Kerala High Court
Basil Eldho vs State Of Kerala on 6 January, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
CRL.MC NO. 10000 OF 2024
CRIME NO.11/2022 OF Palarivattom Police Station, Ernakulam
SC NO.864 OF 2022 OF ADDITIONAL DISTRICT & SESSIONS COURT
(VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM
PETITIONER/ACCUSED:
BASIL ELDHO, AGED 28 YEARS
S/OELDHO MATHAI, ELEVUMTHURUTHEL HOUSE, SOUTH
MAZHUVANNOOR, ERNAKULAM, PIN - 682311.
BY ADV SACHIN RAMESH
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.11.2024, THE COURT ON 06.01.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.10000/2024 2
A. BADHARUDEEN, J.
================================
Crl.M.C.No.10000 of 2024
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Dated this the 6th day of January, 2025
ORDER
The sole accused in S.C.No.864/2022 on the files of Additional
District Court & Sessions Court (Violence Against Women & Children),
Ernakulam, has filed this Crl.M.C under Section 528 of Bharatiya Nagarik
Suraksha Sanhita, 2023, to quash all further proceedings therein, based on
Annexure AV FIR and Annexure AVI Final Report arising out of Crime
No.11/22 of Palarivattom Police Station, Ernakulam, as against the
petitioner.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor on admission.
3. Here the prosecution alleges commission of offences
punishable under Sections 417 and 376(2)(n) of the Indian Penal Code
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(`IPC' for short). In this matter, the prosecution case is that while the
defacto complainant was studying for PSM, a one year Course in Speed
Wings Aviation Academy, near Kaloor in June, 2017, there were 9 other
students in the batch. The accused also is one among the batch men and he
continuously made request to have an affair with the defacto complainant.
While so, the defacto complainant and the accused used to have talks
between them in Kaloor Stadium and the accused promised to marry the
defacto complainant. The same was shared by the defacto complainant
with her other job mates. During the month of February/March, 2018, on a
Saturday, the defacto complainant and the accused went to Munnar on the
assurance of returning back on the same day itself after sight-seeing. After
sight-seeing, even though the defacto complainant wanted the petitioner to
return back to her hostel before night on that day itself, the accused
informed her that he was so tired and he could not ride the bike during
night. Accordingly, a room was booked at an Inn situated therein. While
staying at the room, the accused subjected her to sexual assault forcefully
as against her will and promised her to marry after completion of the
course. Thereafter also, the relationship continued on the promise of
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marriage and the accused introduced the defacto complainant as his
fiancee to his friends and relatives. Later the accused obtained ring
belonging to the defacto complainant during December, 2018 and
misappropriated the same. Thereafter, during February-March, 2019 the
accused got job in Qatar and during this time she had been working as a
ground staff at the Airport, Nedumbassery. On 29.01.2020, the defacto
complainant also obtained a job in Qatar and during this time the
accused informed his friends that his wife was coming to Qatar. As
on 08.07.2021 the accused brought the defacto complainant to his house
and introduced them also as part of marriage. He continued sexual
relationship and on that day he did oral sex with her. Later, the defacto
complainant was taken to a hotel on the premise of discussing fixation of
their marriage. Again she was subjected to sexual intercourse. Later the
accused retracted from the marriage and cheated her. This is the base on
which the prosecution alleges commission of the above offences.
4. While seeking quashment of the proceedings, the learned
counsel for the petitioner submitted that the relationship is purely
consensual and going by the statements given by the defacto complainant
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also, she stated that they used to live as husband and wife in Qatar.
Therefore, the relationship is consensual and the sexual intercourse is also
consensual. It is argued further that the defacto complainant and the
accused are persons from different religions and the defacto complainant
herself expressed reservation in marrying the petitioner. In this regard, the
learned counsel for the petitioner has placed Annexure AII WhatsApp chat
in between them. It is pointed out that the defacto complainant, while
continuing the relationship with the petitioner, involved in chatting with
another men and the same was detected by the petitioner and the same is
the reason for collapse of their relationship.
5. The sum and substance of the argument of the learned
counsel for the petitioner is that the sexual relationship is purely
consensual and the same is not under misconception of fact and therefore,
quashment is liable to succeed. He has pointed out grounds C, D, E and F,
while pressing for the relief of quashment, which are extracted as under:
"C. This court recently in Dhruvaram Murlidhar
Sonar vs. The State of Maharashtra and Others, AIR 2019
SC 327 and in Pramod Suryabhan Pawar vs. State of
Maharashtra and another, (2019) 9 SCC 608 arising out of
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an application under Section 482 Cr.P.C. in similar
circumstances where the relationship originated in a love
affair, developed over a period of time accompanied by
physical relations, consensual in nature, but the marriage
could not fructify because the parties belonged to different
castes and communities, quashed the Proceedings.
D. In Maheshwar Tigga Vs. State of
Jharkhand, (2O2O) 10 SCC l08 the Hon'ble Apex Court
held that under Section 90 of IPC a consent given under a
misconception of fact is no consent in the eye of the law.
But the misconception of fact has to be in proximity of time
to the occurrence and cannot be spread over a period of
four years. Petitioner and the Respondent were involved in
a love relationship for about 4 years and have been having
consensual sexual relationship along the while. Respondent
thus cannot after 4 years come and allege that she has been
subjected to exploitation.
E. The Apex Court has also reiterated the
same in Sonu @ Subhash Kumar vs. State of Uttar Pradesh
and Anr., 2021 SCC Online SC 181. "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
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engage in the sexual act." 11 Bearing in mind the tests
which have been enunciated in the above decision, we are
of the view that even assuming that all the allegations in the
FIR are correct for the purposes of considering the
application for quashing under Section 482 of CrPC, no
offence has been established, There is no allegation to the
effect that the promise to marry given to the second
respondent was false at the inception. On the contrary, it
would appear from the contents of the FIR that there was a
subsequent refusal on the part of the appellant to marry the
second respondent which gave rise to the registration of the
FIR. On these facts, we are of the view that the High court
was in error in declining to entertain the petition under
section 4g2 of crpc on the basis that it was only the
evidence at trial which would read to a determination as to
whether an offence was established.
F. Hon'ble Apex Court in Pramod Suryabhan
Pawar held that "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 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
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of the promise should have had no intention of upholding
his word at the time of giving it...". IT can be seen from the
FIR and the statements of the Respondent that the
Petitioner had always been willing of marrying the
Petitioner, but their relationship failed due to various
extraneous factors."
6. Whereas the learned Public Prosecutor strongly opposed
quashment of the proceedings where the relationship started on the
promise of marriage and continued the same on the said promise.
According to the learned Public Prosecutor, prosecution materials would
prima facie show the ingredients to attract offences punishable under
Sections 417 and 376 of IPC. Therefore, the matter would require trial.
