Consent defined in rape on promise to marry: Supreme Court 2005

CASE NO.:
Appeal (crl.) 44 of 2004
PETITIONER:
Deelip Singh @ Dilip Kumar
RESPONDENT:
State of Bihar
DATE OF JUDGMENT: 03/11/2004
BENCH:
P. VENKATARAMA REDDI & P.P. NAOLEKAR
JUDGMENT:
JUDGMENT
P. Venkatarama Reddi, J.
The appellant has been charged and convicted under
Section 376 IPC for committing rape of a minor girl (figured
as PW12 in this case) in the month of February, 1988. The
IIIrd Additional Sessions Judge of Katihar sentenced him to
rigorous imprisonment for a period of ten years. On appeal,
the High Court upheld the conviction but modified the
sentence to seven years. Aggrieved thereby, the present
appeal is filed by the accused.
Facts:
The victim girl lodged a complaint to the police on
29.11.1988 i.e., long after the alleged act of rape. By the
date of the report, she was pregnant by six months.
Broadly, the version of the victim girl was that she and the
accused were neighbours and fell in love with each other and
one day, the accused forcibly raped her and later consoled
her saying that he would marry her, that she succumbed to
the entreaties of the accused to have sexual relations with
him, on account of the promise made by him to marry her
and therefore continued to have sex on several occasions.
After she became pregnant, she revealed the matter to her
parents. Even thereafter the intimacy continued to the
knowledge of the parents and other relations who were
under the impression that the accused would marry the girl
but the accused avoided to marry her and his father took
him out of the village to thwart the bid to marry. The efforts
made by the father to establish the marital tie failed and
therefore she was constrained to file the complaint after
waiting for sometime.
The prosecution adduced evidence in the form of school
certificate and medical expert’s opinion to establish that by
the date of the commission of criminal act, the victim girl
was aged less than 16 years in which case her consent
becomes immaterial. It is on this aspect the attention was
focussed more by the prosecution.
The trial Court accepted the prosecution case in this
regard and found that the girl was aged less than 16 years
at the relevant point of time. The High Court affirmed this
finding. The trial Court also recorded an alternative finding
that she was forcibly raped on the first occasion and after
that incident the accused went on making false promises to
marry her. It was therefore held that either there was no
consent or the consent was involuntary. Thus, according to
the trial Court, it was a case of having sexual intercourse
against the will of the victim girl or without her consent. If
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so, irrespective of the age of the girl, the offence is deemed
to be committed. As regards this latter aspect, the High
Court did not enter into any discussion.
Before proceeding to discuss the crucial points, it would
be apposite to refer to the contents of the report given by
the victim girl to the officer-in-charge of Manihari police
station on the basis of which the FIR (Ext.1) was registered
on 25.10.1988. At this stage, we would like to observe that
her version as per the deposition given in the Court was
somewhat different, especially in regard to the manner in
which the sexual relationship was developed and the first
sexual act was resorted to. To the extent necessary, this
aspect will be referred to at a later stage. The following is
the substance of the report (marked as Ext. 3/2) given to
the police on 25.10.1988:
The informant and the accused were neighbours. The
accused, by his gestures and behaviour, tried to seduce her.
Whenever there was opportunity, he used to come to her
house and used to cut jokes and have fun with her in spite
of her protests. On one occasion, a watch was given to her
as a gift. The accused went on telling that he wanted to
marry her but she expressed her disinclination. However,
one day, she yielded to the persuasion of the accused and
had sexual contact with the accused and the same has been
going on from the month of February, 1988. The accused
allured her with promise of marriage and continued to have
intercourse with her on account of which she conceived.
During the second or third month of pregnancy, she
informed her parents about it. Her father talked to the
accused and asked him to marry his daughter. The accused
accepted before the villagers that he was responsible for the
pregnancy and he was ready to marry her. However, the
father of the accused did not agree and proclaimed that the
marriage will not take place under any circumstances. The
efforts made by her father by convening a panchayat etc.,
did not yield any result. Later on, the informant came to
know that the father of the accused Gopi Singh with the help
of other villagers took away the accused to an unknown
place. Thereafter, she was advised to file the case by her
father and other elders. On the registration of the case, the
charge sheet was filed not only against the present appellant
but also his father and others who were alleged to have
abducted the accused to prevent the marriage. However, no
charge was framed against them. The appellant is the sole
accused who faced the trial.
