1 24-J-APL-50-2021.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APL) NO. 50 OF 2021 APPLICANT : Vinod S/o Laxman Singh Rathi, Aged : 30 years, Occupation : Government Service, R/o Village & Post Office Kalam, Tahsil Kharkhoda, Dist. Sonepat, Haryana-131402. V E R S U S NON-APPLICANTS : 1. State of Maharashtra Through Police Station, Gittikhadan, Nagpur. 2. Smt. Asmita Lalit Tumdam, Aged : 34 Years, Occupation : Private, R/o Near NIT Garden, Behind Ashirwad School, Zingabai Takli, Police Station Gittikhadan, Nagpur. ------------------------------------------------------------------------------------------- Shri S. R. Charpe, Advocate for applicant. Shri A. M. Joshi, Additional Public Prosecutor for Non-applicant No.1. None present for non-applicant No.2. ------------------------------------------------------------------------------------------- CORAM: URMILA JOSHI-PHALKE, J. DATED : 02/02/2026. ORAL JUDGMENT : 1. Heard. Admit. Heard finally with the consent of learned counsel appearing for the parties. 2. By way of this application, the applicant is seeking for quashing of the First Information Report in connection with Crime 2026:BHC-NAG:1837-DB 2 24-J-APL-50-2021.doc No.713/2020 registered under Sections 376 (2)(n), 323, 504 and 506 of the Indian Penal Code. 3. A crime is registered on the basis of report lodged by non-applicant No.2 on an allegation that she is widow of 34 years having one son of 9 years. She got acquaintance with the present applicant in the year 2017 from the social media i.e. Face Book and they were communicating with each other which turned into the friendship. It is alleged that the applicant has promised her for marriage and on 10/02/2018, the applicant came to Nagpur from Delhi to meet her. Accordingly, he called her at his friend’s quarter and subjected her for the forceful sexual assault. It is further alleged that thereafter also, on the promise of marriage, the present applicant has on various occasions subjected her for the forceful sexual assault. On 19/02/2020, she had been to Delhi to enquire when he would marry with her and on that count, she was abused by the present applicant. Thereafter, she approached to Bharosa Cell and lodged the report. As per the allegations, present applicant on various occasions subjected her for the forceful sexual assault on the promise of marriage and thereby deceived her. On the basis of said report, police have registered a crime against the present applicant. 3 24-J-APL-50-2021.doc 4. Heard learned counsel for the applicant who submitted that the non-applicant No.2 is a grown up lady of 34 years having one son. The entire recitals of the First Information Report disclose the relationship between two of them was consensual in nature. Subsequently, she issued a notice to the present applicant even accepting the allegation as it is at its face value, it reveals that the relationship between both of them was consensual in nature and no offence is made out against the present applicant. In view of that, the application deserves to be allowed. 5. Per contra, learned APP strongly opposed for the same and submitted that considering that there was a misconception and under the misconception of fact, the complainant consented and subsequently, applicant denied to perform marriage with her. Thus, on the basis of false promise of marriage, she was subjected for the forceful sexual assault and thereby, the application deserves to be rejected. 6. Though learned counsel for the non-applicant No.2 is not present before the Court, but the written submissions which are filed on behalf of non-applicant No.2 are taken into consideration which also show that from the social media, she got 4 24-J-APL-50-2021.doc acquaintance with the present applicant which resulted into love relationship between her and the applicant and thereafter, present applicant has promised her for marriage and on promise of marriage, she subjected for the forceful sexual assault. Thus, the statement and the written submissions of the non-applicant No.2 show that she got acquaintance with the present applicant on 10/02/2018 and thereafter, said relationship was continued till 2020. The notice was issued by her first time on 14/10/2020 through her advocate. From the recitals of the FIR, it reveals that out of love relationship, the physical relationship was developed between the present applicant and non-applicant No.2. It is to be noted that non-applicant No.2 is a grown up lady having son of 9 years. She is widow. Thus, it is apparent that after understanding the consequences of fact, she entered into the relationship with the applicant. It further appears that relationship developed between the applicant and non-applicant No.2 who are the two adult members and knows consequence of their act. Now, consensual act is elaborately considered by the Hon’ble Apex Court in various judgments in celebrated Judgment of Pramod Suryabhan Pawar Vrs. State of Maharashtra and another, reported in (2019) 9 SCC 608, wherein the Hon’ble Apex Court has extensively dealt with the aspect of the consent and observed that the Hon’ble Apex 5 24-J-APL-50-2021.doc Court has repeatedly held that the consent with respect to Section 375 of the IPC involves an active understanding of 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 various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Murlidhar Sonar Vrs. State of Maharashtra, reported in (2019) 18 SCC 191, which was a case involved in invoking the jurisdiction under Section 482 and the Hon’ble Apex Court observed “an inference as to the consent can be drawn if only based on evidence of probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberations. It denotes active will in the mind of a person to permit the doing of act of complained of”. 7. Thus, considering the various judgments, the Hon’ble Apex Court held that 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 6 24-J-APL-50-2021.doc 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 said act. 8. While summarizing the legal position, it is held that the "consent" of a woman with respect to Section 375 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. 9. Coming to the facts of the present case, it reveals that the victim who herself was a married woman having one child of 9 years, aged about 34 years could not be said to have acted under the alleged false promise given by the applicant or under misconception of fact while giving consent to have sexual relationship with the present applicant. Even otherwise if the 7 24-J-APL-50-2021.doc entire conduct during the course of such relationship is taken into consideration, it appears that it was a consensual act on the part of non-applicant No.2. Under Section 90 of IPC, a consent given under the misconception of fact admittedly is no consent in the eyes of law but the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of 4 years. It hardly needs any elaboration that the consent given by the non-applicant No.2 was conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with the conscious positive action not to protest. 10. Thus, considering this aspect in the present case, the relationship between the applicant and non-applicant No.2 appears to be consensual in nature. 11. In view of that, no offence is made out against the present applicant and therefore, application deserves to be allowed. In view of that, I proceed to pass following order :- ORDER i] The application is allowed. ii] The FIR in connection with Crime No.713/2020 registered under Sections 376 (2)(n), 323, 504 and 506 of the IPC is hereby quashed and set aside to the extent of present applicant. 8 24-J-APL-50-2021.doc 12. The application is disposed of. (JUDGE) Choulwar