Jharkhand High Court
Putul Bhuiyan vs The State Of Jharkhand on 18 February, 2025
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1518 of 2006
-----
(Against the judgment of conviction dated 13.09.2006 and order of
sentence dated 15.09.2006 passed in S.T. Case No. 121 of 2003 arising
out of Chandil P.S. Case No. 67 of 2003 corresponding to G.R Case
No.301/2003 by the Court of Learned Additional Sessions Judge, (Fast
Track Court-II) Saraikella -Kharsawan)
-------
Putul Bhuiyan, son of Chuttu Bhuiyan, resident of village -chaulibasa,
P.S. Chandil, District- Seraikella Kharswan.
--- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
-------
CORAM : HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mr. R.C.P. Shah, Advocate
For the State : Mr. Naveen Kumar Ganjhu, APP
-------
th
Order No. 17/Dated 18 February, 2025
JUDGMENT
Challenge in the appeal:
This appeal is directed against the judgment of conviction dated
13.09.2006 and order of sentence dated 15.09.2006 passed by the Court
of Learned Additional Sessions Judge, (Fast Track Court-II) Saraikella
-Kharsawan in S.T. Case No. 121 of 2003, arising out of Chandil P.S.
Case No. 67 of 2003, corresponding to G.R Case No.301/2003
whereby and whereunder the appellant was convicted under sections
376 and 313 of IPC and sentenced to undergo R.I. for 7 years as well
as, a fine of Rs.2,000/- separately for the both the offence under
Section 376 and 313 of IPC. In default of payment of fine the convict
was further sentenced to undergo six months simple imprisonment &
both sentences were directed to run concurrently and the period
undergone was directed to be set off.
Prosecution Story:
2. The prosecution story in brief is that the informant, the victim
(name withheld to maintain confidentiality) herself was the resident of
Choulibasa, P.S. Chandil, Dist. Seraikella-Kharsawan. She stated that
she was the labourer and she was belonging to a very poor family. It
was further case of the prosecution that the informant as well as, the
accused (Putul Bhuiyan) both used to work as Labourer in the same
truck and one day all of suden while the informant along with accused
Putul Bhuiyan, were returning back to their house from their duty,
accused (Putul Bhuiyan) committed rape upon the informant/victim
against her will. While the informant raised hulla, the accused
promised to marry her according to the social rites. On the condition
when she would not tell the matter to anyone. It is further case of the
prosecution that the accused was having sexual intercourse with the
victim for the last three years under the pretext of marriage. The victim
further alleged that, as a result, the informant/victim became pregnant,
but the accused advised her for termination of pregnancy so that she
could marry with accused and her pregnancy was terminated. It is
further case of the prosecution that accused had got married with
another girl, that's why, she (informant) had lodged this case against
him.
3. On the basis of the aforesaid written report of the PW-1, the victim,
the case was registered under sections 493, 376 of IPC vide Chandil P.S.
Case No.67 of 2003 dated 05.05.2023 and investigation of the case was
commenced and after completion of investigation, the charge-sheet was
submitted on 30.06.2003 vide chargesheet No. 79 of 2003 and the case
was committed to the Court of Sessions where the charge was framed
on 08.12.2003 under Sections 376, 493 and 313 of the IPC by the
Learned A.D.J. (F.T.C.) Seraikella to which the appellant pleaded not
guilty and claimed to be tried.
4. The learned trial Court after conducting the full-fledged trial
passed the impugned judgment of conviction and order of sentence
which is under challenge in this appeal.
5. Heard the learned defence counsel Mr. R.C.P. Sah appearing for
the appellant and the Mr. Naveen Kumar Ganjhu, appearing for the
State.
Arguments advanced on behalf of the appellant
6. It is submitted on behalf of the appellant that the victim women
(PW-1) was a major at the time of the occurrence between 18-20 years
of age and there has been a delay of three year in instituting the F.IR.,
2 Cr. Appeal (SJ) No. 1518 of 2006
and no explanation has been given for causing the delay. Further, it has
also been pointed out that I.O. in this has not been examined and
therefore neither the place of occurrence nor the formal F.I.R. has been
proved.
7. Further it has also been pointed out that non-examination of the
I.O had caused serious prejudice to the appellant because the appellant
failed to confront the earlier statements given by the victim before the
I.O. during the course of the investigation, as the victim PW-1 had
stated in para 14 of her deposition that she stated to the police that
appellant/accused had put cloth in her mouth and committed rape on
her. While all these allegations are false and fabricated.
