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Hon'ble Supreme Court reported in 2013 AIR (SC) 384, State of U.P. vs. Naushad, wherein it is held that sexual intercourse committed by accused with victim and if consent given by her on false assurance of marriage and after that she became pregnant- it will amount to rape.

Supreme Court of India

Uday vs State Of Karnataka on 19 February, 2003

According to the prosecutrix whenever she talked to the appellant about the marriage, he assured her that he would marry her after completion of the construction of the house, and that it would be a registered marriage. This state of affairs continued till she discovered that she was pregnant. She told the appellant about the pregnancy but he assured her that she should not worry and that he will marry her after sometime. The suspicion of her mother was aroused during the 6th month of pregnancy and she was, therefore, compelled to disclose everything to her mother. She told the appellant about her having disclosed everything to her mother, and the appellant again assured her that he would take her to some other place and get married. Gradually when others came to know about the affair and her pregnancy, her brother, PW.3 enquired of the appellant as to whether he would marry her. The appellant told her brother that he would marry her, but this fact should not be revealed to his (Appellant's) parents. In the 8th month of pregnancy the appellant asked her to be ready to go with him and it was planned that they would leave early in the morning. The appellant did not turn up but the cousin of the appellant informed her that the appellant had gone to Sangli. Eight days later when the appellant returned from Sangli, her brother again asked the appellant as to whether he would marry her. The appellant told her brother to keep her at some other place and that he would bear her maintenance expenses and after her delivery and completion of the construction of his house, he would marry her. This suggestion was not acceptable to the prosecutrix and her brother and this angered the appellant. Next day when her brother wanted to meet the appellant he did not come out of his house. Thereafter followed a quarrel between female members of the two families. Since the appellant did not marry her as promised, she lodged the complaint with the police .

HELD - "

In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

(PERSONAL REMARK :- You can also used your writing skills to reduce these paras like this Uday v. State of Karnataka, [2003] 4 SCC 46. In this case also this Court held that for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, no straitjacket formula can be laid down but following factors stand out; (i) where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to; (ii) she was conscious of the fact that her marriage was difficult on account of caste considerations; (iii) it was difficult to impute to the appellant knowledge the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix. On the basis of the above factors this Court did not feel persuaded to hold that consent was obtained by misconception of facts on the part of the victim.) <- This will require practice and reading , but once learned the task becomes much easier.

In the case of Deelip Singh Alias Dilip Kumar v. State of Bihar, [2005] 1 SCC 88 wherein this Court took the view that prosecturix had taken a conscious decision to participate in the sexual act only on being impressed by the accused who promised to marry her. But accused's promise was not false from its inception with the intention to seduce her to sexual act

In the case of Vinod Kumar vs. State of Kerala: (2014) 5 SCC 678 the Hon‟ble Supreme Court observed that "the prosecutrix therein was a graduate and even otherwise was not a gullible women of feeble intellect as is evident from her conduct in completing her examination successfully even on the eventful day. In fact she had displayed mental maturity of an advanced and unusual scale. She was aware that a legal marriage could not be performed and, therefore, was content for the time being that an agreement for marriage be executed.

In the above case, further observed that the Court is duty bound when assessing presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in that case prosecutrix was lead to believe that her marriage to appellant therein had been duly and legally performed. The Hon‟ble Supreme Court opined that it is not sufficient that she convinced herself of existence of this factual matrix, without appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in existence of a scenario which is a mirage and in creation of which other party has made no contribution. If other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable.

In case of Dilip Kumar vs. State of Bihar: (2005) 1 SCC 88 thereby the Hon‟ble Supreme Court has observed that the predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her of the prospect of marriage with the accused. The Court held that she came to the conclusion to have a sexual affair only after being convinced that the accused would marry her and it is quite clear from her evidence, which is in tune with her earlier version given in the first information report. The Court noticed 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.But apex court found 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.

In the case of Ram Das vs. State of Maharashtra: (2007) 2 SCC 170, the Hon‟ble Supreme Court observed in para 23 that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity.

