ANURAG SONI versus STATE OF CHHATTISGARH

[2019] 6 S.C.R. 972

[2019] 6 S.C.R.

ANURAG SONI

STATE OF CHHATTISGARH

(Criminal Appeal No. 629 of 2019)

BAPRIL 09, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Penal Code, 1860 – ss.90, 375 and 376 – Prosecution casethat the prosecutrix was familiar with the accused-appellant since2009 and there was love affair between them – Appellant establishedCphysical relation with her on the pretext of marrying her, howeverafter keeping the prosecutrix and her family members in dark forabout two months, the appellant refused to marry the prosecutrixand performed marriage with another girl – Sessions Courtconvicted the appellant for the offence u/s. 376, IPC – High CourtDconfirmed the judgment – On appeal, held: Prosecution has beensuccessful in proving the case that the promise given by the appellantto marry the prosecutrix was false and from the very beginning theappellant had no intention to marry the prosecutrix as his marriagewith another girl was already fixed long back – Despite the same,he continued to give false promise and alluded the prosecutrix toEgive her consent for the physical relationship – Initially theprosecutrix resisted, however, gave the consent relying upon thefalse promise of the appellant that he will marry her – Her consentcan be said to be consent on misconception of fact as per s.90,IPC – Both the Courts below rightly held that the consent given byFthe prosecutrix was on misconception of fact and, therefore, thesame cannot be said to be consent so as to excuse the appellantfor the charge of rape as defined u/s.375, IPC – Appellant’sconviction u/s.376, IPC, maintained – However, in the facts andcircumstances of the case, sentence of 10 years’ rigorousimprisonment awarded by the courts below is reduced to seven years’Grigorous imprisonment – Indian Evidence Act, 1872 – s.114-A.

Partly allowing the appeal, the Court

HELD: 1.1 If it is established and proved that from theinception the accused who gave the promise to the prosecutrixH

to marry, did not have any intention to marry and the prosecutrixgave the consent for sexual intercourse on such an assurance bythe accused that he would marry her, such consent can be saidto be consent obtained on misconception of fact as per Section90 of the IPC and, in such case, such consent would not excusethe offender and such an offender can be said to have committedthe rape as defined under Section 375 of the IPC and can beconvicted for the offence under Section 376 of the IPC.[Para 12][990-C-D]1.2 The prosecution has been successful in proving thecase that from the very beginning the accused never intended tomarry the prosecutrix; he gave false promises/promise to theprosecutrix to marry her and on such false promise he had physicalrelation with the prosecutrix; the prosecutrix initially resisted,however, gave the consent relying upon the false promise of theaccused that he will marry her and, therefore, her consent can besaid to be consent on misconception of fact as per Section 90 ofthe IPC and such consent shall not excuse the accused fromthe charge of rape and offence under Section 375 of the IPC.The prosecutrix, in the present case, was an educated girl studyingin B. Pharmacy. Therefore, it is not believable that despite havingknowledge that that appellant’s marriage is fixed with anotherlady, the prosecutrix and her family members would continue topressurise the accused to marry and the prosecutrix will givethe consent for physical relation. In the deposition, the prosecutrixspecifically stated that initially she did not give her consent forphysical relationship, however, on the appellant’s promise thathe would marry her and relying upon such promise, she consentedfor physical relationship with the appellant-accused. Evenconsidering Section 114-A of the Indian Evidence Act, which hasbeen inserted subsequently, there is presumption and the courtshall presume that she gave the consent for the physicalrelationship with the accused relying upon the promise by theaccused that he will marry her. From the very inception, thepromise given by the accused to marry the prosecutrix was afalse promise and from the very beginning there was no intentionof the accused to marry the prosecutrix as his marriage with ‘PS’was already fixed long back and, despite the same, he continued

Ato give promise/false promise and alluded the prosecutrix to giveher consent for the physical relationship. Both the Courts belowrightly held that the consent given by the prosecutrix was onmisconception of fact and, therefore, the same cannot be said tobe consent so as to excuse the accused for the charge of rapeas defined under Section 375 of the IPC. Both the Courts belowBrightly convicted the accused for the offence under Section 376of the IPC. Such incidents are on increase now-a-days. Suchoffences are against the society. Rape is the most morally andphysically reprehensible crime in society, an assault on the body,mind and privacy of the victim. While murderer destroys theCphysical frame of the victim, rapist degrades and defiles thesoul of helpless female. Rape reduces woman to an animal, asit shakes the very core of her life. By no means can rape victimbe called an accomplice. Rape leaves permanent scar on thelife of the victim. Rape is crime against the entire society and

violates the human rights of the victim. Being the most hatedDcrime, rape tantamounts to serious blow to the supreme honourof 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 groundnot to convict the appellant-accused for the offence punishableEunder Section 376 of the IPC. The appellant-accused must facethe consequences of the crime committed by him.[Paras 14, 15][991-G-H; 992-A-G; 993-C-E]