8. Further, it has also been pointed that utmost it is case of consensual
relationship between the appellant and the victim continuously for the
period of three years and therefore for whatever reason they had been
establishing the physical relationship consensually for three years and
therefore the guilt of the appellant cannot be fastened for the offence
under Sections 376 & 313 of the IPC and these facts have been duly
corroborated by the parents of the victim PW-3 (mother) and PW-5
(father) and all these facts have not been duly appreciated by the
learned trial Court and without appraising the statements and the
depositions of the victim and other witnesses, the learned trial Court
has passed the impugned judgment of conviction and order of sentence
which is fit to be set aside.
Arguments advanced on behalf of the State.
9. On the other hand, the learned A.P.P. appearing on behalf of the
State has opposed the contentions raised on behalf of the Appellant and
stated that the learned trial Court has rightly passed the impugned
judgment of conviction and order of sentence on the basis of the
evidences adduced on behalf of the prosecution particularly, the victim
PW-1, PW-3 (mother of the victim) and PW-5 (Father of the victim).
It has further been submitted that although it was a consensual physical
relationship but at the first instance, the appellant had committed rape
with the victim against her will and thereafter under the false promise
of marriage it continued for three years and further also there is an
evidence that she was forcibly administered the medicines for the
3 Cr. Appeal (SJ) No. 1518 of 2006
miscarriage against her will by the appellant and therefore, the offence
under Section 376 and 313 are substantiated. It has also been argued on
behalf of the State that the consent of the victim is no consent within
the meaning of the definition of rape as enunciated under Section 375
of IPC and consent has been obtained due to misconception of fact of
false promise of marriage and the learned trial Court has rightly
convicted the appellant for the offence punishable under Sections 376
and 313 of IPC and there is no legal point to interfere in the impugned
judgment of conviction and order of sentence and this appeal is fit to be
dismissed.
Appraisal & Findings
10. Having heard the parties, perused the record of the case
including the impugned judgment, the depositions and the other
materials available on Trial Court Record.
11. In order to substantiate the offences, the prosecution has been
able to examine altogether 7 witnesses which are as under:
1. P.W.1- (Victim herself)
2. P.W.2-Kalo Bhuiyan (Uncle of victim)
3. P.W.3-Menka Bhuiyan (Mother of victim))
4. P.W.4- Lal Bhuiyan
5. P.W.5- Madhe Hembrom (father of victim)
6. P.W.6- Doman Bhuiyan
7. P.W.7- Dr. Manorma Sidhesh (Dr. who examined
the victim)
In support of its case the prosecution has exhibited injury report
which is marked as Exhibit-1 and no evidence has been adduced on
behalf of defence.
12. The most important witness examined on behalf of the
prosecution is the victim, PW-1.
13. It is found from the version of PW-1 that both the PW-1 and the
appellant were neighbor and they were working together as a laborer in
a truck engaged in transportation of the goods by the truck. It is found
from the version of PW-1 that at the first instance the appellant made
the physical relationship with the victim forcefully but thereafter,
victim PW-1 has become the consenting party and she continued her
4 Cr. Appeal (SJ) No. 1518 of 2006
physical relationship of sexual act for three years continuously and in
between whenever she became pregnant, it has been stated by her that
some medicines were administered by the appellant in order to abort.
14. In view of the aforesaid version and the depositions of the
victim, it is well-founded that both the parties (the victim & the
appellant) had been in the physical relationship of sexual act
continuously for three years under the promise of the marriage and the
fact that the victim PW-1 had been participating in the physical
relationship willingly and voluntarily and this fact of their sexual
physical relationship were well within the knowledge of victim's
parents including PW-3, Menka Bhuiyan (mother) and PW-5, Madhe
Hembrom (Father).
Further it is found that there is a major contradiction between
her deposition and her report in FIR. In para 2 of her deposition the
victim has stated that they (the victim & appellant) were working
together for last 2 years and in para 3 of her deposition she stated that
this incident of rape is of 1 (one) year before while in FIR she stated
that the victim and appellant had been in sexual physical relationship
for 3 years under the pretext of promise of marriage.