Whereas, Vijayan vs. State of Kerala: (2008) 14 SCC 763 was a case where the complaint was made by the prosecutrix after the alleged commission of rape on her by the accused. At the time of making the case, the prosecutrix was pregnant for about seven months. The Hon‟ble Supreme Court did not place reliance on the sole testimony of the prosecutrix. The Court noticed the flaw that no DNA test was conducted to find out whether the child was born out of the said incident and the accused was responsible for the said child.

In the case of K. P. Thimmappa Gowda vs. State of Karnataka: (2011) 14 SCC 475, the accused therein had assured prosecutrix that he would marry her and had sexual affair, which was repeated on several occasions as well. But he did not marry and she became pregnant. That was a case where there was delay of eight months in filing the complaint. The accused was given the benefit of doubt holding that it would not be possible to conclude that alleged sexual act was committed without consent of the prosecutrix.

In case of Deepak Gulati vs. State of Haryana: (2013) 7 SCC 675, undisputed facts of the case were that the prosecutrix was 19 years of age at the time of incident. She had inclination towards appellant and appellant had been giving her assurance that he would get married to her. The prosecutrix, therefore, left her home at Karnal in the State of Haryana voluntarily, of her own free will to get married to appellant. She had called appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time and when he finally arrived she went with him to the „Karna‟ lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant where she lived with his relatives. Here to, prosecutrix voluntarily became intimate with appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally and once again came into contact with the appellant at Birla Mandir. Thereafter, she even proceeded with appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that two of them could get married in court at Ambala. However, at the bus stand, appellant was arrested by police and he was convicted under section 365/376 IPC. Consequently, he was before the Hon‟ble Supreme Court in a special leave petition and in para 15 of the said judgment, it was observed as under:

".........the facts of the instant case do not warrant that the provisions of Section 114-A of the Evidence Act 1872 be pressed into service. Hence, the sole question involved herein is whether prosecutrix‟s consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Evidence Act, 1872. Section 90 of the Evidence Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape."

However, it was observed by the court in above cited case that 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. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. 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. An accused can be convicted for rape only if the court reaches to a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. There is a distinction between the breach of a promise, and not fulfilling a false promise. There must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. 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 mis-representation 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. 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 above discussed case, the prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. The physical relationship between parties had clearly developed with the consent of prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another. She was conscious of the complications and issues surrounding her marriage to the appellant. It was difficult to impute to the accused, knowledge of fact that prosecutrix had consented as a consequence of a misconception of fact that had arisen from his promise to marry her. There was no evidence to prove conclusively that appellant had never intended to marry the prosecutrix. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with appellant to Ambala, to get married to him there. If this fact stands fully established from the evidence on record, it is not clear as to on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. It is not possible to comprehend the circumstances in which a charge of deceit/rape can be levelled against the appellant, in the light of afore-mentioned fact situation. Accordingly, the Hon‟ble Supreme Court granted benefit of doubt to the accused.

Supreme Court of India

Yedla Srinivasa Rao vs State Of A.P on 29 September, 2006

Brief facts giving rise to both these appeals are that prosecutrix (PW1) used to attend cooking in her sister's (PW2) house in day time, as her sister was attending to agricultural operations. The accused used to visit the house of P.W 2 during day time between 11.00 a.m. and 12.00 noon regularly while PW 1 was alone and persuaded her to have sexual intercourse by telling her that he would marry her. PW1 resisted for this for sometime but later on one day, the accused came to the house of PW2 in her absence, closed the doors and committed forcible sexual intercourse with PW1 against her will and consent. When she protested as to why he spoiled her life, accused promised that he would marry her. Subsequently, the process continued for some time. Accused used to come in the noon and had sexual intercourse with PW1. When she became pregnant she informed the accused and he gave tablets for abortion in order to get rid of pregnancy which did not work. Subsequently, PW1 insisted the accused to marry her. The accused informed PW1 that as his parents were not agreeing for the marriage, he would not marry her. PW1 brought this fact to the notice of her sister - PW2. Thereafter, the matter was reported to the Panchayat. The accused accepted the guilt and promised to marry PW1 but subsequently, he absconded from the village. Since the persuasion could not fructify, PW1 lodged a report against the accused to police and, therefore, the police registered a case as per the prosecutrix report for the offences punishable under Sections 376 and 417.IPC. After completion of investigation, police filed a challan against the accused.