1.3 Both the Courts below rightly convicted the appellant-accused under Section 376 of the IPC. The conviction of the

Fappellant-accused under Section 376 of the IPC is maintained.However, in the facts and circumstances of the case and therequest made by the counsel appearing on behalf of the appellant-accused, the sentence of 10 years’ RI awarded by the courts belowis reduced to seven years RI, the minimum which was prescribed

at the relevant time of commission of offence under Section 376Gof the IPC. [Para 16][993-F-G]

Tilak Raj v. State of Himachal Pradesh (2016) 4 SCC140; Uday v. State of Karnataka (2003) 4 SCC 46 :

[2003] 2 SCR 231 ; Deelip Singh v. State of Bihar(2005) 1 SCC 88 : [2004] 5 Suppl. SCR 909;Shivashankar alias Shiva v. State of Karnataka (2018)SCC Online SC 3106 – held inapplicable.

Kaini Rajan v. State of Kerala (2013) 9 SCC 113 : [2013]10 SCR 196 ; Yedla Srinivasa Rao v. State of A.P. (2006)11 SCC 615 : [2006] 6 Suppl. SCR 760 ; State of U.P.v. Naushad (2013) 16 SCC 651 – relied on.

Dr. Dhruvaram Murlidhar Sonar v. The State ofMaharashtra (2019) SCC Online 3100 ; Deepak Gulativ. State of Haryana (2013) 7 SCC 675 : [2013] 6 SCR544; Sujit Ranjan v. State Decision dated 27.01.2011of High Court of Delhi in Criminal Appeal No.248of 2011 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 629 of 2019

From the Judgment and Order dated 10.10.2018 of the High Courtof Chhattisgarh at Bilaspur in Criminal Appeal No. 1270 of 2014.

Nagamuthu, Sr. Adv., C. B. Gururaj, Vishnu Unnikrishnan, PrakashRanjan Nayak, Advs. for the Appellant.

Praveen Chaturvedi, Ms. Jyoti Chaturvedi, Addya Mishra, PranavSachdeva, Ms. Neha Rathi, Jatin Bhardwaj, Advs. for the Respondent.

AThe Judgment of the Court was delivered by

M. R. SHAH, J.

The application for impleadment of the prosecutrix is allowed, interms of the prayer made.

B1.1 Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 10.10.2018 passed by the High Court of Chhattisgarh atBilaspur in Criminal Appeal No. 1270/2014, by which the High Courthas dismissed the said appeal preferred by the appellant herein – theCoriginal accused and has confirmed the judgment and order of convictionpassed by the learned trial Court convicting the original accused for theoffence under Section 376(1) of the IPCand sentencing him to undergorigorous imprisonment for 10 years and to pay fine of Rs.50,000/-, indefault of payment of fine, to further undergo additional rigorousimprisonment for six months, the original accused has preferred theDpresent appeal.

3. The prosecution case in brief was that the prosecutrix was theresident of Koni, Bilaspur, District Bilaspur. Prosecutrix was familiarwith the accused since 2009 and there was love affair between them.The appellant had even proposed her for marriage and this fact wasEwithin the knowledge of their respective family members. At the time ofincident, accused was posted as Junior Doctor in the government hospitalof Maalkharoda and at that time the prosecutrix was doing her studiesof Pharmacy in Bhilai. On 28.4.2013 the accused expressed his desireto the prosecutrix that he wanted to meet her and accordingly on 29.4.2013at 7.25 a.m. the prosecutrix boarded Durg Danapur Express train andFreached Sakti railway station from where the accused took her on amotorcycle to his house situated at Maalkharoda and there she stayedfrom 2 pm of 29.4.2013 to 3 p.m. of 30.4.2013 and during this perioddespite refusal of the prosecutrix the accused established physical relationwith her on the pretext of marrying her. On 30.4.2013 the accused askedGthe prosecutrix to leave by saying that on 1[st] or 2[nd] May he will talk to hisparents about their marriage and he will soon marry with her. On30.4.2013 at about 6 in the evening accused Anurag Soni and theprosecutrix reached Bilaspur by train and from where their friend namelyUmashankar took them on 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 askedthe prosecutrix not to tell about the incident to anyone and as result ofwhich the prosecutrix did not disclose the incident to anyone, but from2.5.2013 to 5.5.2013 the prosecutrix had repeatedly asked from theaccused about the marriage and when she did not receive any replyfrom the accused, on 6.5.2013, she informed her family members aboutthe incident and then the family members of the prosecutrix had gone tothe house of accused at village Kharod and informed his family membersabout the incident whereupon the family members of accused had saidthat now marriage of accused and prosecutrix was the only optionavailable. In the meantime, members of both the families used to visithouse of each other, however, after keeping the prosecutrix and herfamily members in dark for about two months, the accused had refusedto marry the prosecutrix and performed marriage with another girl andthen on 21.6.2013 the prosecutrix submitted written report (Ex. P-3) inthe police station Maalkharoda in respect of rape committed by theaccused upon her on the pretext of marriage based on which FIR (Ex.P-4) for the offence under Section 376 of IPC was registered against theaccused.