२. पऩरुऱे दो साऱ से हम ऱोग एकसाथ काम करते थे मेरा घर
और ऩुतूऱ भूईयाॊ का घर आमने सामने है
3. एकसाऱ ऩहऱे की बात है , हम एवॊ ऩुतूऱ काम से ऱौट कर घर
आ रहे थे मेरे घर के सामने एक मैदान है वहाॊ ममट्टी का टीऱा
था कुछ गाछ ऱगा था ऩुथऱ ने वहाॉ मुझे जबरदस्ती खीॊचकर मेरे
साथ दष्ु कमम ककया मैं चचल्ऱाने ऱगी तो मेरे मह
ुॊ में कऩडा ठूॉस
ददया और बोऱा कक हल्ऱा मत करो ह
. ह ह ह
ह ह .
Victim was consenting party as is evident from para 9 of her
deposition where she stated that they (she and appellant) were in
physical relationship as husband and wife. Para 9 reads as under:-
".............................हम ऩतत ऩत्नी के रूऩ मे यौन सॊबॊध कायम
रखे थे"
15. It is also evident from the depositions of the mother, PW-3 vide
para 6 that the victim had been in the relationship since last three years
5 Cr. Appeal (SJ) No. 1518 of 2006
as a husband and wife with this appellant and both were going to work
as a labour together. From the version of the mother of the victim, PW-
3, it is quite clear that both the parties including the PW-1 and the
appellant had been willingly and voluntarily in the relationship as
husband and wife continuously for three years.
16. P.W.-5 Madhe Hembrom who is the father of the victim stated
in para 5 that before filing of the case, sextual relationship between his
daughter (victim) and accused had been continuing which was stopped
after filing of the present case.
17. In view of the deposition of the victim, P.W.-1, the decision of
the Hon'ble Apex Court in Mahesh Damu Khare Vs. The State of
Maharashtra and Anr. 2024 Live Law (SC) 921 may be referred.
18. In the said decision, the Hon'ble Apex Court after referring all
the case laws as enunciated by Hon'ble Supreme Court from time to
time observed as under:-
―27.................The fact that the complainant
continued to have a physical relationship for a long time
without any insistence on marriage would indicate the
unlikelihood of any such promise made by the appellant for
marrying her and it rather indicates that the relationship
was a consensual one.
In our opinion, the longer the duration of the physical
relationship between the partners without protest and
insistence by the female partner for marriage would be
indicative of a consensual relationship rather than a
relationship based on false promise of marriage by the
male partner and thus, based on misconception of fact.
28. Moreover, even if it is assumed that a false
promise of marriage was made to the complainant initially
by the appellant, even though no such cogent evidence has
been brought on record before us to that effect, the fact that
the relationship continued for nine long years, would
render the plea of the complainant that her consent for all
these years was under misconception of fact that the
Appellant would marry her implausible. Consequently, the
criminal liability attached to such false promise would be
diluted after such a long passage of time and in light of the
fact that no protest was registered by the complainant
during all those years. Such a prolonged continuation of
physical relationship without demurral or remonstration
by the female partner, in effect takes out the sting of
criminal culpability and neutralises it.‖
6 Cr. Appeal (SJ) No. 1518 of 2006
19. In view of the aforesaid observations of Hon'ble Supreme Court,
it is found in the present case that admittedly, the victim had been in the
physical relationship with the appellant since last three years from the
date of institution of the F.I.R. In this backdrop of the allegations that at
the first instance, the appellant had made the forceful physical
relationship by committing rape with the victim does not hold good
because of the fact that physical relationship with the appellant
continued for three years continuously, voluntarily and willingly
without raising any complain by the complainant and after three years
of relationship when the appellant refused to marry then the case was
instituted.
20. Thus, it is a case where the victim had indulged herself in sexual
relations with the appellant for a long period of three years and it goes
to show that sexual relation was not forceful but was consensual. The
victim did not raise any complaint against the appellant immediately
after the first or second incident and after three years, she lodged the
F.I.R and thus it appears to be a case of consensual relationship.
21. In para 9 of the cross-examination, she explicitly testified that
both were living as husband and wife and in the capacity of husband
and wife, they were making relationship and thus the facts emerging
from the mouth of the victim clearly indicate that it is not a case of
rape. The allegations have been made belatedly and thus throwing
doubt on the credibility of these allegations when the victim had
admitted in her testimony during the course of the trial that both had
been making physical relationship as husband and wife.
