Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 629 OF 2019
(Arising out of SLP(Criminal) No.618/2019)
Anurag Soni …Appellant
Versus
State of Chhattisgarh …Respondent
J U D G M E N T
M.R. SHAH, J.
The application for impleadment of the prosecutrix is
allowed, in terms of the prayer made.
1.1 Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 10.10.2018 passed by the High Court
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.04.10
16:27:05 IST
Reason:
of Chhattisgarh at Bilaspur in Criminal Appeal No. 1270/2014,
by which the High Court has dismissed the said appeal preferred
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by the appellant herein – the original accused and has confirmed
the judgment and order of conviction passed by the learned trial
Court convicting the original accused for the offence under
Section 376(1) of the IPC and sentencing him to undergo
rigorous imprisonment for 10 years and to pay a fine of
Rs.50,000/, in default of payment of fine, to further undergo
additional rigorous imprisonment for six months, the original
accused has preferred the present appeal.
3. The prosecution case in brief was that the prosecutrix
was the resident of Koni, Bilaspur, District Bilaspur. Prosecutrix
was familiar with the accused since 2009 and there was love
affair between them. The appellant had even proposed her for
marriage and this fact was within the knowledge of their
respective family members. At the time of incident, accused was
posted as Junior Doctor in the government hospital of
Maalkharoda and at that time the prosecutrix was doing her
studies of Pharmacy in Bhilai. On 28.4.2013 the accused
expressed his desire to the prosecutrix that he wanted to meet
her and accordingly on 29.4.2013 at 7.25 a.m. the prosecutrix
boarded Durg Danapur Express train and reached Sakti railway
station from where the accused took her on a motorcycle to his
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house situated at Maalkharoda and there she stayed from 2 pm
of 29.4.2013 to 3 p.m. of 30.4.2013 and during this period
despite refusal of the prosecutrix the accused established
physical relation with her on the pretext of marrying her. On
30.4.2013 the accused asked the prosecutrix to leave by saying
st nd
that on 1 or 2 May he will talk to his parents about their
marriage and he will soon marry with her. On 30.4.2013 at about
6 in the evening accused Anurag Soni and the prosecutrix
reached Bilaspur by train and from where their friend namely
Umashankar took them on a motorcycle to the house of Mallika
Humne, friend of prosecutrix, where the accused dropped her
and went back. Next morning accused dropped the prosecutrix at
Railway Station, Bilaspur from where she boarded train for Bhilai
(Durg). Accused asked the prosecutrix not to tell about the
incident to anyone and as a result of which the prosecutrix did
not disclose the incident to anyone, but from 2.5.2013 to
5.5.2013 the prosecutrix had repeatedly asked from the accused
about the marriage and when she did not receive any reply from
the accused, on 6.5.2013, she informed her family members
about the incident and then the family members of the
prosecutrix had gone to the house of accused at village Kharod
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and informed his family members about the incident whereupon
the family members of accused had said that now marriage of
accused and prosecutrix was the only option available. In the
meantime, members of both the families used to visit house of
each other, however, after keeping the prosecutrix and her family
members in dark for about two months, the accused had refused
to marry the prosecutrix and performed marriage with another
girl and then on 21.6.2013 the prosecutrix submitted written
report (Ex. P3) in the police station Maalkharoda in respect of
rape committed by the accused upon her on the pretext of
marriage based on which FIR (Ex.P4) for the offence under
Section 376 of IPC was registered against the accused.
3.1 That during the course of investigation, the
investigating officer recorded the statement of concerned
witnesses including the prosecutrix. The investigating officer
collected the medical evidence and other evidence. The accused
was arrested. After completion of the entire investigation, a
charge sheet was filed against the accused for the offence
punishable under Section 376 of the IPC.
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3.2 That the learned magistrate committed the case to the
learned Sessions Court, which was numbered as Sessions Trial
No. 201/2013. That the learned Sessions Court framed the
charge against the accused for the offence under Section 376 of
the IPC. The accused denied the charge so framed and claimed
trial, and therefore he came to be tried by the learned Sessions
Court for the aforesaid offence.
