While taking the most pragmatic, pertinent and progressive stand on a very significant legal point, the Indore Bench of Madhya Pradesh High Court in a most learned, laudable, landmark, logical and latest judgment titled Hariom Shrivastava vs The State of Madhya Pradesh & Anr. in Criminal Appeal No. 1380 of 2023 that was heard on 02.01.2024 and then finally pronounced on 23.01.2024 has acquitted a man who was convicted of rape due to the false promise of marriage after the High Court found that it was “crystal clear” that the physical relations between a couple who met over a matrimonial website were made with consent. The Indore Bench acquitted a man convicted of rape due to the false promise of marriage after the Court found that it was “crystal clear” that the physical relations between a couple who met over a matrimonial website were made with consent. The Indore Bench thus rightly set aside the conviction and so also acquitted the appellant from the charges levelled against him under Section 376(2)(n) of IPC. It was also ordered by the Court that the appellant is entitled to receive back the fine amount deposited by him from the learned Trial Court.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Indore Bench comprising of Hon’ble Shri Justice Prem Narayan Singh of Madhya Pradesh High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) against the judgment dated 17.01.2023 passed by 9th ASJ, Ujjain (M.P.) in Sessions Trial No. 27/2021, whereby the appellant has been convicted for the offence punishable under Section 376(2)(n) of Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’) and sentenced to undergo 10 years R.I. with a fine of Rs.10,000/- and in default of payment of fine, to further undergo one year R.I.”
To put things in perspective, the Bench envisages in para 2 that, “As per prosecution story, on 06.09.2019, the complainant lodged a written complaint before the police by submitting that the appellant works as Sales Officer in Indian Oil Corporation and at the relevant point of time i.e. May, 2019, he was posted At Ambikapur. The prosecutrix is an employee of EPFO (Employee Provident Fund Organization) and was posted at Ujjain at the time of incident. The prosecutrix became acquainted with the appellant through matrimonial site and they have started exchanging messages through whatsapp and video calls. On 22.07.2019, the appellant came to Ujjain to meet the prosecutrix and stayed in a hotel. The prosecutrix also came to the hotel and they had dinner together. When the prosecutrix asked him to go to her residence, the appellant prevented her from leaving the hotel by expressing his love and promising marriage to her. He established sexual relations with her. The appellant committed the offence subsequently as well but started avoiding her later on. In the meanwhile, the prosecutrix came to know that the appellant is having sexual dalliances with another girl and complaint was lodged by her against the appellant. On the aforesaid written complaint, an FIR was lodged under Section 376(2)(n) of I.P.C. After due investigation, charge-sheet was filed under Sections 376(2)(n) of I.P.C. against the appellant.”
As it turned out, the Bench reveals in para 3 that, “In turn, the case was committed to the Court of Sessions and thereafter, appellant was charged for offence under Section 376(2)(n) of I.P.C. He abjured his guilt and took a plea that he had been falsely implicated in the present crime and prayed for trial.”
Simply put, the Bench stipulates in para 11 that, “In turn, the case was committed to the Court of Sessions and thereafter, appellant was charged for offence under Section 376(2)(n) of I.P.C. He abjured his guilt and took a plea that he had been falsely implicated in the present crime and prayed for trial.”
As we see, the Bench then points out in para 12 that, “In view of rival submissions, the statement of prosecutrix (PW-1) recorded before the Court is significant. In this statement, the prosecutrix has narrated that she knew the appellant Hariom Shrivastava from the year 2019. She was residing in Ujjain and working in EPFO Department. She was transferred to Bhopal in the year 2021. When she was unmarried, she opened her account in matrimonial site through which she came into contact of appellant in the year 2019. She had received a proposal of marriage from the appellant and accepted that. Thereafter, both have started whatsapp chat and video calls. On 22.07.2019, the appellant came to Ujjain to meet her and on the same day, the appellant booked a couple room in Hotel Ujjaini using the ID of prosecutrix. Further, she deposed in her statement that when she asked to go to her residence, the appellant prevented her on the pretext or promise of marriage. Further, she deposed that the appellant had committed forcible physical relation with the prosecutrix without her consent. She further articulated that when she asked to tell about the said relationship to her parents, the appellant forbade her on pretext of love and marriage. In examination-in-chief, she further deposed that both have stayed at night in hotel till 25.07.2019 and the appellant made physical relation on the pretext of marriage.”
Truth be told, the Bench then lays bare in para 13 that, “On these issues, the prosecutrix also filed whatsapp chats and other evidence. In this case, the prosecution witnesses namely Sunil Malviya (PW-2) and Sujeet Sharma (PW-3), who are hotel receptionists in the same hotel, asseverated that the appellant and prosecutrix stayed in same hotel and on record, ID of prosecutrix was attached. That apart, the statement of Dr. Kaynaat Qureshi (PW-4) is furnished regarding medical evidence wherein, she has specifically stated that no opinion can be given about forceful physical relations. The witnesses Rajendra Meena (PW-5) and Smt. Rakhi Gurjar (PW7) stated in their statements that vaginal slide, pubic hair and other material kept in sealed packet which are related to investigation. Witness Sanjay Mandloi, Inspector (PW-8) has stated in his statement that on a written complaint (Exhibit-P/1), FIR has been lodged in the police station bearing Crime No. 483/2019 (Exhibit-P-/2) under Section 376 of I.P.C. The statement of the prosecutrix has been recorded by Vidhya Tomar, Sub-Inspector (PW-8) during the investigation.”