7. In this connection it is relevant to refer the relevant
decisions in paragraphs (I) to (X) dealing with the consensual sex and
vitiation of consent on the ground of misconception of fact:
(I) A two Judge Bench of the Apex Court reported in
[(2003) 4 SCC 46], Uday v. State of Karnataka is relevant in this
connection, where the Apex Court dealt with a case in which was alleged
by the prosecution that the prosecutrix was subjected to rape by the
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accused on repeated promise of marriage with assurance of marriage,
wherein the Apex Court held in paragraphs 24, 25 and 26 as under :
"24. There is another difficulty in the way of the
prosecution. There is no evidence to prove conclusively that the
appellant never intended to marry her. Perhaps he wanted to, but was
not able to gather enough courage to disclose his intention to his
family members for fear of strong opposition from them. Even the
prosecutrix stated that she had full faith in him. It appears that the
matter got complicated on account of the prosecutrix becoming
pregnant. Therefore, on account of the resultant pressure of the
prosecutrix and her brother the appellant distanced himself from her.
25. There is yet another difficulty which faces the
prosecution in this case. 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, are 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
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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 overcome 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.
26. In view of our findings aforesaid, we do not consider
it necessary to consider the question as to whether in a case of rape the
misconception of fact must be confined to the circumstances falling under
Section 375 fourthly and fifthly, or whether consent given under a
misconception of fact contemplated by Section 90 has a wider
application so as to include circumstances not enumerated in Section
375 IPC."
(II) In another 2 Judge Bench decision of the Apex Court
Deelip Singh v. State of Bihar, [2005 LJC 189 : 2005 (1) KLT SN 20 :
2005 (1) SCC 88 : AIR 2005 SC 203], the Apex Court dealt with a case
where the victim girl lodged a complaint to the police on 29-11-1988 i.e.
long after the alleged act of rape. By the date of the report, she was
pregnant by six months. Broadly, the version of the victim girl was that
she and the accused were neighbours and fell in love with each other and
one day, the accused forcibly raped her and later consoled her saying that
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he would marry her, that she succumbed to the entreaties of the accused to
have sexual relations with him, on account of the promise made by him to
marry her and therefore continued to have sex on several occasions. After
she became pregnant, she revealed the matter to her parents. Even
thereafter the intimacy continued to the knowledge of the parents and other
relations who were under the impression that the accused would marry the
girl but the accused avoided marrying her and his father took him out of
the village to thwart the bid to marry. The efforts made by the father of the
victim to establish the marital tie failed and therefore she was constrained
to file the complaint after waiting for some time. The Apex Court in
paragraphs 17-20 observed as under:
"17 The Indian Penal Code does not define "consent" in
positive terms, but what cannot be regarded as "consent" under the
Code is explained by S.90. S.90 reads as follows:
"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; ..."
18. Consent given firstly under fear of injury and secondly
under a misconception of fact is not "consent" at all. That is what is
enjoined by the first part of S.90. These two grounds specified in S.90
are analogous to coercion and mistake of fact which are the familiar
grounds that can vitiate a transaction under the jurisprudence of our
country as well as other countries.
19. The factors set out in the first part of S.90 are from
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the point of view of the victim. The second part of S.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 S.90
which is couched in negative terminology.
20. S.90 cannot, however, be construed as an
exhaustive definition of consent for the purposes of the Indian Penal
Code. The normal connotation and concept of "consent" is not
intended to be excluded. Various decisions of the High Court and of
this Court have not merely gone by the language of S.90, but travelled
a wider field, guided by the etymology of the word "consent".
(iii) It was held in paragraph 28 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 S.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 S.375 clause secondly. This is what in fact was stressed
by the Division Bench of the Calcutta High Court in the case of
Jayanti Rani Panda (1984 CriLJ 1535 : 1983 (2) CHN 290 (Cal))
which was approvingly referred to in Uday case (2003 (4) SCC 46 :
2003 SCC (Cri) 775 : 2003 (2) Scale 329). The Calcutta High Court
rightly qualified the proposition which it stated earlier by adding the
qualification at the end (Cri LJ p.1538, para 7) -- "unless the court
can be assured that from the very inception the accused never really
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intended to marry her". (emphasis supplied) 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 (ILR 1913 (36) Mad. 453 : 15 CriLJ 24) (vide passage quoted
supra). By making the solitary observation that "a false promise is
not a fact within the meaning of the Code", it cannot be said that this
Court has laid down the law differently. The observations following
the aforesaid sentence are also equally important. The Court was
cautious enough to add a qualification that no straitjacket formula
could be evolved for determining whether the consent was given
under a misconception of fact. Reading the judgment in Uday case
(2003 (4) SCC 46 : 2003 SCC (Cri) 775 : 2003 (2) Scale 329) 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."
(III) In the decision reported in [2006 KHC 1927 : 2006 (11)
SCC 615 : AIROnLine 2006 SC 40], Yedla Srinivasa Rao v. State of A.P,
the Apex Court dealt with a case where the prosecution allegation was that
prosecutrix (PW1) used to attend cooking in her sister's (PW 2) house in
day time, as her sister was attending to agricultural operations. The
accused used to visit the house of PW 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 PW 2 in her absence, closed the doors and committed forcible
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sexual intercourse with PW 1 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 PW 1. 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, PW 1
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 - PW 2. Thereafter, the matter
was reported to the Panchayat. The accused accepted the guilt and
promised to marry PW 1 but subsequently, he absconded from the village.
Since the persuasion could not fructify, PW 1 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 S.376 and S.417, IPC.
After completion of investigation, police filed a challan against the
accused. The accused denied the charges. Prosecution in support of its case
examined PW 1 - Prosecutrix, PW 2 sister of Prosecutrix and other
witnesses. Prosecutrix was sent for medical examination and PW 9 - Smt.
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G. Pushpavalli examined PW 1. She found that PW 1 was pregnant at the
time of examination and the age of pregnancy is 20-22 weeks. She was
also examined by Dr. Y. Jagannadha Rao - PW 10 who was working as a
Professor of Forensic Medicines. He confirmed about the pregnancy. He
also examined the age of the prosecutrix and on the basis of X Ray
examination and other physical features opined that the age of PW 1 was
not less than 15 years and not more than 17 years at the time of
examination. (ii) Summarising the legal position, the Apex Court
observed in paragraphs 9 and 10 as under:
"9. The question in the present case is whether this
conduct of the accused apparently falls under any of the six
descriptions of S.375of IPC as mentioned above. It is clear that the
prosecutrix had sexual intercourse with the accused on the
representation made by the accused that he would marry her. This
was a false promise held out by the accused. Had this promise not
been given perhaps, she would not have permitted the accused to
have sexual intercourse. Therefore, whether this amounts to a
consent or the accused obtained a consent by playing fraud on her.