3.3 The prosecution in support of its case examined as
many as 13 witnesses including the prosecutrix (PW3) as under:
| 1. | Pritam Soni | PW1 |
|---|---|---|
| 2. | Manikchand | PW2 |
| 3. | Prosecutrix | PW3 |
| 4. | Patwari Ghanshyam | PW4 |
| 5. | Dr. C.K. Singh | PW5 |
| 6. | Dr. K.L. Oraon | PW6 |
| 7. | Amritlal | PW7 |
| 8. | Pankaj Soni | PW8 |
| 9. | Dr. P.C. Jain | PW9 |
| 10. | Constable Jawaharlal | PW10 |
| 11. | Sub-Inspector S.P. Singh | PW11 |
| 12. | Inspector Sheetal Sidar | PW12 |
| 13. | Srimati Priyanka Soni | PW13 |
3.4 After the closing pursis were submitted by the
prosecution, three witnesses were examined on behalf of the
accused in defence. The statement of appellantaccused was
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recorded under Section 313 of the Cr.P.C. wherein he denied the
circumstances appearing against him and pleaded innocence and
false implication. As per the accused his marriage was already
fixed with one Priyanka Soni and this was in the knowledge of the
prosecutrix, even then the prosecutrix and her family members
continued to pressurise him to marry the prosecutrix, and then
he married with Priyanka Soni on 10.06.2013 in Arya Samaj.
Therefore, it was the case on behalf of the accused that a false
FIR was lodged against him.
4. That on appreciation of evidence, the learned Sessions
Court observed and held that the prosecutrix gave consent for
sexual intercourse on a misrepresentation of fact and the
promise by the accused that he would marry the prosecutrix and
therefore the said consent cannot be said to be a consent and
therefore the accused committed the offence under Section 376 of
the IPC. Thereupon, the learned Sessions Court convicted the
accused for the offence under Section 376 of the IPC and
sentenced him to undergo 10 years rigorous imprisonment.
5. Feeling aggrieved and dissatisfied with the judgment
and order of conviction and sentence passed by the learned
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Sessions Court, the accused preferred appeal before the High
Court. By the impugned judgment and order, the High Court has
dismissed the appeal and has confirmed the judgment and order
passed by the learned Sessions Court convicting the accused for
the offence under Section 376 of the IPC.
6. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court dismissing the
appeal and confirming the conviction and sentence of the
accused for the offence under Section 376 of the IPC, the original
accused has preferred the present appeal.
6.1 Shri S. Nagamuthu, learned Senior Advocate has
appeared on behalf of the accused and Shri Pranav Sachdeva and
Shri Praveen Chaturvedi, learned advocates have appeared on
behalf of the State as well as the original complainant –
prosecutrix respectively.
6.2 Shri Nagamuthu, learned Senior Advocate appearing
on behalf of the accused has vehemently submitted that in the
facts and circumstances of the case, both the courts below have
materially erred in convicting the accused for the offence under
Section 376 of the IPC. It is further submitted that while
7
convicting the accused for the offence under Section 376 of the
IPC and while holding that the accused committed the rape
under Section 375 of the IPC, the courts below have not at all
considered Section 90 of the IPC and Section 114A of the
Evidence Act in its true perspective.
6.3 It is further submitted by the learned Senior Advocate
appearing on behalf of the accused that in the present case as
such the prosecutrix was in love with the accused and she
wanted to marry the accused. It is submitted that it was the
specific case on behalf of the accused, so stated in his 313
statement, that as such the prosecutrix and her family members
were in the knowledge that the marriage of the appellant is
already fixed with Priyanka Soni and even then the prosecutrix
and her family members continued to pressurise the accused to
marry the prosecutrix.
6.4 It is further submitted by the learned Senior Advocate
appearing on behalf of the accused that even assuming that the
accused gave promise to the prosecutrix to marry and thereafter
the accused did not marry the prosecutrix, the same can be said
8
to be a ‘breach of promise’ and cannot be said to be a rape under
Section 375 of the IPC.
6.5 In support of his submissions, Shri S. Nagamuthu,
learned Senior Advocate has heavily relied upon the following
decisions of this Court; Dr. Dhruvaram Murlidhar Sonar v. The
State of Maharashtra (2019) SCC Online 3100; Tilak Raj v. State
of Himachal Pradesh (2016) 4 SCC 140; Deepak Gulati v. State of
Haryana (2013) 7 SCC 675; Uday v. State of Karnataka (2003) 4
SCC 46; Deelip Singh v. State of Bihar (2005) 1 SCC 88; and
Shivashankar alias Shiva v. State of Karnataka (2018) SCC
Online SC 3106.
6.6 Therefore, Shri S. Nagamuthu, learned senior counsel
appearing on behalf of the accused, has submitted that in fact
thereafter the accused has married one Priyanka Soni and even
the prosecutrix also got married.