The victim girl was sent for medical examination to
CAS, Sadar Hospital, Katihar on 28.11.1988. PW14\027the
Doctor who along with other doctors examined her, deposed
that by the date of examination, she had pregnancy of six
months duration. The main purpose of sending her for
medical examination appears to be to assess her age. PW14
gave the opinion, on the basis of his own examination and
the examination of the Dental Surgeon and the X-rays taken
by the Radiologist that her age was between 16 and 17
years. The Investigating Officer has not been examined in
this case.
Age of victim:
The question of age of the victim girl is the first and
foremost aspect that needs to be considered in the present
appeal. On this question we are unable to concur with the
finding of the trial Court as affirmed by the High Court. In
our view, the finding as reached by the trial Court is based
on no evidence or evidence which is doubtful. The
prosecution wanted to prove her age by filing the school
transfer certificate through PW13. The certificate is Ext. P4.
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It was purportedly issued by the Headmaster of the Primary/
Secondary School, Nawabganj. Her date of birth, as
recorded in the admission register, is stated to be 4.2.1974.
The date of admission is mentioned as 22.2.1980 and the
date of leaving the school as 31.12.1981. It is mentioned in
column 5 that the admission was given on the basis of
declaration of the father i.e. PW11. By the time she left the
school, she passed II Class. The date of issuance of the
certificate was 7.1.1991 i.e. after the trial commenced. No
explanation is forthcoming as to why the Investigation
Officer did not obtain the certificate in the course of
investigation and why the certificate was not produced by
the father of the girl (PW11). Apparently, the age was given
on the basis of the declaration made by the father. If so, the
father was the best witness to speak about her age.
However, he did not say a word about her age.
If this certificate had been filed beforehand or if PW11
had said anything about her age, the defence counsel would
have been in a position to question the father about the
correctness of his declaration. That is one aspect. The other
and more important aspect is that the certificate (Ext.P4)
has no evidentiary value inasmuch as it is not properly
proved by a witness who is competent to speak to the
relevant facts connected with the issuance and custody of
the certificate. The Headmaster or the staff of the school has
not been examined.
The two witnesses examined to prove this document
are PWs 13 and 15, whose evidence, in our view, is really
worthless. The certificate was produced by PW13, who is
said to be a clerk in Court (Mujeeb). It was marked subject
to objection raised by the defence. Who applied for it and
how he came in possession of it has not been explained.
Though he stated in the chief examination that the
certificate was issued by the Headmaster of Nawabganj
School, in cross-examination, he frankly stated that he could
not say whose signature was there on the certificate. He
further stated that he had never gone to the school.
PW15\027an Advocate’s clerk, is another witness
examined by prosecution to prove Ext.4. He stated in the
chief-examination that the school leaving certificate related
to victim girl and it was in the handwriting of the
Headmaster Akhileshwar Thakur. In cross-examination, he
admitted that he did not see the certificate earlier and he
met the Headmaster of the school 10 or 15 years back. He
also stated that the signature was illegible. Thus the
evidence of PWs 13 & 15 does not throw any light on the
authenticity or the genuineness of the certificate. Obviously,
they did not have any knowledge of the issuance of the
certificate. The original register was not before the Court.
The certificates have not come from proper custody. In the
circumstances, the certificate should have been eschewed
from consideration. However the trial Court and the High
Court acted on it without demur and rested their conclusions
on this document. If we exclude Ext.P4 from consideration,
the Court is left with the evidence of the Medical Officer,
PW14, according to whose assessment the age of the girl
was 16-17 years. The defence is entitled to rely on the
higher side of the age given by the Doctor. If so, the victim
girl would be aged more than 16 years when the alleged
offence took place in February, 1988. At the time of
examination in the Court, it appears that the Court assessed
the age as 17, without any further elaboration. It is not safe
to rely on such estimate.
For all these reasons we are of the view that the
finding that the victim girl was less than 16 years of age on
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the date of the first sexual intercourse which the appellant
had committed, cannot be sustained. If so, Clause sixthly of
Section 375 which says\027″with or without her consent, when
she is under 16 years of age”, is not attracted.