3.1 That during the course of investigation, the investigating officerrecorded the statement of concerned witnesses including the prosecutrix.The investigating officer collected the medical evidence and otherevidence. The accused was arrested. After completion of the entireinvestigation, charge sheet was filed against the accused for the offencepunishable under Section 376 of the IPC.

3.2 That the learned magistrate committed the case to the learnedSessions Court, which was numbered as Sessions Trial No. 201/2013.That the learned Sessions Court framed the charge against the accusedfor the offence under Section 376 of the IPC. The accused denied thecharge so framed and claimed trial, and therefore he came to be tried bythe learned Sessions Court for the aforesaid offence.

3.3 The prosecution in support of its case examined as many as13 witnesses including the prosecutrix (PW3) as under:

1.Pritam SoniPW12. Manikchand PW2 3. Prosecutrix PW3 4. Patwari Ghanshyam PW4 5.Dr. C.K. SinghPW5B6. Dr. K.L. Oraon PW6 7. Amritlal PW7 8.Pankaj SoniPW89. Dr. P.C. Jain PW9 10. Constable Jawaharlal PW10 C11.Sub-Inspector S.P. SinghPW1112. 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.DThe statement of appellant-accused was recorded under Section 313 ofthe Cr.P.C. wherein he denied the circumstances appearing against himand pleaded innocence and false implication. As per the accused hismarriage was already fixed with one Priyanka Soni and this was in theknowledge of the prosecutrix, even then the prosecutrix and her familymembers continued to pressurise him to marry the prosecutrix, and thenEhe married with Priyanka Soni on 10.06.2013 in Arya Samaj. Therefore,it was the case on behalf of the accused that false FIR was lodgedagainst him.

4. That on appreciation of evidence, the learned Sessions Courtobserved and held that the prosecutrix gave consent for sexual intercourseFon misrepresentation of fact and the promise by the accused that hewould marry the prosecutrix and therefore the said consent cannot besaid to be consent and therefore the accused committed the offenceunder Section 376 of the IPC. Thereupon, the learned Sessions Courtconvicted the accused for the offence under Section 376 of the IPC andGsentenced him to undergo 10 years rigorous imprisonment.5. Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence passed by the learned Sessions Court, theaccused preferred appeal before the High Court. By the impugnedjudgment and order, the High Court has dismissed the appeal and has

confirmed the judgment and order passed by the learned Sessions Courtconvicting the accused for the offence under Section 376 of the IPC.

6. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court dismissing the appeal and confirmingthe conviction and sentence of the accused for the offence under Section376 of the IPC, the original accused has preferred the present appeal.

6.1 Shri S. Nagamuthu, learned Senior Advocate has appearedon behalf of the accused and Shri Pranav Sachdeva and Shri PraveenChaturvedi, learned advocates have appeared on behalf of the State aswell as the original complainant – prosecutrix respectively.

6.2 Shri Nagamuthu, learned Senior Advocate appearing on behalfof the accused has vehemently submitted that in the facts andcircumstances of the case, both the courts below have materially erredin convicting the accused for the offence under Section 376 of the IPC.It is further submitted that while convicting the accused for the offenceunder Section 376 of the IPC and while holding that the accused committedthe rape under Section 375 of the IPC, the courts below have not at allconsidered Section 90 of the IPC and Section 114-A of the EvidenceAct in its true perspective.

6.3 It is further submitted by the learned Senior Advocate appearingon behalf of the accused that in the present case as such the prosecutrixwas in love with the accused and she wanted to marry the accused. Itis submitted that it was the specific case on behalf of the accused, sostated in his 313 statement, that as such the prosecutrix and her familymembers were in the knowledge that the marriage of the appellant isalready fixed with Priyanka Soni and even then the prosecutrix and herfamily members continued to pressurise the accused to marry theprosecutrix.

6.4 It is further submitted by the learned Senior Advocate appearingon behalf of the accused that even assuming that the accused gavepromise to the prosecutrix to marry and thereafter the accused did notmarry the prosecutrix, the same can be said to be ‘breach of promise’and cannot be said to be rape under Section 375 of the IPC.

6.5 In support of his submissions, Shri S. Nagamuthu, learnedSenior Advocate has heavily relied upon the following decisions of thisCourt; Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra

A(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; Udayv. 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 counselappearing on behalf of the accused, has submitted that in fact thereafterthe accused has married one Priyanka Soni and even the prosecutrixalso got married.

6.7 Making the above submissions and relying upon the aboveCdecisions, it is prayed to allow the present appeal and quash and setaside the conviction and sentence of the appellant-accused for the offenceunder Section 376 of the IPC.

7. The present appeal is vehemently opposed by the learnedadvocates appearing on behalf of the State as well as the originalDcomplainant – prosecutrix.