S.90 of the Indian Penal Code says that if the consent has been
given under fear of injury or a misconception of fact, such consent
obtained, cannot be construed to be valid consent. S.90 reads as
under:
"S.90 - Consent known to be given under fear or
misconception. - A consent is not such a consent as it 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
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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.
10. It appears that the intention of the accused as per the
testimony of PW 1 was, right from the beginning, not honest and he
kept on promising that he will marry her, till she became pregnant.
This kind of consent obtained by the accused cannot be said to be
any consent because she was under a misconception of fact that the
accused intends to marry her, therefore, she had submitted to
sexual intercourse with him. This fact is also admitted by the
accused that he had committed sexual intercourse which is
apparent from the testimony of PWs 1, 2 and 3 and before
Panchayat of elders of the village. It is more than clear that the
accused made a false promise that he would marry her. Therefore,
the intention of the accused right from the beginning was not bona
fide and the poor girl submitted to the lust of the accused
completely being misled by the accused who held out the promise
for marriage. This kind of consent taken by the accused with clear
intention not to fulfil the promise and persuaded the girl to believe
that he is going to marry her and obtained her consent for the
sexual intercourse under total misconception, cannot be treated to
be a consent. In this connection, reference may be made to a
decision of the Calcutta High Court in the case of Jayanti Rani
Panda v. State of West Bengal and Another 1984 CriLJ 1535. In
that case it was observed that in order to come within the meaning
of misconception of fact, the fact must have an immediate
relevance. It was also observed that if a fully grown up 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 and it was held that S.90 IPC
cannot be invoked unless the court can be assured that from the
inception accused never intended to marry her. Therefore, it
depends on case to case that what is the evidence led in the matter.
If it is fully grown up girl who gave the consent then it is different
case but a girl whose age is very tender and she is giving a consent
after persuasion of three months on the promise that the accused
will marry her which he never intended to fulfil right from the
beginning which is apparent from the conduct of the accused, in
our opinion, S.90 can be invoked. Therefore, so far as Jayanti Rani
Panda (supra) is concerned, the porseuctirx was aged 21-22 years
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old. But, here in the present case the age of the girl was very tender
between 15-16 years. Therefore, Jayanti Rani Panda's case is fully
distinguishable on facts. It is always matter of evidence whether the
consent was obtained willingly or consent has been obtained by
holding a false promise which the accused never intended to fulfil.
If the court of facts come to the conclusion that the consent has
been obtained under misconception and the accused persuaded a
girl of tender age that the he would marry her then in that case it
can always be said that such consent was not obtained voluntarily
but under a misconception of fact and the accused right from the
beginning never intended to fulfil the promise. Such consent cannot
condone the offence. Reliance can also be made in the case of
Emperor v. Mussammat Soma reported in (1917) CriLJR 18
(Vol.18). In that case the question of consent arose in the context of
an allegation of kidnapping of a minor girl. It was held that the
intention of the accused was to marry the girl to one Dayaram and
she obtained Kujan's consent to take away the girl by
misrepresenting her intention. In that context it was held that at the
time of taking away the girl there was a positive misrepresentation
i.e. taking the girls to the temple at Jawala Mukhi and thereafter
they halted for the night in Kutiya (hut) some three miles distance
from Pragpur and met Daya Ram, Bhag Mai and Musammat
Mansa and Musammat Sarasti was forced into marrying Daya
Ram. This act was found to be act of kidnapping without consent.
But, in the instant case, a girl though aged 16 years was persuaded
to sexual intercourse with the assurance of marriage which the
accused never intended to fulfil and it was totally under
misconception on the part of the victim that the accused is likely to
marry her, therefore, she submitted to the lust of the accused. Such
fraudulent consent cannot be said to be a consent so as to condone
the offence of the accused. Our attention was also invited to the
decision of this Court in the case of Deelip Singh Alias Dilip
Kumar v. State of Bihar AIR 2005 SC 203 : 2004 (3) BLJR 2373 :
2005 (2) MhLj 147 : 2005 (I) OLR (SC) 181 RLW : 2005 (2) SC
165 2004 (9) SCALE 278 : 2005 (1) SCC 88 : 2005 (1) UJ 179 (SC)
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. Therefore, this case is fully
distinguished from the facts as this Court found that the accused
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promise was not false from its inception. But in the present case we
found that first accused committed rape on victim against her will
and consent but subsequently, he held out a hope of marrying her
and continued to satisfy his lust. Therefore, it is apparent in this
case that the accused had no intention to marry and it became
further evident when Panchayat was convened and he admitted that
he had committed sexual intercourse with the victim and also
assured her to marry within 2 days but did not turn up to fulfil his
promise before the Panchayat. This conduct of the accused stands
out to hold him guilty. What is a voluntary consent and what is not
a voluntary consent depends on the facts of each case. In order to
appreciate the testimony, one has to see the factors like the age of
the girl, her education and her status in the society and likewise the
social status of the boy. If the attending circumstances lead to the
conclusion that it was not only the accused but prosecutrix was
also equally keen, then in that case the offence is condoned. But in
case a poor girl placed in a peculiar circumstance where her father
has died and she does not understand what the consequences may
result for indulging into such acts and when the accused promised
to marry but he never intended to marry right from the beginning
then the consent of the girl is of no consequence and falls in the
second category as enumerated in S.375 -"without her consent". A
consent obtained by misconception while playing a fraud is not a
consent."
(IV) In another two Judge Bench decision of the Apex Court
reported in [(2013) 9 SCC 293], Prashant Bharti v. State (NCT of Delhi),
the Apex Court dealt with quashing of FIR in a case involving offence
punishable under Section 376 of IPC after following the earlier decision in
Rajiv Thapar [(2013) 3 SCC 330]. The facts of the case was that the
complainant/prosecutrix, aged 21 years, made a phone call to police
control room on 16-2-2007. When police reached her residence, she made
a statement to the police alleging that on the preceding day, the appellant,
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who was known to her, had made a phone call to her at 8:45 pm inviting
her to a certain place. When she reached there, the appellant took her in his
car and drove around. He offered her cold drink (Pepsi) allegedly
containing poisonous/intoxicating substance. After drinking the same, she
felt inebriated whereupon the appellant started misbehaving with her and
also touched her breasts. She then got the car stopped, and hired an auto-
rickshaw to return to her residence. The police then took her to hospital for
her medical examination, but as per medical report, there was no evidence
of poisoning. Based on the statement of the complainant/prosecutrix, FIR
was registered under Section 328 and 354 IPC and the appellant was
arrested on the same day. After a lapse of five days, the
complainant/prosecutrix made a supplementary statement to the police
alleging that the appellant had been having physical relations with her in
his house on the assurance that he would marry her but he subsequently
refused to marry her. She was again taken to hospital for medical
examination. In the medical report it was recorded, that she had no
external injuries, and that her hymen was not intact. It was pointed out that
a vaginal smear was not taken, because more than a month had elapsed
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from the date of the alleged intercourse(s). Likewise, it was pointed out
that her clothes were not sent for forensic examination because she had
changed the clothes worn by her at the time of the alleged occurrence(s).