Whether accused guilty under clause first of Section 375:
The next question is whether the appellant had sexual
intercourse with the victim girl against her will (vide first
Clause of Section 375). The expression ’against the will’
seems to connote that the offending act was done despite
resistance and opposition of the woman. On this aspect, the
trial court did believe the version of the informant\027victim
without much of discussion. In reaching this factual finding,
the trial Court failed to analyse and evaluate the evidence of
PW12\027the victim girl. The High Court merely affirmed the
trial Court’s finding on this paint. We should, therefore,
scrutinize her evidence and examine whether it would,
beyond reasonable doubt, lead to the conclusion of the
accused having had sexual contact against her will. Though
in the FIR, the version of forcible sexual intercourse has not
been put forward, in the deposition before the Court, PW12
tried to build up this plea. According to PW12, the first act of
rape took place in the wheat field of her father. This is how
she described the incident:
“In the field, once getting a chance, Dilip Singh forcibly
raped me. Dilip Singh told, ’you marry me’, when I was
weeping. He said weeping is useless and we shall marry. He
promised me of marriage and raped me several times.”
She then stated that after she became pregnant, she
revealed to her mother about the rape. Later on, the
accused became ready to marry her but his father and
others took him away from the village. She also stated that
the accused time and again told her that they will have a
’court marriage’ (means, registered marriage). In substance,
what she deposed was that the first sexual intercourse took
place against her will, though she became a consenting
party later on. The first thing to be noticed is that in the
report which she admittedly gave to the police, this version
was not given by her and she did not complain of forcible
rape. That apart, the version of rape in the wheat field
seems to be highly doubtful when tested in the light of her
statements in the cross-examination. She stated in
paragraph 14 that “one day, while talking, he pulled me
down and forcibly raped me. This incident occurred at 12.00
in the night”. That means, according to her version, the first
incident of rape took place on the wheat field at 12.00 in the
midnight. It is highly doubtful whether they would go to the
wheat fields at that hour. Moreover, in cross-examination,
she makes a further improvement by stating that at the time
of first incident of rape at midnight, when she started
shouting, the accused gagged her mouth. One more thing
which affects the credibility of her version is her statement
in the cross-examination that when the accused kept on
making gestures, she went to the house of the accused and
lodged her protest with his Bhabi. It is most unlikely that
such unwilling person will go to a secluded place in the
company of the accused at an odd time in the night and take
the risk of being sexually assaulted. In any case, if the rape
was committed by the accused much against her will, she
would not have volunteered to submit to his wish
subsequent to the alleged first incident of rape. She
admitted that the accused used to talk to her for hours
together and that was within the knowledge of her parents
and brother. This statement also casts an element of doubt
on her version that she was subjected to sexual intercourse
in spite of her resistance. Above all, the version given by her
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in the Court is at variance with the version set out in the
FIR. As already noticed, she categorically stated in the first
information report that she ’surrendered before him’ in view
of his repeated promises to marry. In short, her version
about the first incident of rape bristles with improbabilities,
improvements and exaggerations. It is a different matter
that she became a consenting party under the impact of his
promise to marry her. That aspect, we will examine later.
But, what we would like to point out at this juncture is, it is
not safe to lend credence to the version of PW12 that she
was subjected to rape against her will in the first instance
even before the appellant held out the promise to marry.
We cannot, therefore, uphold the finding of the trial Court
that the girl was raped forcibly on the first occasion and that
the talk of marriage emerged only later. The finding of the
trial Court in this respect is wholly unsustainable.
Whether clause secondly (without consent) is attracted:
The last question which calls for consideration is
whether the accused is guilty of having sexual intercourse
with PW12 ’without her consent’ (vide Clause secondly of
Section 375 IPC). Though will and consent often interlace
and an act done against the will of a person can be said to
be an act done without consent, the Indian Penal Code
categorizes these two expressions under separate heads in
order to be as comprehensive as possible.
What then is the meaning and content of the
expression ’without her consent’? Whether the consent given
by a woman believing the man’s promise to marry her is a
consent which excludes the offence of rape? These are the
questions which have come up for debate directly or
incidentally.
The concept and dimensions of ’consent’ in the context
of Section 375 IPC has been viewed from different angles.
The decided cases on the issue reveal different approaches
which may not necessarily be dichotomous. Of course, the
ultimate conclusion depends on the facts of each case.