7.1 It is vehemently submitted by the learned advocates appearingon behalf of the State as well as the prosecutrix that the present case isnot case of mere breach of promise to marry, as contended by thelearned Senior Advocate appearing on behalf of the accused. It isEsubmitted that in the present case, from the very beginning and from theinception, the intention of the accused was not to marry with theprosecutrix and he was to marry one another lady Priyanka Soni. It issubmitted that despite the above he called the prosecutrix at his residenceand by giving promise that he would marry, he had sexual intercoursewith the prosecutrix. It is submitted that, in fact, the prosecutrix initiallyFobjected to have any sexual intercourse, however, as the accused gaveassurance and promise that he would marry, the prosecutrix gave consent.It is submitted that as the consent was obtained by the accused onmisconception of fact and therefore the same cannot be said to be aconsent even considering Section 90 of the IPC, and the consent was onGmisconception of fact, both the courts below have rightly held the accusedguilty for the offence under Section 376 of the IPC.

7.2 It is further submitted by the learned advocates appearing onbehalf of the State as well as the prosecutrix that even the conduct onthe part of the accused which is born out from the record that when theparents of the accused and the prosecutrix subsequently met to fix theH

marriage, instead of remaining present the accused ran away. It issubmitted that it has come in evidence that the accused was already tomarry one another lady Priyanka Soni and therefore there was no intentionon the part of the accused from the very inception not to marry theprosecutrix and despite the same by giving false promise to marry, heobtained the consent of the prosecutrix and had sexual intercourse. Itis submitted that therefore in the facts and circumstances of the case, ithas been established and proved beyond doubt that the consent given bythe prosecutrix was on misconception of fact and therefore the samecannot be said to be consent and therefore the appellant-accused isrightly convicted under Section 376 of the IPC.

7.3 Learned advocates appearing on behalf of the respondent-State as well as the original complainant – prosecutrix have relied uponcertain decisions of this Court on Section 375 of the IPC, Section 90 ofthe 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 thisCourt, relied upon by the learned counsel appearing on behalf of theaccused, referred to hereinabove, learned advocates appearing on behalfof the State as well as the original complainant – prosecutrix havesubmitted that none of the aforesaid decisions shall be applicable to thefacts of the case on hand. It is submitted that even some of theobservations made by this Court in the aforesaid decisions, relied uponby the learned senior counsel appearing on behalf of the accused, wouldbe applicable in favour of the prosecutrix, more particularly, para 20 ofDhruvaram 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 abovedecisions, it is prayed to dismiss the present appeal.

8. Heard learned counsel appearing on behalf of the respectiveparties at length.

9. In the present case, the accused has been convicted for theoffence under Section 376 of the IPC. It is the case on behalf of theappellant-accused that as it is case of consensual sex, the Courtsbelow have committed an error in convicting the accused for the offenceunder Section 376 of the IPC. Both the Courts below have acceptedthe case of the prosecution that the consent of the prosecutrix was given

Aon the basis of misconception of fact and, therefore, considering Section90 of the IPC, such consent cannot be said to be consent and,therefore, the accused has committed the rape as defined under Section375 of the IPC and thereby has committed an offence under Section376 of the IPC. Therefore, the question which has been posed beforethis Court is, whether in the facts and circumstances of the case andBconsidering the evidence on record, the Courts below have committedany error in holding the accused guilty for the offence under Section 376of the IPC?

10. While considering this appeal on merits further, some of thedecisions of this Court on Section 375 and Section 90 of the IPC and onCthe 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 SCC113, this Court has explained the essentials and parameters of the offenceof rape. In the said decision, in para 12, this Court observed and held asunder:D

“12. Section 375 IPC defines the expression “rape”, whichindicates that the first clause operates, where the woman is inpossession of her senses, and therefore, capable of consentingbut the act is done against her will; and second, where it is donewithout her consent; the third, fourth and fifth, when there isconsent, but it is not such consent as excuses the offender,because it is obtained by putting her on any person in whom she isinterested in fear of death or of hurt. The expression “against herwill” means that the act must have been done in spite of theopposition of the woman. An inference as to consent can be drawnif only based on evidence or probabilities of the case. “Consent”is also stated to be an act of reason coupled with deliberation. Itdenotes an active will in the mind of person to permit the doingof an act complained of. Section 90 IPC refers to the expression“consent”. Section 90, though, does not define “consent”, butdescribes what is not consent. “Consent”, for the purpose ofSection 375, requires voluntary participation not only after theexercise of intelligence based on the knowledge of the significanceand moral quality of the act but after having fully exercised thechoice between resistance and assent. Whether there was consentor not, is to be ascertained only on careful study of all relevant

circumstances. (See State of H.P. v. Mango Ram (2000) 7 SCC224"

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 asunder:

“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 balance,the good and evil on each side. There is clear distinction betweenrape and consensual sex and in case like this, the court mustvery carefully examine whether the accused had actually wantedto marry the victim, or had mala fide motives, and had made afalse promise to this effect only to satisfy his lust, as the latterfalls within the ambit of cheating or deception. There is distinctionbetween the mere breach of promise, and not fulfilling falsepromise. Thus, the court must examine whether there was made,at an early stage false promise of marriage by the accused; andwhether the consent involved was given after wholly understandingthe nature and consequences of sexual indulgence. There may bea case where the prosecutrix agrees to have sexual intercourseon account of her love and passion for the accused, and not solelyon account of misrepresentation made to her by the accused, orwhere an accused on account of circumstances which he couldnot have foreseen, or which were beyond his control, was unableto marry her, despite having every intention to do so. Such casesmust be treated differently. An accused can be convicted for rapeonly if the court reaches conclusion that the intention of theaccused was mala fide, and that he had clandestine motives.

24. Hence, it is evident that there must be adequate evidence toshow that at the relevant time i.e. at the initial stage itself, theaccused had no intention whatsoever, of keeping his promise tomarry the victim. There may, of course, be circumstances, whena person having the best of intentions is unable to marry the victimowing to various unavoidable circumstances. The “failure to keepa promise made with respect to future uncertain date, due toreasons that are not very clear from the evidence available, doesnot always amount to misconception of fact. In order to comewithin the meaning of the term “misconception of fact”, the fact

Amust have an immediate relevance”. Section 90 IPC cannot becalled into aid in such situation, to pardon the act of girl inentirety, and fasten criminal liability on the other, unless the courtis assured of the fact that from the very beginning, the accusedhad never really intended to marry her.”

B10.3 In the case of Yedla Srinivasa Rao v. State of A.P. (2006)11 SCC 615, this Court also considered the amendment made in theIndian Evidence Act – Section 114-A of the Evidence Act. In that case,the sexual intercourse was committed with the prosecutrix by theaccused. As per the prosecutrix, the accused used to come to her sister’shouse in between 11 a.m. and 12 noon daily and asked her for sexualCintercourse with him. She refused to participate in the said act but theaccused kept on persisting and persuading her. She resisted for about 3months. On one day, the accused came to her sister’s house at about 12noon and closed the doors and had sexual intercourse forcibly, withouther consent and against her will. When she asked the accused as to whyDhe spoiled her life, he gave assurance that he would marry her andasked her not to cry, though his parents were not agreeing for themarriage. It was found that on the basis of the assurance given by theaccused this process of sexual intercourse continued and he kept onassuring that he would marry her. When she became pregnant, sheinformed about the pregnancy to the accused. He got certain tablets forEabortion but they did not work. When she was in the third month ofpregnancy, she again insisted for the marriage and the accused answeredthat 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

Fprosecutrix was present in the Panchayat along with her sister andbrother-in-law. The accused and his father both attended the Panchayatand the accused admitted about the illegal contacts with the prosecutrixand causing pregnancy. The accused asked for two days’ time formarrying the prosecutrix and the Panchayat accordingly granted time.

But after the Panchayat meeting the accused absconded from the villageGand when the accused did not fulfil his promise which was made beforethe Panchayat, the prosecutrix lodged the complaint. Considering theaforesaid facts and after considering Section 90 of the IPC, this Courtconvicted the accused for the offence under Section 376 of the IPC.While convicting the accused, this Court in paragraphs 9, 10,15 and 16Hobserved and held as under:

“9. The question in the present case is whether this conduct ofthe accused apparently falls under any of the six descriptions ofSection 375 IPC as mentioned above. It is clear that the prosecutrixhad sexual intercourse with the accused on the representationmade by the accused that he would marry her. This was falsepromise held out by the accused. Had this promise not been givenperhaps, she would not have permitted the accused to have sexualintercourse. Therefore, whether this amounts to consent or theaccused obtained consent by playing fraud on her. Section 90 ofthe Penal Code says that if the consent has been given under fearof injury or misconception of fact, such consent obtained, cannotbe construed to be valid consent. Section 90 reads as under:

“90. Consent known to be given under fear ormisconception.—A consent is not such consent as isintended by any section of this Code, if the consent is given bya person under fear of injury, or under 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 ormisconception; or

[Consent of insane person] if the consent is given by personwho, from unsoundness of mind, or intoxication, is unable tounderstand the nature and consequence of that to which hegives his consent; or

[Consent of child] unless the contrary appears from thecontext, if the consent is given by person who is under twelveyears of age.”

