SHIV PRATAP SINGH RANAversusSTATE OF MADHYA PRADESH & ANR.

                  [2024] 7 S.C.R. 8 : 2024 INSC 481

                      Shiv Pratap Singh Rana
                                 v.
                  State of Madhya Pradesh & Anr.
                   (Criminal Appeal No. 1552 of 2023)
                                08 July 2024
               [Abhay S. Oka and Ujjal Bhuyan,* JJ.]

                          Issue for Consideration
       The prosecutrix had lodged an FIR u/s. 376(2)(n) and s.506 of
       IPC on 06.09.2018 against the appellant. The charges u/s. 376(2)
       (n) and s.506 of IPC were framed against the appellant and the
       application for discharge filed by the appellant was rejected.

                                Headnotes†
       Penal Code, 1860 – s. 376(2)(n) and s.506 – Prosecution case
       that appellant had committed rape on the prosecutrix on the
       false promise of marriage and threatening to make public her
       photographs – Trial Court framed charges u/s.376(2)(n) and
       s.506 of IPC – A criminal revision filed against the said order
       was dismissed by the High Court – Correctness:
       Held: From a perusal and comparison of the two statements
       of the prosecutrix, one before the police u/s. 161 Cr.P.C. and
       the other u/s. 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 – There were also talks between the parties and their
       family members regarding marriage, the same did not fructify
       leading to lodging of FIR – 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 – The mobile
       phone of the appellant or the photographs allegedly taken by
       the appellant were not recovered or seized – The jewellery
       allegedly given by the prosecutrix to the appellant has not been
       seized – A stamp paper dated 07.07.2017 wherein appellant

* Author
[2024] 7 S.C.R.                                                        9

      Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.


     expressed his desire to marry the prosecutrix has also not been
     seized – In the absence of such materials, it is impossible for
     the prosecution to prove the charges of rape and intimidation
     against the appellant – Compelling the appellant to face the
     criminal trial on these materials would be nothing but an abuse
     of the process of the Court. [Paras 16, 17, 18, 24]
     Penal Code, 1860 – s.90 – Consent to be given under fear or
     misconception – Misconception of fact – Discussed.

                            Case Law Cited
     Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra [2018]
     13 SCR 920 : (2019) 18 SCC 191; Pramod Suryabhan Pawar v.
     State of Maharashtra [2019] 11 SCR 423 : (2019) 9 SCC 608 –
     relied on.

                              List of Acts
     Penal Code, 1860; Code of Criminal Procedure, 1973.

                           List of Keywords
     Rape; Section 376(2)(n) of Penal Code, 1860; Section 90 of Penal
     Code, 1860; Commission of rape on false pretext of marriage;
     Contradiction in statements; Delay in filing FIR; Consensual
     relationship gone sour; Threat; Coercion; Consent to be given
     under fear or misconception; Misconception of fact.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1552
     of 2023
     From the Judgment and Order dated 03.10.2019 of the High Court
     of M.P. at Gwalior in CRR No. 2288 of 2019
                        Appearances for Parties
     Abhinav Ramkrishna, Amit Lahoti, Ms. Anjali Chauhan, Ms. Samina
     Thakura, Advs. for the Appellant.
     Harmeet Ruprah, D.A.G., Yashraj Singh Bundela, Surjeet Singh, Mrs.
     Pratima Singh, Chanakya Baruah, Abhijeet Singh, Ms. Chitrangda
     Rastravara, Anirudh Singh, Aishwary Mishra, Dhananjai Shekhwat,
     Dashrath Singh, Ms. Anjali Sexena, Gp. Capt. Karan Singh Bhati,
     Advs. for the Respondents.
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                 Judgment / Order of the Supreme Court

                                 Judgment
      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 Xth
      Additional Sessions Judge, Gwalior (‘Sessions Judge’ 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 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
[2024] 7 S.C.R.                                                         11

      Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.


     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 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
     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
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      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 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 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 to defend
[2024] 7 S.C.R.                                                          13

      Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.


           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 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 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/-.
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      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 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 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
[2024] 7 S.C.R.                                                          15

      Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.


     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 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 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 dated
    12.09.2018 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.
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      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 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 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.
      15.2. Appellant told her before the marriage of his elder brother in
            April, 2018, that her family members should not come to his
[2024] 7 S.C.R.                                                            17

      Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.


            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.
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.
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
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      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 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.
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
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      Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.


           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:
           “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
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          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.”
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 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 above, neither the affidavit nor stamp papers
    have been recovered or seized by the police; so also the jewellery.
[2024] 7 S.C.R.                                                            21

         Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.


     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
     (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 10th Additional Sessions Judge, Gwalior, are hereby
    quashed.
28. Consequently, the appeal is allowed.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Ankit Gyan