Based on the supplementary statement the offence under Section 376 IPC
was added to the case.
(ii) In paragraph 22, the Apex Court held as under:
"22. The proposition of law, pertaining to quashing of
criminal proceedings, initiated against an accused by a High
Court under Section 482 of the Code of Criminal Procedure
(hereinafter referred to as "the CrPC.") has been dealt with by
this Court in Rajiv Thapar & Ors. v. Madan Lal Kapoor
reported in 2013 (3) SCC 330, wherein this Court inter alia held
as under:
"29. The issue being examined in the instant case is
the jurisdiction of the High Court under Section 482 of the
Cr.P.C., if it chooses to quash the initiation of the prosecution
against an accused, at the stage of issuing process, or at the
stage of committal, or even at the stage of framing of charges.
These are all stages before the commencement of the actual trial.
The same parameters would naturally be available for later
stages as well. The power vested in the High Court
under Section 482 of the Cr.P.C., at the stages referred to herein
above, would have far reaching consequences, inasmuch as, it
would negate the prosecution's/complainant's case without
allowing the prosecution/complainant to lead evidence. Such a
determination must always be rendered with caution, care and
circumspection. To invoke its inherent jurisdiction under Section
482 of the Cr.P.C. the High Court has to be fully satisfied, that
the material produced by the accused is such, that would lead to
the conclusion, that his/their defence is based on sound,
reasonable, and indubitable facts; the material produced is such,
as would rule out and displace the assertions contained in the
charges levelled against the accused; and the material produced
is such, as would clearly reject and overrule the veracity of the
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allegations contained in the accusations levelled by the
prosecution/complainant. It should be sufficient to rule out,
reject and discard the accusations levelled by the prosecution /
complainant, without the necessity of recording any evidence.
For this the material relied upon by the defence should not have
been refuted, or alternatively, cannot be justifiably refuted, being
material of sterling and impeccable quality. The material relied
upon by the accused should be such, as would persuade a
reasonable person to dismiss and condemn the actual basis of
the accusations as false. In such a situation, the judicial
conscience of the High Court would persuade it to exercise its
power under Section 482 of the Cr.P.C. to quash such criminal
proceedings, for that would prevent abuse of process of the
court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to determine
the veracity of a prayer for quashing, raised by an accused by
invoking the power vested in the High Court under Section
482 of the Cr.P.C.:-
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable, i.e., the material
is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused, would rule out the assertions contained in the charges
levelled against the accused, i.e., the material is sufficient to
reject and overrule the factual assertions contained in the
complaint, i.e., the material is such, as would persuade a
reasonable person to dismiss and condemn the factual basis of
the accusations as false?
30.3. Step three: whether the material relied upon by
the accused has not been refuted by the
prosecution/complainant; and/or the material is such, that it
cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial
would result in an abuse of process of the court, and would not
serve the ends of justice?
30. 5. If the answer to all the steps is in the affirmative,
judicial conscience of the High Court should persuade it to
quash such criminal proceedings, in exercise of power vested in
it under Section 482 of the Cr.P.C. Such exercise of power,
besides doing justice to the accused, would save precious court
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time, which would otherwise be wasted in holding such a trial
(as well as, proceedings arising therefrom) specially when, it is
clear that the same would not conclude in the conviction of the
accused."
(V) In another 2 Judge Bench decision of the Apex Court
reported in [2013 KHC 4905 : 2013 (14) SCALE 51 : AIR 2014 SC 384 :
2014 CriLJ 540 : 2013 (16) SCC 651], State of U.P v. Naushad, the Apex
Court dealt with a case where the facts was that the accused - Naushad is
the son of the maternal uncle of the prosecutrix's father - who is the
informant. The informant complained that Naushad used to visit their
house often and enticed his daughter and cheated her, promising to marry
her and had regular sexual intercourse with her on this pretext. The
informant came to know about this when his daughter narrated to her
mother how she was raped and she got pregnant. The complainant along
with his wife went to complain to the parents of the accused, Irshad and
his wife and told them that their son-Naushad raped their daughter by
giving a false promise of marriage and she has become pregnant. Irshad
and his wife accepted their fault and promised to punish Naushad. A
Panchayat was held a day before lodging the complaint when Irshad and
his wife offered Rs.10,000/- to Rs.20,000/- to them and said that they will
not allow to marry their son with the victim. The informant alleged that
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Irshad and his wife even threatened to kill him if any action is taken. On
the basis of this information given by Irshad, crime no. 115 of 2003 was
registered at P.S. Kotwali Nagar in Muzaffar Nagar. After investigation,
the Investigating Officer arrested Irshad and Naushad. Victim was sent for
medical examination and the report was submitted by Dr. Abha. After the
charge sheet was submitted, the case was committed to the Sessions Court.
The Sessions Judge framed charge under Section 376, IPC against Irshad
and Section 376 read with Section 109, IPC against Naushad and both
were further charged under Section 506, IPC. The Sessions Judge held the
accused Naushad guilty of the charge under Section 376 and convicted
him, sentencing him to imprisonment for life. Being aggrieved by this, the
accused filed an appeal before the High Court. The High Court allowed the
appeal and held that the prosecution had failed to prove its case beyond
reasonable doubt and the order of conviction and sentence of the accused
respondent was set aside and he was directed to be released forthwith.