10. It appears that the intention of the accused as per the testimonyof PW 1 was, right from the beginning, not honest and he kept onpromising that he will marry her, till she became pregnant. Thiskind of consent obtained by the accused cannot be said to be anyconsent because she was under misconception of fact that theaccused intends to marry her, therefore, she had submitted tosexual intercourse with him. This fact is also admitted by theaccused that he had committed sexual intercourse which isapparent from the testimony of PWs 1, 2 and 3 and before thepanchayat of elders of the village. It is more than clear that theaccused made false promise that he would marry her. Therefore,

the intention of the accused right from the beginning was not bonafide and the poor girl submitted to the lust of the accused,completely being misled by the accused who held out the promisefor marriage. This kind of consent taken by the accused withclear intention not to fulfil the promise and persuading the girl tobelieve that he is going to marry her and obtained her consent forthe sexual intercourse under total misconception, cannot be treatedto be consent. …….

15. In this connection reference may be made to the amendmentmade in the Evidence Act. Section 114-A was introduced and thepresumption has been raised as to the absence of consent in certainCprosecutions for rape. Section 114-A reads as under:

“114-A. Presumption as to absence of consent in certainprosecutions for rape.—In prosecution for rape underclause (a) or clause (b) or clause (c) or clause (d) or clause(e) or clause (g) of sub-section (2) of Section 376 of the IndianPenal Code (45 of 1860), where sexual intercourse by theaccused is proved and the question is whether it was withoutthe consent of the woman alleged to have been raped and shestates in her evidence before the court that she did not consent,the court shall presume that she did not consent.”

16. If sexual intercourse has been committed by the accused andif it is proved that it was without the consent of the prosecutrixand she states in her evidence before the court that she did notconsent, the court shall presume that she did not consent.Presumption has been introduced by the legislature in the EvidenceAct looking to atrocities committed against women and in theinstant case as per the statement of PW 1, she resisted and shedid not give consent to the accused at the first instance and hecommitted the rape on her. The accused gave her assurance thathe would marry her and continued to satisfy his lust till she becamepregnant and it became clear that the accused did not wish tomarry her.”

10.4 In the case of State of U.P. v. Naushad (2013) 16 SCC651, in the similar facts and circumstances of the case, this Court reversedthe acquittal by the High Court and convicted the accused for the offenceunder Section 376 of the IPC. This Court observed and held as under:

“17. Section 376 IPC prescribes the punishment for the offenceof rape. Section 375 IPC defines the offence of rape, andenumerates six descriptions of the offence. The description“secondly” speaks of rape “without her consent”. Thus, sexualintercourse by man with woman without her consent willconstitute the offence of rape. We have to examine as to whetherin the present case, the accused is guilty of the act of sexualintercourse with the prosecutrix “against her consent”. Theprosecutrix in this case has deposed on record that the accusedpromised marriage with her and had sexual intercourse with heron this pretext and when she got pregnant, his family refused tomarry him with her on the ground that she is of “bad character”.

18. How is “consent” defined? Section 90 IPC defines consentknown to be given under “fear or misconception” which reads asunder:

“90.Consent known to be given under fear ormisconception.—A consent is not such consent as is intendedby any section of this Code, if the consent is given by personunder fear of injury, or under misconception of fact, andif the person doing the act knows, or has reason to believe,that the consent was given in consequence of such fear ormisconception;”

(emphasis supplied)

Thus, if consent is given by the prosecutrix under misconceptionof fact, it is vitiated.

19. In the present case, the accused had sexual intercourse withthe prosecutrix by giving false assurance to the prosecutrix thathe would marry her. After she got pregnant, he refused to do so.From this, it is evident that he never intended to marry her andprocured her consent only for the reason of having sexual relationswith her, which act of the accused falls squarely under the definitionof rape as he had sexual intercourse with her consent which wasconsent obtained under misconception of fact as defined underSection 90 IPC. Thus, the alleged consent said to have beenobtained by the accused was not voluntary consent and this Courtis of the view that the accused indulged in sexual intercourse withthe prosecutrix by misconstruing to her his true intentions. It is

Aapparent from the evidence that the accused only wanted to indulgein sexual intercourse with her and was under no intention ofactually marrying the prosecutrix. .........”

10.5 Even in the case of Dr. Dhruvaram Murlidhar Sonar(supra), upon which reliance has been placed by the learned counselBappearing on behalf of the accused, in paragraph 23, this Court hasobserved that there is clear distinction between rape and consensualsex. The court, in such cases, must very carefully examine whether thecomplainant had actually wanted to marry the victim or had mala fidemotives and had made false promise to this effect only to satisfy hislust, as the later falls within the ambit of cheating or deception, thisCCourt observed and held as under:

“23. Thus, there is clear distinction between rape and consensualsex. The court, in such cases, must very carefully examine whetherthe complainant had actually wanted to marry the victim or hadmala fide motives and had made false promise to this effectDonly to satisfy his lust, as the later falls within the ambit of cheatingor deception. There is also distinction between mere breach ofa promise and not fulfilling false promise. If the accused has notmade the promise with the sole intention to seduce the prosecutrixto indulge in sexual acts, such an act would not amount to rape.EThere may be case where the prosecutrix agrees to have sexualintercourse on account of her love and passion for the accusedand not solely on account of the misconception created by accused,or where an accused, on account of circumstances which he couldnot have foreseen or which were beyond his control, was unableto marry her despite having every intention to do. Such casesFmust be treated differently. If the complainant had any mala fideintention and if he had clandestine motives, it is clear case ofrape. The acknowledged consensual physical relationship betweenthe parties would not constitute an offence under Section 376 ofthe IPC.”

