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

assailing the order dated 24.04.2019 passed by the X

th

Additional Sessions Judge, Gwalior ( ‘Sessions Judge’

hereinafter) in Sessions Trial No. 505 of 2018 where by

charges under Section 376(2)(n) and 506 of the Indian Penal

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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

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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

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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

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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

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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

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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

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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

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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

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malafide intention of procuring financial support for his

‘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

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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

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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

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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 14 of 26

mortgaged the pendant of the mangalsootra and took loan of

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

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brother of her jijaji. The coaching class used to be held in the

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

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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 demand s of the appellant, her

family members came to know about the relationship.

Page 17 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 18 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 19 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 20 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 i n 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 21 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 22 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 23 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 24 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 25 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 26 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.

505/2018, pending before the 10

th 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.