Against the reversal of conviction and sentence of the accused by the High
Court, the appellant - State has filed the present appeal. In the said
judgment the Apex Court held in paragraph 10 as under:
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"10. We will answer point nos. 1 and 2 together as they
are related to each other. Section 376 of IPC prescribes the
punishment for the offence of rape. Section 375 of the IPC defines
the offence of rape, and enumerates six descriptions of the
offence. The description "secondly" speaks of rape "without her
consent". Thus, sexual intercourse by a man with a woman
without her consent will constitute the offence of rape. We have
to examine as to whether in the present case, the accused is guilty
of the act of sexual intercourse with the prosecutrix 'against her
consent'. The prosecutrix in this case has deposed on record that
the accused promised marriage with her and had sexual
intercourse with her on this pretext and when she got pregnant,
his family refused to marry him with her on the ground that she is
of 'bad character'. How is 'consent' defined? Section 90 of the
IPC defines consent known to be given under 'fear or
misconception' which reads as under:
"90. Consent known to be given under fear or
misconception.-- A consent is not such consent as it 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; xxxx"
Thus, if consent is given by the prosecutrix under a misconception
of fact, it is vitiated. In the present case, the accused had sexual
intercourse with the prosecutrix by giving false assurance to the
prosecutrix that he would marry her. After she got pregnant, he
refused to do so. From this, it is evident that he never intended to
marry her and procured her consent only for the reason of having
sexual relations with her, which act of the accused falls squarely
under the definition of rape as he had sexual intercourse with her
consent which was consent obtained under a misconception of
fact as defined under Section 90 of the IPC. Thus, the alleged
consent said to have obtained by the accused was not voluntary
consent and this Court is of the view that the accused indulged in
sexual intercourse with the prosecutrix by misconstruing to her
his true intentions. It is apparent from the evidence that the
accused only wanted to indulge in sexual intercourse with her and
was under no intention of actually marrying the prosecutrix. He
made a false promise to her and he never aimed to marry her. In
the case of Yedla Srinivas Rao v. State of A.P., 2006 KHC
1927 : 2006 (11) SCC 615, with reference to similar facts, this
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Court in para 10 held as under:
"10. It appears that the intention of the accused as per
the testimony of PW 1 was, right from the beginning, not honest
and he kept on promising that he will marry her, till she became
pregnant. This kind of consent obtained by the accused cannot be
said to be any consent because she was under a misconception of
fact that the accused intends to marry her, therefore, she had
submitted to sexual intercourse with him. This fact is also
admitted by the accused that he had committed sexual intercourse
which is apparent from the testimony of PWs 1, 2 and 3 and
before Panchayat of elders of the village. It is more than clear
that the accused made a false promise that he would marry her.
Therefore, the intention of the accused right from the beginning
was not bona fide and the poor girl submitted to the lust of the
accused completely being misled by the accused who held out the
promise for marriage. This kind of consent taken by the accused
with clear intention not to fulfil the promise and persuaded the
girl to believe that he is going to marry her and obtained her
consent for the sexual intercourse under total misconception,
cannot be treated to be a consent."
(ii) Further, in para 17 of the said judgment, this Court held
that:
"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. This is more evident from the testimony of PW 1
as well as PW 6 who was functioning as Panchayat where the
accused admitted that he had committed sexual intercourse and
promised to marry her but he absconded despite the promise made
before the Panchayat. That shows that the accused had no intention
to marry her right from the beginning and committed sexual
intercourse totally under the misconception of fact."
Thus, this Court held that the accused in that case was guilty of the
offence of rape as he had obtained the consent of the prosecutrix
fraudulently, under a misconception of fact."
(VI) In another two Judge Bench decision of the Apex Court
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reported in [2013 KHC 4423 : 2013 (3) KHC SN 9 : 2013 (2) KLD 240 :
2013 (2) KLT 762 : 2013 (2) KLJ 810 : 2013 (7) SCALE 383 : AIR 2013
SC 2071 : 2013 CriLJ 2990 : 2013 (7) SCC 675 : 2013 (3) SCC (Cri) 660 :
2013 (127) AIC 122 : 2013 (3) CTC 567 : MANU/SC/0546/2013],
Deepak Gulati v. State of Haryana, the Apex Court dealt with a case
where the allegation was that the prosecutrix, 19 years of age, student of
10+2 in Government Girls Senior Secondary School, Karnal, and the
accused/appellant were known each other for some time. Appellant had
been meeting her in front of her school in an attempt to develop intimate
relations with her. On 10/05/1995, the appellant induced her to go with
him to Kurukshetra, to get married and she agreed. En route Kurukshetra
from Karnal, the appellant took her to Karna lake (Karnal), and had sexual
intercourse with her against her wishes, behind bushes. Thereafter, the
appellant took her to Kurukshetra, stayed with his relatives for 3-4 days
and committed rape upon her. The prosecutrix was thrown out after 4
days by the appellant. She then went to one of the hostels in Kurukshetra
University, and stayed there for a few days. The warden of the hostel
became suspicious and thus, questioned the prosecutrix. The prosecutrix
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thus narrated the incident to the warden, who informed her father.
Meanwhile, the prosecutrix left the hostel and went to a temple, where she
once again met the appellant. Here, the appellant convinced her to
accompany him to Ambala to get married. When they reached the bus
stand, they found her father present there along with the police. The
appellant was apprehended.
(ii) In the said case, the Apex Court held in paragraphs 18,
19, 20, 21 and 23 as under:
"18. 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 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. 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.
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19. In Deelip Singh (supra), it has been observed as
under:
"20. 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."
20. This Court, while deciding Pradeep Kumar Verma
(supra), placed reliance upon the judgment of the Madras High
Court delivered in N. Jaladu, Re, ILR 1913 (36) Mad. 453, wherein
it has been observed:
"We are of opinion that the expression "under a
misconception of fact" is broad enough to include all cases where
the consent is obtained by misrepresentation; the misrepresentation
should be regarded as leading to a misconception of the facts with
reference to which the consent is given. In Section 3 of the
Evidence Act Illustration (d) states that a person has a certain
intention is treated as a fact. So, here the fact about which the
second and third prosecution witnesses were made to entertain a
misconception was the fact that the second accused intended to get
the girl married ........ " thus ... if the consent of the person from
whose possession the girl is taken is obtained by fraud, the taking is
deemed to be against the will of such a person". ... Although in
cases of contracts a consent obtained by coercion or fraud is only
voidable by the party affected by it, the effect of Section 90 IPC is
that such consent cannot, under the criminal law, be availed of to
justify what would otherwise be an offence."
21. Hence, it is evident that there must be adequate
evidence to show that at the relevant time, i.e. at initial stage itself,
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the accused had no intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be circumstances, when a
person having the best of intentions is unable to marry the victim
owing to various unavoidable circumstances. The "failure to keep a
promise made with respect to a future uncertain date, due to
reasons that are not very clear from the evidence available, does
not always amount to misconception of fact. In order to come
within the meaning of the term misconception of fact, the fact must
have an immediate relevance." Section 90 IPC cannot be called
into aid in such a situation, to pardon the act of a girl in entirety,
and fasten criminal liability on the other, unless the Court is
assured of the fact that from the very beginning, the accused had
never really intended to marry her.
23. To conclude, the prosecutrix had left her home
voluntarily, of her own free will to get married to the appellant. She
was 19 years of age at the relevant time and was, hence, capable of
understanding the complications and issues surrounding her
marriage to the appellant. According to the version of events
provided by her, the prosecutrix had called the 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 this stage and made no complaints to
any one. Thereafter, she also went to Kurukshetra with the
appellant, where she lived with his relatives. Here too, the
prosecutrix voluntarily became intimate with the 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 the Birla Mandir. Thereafter, she even proceeded with
the appellant to the old bus-stand in Kurukshetra, to leave for
Ambala so that the two of them could get married in Court at
Ambala. However, here they were apprehended by the police."