G10.6 The High Court of Delhi in Sujit Ranjan v. State [CriminalAppeal No. 248 of 2011 decided on 27.01.2011], after referring to andconsidering several decisions of this Court, ultimately in paragraph 16,observed and held as under:

“16. Legal position which can be culled out from the judicialpronouncements referred above is that the consent given by theprosecutrix to have sexual intercourse with whom she is in love,on promise that he would marry her on later date, cannot beconsidered as given under “misconception of fact”. Whetherconsent given by the prosecutrix to sexual intercourse is voluntaryor whether it is given under “misconception of fact” depends onthe facts of each case. While considering the question of consent,the Court must consider the evidence before it and the surroundingcircumstances before reaching conclusion. Evidence adducedby the prosecution has to be weighed keeping in mind that theburden is on the prosecution to prove each and every ingredientof the offence. Prosecution must lead positive evidence to giverise to inference beyond reasonable doubt that accused had nointention to marry prosecutrix at all from inception and that promisemade was false to his knowledge. The failure to keep the promiseon future uncertain date may be on account of variety of reasonsand could not always amount to “misconception of fact” rightfrom the inception.”

11. So far as the decisions upon which reliance has been placedby the learned counsel appearing on behalf of the accused referred tohereinabove are concerned, the same shall not be applicable to the factsof the case on hand. In the case of Tilak Raj (supra), the prosecutrixwas an adult and matured lady of around 40 years at the time of theincident. It was admitted by the prosecutrix in her testimony that shewas in relationship with the accused for last two years prior to theincident and he used to stay overnight at her residence. Therefore,considering the evidence as whole, including FIR, testimony of theprosecutrix and the MLC report, this Court found that the story of theprosecutrix regarding sexual intercourse on false pretext of marryingher is concocted and not believable and on facts it was found that theact of the accused seems to be consensual. It is required to be notedthat before this Court the accused was acquitted for the offence underSection 376 of the IPC, however, the High Court convicted him underSections 417 and 506 of the IPC. Therefore, on facts, the said decisionshall not be of any assistance to the appellant in the present case.

A11.1 Even in the case of Deepak Gulati (supra) it was observedthat the accused can be convicted for rape if the court reaches theconclusion that the intention of the accused was mala fide, and that hehad clandestine motives.

11.2 Even the decisions of this Court in Uday (supra), DeelipBSingh (supra) and Shivashankar alias Shive v. State of Karnataka(2108) SCC Online 3106 shall not be applicable to the case of the accusedon hand.

12. The sum and substance of the aforesaid decisions would bethat if it is established and proved that from the inception the accusedCwho gave the promise to the prosecutrix to marry, did not have anyintention to marry and the prosecutrix gave the consent forsexual intercourse on such an assurance by the accusedthat he would marry her, such consent can be said to be consentobtained on misconception of fact as perSection 90 of the IPC and, in such case, such consent would notDexcuse the offender and such an offender can be said to have committedthe rape as defined under Section 375 of the IPC and can be convictedfor the offence under Section 376 of the IPC.

13. Applying the law laid down by this Court in the aforesaiddecisions, the following facts emerging from the evidence on record areErequired to be considered:

(i) That the family of the prosecutrix and the accused were knownto each other and, therefore, even the prosecutrix and the accused wereknown to each other;

(ii) That though the accused was to marry another girl – PriyankaFSoni, the accused continued to talk of marriage with the prosecutrix andcontinued to give the promise that he will marry the prosecutrix;

(iii) That on 28.04.2013 the appellant expressed his wishtelephonically to meet with the prosecutrix and responding to that theprosecutrix went to the place of the accused on 29.04.2013 by train,Gwhere the accused received her at the railway station Sakti and took herto his place of residence in Malkharauda;

(iv) That during her stay at the house of the accused from 2.00pm on 29.04.2013 to 3.00 pm on 30.04.2013, they had physical relationthrice;H

(v) That as per the case of the prosecutrix, the prosecutrix initiallyrefused to have physical relation, but then the appellant allured her witha promise to marry and had physical relation with her;

(vi) That, thereafter the prosecutrix called the accused numberof times asking him about the marriage, however, the accused did notreply positively;

(vii) That thereafter the prosecutrix informed about the incidentto her family members on 06.05.2013;

(viii) That the family members of the prosecutrix negotiated withthe family members of the accused;

(ix) That on 23.05.2013, the appellant expressed his willingnessto marry the prosecutrix and social function was scheduled on30.05.2013, which did not take place;

(x) That, again the family members of both the parties had talks,in which the marriage was negotiated and social function was scheduledon 10.06.2013, which was again not held and further, the social eventwas fixed for 20.06.2013;

(xi) That on 20.06.2013, the appellant telephonically informed theprosecutrix that he has already married;

(xii) That, Priyanka Soni PW-13, who is the wife of the accusedstated 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 inArya Samaj, even prior to the social function for the marriage of theaccused the prosecutrix was scheduled on 10.06.2013 and eventhereafter the social event was fixed for 20.06.2013.