6.7 Making the above submissions and relying upon the
above decisions, it is prayed to allow the present appeal and
quash and set aside the conviction and sentence of the appellant
accused for the offence under Section 376 of the IPC.
9
7. The present appeal is vehemently opposed by the
learned advocates appearing on behalf of the State as well as the
original complainant – prosecutrix.
7.1 It is vehemently submitted by the learned advocates
appearing on behalf of the State as well as the prosecutrix that
the present case is not a case of mere breach of promise to
marry, as contended by the learned Senior Advocate appearing
on behalf of the accused. It is submitted that in the present
case, from the very beginning and from the inception, the
intention of the accused was not to marry with the prosecutrix
and he was to marry one another lady Priyanka Soni. It is
submitted that despite the above he called the prosecutrix at his
residence and by giving promise that he would marry, he had a
sexual intercourse with the prosecutrix. It is submitted that, in
fact, the prosecutrix initially objected to have any sexual
intercourse, however, as the accused gave assurance and
promise that he would marry, the prosecutrix gave consent. It is
submitted that as the consent was obtained by the accused on
misconception of fact and therefore the same cannot be said to
be a consent even considering Section 90 of the IPC, and the
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consent was on misconception of fact, both the courts below have
rightly held the accused guilty for the offence under Section 376
of the IPC.
7.2 It is further submitted by the learned advocates
appearing on behalf of the State as well as the prosecutrix that
even the conduct on the part of the accused which is born out
from the record that when the parents of the accused and the
prosecutrix subsequently met to fix the marriage, instead of
remaining present the accused ran away. It is submitted that it
has come in evidence that the accused was already to marry one
another lady Priyanka Soni and therefore there was no intention
on the part of the accused from the very inception not to marry
the prosecutrix and despite the same by giving false promise to
marry, he obtained the consent of the prosecutrix and had a
sexual intercourse. It is submitted that therefore in the facts and
circumstances of the case, it has been established and proved
beyond doubt that the consent given by the prosecutrix was on
misconception of fact and therefore the same cannot be said to be
a consent and therefore the appellantaccused is rightly
convicted under Section 376 of the IPC.
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7.3 Learned advocates appearing on behalf of the
respondentState as well as the original complainant –
prosecutrix have relied upon certain decisions of this Court on
Section 375 of the IPC, Section 90 of the IPC and on consent on
misconception of fact and on consensual sex, which will be
referred to and considered hereinafter.
7.4 Now so far as the reliance placed on the decisions of
this Court, relied upon by the learned counsel appearing on
behalf of the accused, referred to hereinabove, learned advocates
appearing on behalf of the State as well as the original
complainant – prosecutrix have submitted that none of the
aforesaid decisions shall be applicable to the facts of the case on
hand. It is submitted that even some of the observations made by
this Court in the aforesaid decisions, relied upon by the learned
senior counsel appearing on behalf of the accused, would be
applicable in favour of the prosecutrix, more particularly, para 20
of Dhruvaram Murlidhar Sonar (supra) , para 21 of Deepak Gulati
(supra); and paras 21 and 23 in the case of Uday (supra) .
7.5 Making the above submissions and relying upon the
above decisions, it is prayed to dismiss the present appeal.
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8. Heard learned counsel appearing on behalf of the
respective parties at length.
9. In the present case, the accused has been convicted for
the offence under Section 376 of the IPC. It is the case on behalf
of the appellantaccused that as it is a case of a consensual sex,
the Courts below have committed an error in convicting the
accused for the offence under Section 376 of the IPC. Both the
Courts below have accepted the case of the prosecution that the
consent of the prosecutrix was given on the basis of
misconception of fact and, therefore, considering Section 90 of
the IPC, such a consent cannot be said to be a consent and,
therefore, the accused has committed the rape as defined under
Section 375 of the IPC and thereby has committed an offence
under Section 376 of the IPC. Therefore, the question which has
been posed before this Court is, whether in the facts and
circumstances of the case and considering the evidence on
record, the Courts below have committed any error in holding the
accused guilty for the offence under Section 376 of the IPC?