Indian Penal Code does not define ’consent’ in positive
terms, but what cannot be regarded as ’consent’ under the
Code is explained by Section 90. Section 90 reads as
follows:
“90. Consent known to be given under fear
or misconception\027A consent is not such a
consent as is 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; \005″
Consent given firstly under fear of injury and secondly
under a misconception of fact is not ’consent’ at all. That is
what is enjoined by the first part of Section 90. These two
grounds specified in Section 90 are analogous to coercion
and mistake of fact which are the familiar grounds that can
vitiate a transaction under the jurisprudence of our country
as well as other countries.
The factors set out in the first part of Section 90 are
from the point of view of the victim. The second part of
Section 90 enacts the corresponding provision from the
point of view of the accused. It envisages that the accused
too has knowledge or has reason to believe that the consent
was given by the victim in consequence of fear of injury or
misconception of fact. Thus, the second part lays emphasis
on the knowledge or reasonable belief of the person who
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obtains the tainted consent. The requirements of both the
parts should be cumulatively satisfied. In other words, the
Court has to see whether the person giving the consent had
given it under fear of injury or misconception of fact and the
Court should also be satisfied that the person doing the act
i.e. the alleged offender, is conscious of the fact or should
have reason to think that but for the fear or misconception,
the consent would not have been given. This is the scheme
of Section 90 which is couched in negative terminology.
Section 90 cannot, however be construed as an
exhaustive definition of consent for the purposes of the
Indian Penal Code. The normal connotation and concept of
’consent’ is not intended to be excluded. Various decisions of
the High Court and of this Court have not merely gone by
the language of Section 90, but travelled a wider field,
guided by the etymology of the word ’consent’.
In most of the decisions in which the meaning of the
expression ’consent’ under the Indian Penal Code was
discussed, reference was made to the passages occurring in
Stroud’s Judicial Dictionary, Jowitt’s Dictionary on English
Law, Words & Phrases\027Permanent Edition and other legal
Dictionaries. Stroud defines consent as “an act of reason,
accompanied with deliberation, the mind weighing, as in a
balance, the good and evil on each side”. Jowitt, while
employing the same language added the following:
“\005Consent supposes three things\027a physical
power, a mental power and a free and serious use
of them. Hence it is that if consent be obtained by
intimidation, force, mediated imposition,
circumvention, surprise or undue influence, it is
to be treated as a delusion, and not as a
deliberate and free act of the mind.”
In Words & Phrases\027Permanent Edition, Volume 8A,
the following passages culled out from certain old decisions
of the American Courts are found:
“\005\005.adult female’s understanding of nature and
consequences of sexual act must be intelligent
understanding to constitute ’consent’.
Consent within penal law, defining rape, requires
exercise of intelligence based on knowledge of its
significance and moral quality and there must be
a choice between resistance and assent. \005″
It was observed by B.P. Singh, J. speaking for the
Court in Uday Vs. State of Karnataka [2003 (2) Scale
329], “the Courts in India have, by and large, adopted
these tests to discover whether the consent was voluntary
or whether it was vitiated so as not to be legal consent”.
There is a good analysis of the expression ’consent’ in
the context of Section 375 IPC by Tekchand, J. in Rao
Harnarain Singh Vs. State [AIR 1958 Punjab 123]. The
learned Judge had evidently drawn inspiration from the
above passages in the law dictionaries. The observation of
the learned Judge that “there is a difference between
consent and submission and every consent involves a
submission but the converse does not follow and a mere act
of submission does not involve consent”, is quite apposite.
The said proposition is virtually a repetition of what was said
by Coleridge, J. in Regina vs Day in 1841 as quoted in
Words and Phrases (Permanent Edition) at page 205. The
following remarks in Harnarain’s case are also pertinent:
“Consent is an act of reason accompanied by
deliberation, a mere act of helpless resignation in
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the face of inevitable compulsion, non resistance
and passive giving in cannot be deemed to be
Consent.”
The passages occurring in the above decision were
either verbatim quoted with approval or in condensed form
in the subsequent decisions: vide In Re : Anthony [AIR
1960 Madras 308], Gopi Shankar Vs. State [AIR 1967
Raj. 159], Bhimrao Vs. State of Maharashtra [1975
Mah. L.J. 660], Vijayan Pillai Vs. State of Kerala [1989
(2) K.L.J. 234]. All these decisions have been considered
in a recent pronouncement of this Court in Uday Vs. State
of Karnataka. The enunciation of law on the meaning and
content of the expression ’consent’ in the context of penal
law as elucidated by Tekchand, J. in Harnarain’s case
(which in turn was based on the above extracts from law
Dictionaries) has found its echo in the three Judge Bench
decision of this Court in State of H.P. Vs. Mango Ram
[(2000) 7 SCC 224]. K.G. Balakrishnan, J. speaking for
the Court stated thus:
“Submission of the body under the fear or terror
cannot be construed as a consented sexual act.
