Wednesday, 25 March 2020

What is distinction between Rape and Consensual sex?

The Hon'ble Apex Court has also held that there is a distinction between rape and consensual sex and also difference between mere breach of a promise and not fulfilling a promise which was false since inception. The relevant observations of the Hon'ble Apex Court as it they appear in paragraph 21 are reproduced thus:—
“Thus, there is a clear distinction between rape and consensual sex. The 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. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees 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. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.”

In the High Court of Bombay
(Before Sunil B. Shukre and Madhav J. Jamdar, JJ.)

Mohammed Aamir Ansari  v.  State of Maharashtra,

Criminal Application (Apl) No. 999 of 2019
Decided on February 12, 2020


The Judgment of the Court was delivered by
Sunil B. Shukre, J.:— Heard. Admit. Ms. Kolhe, learned APP, waives service of notice for respondent No. 1 and Mr. Tirukh, learned counsel waives service of notice for respondent No. 2. The Criminal application is heard finally with the consent of learned counsel for the parties.
2. By this application, the FIR registered vide Crime No. 86/2018 at Police Station Balapur, District Akola for an offence punishable under Section 376(2)(N) of Penal Code, 1860 at the behest of respondent No. 2 has been sought to be quashed and set aside. In addition, the application also seeks quashing and setting aside of the order dated 21.08.2019 passed by the concerned Sessions Judge in Sessions Trial No. 132/2018 based upon the same Crime. By the order dated 21.08.2019, the learned Sessions Judge has rejected the application (Ex. No. 14), filed by the applicant seeking his discharge from the sessions trial.
3. The allegations made against the applicant, in short, are that, the applicant expressing his exclusive love for respondent No. 2, seduced her into having sexual relationship with him and did have sexual intercourse on many occasions. The last of such occasions was in the early morning at 3.00 AM of 13.02.2018. The affair that was going clandestinely between the applicant and respondent No. 2 got exposed in the early morning of 13.02.2018 when, one Sheikh Biram, described by respondent No. 2 to be her servant though, Shiekh Biram has clarified his standing vis-a-vis respondent No. 2. that he is only a service provider as he tends the cattle owned by mother of respondent No. 2. In other words, Sheikh Biram is a shepherd looking after the cattle of the family of respondent No. 2. This servant or shepherd, seeing what was going on between the applicant and respondent No. 2 threatened that he would be disclosing the same to the mother of respondent No. 2. It was then that the applicant gave an express promise to respondent No. 2 to perform marriage with her. But, he did not fulfill the promise.
4. According to learned counsel for the applicant, the law in such matters is well settled. He submits that such matters are required to be examined by applying a well settled principle. It is that the Court should take the allegations at their face value and without adding anything thereto or subtracting anything therefrom, should consider if the allegations disclose prima-facie commission of any offence by the accused. If the answer is negative, the FIR would be liable to be quashed and set aside. He relies upon the law laid down by the Hon'ble Apex Court in the Case of Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra reported in 2018 SCC OnLine SC 3100.
5. Learned counsel for the applicant further submits that in this case there is no promise of marriage given at any point of time by the applicant to respondent No. 2 and, therefore, there is no question of any breach of promise. He submits that whatever happened between the applicant and respondent No. 2 was consensual in nature, if at all it is held that prima-facie sexual relations are established. He submits that as a matter of fact, nothing as alleged in the complaint filed by respondent No. 2 has happened. He also submits that the whole complaint of respondent No. 2 is full of lies and this is evident from the fact that on the one hand, the complainant states that she is a labourer and on the other, the complainant mention that she has kept a servant, Sheikh Biram. Thus, he submits that this is a fit case for quashing of the FIR and criminal proceedings based upon it.
6. Learned APP for the State submits that the allegations made by respondent do disclose prima-facie commission of offence registered against the applicant and, therefore, it may not be proper for this Court to make any interference in the matter. Learned counsel for the respondent No. 2 also agrees with the same.
7. If the allegations made by respondent No. 2 against the applicant are considered at their face value, a prima-facie impression is created that respondent No. 2 agreed to have sexual relation with the applicant only upon her believing as genuine the love expressed by the applicant for respondent No. 2. It is true that applicant has not given any express promise of marriage initially but it is also true that respondent No. 2 had initially resisted the applicants overtures towards her on the ground that before marriage, there could be no physical relationship. It was only after such refusal of respondent No. 2 that the applicant, in order to seduce her into agreeing to have sexual relationship with him, told her that he loved only the respondent No. 2 and nobody else and it appears that believing in such words of the applicant that respondent No. 2 initially surrendered herself before the applicant. This is not the case where the respondent No. 2, out of her deep love and passion for applicant had engaged herself in any sexual relationship with the applicant. Rather, this is a case wherein the temptation to enter into such relationship was given by the applicant to respondent No. 2, and the respondent No. 2 was initially unwilling to fall prey to the advances made towards her by the applicant.
8. Here, the misconception has been created not because of giving of a false promise of marriage but because of giving of a false assurance to the respondent No. 2 that the applicant had his genuine and exclusive love for respondent No. 2 which made respondent No. 2 believe that the applicant, whenever time would come, would not ditch her and would support her wholeheartedly. But that was not to happen. When the time indeed came, the applicant showed his true colors and stoutly refused to marry respondent No. 2. A person who expresses such words for another creates an impression in the mind of the another that the person exclusively belongs to another and that the person, would not cheat another at any point of time, and when it is seen that those words were not really meant by the person, it would, in our opinion, lead to formation of a prima-facie inference regarding the consent having been given under misconception of fact.
9. In the case of Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra (supra) also, the Hon'ble Apex Court has held that there should be present on record facts and circumstances necessary for forming of an opinion regarding the consent having been given under misconception of facts and in the absence of the same, no intention to cheat or seduce a prosecutrix into giving of consent for sexual intercourse could be drawn.
10. The Hon'ble Apex Court has also held that there is a distinction between rape and consensual sex and also difference between mere breach of a promise and not fulfilling a promise which was false since inception. The relevant observations of the Hon'ble Apex Court as it they appear in paragraph 21 are reproduced thus:—
“Thus, there is a clear distinction between rape and consensual sex. The 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. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees 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. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.”
11. In the present case, prima-facie, malafide intention and clandestine motive of the applicant could be seen by his attempt to seduce the respondent No. 2 into having a sexual relationship with him when he, in spite of her reluctance expressed initially, gave such an assurance as was sufficient for the respondent No. 2 to misconceive it as genuine. Then, the shepherd, who has clarified the nature of his relation vis-a-vis respondent No. 2, also lends prima-facie support to the case of respondent No. 2. Therefore, we are of the view that the case of Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra (supra), at this stage, assists more respondent No. 2 rather than the applicant.
12. In this view of the matter, we find no merit in the application. The application deserves to be dismissed and the same is dismissed.
13. It is made clear that the findings recorded by this Court are confined to the issue involved in this application and that trial Court shall not be influenced by these observations in deciding the sessions case against the applicant on merits.
Print Page

No comments:

Post a comment