Needless to say, the Bench then states in para 14 that, “Having gone through the statements of witnesses, it is crystal clear that the prosecutrix and appellant were connected due to matrimonial site and thereafter both have made physical relations. It has also emerged as an undisputed fact that without using any force, both had made physical relations together.”
Quite significantly, the Bench observes in para 20 that, “In conspectus of the aforesaid law, the learned trial Court is expected to carefully examine as to whether the appellant had actually wanted to marry victim or had malafide motives and in course of that, had made false promise for satisfying his lust. In the case at hand, the prosecutrix herself is 30 years old major lady and also working in Government Department. She herself met with the appellant on her wish and started whatsapp chating and video calls. She herself produced her ID Card before the Hotel Management. As per statements of prosecution witnesses, she continuously visited the said room of the hotel for 3 days, no sign of forcible relations can be produced on record. No alarm or crying sound was raised by the prosecutrix. She had not made complaint to her parents or any other person before lodging First Information Report. Under these conditions, it is not safe to conclude that the prosecutrix has made relations only on the basis of promise of marriage or on account of said misconception.”
In addition, the Bench then further mentions in para 21 that, “That apart, the prosecution has furnished some whatsapp chats wherein, casual conversation regarding love and marriage are visible. It is also pertinent to mention here that as to whether the appellant had specifically declined to marry the prosecutrix or not. In this regard, article A-16 is worth to refer here wherein the prosecutrix asked the appellant ‘Shaddi karoge na tum’ and in reply the appellant stated ‘Hau’. Now, the question is as to whether the word “Hau” indicates complete denial.”
Do note, the Bench then notes aptly in para 22 that, “On this point, Para No. 22 of the prosecutrix’s statement, is worth mentioning here wherein she has clearly conceded that it is true to say that Malviya language is used for conversation nearby Ujjain. In sequence, she further conceded that in Malviya ‘Hau’ means ‘Yes’. In this way, the statement of prosecutrix itself establishes that the accused/appellant has not clearly declined to marry her. It is also pertinent to mention here that in para 17 of prosecutrix’s statement, she acceded that at the time of recording the Court statement of prosecutrix, the prosecutrix had already consummated her marriage whereas till then the appellant was not married. In para 17, she has clearly deposed that, it is true to say that she has been married and it is also true to say that accused/appellant is still unmarried. Under these circumstances, it cannot be envisaged that till then the appellant has broken the promise of marriage.”
While citing a recent and relevant case law, the Bench propounds in para 23 that, “On this aspect, the observation of Hon’ble Apex Court rendered in recent judgment of Naeem Ahmad Vs. State of 2023 LawSuit (SC) 80, is also worth to mention here :-
“20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause – Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceived the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.””
Most significantly, the Bench then succinctly propounds in para 24 holding that, “In view of the aforesaid proposition and analysis in entirety, it is crystal clear that the physical relations between the prosecutrix and appellant were made with consent. Certainly, marriage was not consummated between them due to some unforeseen circumstances. However, since the appellant himself has not specifically declined regarding marriage with prosecutrix, the allegation of false promise can not be established. The prosecutrix is a major lady, she has not made any alarm and she has also used her ID Card in course of check-in the hotel room. She has not made any complaint to her parents in this regard. Hence, the prosecution case regarding committal of physical relations on misconception has not been evinced beyond all reasonable doubts.”
Equally significant and as a corollary, the Bench mandates in para 25 that, “In the wake of aforesaid analysis, the findings of the learned trial Court regarding conviction of the appellant under Section 376(2)(n) of the Indian Penal Code is perverse and deserves to be set aside. In the result thereof, the present appeal preferred by the appellant is hereby allowed, having set aside the impugned judgment, the appellant is acquitted from the charge under Section 376(2)(n) of I.P.C. The appellant is on bail, hence, his bail bond and surety stand discharged. The appellant is entitled to receive back the fine amount deposited by him from the learned trial Court.”
Further, the Bench directs in para 26 that, “A copy of this judgment be sent to the concerned trial Court.”
Furthermore, the Bench mandates in para 27 that, “The order of the learned trial Court regarding disposal of the seized property stands confirmed.”
Finally, the Bench concludes by holding in para 28 that, “With the aforesaid, the appeal is allowed and disposed off.”
In sum, we thus see precisely that the Indore Bench of Madhya Pradesh High Court clearly concluded that it was not safe to conclude that the physical relationship was solely based on promise of marriage. The man was thus very rightly acquitted of rape case. Very rightly so!
Sanjeev Sirohi