22. Further from the versions of the victim (PW-1), her mother,
PW-3, Menka Bhuiyani, PW-5 her father, Madhe Hembrom it is clear
that after three months of the first incident of alleged physical
relationship (rape), the victim had become pregnant which was said to
have been aborted at the instance of the appellant but still no complaint
was instituted either by P.W.-1 or P.W.-3 or P.W.-5 and after three
years, the complaint has been made.
7 Cr. Appeal (SJ) No. 1518 of 2006
23. Therefore, such allegations, at the very belated stage, do not
transpire any confidence in order to fasten the guilt of the appellant
under Section 376 of the IPC and it appears that the learned Trial Court
did not apply its judicial mind even her consent was not because of
misconception of fact in order to attract the offence under Section 376
in the light of the fact that after the three months of the first incident
when the victim had become pregnant and it was aborted at the
instance of the appellant, even then the case complaint was not
instituted either by the victim or by her father and mother and
thereafter it continued for three years then it cannot be said by any
stretch of imagination that the consent of the victim was taken under
the misconception of fact under the pretext of marriage and therefore
the case of the prosecution that the victim had consented to have a
physical relationship with the appellant on the misconception of fact
that the appellant would marry her because of the promise made by him
that he would ultimately marry her also does not hold good because of
the prolonged relationship between the parties even after coming into
the knowledge of the parents after three months of the alleged forceful
physical relationship upon the victim by the appellant.
24. PW-2 Kalo Bhuiyan (uncle of the victim), PW-4, Lal Bhuiyan
(Sister of the victim) and PW-6, Doman Bhuiyan (uncle of the victim)
who have been examined on behalf of the prosecution have also stated
consistently and uniformly in unequivocal words that the victim after
being committed rape by the appellant had become pregnant which was
said to have been aborted forcefully by the appellant but even then no
case was instituted. All these facts emerging from the versions of the
prosecution witnesses clearly established the fact that no any legal
action has been taken either by the victim or by his parents or by her
relatives against the appellant and the physical relationship continued
even after forceful rape and abortion for continuous three years.
25. There are a number of decisions of Hon'ble Apex Court in order
to ascertain the guilt of the appellant when the issues of rape vis-à-vis
consensual sex under the promise of marriage are involved.
8 Cr. Appeal (SJ) No. 1518 of 2006
26. Reference of some of the decisions of the Hon'ble Apex Court
dealing with the different dimensions and angles of the word consent in
the context of Sections 90 and 375 would be beneficial for deciding
this appeal in hand.
27. For the better appreciation of the submission made by the
learned counsels for the parties, the relevant provisions contained in
Sections 90 and 375 are reproduced below :-
―90. Consent known to be given under fear or
misconception.--A consent is not such a consent as is
intended by any section of this Code, if the consent is given
by a person under fear of injury, or under a misconception of
fact, and if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such
fear or misconception; or
Consent of insane person.--if the consent is given by a
person who, from unsoundness of mind, or intoxication, is
unable to understand the nature and consequence of that to
which he gives his consent; or
Consent of child.--unless the contrary appears from the
context, if the consent is given by a person who is under
twelve years of age.
........
―375. Rape.--A man is said to commit ―rape‖ if he--
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a
woman or makes her to do so with him or any other person;
or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any part
of body of such woman or makes her to do so with him or any
other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following
seven descriptions:--
First.--Against her will.
Secondly.--Without her consent.
9 Cr. Appeal (SJ) No. 1518 of 2006
Thirdly.--With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is
not her husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.--With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of
any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.--With or without her consent, when she is under
eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.--For the purposes of this section, ―vagina‖
shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the
act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception 1.--A medical procedure or intervention shall not
constitute rape.
Exception 2.--Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years of
age, is not rape.‖
28. In Naim Ahamad Vs. State (NCT of Delhi) (2023) 15 SCC 385
under the circumstances of this case, the Hon'ble Supreme held as
under:-
―10. It would be germane to note that the basic principles
of criminal jurisprudence warrant that the prosecution
has to prove the guilt of the accused beyond reasonable
doubt by leading cogent evidence, however, considering
the ethos and culture of the Indian Society, and
considering the rising graph of the commission of the
social crime - ‗Rape', the courts have been permitted to
raise a legal presumption as contained in Section 114A of
the Evidence Act, 1872. As per Section 114A, a
presumption could be raised as to the absence of consent
in certain cases pertaining to Rape. As per the said
provision, if sexual intercourse by the accused is proved
10 Cr. Appeal (SJ) No. 1518 of 2006
and the question arises as to whether it was without the
consent of the woman alleged to have been raped, and if
she states in her evidence before the court that she did not
consent, the court shall presume that she did not consent.
