant of the prosecutrix while she
was bathing and changing clothes were recovered to which
the reply on instructions was that those were neither
recovered nor seized. Further, the stamp paper dated
28.09.2016 as well as the cheque dated 16.06.2017 have not
been seized. The jewellery allegedly given by the prosecutrix to
the appellant has also not been seized. The stamp paper
dated 07.07.2017 has not been seized. In the absence of such
materials, it would be virtually impossible for the prosecution
to prove the charges of rape and intimidation against the
appellant.
18 . We have carefully gone through the definition of
rape provided under Section 375 IPC. We have also gone
through the provisions of Section 376(2)(n) IPC, which deals
with the offence of rape committed repeatedly on the same
woman. Section 375 IPC defines ‘rape’ by a man if he does
Page 19 of 26
any of the acts in terms of clauses (a) to (d) under the seven
descriptions mentioned therein. As per the second
description, a man commits rape if he does any of the acts as
mentioned in clauses (a) to (d) without the consent of the
woman. Consent has been defined in Explanation 2 to mean
an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in
the specific sexual act. However, the proviso thereto clarifies
that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
19 . Having regard to the above and in the overall
conspectus of the case, we are of the view that the physical
relationship between the prosecutrix and the appellant cannot
be said to be against her will and without her consent. On the
basis of the available materials, no case of rape or of criminal
intimidation is made out.
Page 20 of 26
20 . Learned counsel for the respondents had placed
considerable reliance on the provisions of Section 90 IPC,
particularly on the expression “under a misconception of
fact”. Section 90 IPC reads thus:
“90. Consent known to be given under fear or
misconception.—
A consent is not such a consent as it intended by
any section of this Code, if the consent is given by a
person under fear of injury, or under a misconception
of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in
consequence of such fear or misconception; or
Consent of insane person.— if the consent is given
by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or
Consent of child.— unless the contrary appears from
the context, if the consent is given by a person who
is under twelve years of age.”
21 . Section 90 IPC says that a consent is not such a
consent as it is intended by any section of IPC, if the consent
is given by a person under the fear of injury or under a
misconception of fact.
22.
In Dr. Dhruvaram Murlidhar Sonar vs. State of
Maharashtra , (2019) 18 SCC 191, this Court after examining
Section 90 of the IPC held as follows:
Page 21 of 26
“Thus, section 90 though does not define
“consent”, but describes what is not
“consent”. Consent may be express or
implied, coerced or misguided, obtained
willingly or through deceit. If the consent is
given by the complainant under
misconception of fact, it is vitiated. Consent
for the purpose of section 375 requires
voluntary participation not only after the
exercise of intelligence based on the
knowledge of the significance and moral
quality of the act, but also after having fully
exercised the choice between resistance and
assent. Whether there was any consent or
not is to be ascertained only on a careful
study of all relevant circumstances.”
23 . This Court also examined the interplay between
Section 375 IPC and Section 90 IPC in the context of consent
in the case of Pramod Suryabhan Pawar Vs. State of
Maharashtra , (2019) 9 SCC 608, and held that consent with
respect to Section 375 IPC involves an active understanding
of the circumstances, actions and consequences of the
proposed act. An individual who makes a reasoned choice to
act after evaluating various alternative actions (or inaction)
as well as the various possible consequences flowing from
such action (or inaction), consents to such action. After
deliberating upon the various case laws, this Court summed
up the legal position as under:
“To summarise the legal position that
emerges from the above cases, the “consent”
of a woman with respect to Section 375
Page 22 of 26
must involve an active and reasoned
deliberation towards the proposed act. To
establish whether the “consent” was
vitiated by a “misconception of fact” 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 the woman’s decision to engage in the
sexual act.”
24 . Learned counsel for respondents had relied heavily
on the expression “misconception of fact”. However, according
to us, there is no misconception of fact here. Right from the
inception, it is the case of the prosecution that while the
appellant was insisting on having a relationship with the
prosecutrix, the later had turned down the same on the
ground that appellant was the friend of her younger brother
and a distant relative of her jijaji . That apart, according to the
prosecutrix, the appellant was younger to her. Nonetheless,
the prosecutrix had accompanied the appellant to a temple,
where she had voluntarily taken bath under a waterfall. Her
allegation that appellant had surreptitiously taken
Page 23 of 26
photographs of her while she was bathing and later on
changing clothes and was blackmailing her with such
photographs remain unfounded in the absence of seizure of
such photographs or the mobile phone on which such
photographs were taken by the appellant. If, indeed, she was
under some kind of threat from the appellant, it defies any
logic, when the prosecutrix accompanied the appellant to
Gwalior from Dabra, a journey which they had made together
by train. On reaching Gwalior, she accompanied the appellant
on a scooter to a rented premises at Anupam Nagar, where
she alleged that appellant had forced himself upon her. But
she did not raise any alarm or hue and cry at any point of
time. Rather, she returned back to Dabra alongwith the
appellant. The relationship did not terminate there. It
continued even thereafter. It is the case of the prosecutrix
herself that at one point of time the family members of the two
had met to discuss about their marriage but nothing final
could be reached regarding their marriage. It was only
thereafter that the FIR was lodged. As already pointed out
Page 24 of 26
above, neither the affidavit nor stamp papers have been
recovered or seized by the police; so also the jewellery. The
alleged cheque of the prosecutrix’s mother given to the
appellant or the bank statement to indicate transfer of such
money have not been gathered by the police. In the absence of
such materials, the entire sub-stratum of the prosecutrix’s
case collapses. Thus, there is hardly any possibility of
conviction of the appellant. As a matter of fact, it is not even a
case which can stand trial. It appears to be a case of a
consensual relationship which had gone sour leading to
lodging of FIR. In the circumstances, Court is of the view that
compelling the appellant to face the criminal trial on these
materials would be nothing but an abuse of the process of the
Court, result of the trial being a foregone conclusion.
25 . From the factual matrix of the case, the following
relevant features can be culled out:
(i) the relationship between the appellant and the
prosecutrix was of a consensual nature;
(ii) the parties were in a relationship for a period of
almost two years; and
Page 25 of 26
(iii) though there were talks between the parties and
their family members regarding marriage, the same
did not fructify leading to lodging of FIR.
26 . That being the position and having regard to the
facts and circumstances of the case, we are of the view that it
would be in the interest of justice if the proceedings are
terminated at this stage itself. Consequently, impugned order
of the High Court dated 03.10.2019 and the order of the
Sessions Judge dated 24.04.2019 are hereby set aside and
quashed.
27 . Resultantly, proceedings in Sessions Trial No.
th
505/2018, pending before the 10 Additional Sessions Judge,
Gwalior, are hereby quashed.
28 . Consequently, the appeal is allowed.
... ………………………………J
[ABHAY S. OKA]
…………………………………J.
[UJJAL BHUYAN]
NEW DELHI;
JULY 08, 2024.
Page 26 of 26