14. Considering the aforesaid facts and circumstances of thecase and the evidence on record, the prosecution has been successful inproving the case that from the very beginning the accused never intendedto marry the prosecutrix; he gave false promises/promise to the prosecutrixto marry her and on such false promise he had physical relation withthe prosecutrix; the prosecutrix initially resisted, however, gave theconsent relying upon the false promise of the accused that he will marryher and, therefore, her consent can be said to be consent onmisconception of fact as per Section 90 of the IPC and such consent

Ashall not excuse the accused from the charge of rape and offence underSection 375 of the IPC. Though, in Section 313 statement, the accusedcame up with case that the prosecutrix and his family members werein knowledge that his marriage was already fixed with Priyanka Soni,even then, the prosecutrix and her family members continued to pressurisethe accused to marry the prosecutrix, it is required to be noted that firstBof all the same is not proved by the accused. Even otherwise, consideringthe circumstances and evidence on record, referred to hereinabove, sucha story is not believable. The prosecutrix, in the present case, was aneducated girl studying in B. Pharmacy. Therefore, it is not believablethat despite having knowledge that that appellant’s marriage is fixedCwith another lady – Priyanka Soni, she and her family members wouldcontinue to pressurise the accused to marry and the prosecutrix will givethe consent for physical relation. In the deposition, the prosecutrixspecifically stated that initially she did not give her consent for physicalrelationship, however, on the appellant’s promise that he would marry

her and relying upon such promise, she consented for physical relationshipDwith the appellant-accused. Even considering Section 114-A of the IndianEvidence Act, which has been inserted subsequently, there is apresumption and the court shall presume that she gave the consent forthe physical relationship with the accused relying upon the promise bythe accused that he will marry her. As observed hereinabove, from theEvery inception, the promise given by the accused to marry the prosecutrixwas false promise and from the very beginning there was no intentionof the accused to marry the prosecutrix as his marriage with PriyankaSoni was already fixed long back and, despite the same, he continued togive promise/false promise and alluded the prosecutrix to give her consentfor the physical relationship. Therefore, considering the aforesaid factsFand circumstances of the case and considering the law laid down by thisCourt in the aforesaid decisions, we are of the opinion that both theCourts below have rightly held that the consent given by the prosecutrixwas on misconception of fact and, therefore, the same cannot be said tobe consent so as to excuse the accused for the charge of rape asGdefined under Section 375 of the IPC. Both the Courts below haverightly convicted the accused for the offence under Section 376 of theIPC.

15. Now, so far as the submission on behalf of the accused-appellantthat the accused had marriage with Priyanka Soni on 10.06.2013 andHeven the prosecutrix has also married and, therefore, the accused may

not be convicted is concerned, the same cannot be accepted. Theprosecution has been successful by leading cogent evidence that fromthe very inspection the accused had no intention to marry the victim andthat he had mala fide motives and had made false promise only to satisfythe lust. But for the false promise by the accused to marry the prosecutrix,the prosecutrix would not have given the consent to have the physicalrelationship. It was clear case of cheating and deception.

As observed hereinabove, the consent given by the prosecutrixwas on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morallyand physically reprehensible crime in society, an assault on the body,mind and privacy of the victim. As observed by this Court in catena ofdecisions, while murderer destroys the physical frame of the victim, arapist degrades and defiles the soul of helpless female. Rape reducesa woman to an animal, as it shakes the very core of her life. By nomeans can rape victim be called an accomplice. Rape leaves apermanent scar on the life of the victim. Rape is crime against theentire society and violates the human rights of the victim. Being themost hated crime, the rape tantamounts to serious blow to the supremehonour of woman, and offends both her esteem and dignity. Therefore,merely because the accused had married with another lady and/or eventhe prosecutrix has subsequently married, is no ground not to convict theappellant-accused for the offence punishable under Section 376 of theIPC. The appellant-accused must face the consequences of the crimecommitted by him.

16. In view of the above and for the reasons stated above, we areof the opinion that both the Courts below have rightly convicted theappellant-accused under Section 376 of the IPC. We also maintain theconviction of the appellant-accused under Section 376 of the IPC.However, in the facts and circumstances of the case and the requestmade by the learned counsel appearing on behalf of the appellant-accused, the sentence of 10 years’ RI awarded by the courts below ishereby reduced to seven years RI, the minimum which was prescribedat the relevant time of commission of offence under Section 376 of theIPC. Consequently, the present appeal is partly allowed to the aforesaidmodification in the sentence only.

CDE