11. It cannot be gainsaid that a consent given by a person
would not be a consent as intended by any Section of the
Penal Code, if such consent was given by the person
under the fear of injury, or under a misconception of fact
as contemplated in Section 90 IPC. Further, Section 375
also describes certain acts which if committed by the
accused under the circumstances mentioned therein, as
the commission of ‗Rape', even though committed with
the consent of the prosecutrix. In our opinion, the
expression ―misconception of fact‖ contained in Section
90 IPC is also required to be appreciated in the light of
the Clauses - contained in Section 375 IPC, more
particularly the Clauses - Thirdly, Fourthly and Fifthly
thereof, when the accused is charged for the offence of
‗rape'. The circumstances described in the said three
Clauses are wider than the expression ―misconception of
fact‖, as contemplated in Section 90 of IPC.
12. Section 375 describes seven circumstances under
which the ‗rape' could be said to have been committed. As
per the Clause - Thirdly, a rape could be said to have
been committed, even with her consent, when the consent
of the prosecutrix is obtained by putting her or any
person in whom she is interested in fear of death or of
hurt. As per the Clause - Fourthly, with her consent, when
the man knows that he is not her husband and that her
consent is given because she believes that he is another
man to whom she is or believes herself to be lawfully
married; and as per the Clause - Fifthly, with her consent
when at the time of giving the consent, the prosecutrix by
reason of unsoundness of mind or intoxication or the
administration of stupefying or unwholesome substance
by the accused or through another, she is unable to
understand the nature and consequences of that to which
she gives consent. Thus, apart from the prosecutrix being
under the misconception of fact as contemplated in
Section 90, her consent would be treated as ‗no consent'
if she had given her consent under any of the
circumstances mentioned in Section 375 of IPC.
13. The exposition of law in this regard is discernible in
various decisions of this Court, however the application
of such law or of such decisions would depend upon the
proved facts in each case, known as legal evidence. The
ratio laid down in the judgements or the law declared by
this Court do provide the guidelines to the judicial mind
of the courts to decide the cases on hand, but the courts
while applying the law also have to consider the evidence
11 Cr. Appeal (SJ) No. 1518 of 2006
before them and the surrounding circumstances under
which the alleged offences are committed by the accused.
29. In Uday Vs. State of Karnataka (2003) 4 SCC 46, where the
prosecutrix aged about 19 years had given her consent for having a
sexual intercourse with the accused with whom she was deeply in love,
and it was alleged by the prosecution that the prosecutrix continued to
meet the accused as the accused had given her a promise to marry her
on a later date. The prosecutrix became pregnant and the complaint was
lodged on failure of the accused to marry her. This Court while holding
that under the circumstances, the consent could not be said to have
been given under a misconception of fact under section 90 of IPC, held
in para 21 and 23 as under :-
―21. It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom
she is deeply in love on a promise that he would marry her
on a later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact within
the meaning of the Code. We are inclined to agree with this
view, but we must add that there is no 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.
22. xxxx xxxx xxxx xxxx
23. Keeping in view the approach that the court must adopt
in such cases, we shall now proceed to consider the
evidence on record. In the instant case, the prosecutrix was
a grown-up girl studying in a college. She was deeply in
love with the appellant. She was, however, aware of the fact
that since they belonged to different castes, marriage was
not possible. In any event the proposal for their marriage
was bound to be seriously opposed by their family members.
She admits having told so to the appellant when he
proposed to her the first time. She had sufficient intelligence
12 Cr. Appeal (SJ) No. 1518 of 2006
to understand the significance and moral quality of the act
she was consenting to. That is why she kept it a secret as
long as she could. Despite this, she did not resist the
overtures of the appellant, and in fact succumbed to them.