(VII) In another two Judge Bench decision of the Apex Court
in Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra & Ors.,
[2019 (1) KHC 403 : 2019 (1) KLD 242 : 2019 (1) SCALE 64 : AIR 2019
SC 327 : 2019 CriLJ 1169 : 2019 (18) SCC 191 : AIR OnLine 2019 SC
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68], the Apex Court dealt with a case of rape where prosecution allegation
was that the defacto complainant's husband died on 05/11/1997, leaving
behind her and her two children. During this time, the appellant informed
her that there have been differences between him and his wife, and
therefore, he is planning to divorce his wife. Further, the appellant
informed the complainant that since they belong to different communities,
a month is needed for the registration of their marriage. Therefore, she
started living with the appellant at his Government quarters. The FIR
further states that she had fallen in love with the appellant and that she
needed a companion as she is a widow. Therefore, they started living
together, as if they were husband and wife. They resided some time at her
house and some time at the house of the appellant. The appellant acted as
if he has married her and has maintained a physical relationship with her.
However, he has failed to marry her as promised. When things stood thus,
his brother, i.e accused No. 2, claims to have married her. Thereafter, in
the year 2000, complainant received the information from the co-accused
about the marriage of the appellant with some other woman. Therefore,
she filed the aforesaid complaint and FIR dated 06/12/2000 came to be
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registered against the appellant and the co- accused.
(ii) In the said decision the Apex Court held as under in
paragraphs 7, 8 and 9 as under:
"7. We have carefully considered the submissions of the
learned counsel made at the Bar and perused the materials placed
on record.
8. It is well settled that exercise of powers under S.482 of
the Cr.P.C. is the exception and not the rule. Under this section,
the High Court has inherent powers to make such orders as may be
necessary to give effect to any order under the Code or to prevent
the abuse of process of any Court or otherwise to secure the ends
of justice. But the expressions "abuse of process of law" or "to
secure the ends of justice" do not confer unlimited jurisdiction on
the High Court and the alleged abuse of process of law or the ends
of justice could only be secured in accordance with law, including
procedural law and not otherwise.
9. This Court in State of Haryana and Ors. v. Bhajan
Lal and Ors., 1992 KHC 600 : 1992 Supp (1) SCC 335 : 1992 SCC
(Cri) 426 : AIR 1992 SC 604 : 1992 CriLJ 527 has elaborately
considered the scope and ambit of S.482 Cr.P.C. Seven categories
of cases have been enumerated where power can be exercised
under S.482 of Cr.P.C. Para 102 thus reads:
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under Art.226
or the inherent powers under S.482 of the Code which we have
extracted and re-produced above, we give the following categories
of cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any Court or
otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face value
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and accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not disclose
a cognizable offence, justifying an investigation by police officers
under S.156(1) of the Code except under an order of a Magistrate
within the purview of S.155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non - cognizable offence,
no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under S.155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and / or where there is a specific
provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and / or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal
grudge."
(ii) Thereafter, in paragraph 20 the Apex Court held as
under:
"20. Thus, there is a clear distinction between rape
and consensual sex. The Court, in such cases, must very
carefully examine whether the complainant had actually wanted
to marry the victim or had mala fide motives and had made a
false promise to this effect only to satisfy his lust, as the later
falls within the ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not fulfilling a
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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 S.376
of the IPC."
(VIII) In Anurag Soni v. State of Chhattisgarh, [2019 KHC
6441 : 2019 (2) KHC SN 35 : 2019 (6) SCALE 211 : AIR 2019 SC 1857 :
2019 CriLJ 2508 : 2019 (13) SCC 1], another two Bench decision of the
Apex Court, the Apex Court dealt with a case where it was alleged by the
prosecution that the Prosecutrix was a student of B. Pharm and was
familiar with the accused since 2009 and there was love affair between
them. Accused had even proposed her for marriage and this fact was
within the knowledge of their respective family members. Accused was
posted as Junior Doctor and on 29/04/2013, the accused took prosecutrix
to his house and there they had physical relationship. Later, accused
refused to marry the prosecutrix. Upon the complaint filed by the
prosecutrix, a crime was registered and after investigation, a charge sheet
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was filed. Trial Court convicted accused for offence under S.376(1), IPC,
sentencing him to rigorous imprisonment for 10 years and to pay a fine of
Rs. 50,000/-. In appeal, the High Court confirmed the judgment and order
of conviction. Hence the accused has filed this appeal before the Supreme
Court.
(ii) In the said case dismissing the appeal at the instance of
the accused against the conviction imposed under Section 376 of IPC, it
was held as under:
"Considering the aforesaid facts and
circumstances of the case and the evidence on record, the
prosecution has been successful in proving the case that
from the very beginning the accused never intended to
marry the prosecutrix; he gave false promises / promise
to the prosecutrix to marry her and on such false promise
he had a physical relation with the prosecutrix; the
prosecutrix initially resisted, however, gave the consent
relying upon the false promise of the accused that he will
marry her and, therefore, her consent can be said to be a
consent on misconception of fact as per S.90 of the IPC
and such a consent shall not excuse the accused from the
charge of rape and offence under S.375 of the IPC.
Though, in S.313 statement, the accused came up with a
case that the prosecutrix and his family members were in
knowledge that his marriage was already fixed with
Priyanka Soni, even then, the prosecutrix and her family
members continued to pressurise the accused to marry the
prosecutrix, it is required to be noted that first of all the
same is not proved by the accused. Even otherwise,
considering the circumstances and evidence on record,
referred to herein above, such a story is not believable.
The prosecutrix, in the present case, was an educated girl
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studying in B. Pharmacy. Therefore, it is not believable
that despite having knowledge that appellant's marriage
is fixed with another lady Priyanka Soni, she and her
family members would continue to pressurise the accused
to marry and the prosecutrix will give the consent for
physical relation. In the deposition, the prosecutrix
specifically stated that initially she did not give her
consent for physical relationship, however, on the
appellant's promise that he would marry her and relying
upon such promise, she consented for physical
relationship with the appellant accused. Even considering
S.114A of the Indian Evidence Act, which has been
inserted subsequently, there is a presumption and the
Court shall presume that she gave the consent for the
physical relationship with the accused relying upon the
promise by the accused that he will marry her. As
observed herein above, from the very inception, the
promise given by the accused to marry the prosecutrix
was a false promise and from the very beginning there
was no intention of the accused to marry the prosecutrix
as his marriage with Priyanka Soni was already fixed
long back and, despite the same, he continued to give
promise / false promise and alluded the prosecutrix to
give her consent for the physical relationship. Therefore,
considering the aforesaid facts and circumstances of the
case and considering the law laid down by this Court in
the aforesaid decisions, we are of the opinion that both
the Courts below have rightly held that the consent given
by the prosecutrix was on misconception of fact and,
therefore, the same cannot be said to be a consent so as to
excuse the accused for the charge of rape as defined
under S.375 of the IPC. Both the Courts below have
rightly convicted the accused for the offence under S.376
of the IPC."
