Bombay High Court: A Division Bench of Sunil B. Shukre and Madhav J. Jamdar, JJ., dismissed the criminal application filed with regard to quashing of an FIR registered for an offence punishable under Section 376(2) (n) [Punishment for Rape] of Penal Code, 1860.
Applicant had exclusively expressed his love for respondent 2 seduced her into having a sexual relationship with him and did have sexual intercourse on many occasions. The affair that was going clandestinely between applicant and respondent 2 got exposed when one Sheikh Biram who as described by respondent 2 is her servant saw what was going on between applicant and respondent 2. He later threatened to disclose the same to the mother of respondent 2, and when the same happened applicant gave an express promise of marriage to respondent 2 but did not fulfil the same.
Applicant’s counsel M. Badar, submitted that in such matters Court should take the allegations at their face value and without adding anything thereto or subtracting anything therefrom, should consider if the allegations disclose the commission of any offence by the accused. Further, he relied on the Supreme Court’s decision in Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100.
Further, the Counsel adds that, there was no promise of marriage given by the applicant to the respondent at any point of time and hence no question of any breach of promise. He states that whatever happened was consensual in nature.
If allegations made by respondent 2 against the applicant are considered at their face value, a prima facie impression is created that respondent 2 agreed to have sexual relation with the applicant only upon her believing as love expressed by the applicant for respondent 2 to be genuine.
It is a case wherein the temptation to enter into such relationship was given by applicant to respondent 2 and respondent 2 was initially unwilling to fall prey to the advances made towards hereby the applicant. Misconception had been created not because of giving a false promise of marriage but because of giving false assurance to respondent 2 that applicant had his genuine and exclusive love and whenever time would come, would support her wholeheartedly.
In Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100, the distinction between rape and consensual sex was talked about,
“… Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception.”
“…to have sexual intercourse on account of her love and passion for the accused and not solely on
account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently.”
“If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.”
Thus, in the present case, prima facie, malafide intention and clandestine motive of the applicant could be seen by his attempt to seduce respondent 2 into having a sexual relationship with him when he, in spite of her reluctance expressed initially, gave such an assurance as was sufficient to misconceive it as genuine.
Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100 assists respondent 2 rightly in the present case.
Therefore, in view of the above Court found no merit in the application and dismissed the same. [Mohammed Aamir Ansari v. State of Maharashtra, 2020 SCC OnLine Bom 320, decided on 12-02-2020]