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 after
having fully exercised the choice between
resistance and assent. Whether there was
consent or not, is to be ascertained only on a
careful study of all relevant circumstances.”
On the facts, it was held that there was resistance by
the prosecutrix and there was no voluntary participation in
the sexual act. That case would therefore fall more
appropriately within Clause first of Section 375.
We shall turn our attention to the cases which dealt
with the specific phraseology of Section 90, IPC. We have an
illuminating decision of the Madras High Court rendered in
1913 in Re: N. Jaladu [ILR 36 Madras 453] in which a
Division Bench of that Court considered the scope and
amplitude of the expression ’misconception of fact’ occurring
in Section 90 in the context of the offence of kidnapping
under Section 361 IPC. The 2nd accused in that case
obtained the consent of the girl’s guardian by falsely
representing that the object of taking her was for
participating in a festival. However, after the festival was
over, the 2nd accused took her to a temple in another village
and married her to the 1st accused against her will. The
question arose whether the guardian gave consent under a
misconception of fact. While holding that there was no
consent, Sundara Ayyar J. speaking for the Bench observed
thus:
“We are of opinion that the expression ’under a
misconception of fact’ is broad enough to include
all cases where the consent is obtained by
misrepresentation; the misrepresentation should
be regarded as leading to a misconception of the
facts with reference to which the consent is given.
In Section 3 of the Evidence Act illustration (d)
that a person has a certain intention is treated as
a fact. So, here the fact about which the second
and third prosecution witnesses were made to
entertain a misconception was the fact that the
second accused intended to get the girl married.
In considering a similar statute, it was held in
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England in R. v. Hopkins 1842, Car & M 17, 254
that a consent obtained by fraud would not be
sufficient to justify the taking of a minor. See
also Halsbury’s Laws of England, Volume 9, page
623. In Stephen’s Digest of the Criminal Law of
England (sixth edition, page 217), the learned
author says with reference to the law relating to
“abduction of girls under sixteen” “thus \005\005\005\005\005..
If the consent of the person from whose
possession the girl is taken is obtained by fraud,
the taking is deemed to be against the will of
such a person.” \005\005\005\005.. Although in cases of
contracts a consent obtained by coercion or fraud
is only voidable by the party affected by it, the
effect of Section 90, IPC is that such consent
cannot, under the criminal law, be availed of to
justify what would otherwise be an offence.”
This decision is an authority for the proposition that a
misrepresentation as regards the intention of the person
seeking consent, i.e. the accused, could give rise to the
misconception of fact. This view of the Madras High Court
was accepted by a Division Bench of Bombay High Court in
Purshottam Mahadev vs. State of Bombay [AIR 1963
Bombay 74]. Applying that principle to a case arising under
Section 375, consent given pursuant to a false
representation that the accused intends to marry, could be
regarded as consent given under misconception of fact.
On the specific question whether the consent obtained
on the basis of promise to marry which was not acted upon,
could be regarded as consent for the purpose of Section 375
IPC, we have the decision of Division Bench of Calcutta High
Court in Jayanti Rani Panda vs. State of West Bengal
[1984 Crl.L.J. 1535]. The relevant passage in this case
has been cited in several other decisions. This is one of the
cases referred to by this Court in Uday (supra) approvingly.
Without going into the details of that case, the crux of the
case can be discerned from the following summary given at
para 7:
“Here the allegation of the complainant is that the
accused used to visit her house and proposed to
marry her. She consented to have sexual
intercourse with the accused on a belief that the
accused would really marry her. But one thing
that strikes us is \005\005\005\005\005\005\005\005\005. why should she
keep it a secret from her parents if really she had
belief in that promise. Assuming that she had
believed the accused when he held out a promise,
if he did at all, there is no evidence that at that
time the accused had no intention of keeping that
promise. It may be that subsequently when the
girl conceived the accused might have felt
otherwise. But even then the case in the petition
of complainant is that the accused did not till then
back out. Therefore it cannot be said that till
then the accused had no intention of marrying the
complainant even if he had held out any promise
at all as alleged.”