She thus freely exercised a choice between resistance and
assent. She must have known the consequences of the act,
particularly when she was conscious of the fact that their
marriage may not take place at all on account of caste
considerations. All these circumstances lead us to the
conclusion that she freely, voluntarily and consciously
consented to having sexual intercourse with the appellant,
and her consent was not in consequence of any
misconception of fact.‖
30. In Deelip Singh VS. State of Bihar, (2005) 1 SCC 88, the
Hon'ble Supreme Court after discussing various earlier decisions of the
Hon'ble Supreme Court and other High Courts, further explained the
observation made in Uday Vs. State of Karnataka, (2003)4 SCC 46
and observed as under :-
―28. The first two sentences in the above passage need
some explanation. While we reiterate that a promise to
marry without anything more will not give rise to
―misconception of fact‖ within the meaning of Section 90, it
needs to be clarified that a representation deliberately made
by the accused with a view to elicit the assent of the victim
without having the intention or inclination to marry her, will
vitiate the consent. If on the facts it is established that at the
very inception of the making of promise, the accused did not
really entertain the intention of marrying her and the
promise to marry held out by him was a mere hoax, the
consent ostensibly given by the victim will be of no avail to
the accused to exculpate him from the ambit of Section 375
clause secondly. This is what in fact was stressed by the
Division Bench of the Calcutta High Court in Jayanti Rani
Panda which was approvingly referred to in Uday case.
The Calcutta High Court rightly qualified the proposition
which it stated earlier by adding the qualification at the end
(SCC Online Cal Para 7) -- ‗unless the court can be
assured that from the very inception the accused never
really intended to marry her'. In the next para, the High
Court referred to the vintage decision of the Chancery
Court which laid down that a misstatement of the intention
of the defendant in doing a particular act would tantamount
to a misstatement of fact and an action of deceit can be
founded on it. This is also the view taken by the Division
Bench of the Madras High Court in Jaladu case (vide
passage quoted supra). By making the solitary observation
that ―a false promise is not a fact within the meaning of the
Code‖, it cannot be said that this Court has laid down the
13 Cr. Appeal (SJ) No. 1518 of 2006
law differently. The observations following the aforesaid
sentence are also equally important. The Court was
cautious enough to add a qualification that no straitjacket
formula could be evolved for determining whether the
consent was given under a misconception of fact. Reading
the judgment in Uday case (supra) as a whole, we do not
understand the Court laying down a broad proposition that
a promise to marry could never amount to a misconception
of fact. That is not, in our understanding, the ratio of the
decision. In fact, there was a specific finding in that case
that initially the accused's intention to marry cannot be
ruled out.‖
31. In Deepak Gulati Vs State of Haryana 2013 7 SCC 675, the
Hon'ble Apex Court gave one more dimension of the word consent by
distinguishing 'rape' and 'consensual sex' and observed 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.
22. xxxx xxxx xxxx xxxx
23 xxxx xxxx xxxx xxxx
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the initial
stage itself, the accused had no intention whatsoever, of
keeping his promise to marry the victim. There may, of
14 Cr. Appeal (SJ) No. 1518 of 2006
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‖.
32. Again in Dhruvaram Murlidhar Sonar VS State of
Maharashtra, (2019) 18 SCC 191 this Court interpreting Section 90
and clause secondly in Section 375 of IPC observed as under :-
―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 latter 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 IPC.‖
33. In Pramod Suryabhan Pawar Vs State of Maharashtra (2019) 9
SCC 608 while dealing with a similar situation, the principles of law
which must govern a situation like the present were enunciated in the
following observations:-
―16.Where the promise to marry is false and the intention
of the maker at the time of making the promise itself was not
to abide by it but to deceive the woman to convince her to
engage in sexual relations, there is a ―misconception of
15 Cr. Appeal (SJ) No. 1518 of 2006
fact‖ that vitiates the woman's ―consent‖. On the other
hand, a breach of a promise cannot be said to be a false
promise. To establish a false promise, the maker of the
promise should have had no intention of upholding his word
at the time of giving it.
.............