(iii) In paragraph 14 of the above judgment, the Apex Court
observed as under:
"14. Considering the aforesaid facts and circumstances of
the case and the evidence on record, the prosecution has been
successful in proving the case that from the very beginning the
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accused never intended to marry the prosecutrix; he gave false
promises/promise to the prosecutrix to marry her and on such false
promise he had a physical relation with the prosecutrix; the
prosecutrix initially resisted, however, gave the consent relying
upon the false promise of the accused that he will marry her and,
therefore, her consent can be said to be a consent on misconception
of fact as per S.90 of the IPC and such a consent shall not excuse the
accused from the charge of rape and offence under S.375 of the IPC.
Though, in S.313 statement, the accused came up with a case that
the prosecutrix and his family members were in knowledge that his
marriage was already fixed with Priyanka Soni, even then, the
prosecutrix and her family members continued to pressurise the
accused to marry the prosecutrix, it is required to be noted that first
of all the same is not proved by the accused. Even otherwise,
considering the circumstances and evidence on record, referred to
hereinabove, such a story is not believable. The prosecutrix, in the
present case, was an educated girl studying in B. Pharmacy.
Therefore, it is not believable that despite having knowledge that
appellant's marriage is fixed with another lady - Priyanka Soni, she
and her family members would continue to pressurise the accused to
marry and the prosecutrix will give the consent for physical relation.
In the deposition, the prosecutrix specifically stated that initially she
did not give her consent for physical relationship, however, on the
appellant's promise that he would marry her and relying upon such
promise, she consented for physical relationship with the appellant-
accused. Even considering S.114A of the Indian Evidence Act, which
has been inserted subsequently, there is a presumption and the
Court shall presume that she gave the consent for the physical
relationship with the accused relying upon the promise by the
accused that he will marry her. As observed herein above, from the
very inception, the promise given by the accused to marry the
prosecutrix was a false promise and from the very beginning there
was no intention of the accused to marry the prosecutrix as his
marriage with Priyanka Soni was already fixed long back and,
despite the same, he continued to give promise / false promise and
alluded the prosecutrix to give her consent for the physical
relationship. Therefore, considering the aforesaid facts and
circumstances of the case and considering the law laid down by this
Court in the aforesaid decisions, we are of the opinion that both the
Courts below have rightly held that the consent given by the
prosecutrix was on misconception of fact and, therefore, the same
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cannot be said to be a consent so as to excuse the accused for the
charge of rape as defined under S.375 of the IPC. Both the Courts
below have rightly convicted the accused for the offence under S.376
of the IPC."
(IX) Another decision placed by the learned counsel for the
petitioner is Sonu @ Subhash Kumar v. State of Uttar Pradesh & anr.,
[2021 (2) KHC 314 : 2021 KHC OnLine 6136 : 2021 (3) SCALE 635 :
AIR 2021 SC 1405 : 2021 (2) KLT OnLine 1152]. In this case, the Apex
Court dealt with a case wherein FIR was lodged by the defacto
complainant on 07.02.2018 before the S.H.O stating that the complainant
developed friendship with the accused and the accused assured the
complainant that he would marry her. Thereby she was exploited
physically for one and a half years and the complainant had also spoken to
the parents and sister of the accused. Further, the father of the accused had
informed the complainant that he would arrange marriage of the accused
with him. After a lapse of about one and a half years, the accused went
back to his home and informed the appellant that since he wished to
perform a court marriage, the appellant would come to Jhansi.
Accordingly, the appellant reached Jhansi for the purpose of marriage.
But the father of the accused informed her that the accused did not wish to
marry her. This is the base on which FIR was registered. In this case in
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paragraphs 8 to 11, the Apex Court observed as under while quashing the
FIR:
"8. The contents of the FIR as well as the
statement under S.164 of CrPC leave no manner of doubt that,
on the basis of the allegations as they stand, three important
features emerge:
(i) The relationship between the appellant and
the second respondent was on consensual nature;
(ii) The parties were in the relationship for about a
period of one and a half years; and
(iii) Subsequently, the appellant had expressed a
disinclination to marry the second respondent which led to the
registration of the FIR.
9. In Pramod Suryabhan Pawar (supra),
while dealing with a similar situation, the principles of law
which must govern a situation like the present were enunciated
in the following observations:
"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
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..."
10. Further, the Court has observed:
"To summarise the legal position that emerges
from the above cases, the "consent" of a woman with respect
to S.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."
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11. Bearing in mind the tests which have been
enunciated in the above decision, we are of the view that even
assuming that all the allegations in the FIR are correct for the
purposes of considering the application for quashing under S.482
of Cr:PC, no offence has been established. There is no allegation
to the effect that the promise to marry given to the second
respondent was false at the inception. On the contrary, it would
appear from the contents of the FIR that there was a subsequent
refusal on the part of the appellant to marry the second
respondent which gave rise to the registration of the FIR. On
these facts, we are of the view that the High Court was in error in
declining to entertain the petition under S.482 of CrPC on the
basis that it was only the evidence at trial which would lead to a
determination as to whether an offence was established."
(X) In Naim Ahamed v. State (NCT of Delhi), [2023 SCC
OnLine SC 89], the Apex Court dealt with a case where the prosecution
case was that prosecutrix was residing in a tenanted premises with her
husband and three children, in the year 2009. The accused was also
residing in a tenanted premises which was situated in front of her house.
On 21.03.2015, the prosecutrix lodged a complaint against the accused
alleging inter alia that the accused was persuading her by stating that her
husband was not earning sufficient income and that he (the accused) had
a good job and he would maintain her according to his status. The
accused also assured her that he would solemnize marriage (nikah) with
her. Thereafter, the accused with an intention to have illicit intercourse
with her, used to call her at various places, as a result thereof, she was
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impregnated in the year 2011. She further alleged that the accused
persuaded the prosecutrix that after the delivery of child, he would
marry her. He also assured her that he was not a married man and after
the marriage, he would take her to his native place. In the year 2012, the
accused enticed her away in another rented premises and continued to
have illicit relationship with her. After sometime the accused vacated
the said rented premises with a false excuse that his parents were
severely ill and he had to visit his native place. He told the prosecutrix
to take shelter in a shelter home along with the minor child Naman. He
also forced her to take divorce from her husband. The prosecutrix had
further alleged in the complaint that the accused had lied to her that he
had gone to his native place, but in fact he had not gone, which she
came to know when she visited the call center where the accused was
working. When she made hue and cry at his place of working, he
assured her that he would soon marry her. In the year 2012, she visited
the native place of the accused and came to know that he was already
married and had children also. The parents of the accused refused to
keep her there. Thereafter also, the accused kept on assuring her to
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marry her, but did not marry. Thus crime alleging commission of
offence punishable under Section 376 of the Indian Penal Code by the
accused, was registered.