The discussion that follows the above passage is important
and is extracted hereunder:
“The failure to keep the promise at a future uncertain
date due to reasons not very clear on the evidence
does not always amount to a misconception of fact at
the inception of the act itself. In order to come within
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the meaning of misconception of fact, the fact must
have an immediate relevance. The matter would have
been different if the consent was obtained by creating
a belief that they were already married. In such a
case the consent could be said to result from a
misconception of fact. But here the fact alleged is a
promise to marry we do not know when. If a full
grown girl consents to the act of sexual intercourse
on a promise of marriage and continues to indulge in
such activity until she becomes pregnant it is an act
of promiscuity on her part and not an act induced by
misconception of fact. S. 90 IPC cannot be called in
aid in such a case to pardon the act of the girl and
fasten criminal liability on the other, unless the Court
can be assured that from the very inception the
accused never really intended to marry her.”
(emphasis supplied)
The learned Judges referred to the decision of Chancery
Court in Edgomgtpm vs. Fotz,airoce (1885) 29 Ch.D
459 and observed thus:
“This decision lays down that a misstatement of
the intention of the defendant in doing a
particular act may be a misstatement of fact, and
if the plaintiff was misled by it, an action of deceit
may be founded on it. The particular observation
at p. 483 runs to the following effect: “There
must be a misstatement of an existing fact.”
Therefore, in order to amount to a misstatement
of fact the existing state of things and a
misstatement as to that becomes relevant. In
the absence of such evidence Sec. 90 cannot be
called in aid in support of the contention that the
consent of the complainant was obtained on a
misconception of fact.”
After referring to the case law on the subject, it was
observed in Uday, supra at paragraph 21:
“It therefore appears that the consensus of
judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual
intercourse with a person with whom she is
deeply in love on a promise that he would marry
her on a later date, cannot be said to be given
under a misconception of fact. A false promise is
not a fact within the meaning of the Code. We are
inclined to agree with this view, but we must add
that there is no strait jacket formula for
determining whether consent given by the
prosecutrix to sexual intercourse is voluntary, or
whether it is given under a misconception of fact.
In the ultimate analysis, the tests laid down by
the Courts provide at best guidance to the judicial
mind while considering a question of consent, but
the Court must, in each case, consider the
evidence before it and the surrounding
circumstances, before reaching a conclusion,
because each case has its own peculiar facts
which may have a bearing on the question
whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh
the evidence keeping in view the fact that the
burden is on the prosecution to prove each and
every ingredient of the offence, absence of
consent being one of them.”
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The first two sentences in the above passage need
some explanation. While we reiterate that a promise to
marry without anything more will not give rise to
’misconception of fact’ within the meaning of Section 90, it
needs to be clarified that a representation deliberately made
by the accused with a view to elicit the assent of the victim
without having the intention or inclination to marry her, will
vitiate the consent. If on the facts it is established that at
the very inception of the making of promise, the accused did
not really entertain the intention of marrying her and the
promise to marry held out by him was a mere hoax, the
consent ostensibly given by the victim will be of no avail to
the accused to exculpate him from the ambit of Section 375
Clause secondly. This is what in fact was stressed by the
Division Bench of the Calcutta High Court in the case of
Jayanti Rani Panda, supra which was approvingly referred
to in Uday’s case, (supra). The Calcutta High Court rightly
qualified the proposition which it stated earlier by adding the
qualification at the end\027″unless the Court can be
assured that from the very inception, the accused
never really intended to marry her”. In the next para,
the High Court referred to the vintage decision of the
Chancery Court which laid down that a misstatement of the
intention of the defendant in doing a particular act would
tantamount to a misstatement of fact and an action of
deceit can be founded on it. This is also the view taken by
the Division Bench of the Madras High Court in Jaladu’s
case, supra (vide passage quoted supra). By making the
solitary observation that “a false promise is not a fact within
the meaning of the Code”, it cannot be said that this Court
has laid down the law differently. The observations following
the aforesaid sentence are also equally important. The Court
was cautious enough to add a qualification that no strait
jacket formula could be evolved for determining whether the
consent was given under a misconception of fact. Reading
the judgment in Uday’s case as a whole, we do not
understand the Court laying down a broad proposition that a
promise to marry could never amount to a misconception of
fact. That is not, in our understanding, the ratio of the
decision. In fact, there was a specific finding in that case
that initially the accused’s intention to marry cannot be
ruled out.