18. To summarise the legal position that emerges from
the above cases, the ―consent‖ of a woman with respect to
Section 375 must involve an active and reasoned
deliberation towards the proposed act. To establish whether
the ―consent‖ was vitiated by a ―misconception of fact‖
arising out of a promise to marry, two propositions must be
established. The promise of marriage must have been a
false promise, given in bad faith and with no intention of
being adhered to at the time it was given. The false promise
itself must be of immediate relevance, or bear a direct nexus
to the woman's decision to engage in the sexual act.‖
34. The apex court in Mahesh Damu Khare Vs. State of Maharashtra
and Anr. reported in 2024 LiveLaw (SC) 921 has as under-
22. ........... Thus, in a situation where physical
relationship is maintained for a prolonged period knowingly
by the woman, it cannot be said with certainty that the said
physical relationship was purely because of the alleged
promise made by the appellant to marry her. Thus, unless it
can be shown that the physical relationship was purely
because of the promise of marriage, thereby having a direct
nexus with the physical relationship without being
influenced by any other consideration, it cannot be said that
there was vitiation of consent under misconception of fact.
27. Thus, from the above it appears that it is more of an
extra-marital affair during the aforesaid period without any
insistence by the complainant for getting married to the
appellant. The fact that the complainant continued to have a
physical relationship for a long time without any insistence
on marriage would indicate the unlikelihood of any such
promise made by the appellant for marrying her and it
rather indicates that the relationship was a consensual one.
In our opinion, the longer the duration of the physical
relationship between the partners without protest and
insistence by the female partner for marriage would be
indicative of a consensual relationship rather than a
relationship based on false promise of marriage by the male
partner and thus, based on misconception of fact.
28. Moreover, even if it is assumed that a false promise of
marriage was made to the complainant initially by the
appellant, even though no such cogent evidence has been
brought on record before us to that effect, the fact that the
relationship continued for nine long years, would render the
16 Cr. Appeal (SJ) No. 1518 of 2006
plea of the complainant that her consent for all these years
was under misconception of fact that the Appellant would
marry her implausible. Consequently, the criminal liability
attached to such false promise would be diluted after such a
long passage of time and in light of the fact that no protest
was registered by the complainant during all those years.
Such a prolonged continuation of physical relationship
without demurral or remonstration by the female partner, in
effect takes out the sting of criminal culpability and
neutralises it.
35. In this view of matter, the learned trial Court did not take into
consideration the categorical versions of the mother of the victim (PW-
3), father of the victim (PW-5) and also the versions of the victim PW-
1 who had admitted the facts that the appellant had been in the physical
relationship with her for a long period of time under the pretext of
marriage. Victim, P.W.-1 stated at para 9 of the cross-examination that
both were having the physical relationship as husband and wife and
whenever she became pregnant then the appellant had given her tablets
for abortions. It is also stated that the victim is a woman and not a
minor having the age of 20 years as evident from the depositions of
PW-7 (Doctor) and non-examination of the I.O has caused serious
prejudice to the appellant because the appellant failed to confront the
earlier statements given by the victim before the I.O. during the course
of the investigation as stated by victim (PW-1) in para 14 of her cross-
examination.
36. In view of the aforesaid categorical version of the victim, PW-1
and also from the versions of PW-3 (mother) and PW-5 (father), it is
evident that it is a case where both the appellant and the victim has
been living as a husband and wife for a long period of time.
37. In view of the aforesaid crystalized findings on the basis of the
testimonies of PW-1 (the victim), PW-3 (mother) and PW-5 (father)
and supported by the depositions of all the other witnesses examined
on behalf of the prosecution namely, P.W.2-Kalo Bhuiyan, P.W.4- Lal
Bhuiyan and P.W.6- Doman Bhuiyan, it is well-established that it was
not a case of rape under false promise of marriage.
38. In the result, the conviction of the appellant for the offence
punishable under Sections 376 & 313 of IPC is bad in law and is fit to
be set aside.
17 Cr. Appeal (SJ) No. 1518 of 2006
39. Consequently, impugned judgment of conviction dated
13.09.2006 and order of sentence dated 15.09.2006 passed by the Court
of Learned Additional Sessions Judge, (Fast Track Court-II) Saraikella
-Kharsawan in S.T. Case No. 121 of 2003, arising out of Chandil P.S.
Case No. 67 of 2003, corresponding to G.R Case No.301/2003 under
sections 376 and 313 of IPC against the appellant is hereby quashed
and set aside.
40. The appellant is acquitted from the charges leveled against him.
Since the appellant is on bail, he is discharged from the liabilities of
bail bond.
41. This appeal is allowed.
42. Let the Trial Court Record be sent to the court concerned along
with copy of this Judgment.
(Navneet Kumar, J.)
Basant /S.Das
18 Cr. Appeal (SJ) No. 1518 of 2006