10. While considering this appeal on merits further, some
of the decisions of this Court on Section 375 and Section 90 of
13
the IPC and on the consent/consensual sex are required to be
referred to and considered:
10.1 In the case of Kaini Rajan v. State of Kerala (2013)
9 SCC 113, this Court has explained the essentials and
parameters of the offence of rape. In the said decision, in para
12, this Court observed and held as under:
“ 12. Section 375 IPC defines the expression “rape”,
which indicates that the first clause operates, where
the woman is in possession of her senses, and
therefore, capable of consenting but the act is done
against her will; and second, where it is done without
her consent; the third, fourth and fifth, when there is
consent, but it is not such a consent as excuses the
offender, because it is obtained by putting her on any
person in whom she is interested in fear of death or
of hurt. The expression “against her will” means that
the act must have been done in spite of the
opposition of the woman. An inference as to consent
can be drawn if only based on evidence or
probabilities of the case. “Consent” is also stated to
be an act of reason coupled with deliberation. It
denotes an active will in the mind of a person to
permit the doing of an act complained of. Section 90
IPC refers to the expression “consent”. Section 90,
though, does not define “consent”, but describes
what is not consent. “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. (See State of
H.P. v. Mango Ram (2000) 7 SCC 224”
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10.2 In the case of
Deepak Gulati v. State of Haryana
(2013) 7 SCC 675, this Court observed and held in paragraphs
21 and 24 as under:
“ 21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear
distinction between rape and consensual sex and in a
case like this, the court must very carefully examine
whether the accused 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 latter falls within the ambit of cheating or
deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether
there was made, at an early stage a false promise of
marriage by the accused; and whether the consent
involved was given after wholly understanding the
nature and consequences of sexual indulgence. 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
misrepresentation made to her by the 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 so. Such cases must be
treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the
intention of the accused was mala fide, and that he
had clandestine motives.
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the
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initial stage itself, the accused had no intention
whatsoever, of keeping his promise to marry the
victim. There may, of course, be circumstances, when
a person having the best of intentions is unable to
marry the victim owing to various unavoidable
circumstances. The “failure to keep a promise made
with respect to a future uncertain date, due to
reasons that are not very clear from the evidence
available, does not always amount to misconception
of fact. In order to come within the meaning of the
term “misconception of fact”, the fact must have an
immediate relevance”. Section 90 IPC cannot be
called into aid in such a situation, to pardon the act
of a girl in entirety, and fasten criminal liability on
the other, unless the court is assured of the fact that
from the very beginning, the accused had never really
intended to marry her.”
10.3 In the case of Yedla Srinivasa Rao v. State of A.P.
(2006) 11 SCC 615, this Court also considered the amendment
made in the Indian Evidence Act – Section 114A of the Evidence
Act. In that case, the sexual intercourse was committed with the
prosecutrix by the accused. As per the prosecutrix, the accused
used to come to her sister's house in between 11 a.m. and 12
noon daily and asked her for sexual intercourse with him.
She refused to participate in the said act but the accused
kept on persisting and persuading her. She resisted for
about 3 months. On one day, the accused came to her
sister's house at about 12 noon and closed the doors and
16
had sexual intercourse forcibly, without her consent and
against her will. When she asked the accused as to why he
spoiled her life, he gave assurance that he would marry her
and asked her not to cry, though his parents were not
agreeing for the marriage. It was found that on the basis of
the assurance given by the accused this process of sexual
intercourse continued and he kept on assuring that he would
marry her. When she became pregnant, she informed about
the pregnancy to the accused. He got certain tablets for
abortion but they did not work. When she was in the third
month of pregnancy, she again insisted for the marriage and
the accused answered that his parents are not agreeable.
She deposed that had he not promised, she would not have
allowed him to have sexual intercourse with her. The
question was raised before the Panchayat of elders and the
prosecutrix was present in the Panchayat along with her
sister and brotherinlaw. The accused and his father both
attended the Panchayat and the accused admitted about the
illegal contacts with the prosecutrix and causing pregnancy.