Having discussed the legal aspects bearing on the
interpretation of the term ’consent’ with special reference to
Section 90 IPC, we must now turn our attention to the
factual aspects of the case related to consent.
Is it a case of passive submission in the face of
psychological pressure exerted or allurements made by the
accused or was it a conscious decision on the part of the
prosecutrix knowing fully the nature and consequences of
the act she was asked to indulge in? Whether the tacit
consent given by the prosecutrix was the result of a
misconception created in her mind as to the intention of the
accused to marry her? These are the questions which have
to be answered on an analysis of the evidence. The last
question raises the allied question, whether the promise to
marry, if made by the accused, was false to his knowledge
and belief from the very inception and it was never intended
to be acted upon by him. As pointed out by this Court in
Uday’s case the burden is on the prosecution to prove that
there was absence of consent. Of course, the position is
different if the case is covered by Section 114-A of Evidence
Act. Consent or absence of it could be gathered from the
attendant circumstances. The previous or contemporaneous
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acts or the subsequent conduct can be legitimate guides.
Whether on the basis of the evidence adduced by the
prosecution, it is reasonably possible to infer the lack of
consent on the part of the prosecutrix is the ultimate point
to be decided.
A close scrutiny of evidence of the prosecutrix\027PW12
is what is called for, there being no other evidence in the
case which could throw light on the point at issue. First, we
must exclude from consideration that part of her version
which accuses the appellant of forcible sexual indulgence on
the first occasion. We have already discussed this aspect
and rejected her version as unreliable. Therefore, we have
to address ourselves to the twin questions (1) whether there
was voluntary participation in the sexual act quite mindful
and conscious of what she was doing and its possible
consequences and (2) whether the victim girl was misled by
the false promise of the accused to marry her and therefore
agreed to have sexual contact with him. In a way, these two
two aspects overlap and are interconnected.
Coming to the first question, it is not easy to find a
dividing line between submission and consent – a distinction
which was pointed out by Coleridge J., reiterated by
Tekchand J. in the Punjab decision and further reiterated by
this Court in the two decisions referred to supra, except in
the situation contemplated by clause fifthly of Section 375.
Yet, the evidence has to be carefully scanned. It is fairly
clear from the evidence of the victim\027PW12 that the
predominant reason which weighed with her in agreeing for
sexual intimacy with the accused was the hope generated in
her about the prospect of marriage with the accused. That
she came to the decision to have a sexual affair only after
being convinced that the accused would marry her, is quite
clear from her evidence which is in tune with her earliest
version in the first information report. There is nothing in
her evidence to demonstrate that without any scope for
deliberation, she succumbed to the psychological pressure
exerted or allurements made by the accused in a weak
moment. Nor does her evidence indicate that she was
incapable of understanding the nature and implications of
the act which she consented to. On the other hand, the
scrutiny of evidence of PW12 gives a contra indication.
According to PW12, she did not like accused making
passionate gestures and therefore, she went to the house of
the accused and made a complaint to his ’Bhabhi’. Though
she promised to restrain him, the accused continued to do
so. Her further version is that she was not willing to marry
the accused; even then the accused used to come to the
courtyard of her house many a time and it was within the
knowledge of her parents and brother that the accused used
to talk to her for hours. She used to accompany him
whenever he wanted. Another statement of significance is
that she tried to resist the talk of marriage by telling the
accused that marriage was not possible because they
belonged to different castes. However, she agreed to marry
him after she was raped and under the impression that he
would marry, she did not complain to anybody. These
statements do indicate that she was fully aware of the moral
quality of the act and the inherent risk involved and that she
considered the pros and cons of the act. The prospect of
the marriage proposal not materializing had also entered her
mind. Thus, her own evidence reveals that she took a
conscious decision after active application of mind to the
things that were happening. Incidentally, we may point out
that the awareness of the prosecutrix that the marriage may
not take place at all in view of the caste barrier was an
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important factor that weighed with the learned Judges in
Uday’s case in holding that her participation in the sexual
act was voluntary and deliberate.
The remaining question is whether on the basis of the
evidence on record, is it reasonably possible to hold that the
accused with the fraudulent intention of inducing her to
sexual intercourse, made a false promise to marry? We
have no doubt that the accused did hold out the promise to
marry her and that was the predominant reason for the
victim girl to agree to the sexual intimacy with him. PW12
was also too keen to marry him as she said so specifically.