(ii) In the said case, the Apex Court dealt with the question
of consent after referring the earlier decisions and it was observed in
paragraph 21 as under:
"21. In the instant case, the prosecutrix who herself was
a married woman having three children, could not be said to have
acted under the alleged false promise given by the appellant or
under the misconception of fact while giving the consent to have
sexual relationship with the appellant. Undisputedly, she continued
to have such relationship with him at least for about five years till
she gave complaint in the year 2015. Even if the allegations made
by her in her deposition before the court, are taken on their face
value, then also to construe such allegations as 'rape' by the
appellant, would be stretching the case too far. The prosecutrix
being a married woman and the mother of three children was
matured and intelligent enough to understand the significance and
the consequences of the moral or immoral quality of act she was
consenting to. Even otherwise, if her entire conduct during the
course of such relationship with the accused, is closely seen, it
appears that she had betrayed her husband and three children by
having relationship with the accused, for whom she had developed
liking for him. She had gone to stay with him during the
subsistence of her marriage with her husband, to live a better life
with the accused. Till the time she was impregnated by the accused
in the year 2011, and she gave birth to a male child through the
loin of the accused, she did not have any complaint against the
accused of he having given false promise to marry her or having
cheated her. She also visited the native place of the accused in the
year 2012 and came to know that he was a married man having
children also, still she continued to live with the accused at
another premises without any grievance. She even obtained
divorce from her husband by mutual consent in 2014, leaving her
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three children with her husband. It was only in the year 2015 when
some disputes must have taken place between them, that she filed
the present complaint. The accused in his further statement
recorded under Section 313 of Cr.P.C. had stated that she had
filed the complaint as he refused to fulfill her demand to pay her
huge amount. Thus, having regard to the facts and circumstances
of the case, it could not be said by any stretch of imagination that
the prosecutrix had given her consent for the sexual relationship
with the appellant under the misconception of fact, so as to hold
the appellant guilty of having committed rape within the meaning
of Section 375 of IPC."
8. Scanning the decisions herein above discussed in
paragraphs (I) to (X), the legal position is emphatically clear that a
promise to marry, without having any intention or any inclination to marry
the victim, will vitiate the consent in terms of Section 90 of IPC,
concomitantly if consent has been given under fear of injury or
misconception of fact, such consent obtained, cannot be construed to be
valid consent. So also, when the prosecutrix had sexual intercourse with
the accused on the bona fide representation made by the accused that he
would marry her, the same was a false promise at the instance of the
accused and the same is hit by Section 90. That apart, as categorically
enumerated as `Secondly' under Section 375 of IPC, consent is treated as
"wilful consent" in the situations dealt under the caption `Thirdly' to
`Seventhly'. The same are as under:
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"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."
9. Explanation 2 to Section 375 of IPC provides that
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.
10. Thus it has to be summarised that when, prima facie,
materials would show that the prosecutrix was subjected to sexual
intercourse on the promise of marriage without any bona fides and under a
misconception of fact, then the consent is vitiated. If the materials would
show that the relationship is purely consensual without an element of
misconception of fact, the same is not rape.
11. Be it so, no doubt, the question to be considered by a
court while considering quashment of the proceedings is, whether at the
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very inception there is mutual consent to have sexual intercourse or the
same is under a misconception of fact, on the promise of marriage or
otherwise. But the said aspect depends on the facts of each case. So, no
hard and fast rule to be applied to almost all cases similarly.
12. Coming to the facts of the present case, keeping the
principles stated above, the prosecution allegation is that the accused
herein subjected the defacto complainant to forceful sexual intercourse on
27.07.2019 with promise that the accused would marry her . He had
repeated sexual intercourse with her repeating promise of marriage
and he had introduced her to his family and friends as his fiancee
and later retracted from the marriage and cheated the defacto
complainant. Further on the date of occurrence, both parties were
legally fit for marriage. Therefore, without allowing the prosecution
to adduce evidence in support of the allegation that sexual intercourse is
the outcome of misconception of fact arose out of promise of
marriage, in the facts of the case, quashment cannot be considered.
13. Accordingly this Crl.M.C stands dismissed.
Registry shall forward a copy of this order to the jurisdictional
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court for information and further steps.
Sd/-
A.BADHARUDEEN, JUDGE
rtr/
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A P P E N D I X
PETITIONER'S EXHIBITS
ANNEXURE A1 : COPY OF THE PHOTOGRAPHS PROVING THAT THE PETITIONER
AND COMPLAINANT WERE IN LOVE.
ANNEXURE A1(a): COPY OF THE PHOTOGRAPHS PROVING THAT THE PETITIONER
AND COMPLAINANT WERE IN LOVE.
ANNEXURE A1(b): COPY OF THE PHOTOGRAPHS PROVING THAT THE PETITIONER
AND COMPLAINANT WERE IN LOVE.
ANNEXURE A1(c): COPY OF THE PHOTOGRAPHS PROVING THAT THE PETITIONER
AND COMPLAINANT WERE IN LOVE.
ANNEXURE A1(d): COPY OF THE PHOTOGRAPHS PROVING THAT THE PETITIONER
AND COMPLAINANT WERE IN LOVE.
ANNEXURE A1(e): COPY OF THE PHOTOGRAPHS PROVING THAT THE PETITIONER
AND COMPLAINANT WERE IN LOVE.
ANNEXURE AII : COPY OF A CHAT THE RESPONDENT HAD WITH ONE OF
PETITIONER'S FRIEND.
ANNEXURE AII(a): COPY OF A CHAT THE RESPONDENT HAD WITH ONE OF
PETITIONER'S FRIEND.
ANNEXURE AIII: COPY OF THE SCREENSHOT OF A TEXT SENT BY THE 2ND
RESPONDENT TO THE PETITIONER DATED 18.08.2020.
ANNEXURE AIV: COPY OF WHATS-APP CONVERSATION DATED 15.12.2021
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WHEREIN THE PETITIONER OFFERED REPAYMENT OF THE MONEY.
ANNEXURE AV : CERTIFIED COPY OF THE FIR NUMBERED 11/2022
REGISTERED BY PALARIVATTOM POLICE.
ANNEXURE AVI: CERTIFIED COPY OF THE FINAL REPORTED FILED IN
SC.864/2022 BEFORE THE HON'BLE ADDITIONAL DISTRICT AND SESSIONS
COURT, ERNAKULAM.