" The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her.

In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. "

In the case of Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar & Anr.: (2007) 7 SCC 413, wherein prosecutrix lodged First Information Report alleging that with an assurance that the accused- appellant therein would marry her, he had sexual relationship with her. When this went on for some time, the informant had been taken to a temple where in the presence of deity he accepted her to be his wife and there was an agreement of marriage entered into. Alleging that the accused was likely to get married with some other lady, an FIR was lodged. Investigation was undertaken and statement of the informant was recorded under Section 164 of the Cr.P.C. wherein it was accepted that first, with a promise of marriage, the accused had physical relationship with the informant and then, had married her. Since the accused disowned having ever married the informant and much less having ever had any physical relationship with her, she was forced to file the FIR. After investigation, charge sheet was filed wherein it was indicated that an offence punishable under Sections 376 and 406 of IPC was made out. An application was filed by the accused before the Trial Court for discharge in terms of Section 227 of Cr.P.C. By order dated 21.07.2005, the same was rejected. It was inter alia noted as follows:

"As a matter of fact the poor victim Binita Kumari was put under misconception of fact as promise to marry her by the accused and in this light the accused has done sexual intercourse with her. The accused had done such act with other girls also and further the accused has made a Akrarnama for marriage with the victim. The love letters and Akrarnama photocopy are also with the case diary and the same are on the record. From the case diary it is also clear that the accused has taken consent of the victim girl on a false promise of marriage and further a Akrarnama is also made here. Hence the consent is not with free will or voluntary act. Hence there are sufficient grounds for framing charge against the accused person"

"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 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."

"As observed by this Court in Deelip Singh v. State of Bihar [(2005) 1 SCC 88] , SCC p. 99, paras 17-19. Section 90 cannot be considered as an exhaustive definition of consent for the purposes of IPC. The normal connotation and concept of consent is not intended to be excluded.

11. "21. In most of the decisions in which the meaning of the expression „consent‟ under the Penal Code was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. 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:

„Consent supposes three things--a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated 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."

There is a good analysis of the expression „consent‟ in the context of Section 375 IPC by Tekchand, J. in Rao Harnarain Singh Sheoji Singh v. State [AIR 1958 Punj 123 : 1958 Cri LJ 563] . The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. The observation of the learned Judge (at AIR p. 126, para 7) 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 passages occurring in the above decision were either verbatim quoted with approval or in condensed form in the subsequent decisions: vide Anthony, In re [AIR 1960 Mad 308 : 1960 Cri LJ 927] , Gopi Shanker v. State of Rajasthan [AIR 1967 Raj 159 : 1967 Cri LJ 922] , Bhimrao Harnooji Wanjari v. State of Maharashtra [1975 Mah LJ 660] and Vijayan Pillai v. State of Kerala [(1989) 2 Ker LJ 234] . All these decisions have been considered in ... Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775] . 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 case [AIR 1958 Punj 123 : 1958 Cri LJ 563] (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. v. Mango Ram [(2000) 7 SCC 224 : 2000 SCC (Cri) 1331] . It was observed as follows: (SCC pp. 230-31, para 13)

„Submission of the body under the fear of 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.

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, [was dealt with by a] Division Bench of the Calcutta High Court in Jayanti Rani Panda v. State of W.B. [1984 Cri LJ 1535 : (1983) 2 CHN 290 (Cal)] 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 case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775] 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: (Cri LJ pp. 1537-38) „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 ... 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: (Cri LJ p. 1538, para 7) „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 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. Section 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.‟

(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. There is no straitjacket 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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