But we find no evidence which gives rise to an inference
beyond reasonable doubt that the accused had no intention
to marry her at all from the inception and that the promise
he made was false to his knowledge. No circumstances
emerging from the prosecution evidence establish this fact.
On the other hand, the statement of PW-12 that ’later on’,
the accused became ready to marry her but his father and
others took him away from the village would indicate that
the accused might have been prompted by a genuine
intention to marry which did not materialize on account of
the pressure exerted by his family elders. It seems to be a
case of breach of promise to marry rather than a case of
false promise to marry. On this aspect also, the
observations of this Court in Uday’s case at paragraph 24
comes to the aid of the appellant.
We reach the ultimate conclusion that the findings of
the trial court as affirmed by the High Court are either
perverse or vitiated by non-consideration of material
evidence and relevant factors emerging from the
prosecution evidence. We cannot, therefore, sustain the
conviction.
In the result, the conviction and sentence is set
aside and the appeal is allowed.
With this verdict, the appellant, no doubt extricates
himself from the clutches of the penal law by getting the
benefit of doubt on charge levelled against him. But, we
cannot ignore the reprehensible conduct of the appellant,
who by promising to marry the victim woman, persuaded
her to have sexual relations and caused pregnancy. The act
of the accused left behind her a trail of misery, ignominy and
trauma. The only solace is that she married subsequently.
We are informed that the female child born out of the illicit
relationship is now living with her married mother and she is
about 14 year old now. Though there is no evidence to
establish beyond reasonable doubt that the appellant made
a false or fraudulent promise to marry, there can be no
denial of the fact that the appellant did commit breach of the
promise to marry, for which the accused is prima facie
accountable for damages under civil law. When we apprised
the appellant’s counsel of our prima facie view point on this
aspect and elicited his response on passing a suitable order
in exercise of power vested in this Court under Article 142 of
the Constitution, the learned counsel took time to get
instructions. We are now informed that the appellant is
prepared to pay a sum of Rs.50,000 by way of monetary
compensation irrespective of acquittal. Though the said
amount is not an adequate compensation, we are not
inclined to call upon the appellant to pay more for more than
one reason: firstly, the appellant has been in jail for about
two years by now; secondly, we are informed that the
accused belongs to a backward class and his family is not
affluent though they have some agricultural lands; lastly,
the incident took place about 15 years back and in the
supervening period, the prosecutrix as well as the appellant
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married and we are told that he has two children. In these
circumstances, we accept the offer of the appellant.
The appellant’s counsel has brought a Demand Draft
for Rs.50,000 drawn in favour of the Chief Judicial
Magistrate, Sahibganj. The Draft is handed over just now to
the Court Officer. The concerned Registrar of this Court shall
send the Draft to the C.J.M., Sahibganj for being credited to
his account in the first instance. The C.J.M. shall take
immediate steps to summon the prosecutrix whose name
and address shall be furnished by the counsel for the
appellant in the course of the day to the Registrar of this
Court. Out of the amount of Rs.50,000, a sum of Rs.10,000
shall be paid over to the prosecutrix in cash if she makes a
request and the remaining amount of Rs.40,000 shall be
kept in a fixed deposit in a Bank in the name of the minor
girl namely Miss Sangeeta Kumari with the prosecutrix as
her guardian. The accrued interest shall be paid to the
prosecutrix once in two years. The amount of Rs. 40,000/-
with remaining interest thereon shall be disbursed to the girl
after she attains the majority by getting an account opened
in a Bank in her name. However, for the purpose of meeting
the imminent needs of the minor girl, the C.J.M. can permit
the amount to be paid over to the guardian (prosecutrix)
either partly or in whole depending on the genuine and
reasonable requirements concerning the maintenance of the
child. The C.J.M. shall submit a report to the Registrar of this
Court on the action taken in this regard within two months.
A translated copy of the part of the judgment starting from
page 37 shall be furnished to the prosecutrix by the CJM.
The CJM may appoint a counsel under the legal aid scheme
to assist the prosecutrix and the girl whenever necessary in
connection with the implementation of this order.
Accordingly, the order is passed in the interests of
justice in exercise of powers vested in this Court under
Article 142 of the Constitution.