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The accused asked for two days' time for marrying the
prosecutrix and the Panchayat accordingly granted time. But
after the Panchayat meeting the accused absconded from the
village and when the accused did not fulfil his promise which
was made before the Panchayat, the prosecutrix lodged the
complaint. Considering the aforesaid facts and after
considering Section 90 of the IPC, this Court convicted the
accused for the offence under Section 376 of the IPC. While
convicting the accused, this Court in paragraphs 9, 10,15
and 16 observed and held as under:
| “9. The question in the present case is whether this<br>conduct of the accused apparently falls under any of<br>the six descriptions of Section 375 IPC as mentioned<br>above. It is clear that the prosecutrix had sexual<br>intercourse with the accused on the representation<br>made by the accused that he would marry her. This<br>was a false promise held out by the accused. Had<br>this promise not been given perhaps, she would not<br>have permitted the accused to have sexual<br>intercourse. Therefore, whether this amounts to a<br>consent or the accused obtained a consent by playing<br>fraud on her. Section 90 of the Penal Code says that<br>if the consent has been given under fear of injury or a<br>misconception of fact, such consent obtained, cannot<br>be construed to be a valid consent. Section 90 reads<br>as under: | |
|---|---|
| “90. Consent known to be given under fear or<br>misconception.—A consent is not such a consent<br>as is intended by any section of this Code, if the |
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| consent is given by a person under fear of injury,<br>or under a misconception of fact, and if the<br>person doing the act knows, or has reason to<br>believe, that the consent was given in<br>consequence of such fear or misconception; or | |
|---|---|
| [Consent of insane person] if the consent is<br>given by a person who, from unsoundness of<br>mind, or intoxication, is unable to understand<br>the nature and consequence of that to which he<br>gives his consent; or | |
| [Consent of child] unless the contrary<br>appears from the context, if the consent is given<br>by a person who is under twelve years of age.” | |
| 10. It appears that the intention of the accused as<br>per the testimony of PW 1 was, right from the<br>beginning, not honest and he kept on promising that<br>he will marry her, till she became pregnant. This kind<br>of consent obtained by the accused cannot be said to<br>be any consent because she was under a<br>misconception of fact that the accused intends to<br>marry her, therefore, she had submitted to sexual<br>intercourse with him. This fact is also admitted by<br>the accused that he had committed sexual<br>intercourse which is apparent from the testimony of<br>PWs 1, 2 and 3 and before the panchayat of elders of<br>the village. It is more than clear that the accused<br>made a false promise that he would marry her.<br>Therefore, the intention of the accused right from the<br>beginning was not bona fide and the poor girl<br>submitted to the lust of the accused, completely<br>being misled by the accused who held out the<br>promise for marriage. This kind of consent taken by<br>the accused with clear intention not to fulfil the<br>promise and persuading the girl to believe that he is<br>going to marry her and obtained her consent for the<br>sexual intercourse under total misconception, cannot<br>be treated to be a consent. ……. | |
19
| 15. In this connection reference may be made to the<br>amendment made in the Evidence Act. Section 114A<br>was introduced and the presumption has been raised<br>as to the absence of consent in certain prosecutions<br>for rape. Section 114A reads as under: | |
|---|---|
| “114A. Presumption as to absence of consent<br>in certain prosecutions for rape.—In a prosecution<br>for rape under clause (a) or clause (b) or clause<br>(c) or clause (d) or clause (e) or clause (g) of sub<br>section (2) of Section 376 of the Indian Penal<br>Code (45 of 1860), where sexual intercourse by<br>the accused is proved and the question is<br>whether it was without the consent of the woman<br>alleged to have been raped and she states in her<br>evidence before the court that she did not<br>consent, the court shall presume that she did not<br>consent.” | |
| 16. If sexual intercourse has been committed by the<br>accused and if it is proved that it was without the<br>consent of the prosecutrix and she states in her<br>evidence before the court that she did not consent,<br>the court shall presume that she did not consent.<br>Presumption has been introduced by the legislature<br>in the Evidence Act looking to atrocities committed<br>against women and in the instant case as per the<br>statement of PW 1, she resisted and she did not give<br>consent to the accused at the first instance and he<br>committed the rape on her. The accused gave her<br>assurance that he would marry her and continued to<br>satisfy his lust till she became pregnant and it<br>became clear that the accused did not wish to marry<br>her.” |
10.4 In the case of State of U.P. v. Naushad (2013) 16
SCC 651, in the similar facts and circumstances of the case, this
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Court reversed the acquittal by the High Court and convicted the
accused for the offence under Section 376 of the IPC. This Court
observed and held as under:
| “17. Section 376 IPC prescribes the punishment for<br>the offence of rape. Section 375 IPC defines the<br>offence of rape, and enumerates six descriptions of<br>the offence. The description “secondly” speaks of rape<br>“without her consent”. Thus, sexual intercourse by a<br>man with a woman without her consent will<br>constitute the offence of rape. We have to examine as<br>to whether in the present case, the accused is guilty<br>of the act of sexual intercourse with the prosecutrix<br>“against her consent”. The prosecutrix in this case<br>has deposed on record that the accused promised<br>marriage with her and had sexual intercourse with<br>her on this pretext and when she got pregnant, his<br>family refused to marry him with her on the ground<br>that she is of “bad character”.<br>18. How is “consent” defined? Section 90 IPC defines<br>consent known to be given under “fear or<br>misconception” which reads as under:<br>“90.Consent known to be given under fear<br>or misconception.—A consent is not such a<br>consent as is intended by any section of this<br>Code, if the consent is given by a person under<br>fear of injury, or under a misconception of fact,<br>and if the person doing the act knows, or has<br>reason to believe, that the consent was given in<br>consequence of such fear or misconception;”<br>(emphasis supplied)<br>Thus, if consent is given by the prosecutrix under a<br>misconception of fact, it is vitiated. | “17. Section 376 IPC prescribes the punishment for<br>the offence of rape. Section 375 IPC defines the<br>offence of rape, and enumerates six descriptions of<br>the offence. The description “secondly” speaks of rape<br>“without her consent”. Thus, sexual intercourse by a<br>man with a woman without her consent will<br>constitute the offence of rape. We have to examine as<br>to whether in the present case, the accused is guilty<br>of the act of sexual intercourse with the prosecutrix<br>“against her consent”. The prosecutrix in this case<br>has deposed on record that the accused promised<br>marriage with her and had sexual intercourse with<br>her on this pretext and when she got pregnant, his<br>family refused to marry him with her on the ground<br>that she is of “bad character”. | ||
| 18. How is “consent” defined? Section 90 IPC defines<br>consent known to be given under “fear or<br>misconception” which reads as under: | |||
| “90.Consent known to be given under fear<br>or misconception.—A consent is not such a<br>consent as is intended by any section of this<br>Code, if the consent is given by a person under<br>fear of injury, or under a misconception of fact,<br>and if the person doing the act knows, or has<br>reason to believe, that the consent was given in<br>consequence of such fear or misconception;” | |||
| (emphasis supplied) | |||
| Thus, if consent is given by the prosecutrix under a<br>misconception of fact, it is vitiated. | |||
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19. In the present case, the accused had sexual
intercourse with the prosecutrix by giving false
assurance to the prosecutrix that he would marry
her. After she got pregnant, he refused to do so. From
this, it is evident that he never intended to marry her
and procured her consent only for the reason of
having sexual relations with her, which act of the
accused falls squarely under the definition of rape as
he had sexual intercourse with her consent which
was consent obtained under a misconception of fact
as defined under Section 90 IPC. Thus, the alleged
consent said to have been obtained by the accused
was not voluntary consent and this Court is of the
view that the accused indulged in sexual intercourse
with the prosecutrix by misconstruing to her his true
intentions. It is apparent from the evidence that the
accused only wanted to indulge in sexual intercourse
with her and was under no intention of actually
marrying the prosecutrix. .........”
10.5 Even in the case of
Dr. Dhruvaram Murlidhar Sonar
(supra), upon which reliance has been placed by the learned
counsel appearing on behalf of the accused, in paragraph 23, this
Court has observed that 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, this Court
observed and held as under:
22
“ 23. 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.”
10.6 The High Court of Delhi in
Sujit Ranjan v. State
[Criminal Appeal No. 248 of 2011 decided on 27.01.2011], after
referring to and considering several decisions of this Court,
ultimately in paragraph 16, observed and held as under:
“16. Legal position which can be culled out from the
judicial pronouncements referred above is that the
consent given by the prosecutrix to have sexual
intercourse with whom she is in love, on a promise
that he would marry her on a later date, cannot be
considered as given under "misconception of fact".
Whether consent given by the prosecutrix to sexual
23
| intercourse is voluntary or whether it is given under | |||
|---|---|---|---|
| "misconception of fact" depends on the facts of each | |||
| case. While considering the question of consent, the | |||
| Court must consider the evidence before it and the | |||
| surrounding circumstances before reaching a | |||
| conclusion. Evidence adduced by the prosecution has | |||
| to be weighed keeping in mind that the burden is on | |||
| the prosecution to prove each | and every ingredient of | ||
| the offence. Prosecution must lead positive evidence | |||
| to give rise to inference beyond reasonable doubt that | |||
| accused had no intention to marry prosecutrix at all | |||
| from inception and that promise made was false to | |||
| his knowledge. The failure to keep the promise on a | |||
| future uncertain date may be on account of variety of | |||
| reasons and could not always amount to | |||
| "misconception of fact" right from the inception.” |
11. So far as the decisions upon which reliance has been
placed by the learned counsel appearing on behalf of the accused
referred to hereinabove are concerned, the same shall not be
applicable to the facts of the case on hand. In the case of Tilak
(supra), the prosecutrix was an adult and matured lady of
Raj
around 40 years at the time of the incident. It was admitted by
the prosecutrix in her testimony that she was in a relationship
with the accused for last two years prior to the incident and he
used to stay overnight at her residence. Therefore, considering
the evidence as a whole, including FIR, testimony of the
prosecutrix and the MLC report, this Court found that the story
of the prosecutrix regarding sexual intercourse on false pretext of
24
marrying her is concocted and not believable and on facts it was
found that the act of the accused seems to be consensual. It is
required to be noted that before this Court the accused was
acquitted for the offence under Section 376 of the IPC, however,
the High Court convicted him under Sections 417 and 506 of the
IPC. Therefore, on facts, the said decision shall not be of any
assistance to the appellant in the present case.
11.1 Even in the case of Deepak Gulati (supra) it was
observed that the accused can be convicted for rape if the court
reaches the conclusion that the intention of the accused was
mala fide, and that he had clandestine motives.
11.2 Even the decisions of this Court in Uday (supra),
Deelip Singh (supra) and Shivashankar alias Shive v. State
(2108) SCC Online 3106 shall not be applicable to
of Karnataka
the case of the accused on hand.
12. The sum and substance of the aforesaid decisions
would be that if it is established and proved that from the
inception the accused who gave the promise to the prosecutrix to
marry, did not have any intention to marry and the prosecutrix
gave the consent for sexual intercourse on such an assurance by
25
the accused that he would marry her, such a consent can be said
to be a consent obtained on a misconception of fact as per
Section 90 of the IPC and, in such a case, such a consent would
not excuse the offender and such an offender can be said to have
committed the rape as defined under Section 375 of the IPC and
can be convicted for the offence under Section 376 of the IPC.
13. Applying the law laid down by this Court in the
aforesaid decisions, the following facts emerging from the
evidence on record are required to be considered:
(i) That the family of the prosecutrix and the accused
were known to each other and, therefore, even the prosecutrix
and the accused were known to each other;
(ii) That though the accused was to marry another girl –
Priyanka Soni, the accused continued to talk of marriage with the
prosecutrix and continued to give the promise that he will marry
the prosecutrix;
(iii) That on 28.04.2013 the appellant expressed his wish
telephonically to meet with the prosecutrix and responding to
that the prosecutrix went to the place of the accused on
29.04.2013 by train, where the accused received her at the
26
railway station Sakti and took her to his place of residence in
Malkharauda;
(iv) That during her stay at the house of the accused from
2.00 pm on 29.04.2013 to 3.00 pm on 30.04.2013, they had
physical relation thrice;
(v) That as per the case of the prosecutrix, the prosecutrix
initially refused to have physical relation, but then the appellant
allured her with a promise to marry and had physical relation
with her;
(vi) That, thereafter the prosecutrix called the accused
number of times asking him about the marriage, however, the
accused did not reply positively;
(vii) That thereafter the prosecutrix informed about the
incident to her family members on 06.05.2013;
(viii) That the family members of the prosecutrix negotiated
with the family members of the accused;
(ix) That on 23.05.2013, the appellant expressed his
willingness to marry the prosecutrix and a social function was
scheduled on 30.05.2013, which did not take place;
(x) That, again the family members of both the parties had
talks, in which the marriage was negotiated and a social function
27
was scheduled on 10.06.2013, which was again not held and
further, the social event was fixed for 20.06.2013;
(xi) That on 20.06.2013, the appellant telephonically
informed the prosecutrix that he has already married;
(xii) That, Priyanka Soni PW13, who is the wife of the
accused stated that one year prior to the marriage that took place
on 10.06.2013, the negotiations were going on; and
(xiii) That the accused married Priyanka Soni on
10.06.2013 in Arya Samaj, even prior to the social function for
the marriage of the accused the prosecutrix was scheduled on
10.06.2013 and even thereafter the social event was fixed for
20.06.2013.
14. Considering the aforesaid facts and circumstances of
the case and the evidence on record, the prosecution has been
successful in proving the case that from the very beginning the
accused never intended to marry the prosecutrix; he gave false
promises/promise to the prosecutrix to marry her and on such
false promise he had a physical relation with the prosecutrix; the
prosecutrix initially resisted, however, gave the consent relying
upon the false promise of the accused that he will marry her and,
therefore, her consent can be said to be a consent on
28
misconception of fact as per Section 90 of the IPC and such a
consent shall not excuse the accused from the charge of rape and
offence under Section 375 of the IPC. Though, in Section 313
statement, the accused came up with a case that the prosecutrix
and his family members were in knowledge that his marriage was
already fixed with Priyanka Soni, even then, the prosecutrix and
her family members continued to pressurise the accused to
marry the prosecutrix, it is required to be noted that first of all
the same is not proved by the accused. Even otherwise,
considering the circumstances and evidence on record, referred
to hereinabove, such a story is not believable. The prosecutrix,
in the present case, was an educated girl studying in B.
Pharmacy. Therefore, it is not believable that despite having
knowledge that that appellant’s marriage is fixed with another
lady – Priyanka Soni, she and her family members would
continue to pressurise the accused to marry and the prosecutrix
will give the consent for physical relation. In the deposition, the
prosecutrix specifically stated that initially she did not give her
consent for physical relationship, however, on the appellant’s
promise that he would marry her and relying upon such promise,
she consented for physical relationship with the appellant
29
accused. Even considering Section 114A of the Indian Evidence
Act, which has been inserted subsequently, there is a
presumption and the court shall presume that she gave the
consent for the physical relationship with the accused relying
upon the promise by the accused that he will marry her. As
observed hereinabove, from the very inception, the promise given
by the accused to marry the prosecutrix was a false promise and
from the very beginning there was no intention of the accused to
marry the prosecutrix as his marriage with Priyanka Soni was
already fixed long back and, despite the same, he continued to
give promise/false promise and alluded the prosecutrix to give
her consent for the physical relationship. Therefore, considering
the aforesaid facts and circumstances of the case and
considering the law laid down by this Court in the aforesaid
decisions, we are of the opinion that both the Courts below have
rightly held that the consent given by the prosecutrix was on
misconception of fact and, therefore, the same cannot be said to
be a consent so as to excuse the accused for the charge of rape
as defined under Section 375 of the IPC. Both the Courts below
have rightly convicted the accused for the offence under Section
376 of the IPC.
30
15. Now, so far as the submission on behalf of the
accusedappellant that the accused had marriage with Priyanka
Soni on 10.06.2013 and even the prosecutrix has also married
and, therefore, the accused may not be convicted is concerned,
the same cannot be accepted. The prosecution has been
successful by leading cogent evidence that from the very
inspection the accused had no intention to marry the victim and
that he had mala fide motives and had made false promise only
to satisfy the lust. But for the false promise by the accused to
marry the prosecutrix, the prosecutrix would not have given the
consent to have the physical relationship. It was a clear case of
cheating and deception.
As observed hereinabove, the consent given by the
prosecutrix was on misconception of fact. Such incidents are on
increase nowadays. Such offences are against the society.
Rape is the most morally and physically reprehensible crime in a
society, an assault on the body, mind and privacy of the victim.
As observed by this Court in a catena of decisions, while a
murderer destroys the physical frame of the victim, a rapist
degrades and defiles the soul of a helpless female. Rape reduces
a woman to an animal, as it shakes the very core of her life. By
31
no means can a rape victim be called an accomplice. Rape leaves
a permanent scar on the life of the victim. Rape is a crime against
| the entire society and violates the human rights of the victim. |
|---|
| Being the most hated crime, the rape | tantamounts to a serious |
|---|
blow to the supreme honour of a woman, and offends both her
esteem and dignity. Therefore, merely because the accused had
married with another lady and/or even the prosecutrix has
subsequently married, is no ground not to convict the appellant
accused for the offence punishable under Section 376 of the IPC.
The appellantaccused must face the consequences of the crime
committed by him.
16. In view of the above and for the reasons stated above,
we are of the opinion that both the Courts below have rightly
convicted the appellantaccused under Section 376 of the IPC.
We also maintain the conviction of the appellantaccused under
Section 376 of the IPC. However, in the facts and circumstances
of the case and the request made by the learned counsel
appearing on behalf of the appellantaccused, the sentence of 10
years’ RI awarded by the courts below is hereby reduced to seven
years RI, the minimum which was prescribed at the relevant time
of commission of offence under Section 376 of the IPC.
32
Consequently, the present appeal is partly allowed to the
aforesaid modification in the sentence only.
........................................J.
[L. NAGESWARA RAO]
New Delhi; ........................................J.
April 09, 2019. [M. R. SHAH]
33