Madhya Pradesh High Court
Ajay Kumr Choudhary vs The State Of Madhya Pradesh on 3 March, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
rd
ON THE 3 OF MARCH, 2025
CRIMINAL REVISION No. 3248 OF 2021
AJAY KUMAR CHOUDHARY
Versus
STATE OF MADHYA PRADESH
_______________________________________________________________
Appearance:
Shri Sourabh Singh Thakur - Advocate for the applicant.
Shri Ramanuj Choubey -P.L. appearing on behalf of respondent/State.
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ORDER
With the consent of learned counsel for the parties heard finally at motion stage.
2. Present criminal revision petition has been filed under Section 397/401 of Cr.P.C.
assailing order dated 05.10.2021 whereby charge under Section 376(2)(n) and 376 of
IPC has been framed against present applicant.
3. Learned counsel for the applicant submits that in the instant case, alleged
incident is said to have occurred from 08.03.2020 to 25.02.2021 and FIR has been
lodged on 5.04.2021. It is also urged that prosecutrix is a guest teacher aged 24 years.
Learned counsel for the applicant also submits that applicant was ready to marry
prosecutrix but when family members of prosecutrix went to meet maternal uncle and
aunt of applicant for discussing the issue, at that time, some dispute took place between
the parties and thereafter, maternal uncle and aunt of applicant refused to marry
applicant with prosecutrix. It is also urged that parents of applicant are not alive.
4. Learned counsel for the applicant has also referred to last 4-5 lines of para 1 of
prosecutrix's statement recorded under Section 164 of Cr.P.C. as well as statements of
prosecution witnesses recorded under Section 161 of Cr.P.C. to submit that in the
instant case, even prima facie, it cannot be said that applicant established physical
relation with prosecutrix on false pretext of marriage. Initially, both the parties were
ready to solemnize marriage but later on account of some dispute between the parties,
marriage could not be solemnized.
5. Further, after relying upon Dr.Dhruvaram Murlidhar Sonar Vs. State of
Maharashra and Other, AIR 2019 SC 327, Naim Ahamed Vs. State (NCT of Delhi),
(2023) AIR (SC) Cri 1003, Pramod Suryabhan Pawar Vs. State of Mahrashtra and
Another, (2019) 9 SCC 608, Maheshwar Tigga Vs. State of Jharkhand, (2020) 10
SCC 108 and order passed by Co-ordinate Bench in MCRC No.1071 of 2023 (Ashish
Mishra @ Shivam Mishra Vs. State of M.P. and Another) on 16.08.2024, MCRC
No.42118 of 2022 (Gaurav singh Chadhar Vs. State of M.P. and Others) on 24.01.2023
and CRA No.12295/2022 (Sunit Mishra Vs. State of M.P.) on 09.02.2023, it is urged
that in the instant case, even prima facie offence under Sections 376(2)(n) and 376 of
IPC is not made out. Learned Trial Court has erred in framing charges against applicant
under Sections 376(2)(n) and 376 of IPC. Hence, petition filed by the petitioner be
allowed and petitioner be discharged.
6. Learned counsel for the respondent/State has submitted that there is sufficient
material on record to frame charges under Section 376(2)(n) and 376 of IPC against
applicant. Hence, revision petition filed by the applicant be dismissed.
7. Heard. Perused of record of the case.
Analysis and Findings :-
8. Perusal of record of the case as well as submissions of learned counsel for the
parties reveals that primarily two legal issues are involved in the case i.e. what is the
criteria/what are the parameters for framing of charge/discharge of accused and to
decide as to whether consent of prosecutrix was free or was obtained under
misconception of fact i.e. on false pretext of marriage. Hence, before adverting to the
issue involved in the case, it would be appropriate to refer principles of law with respect
to aforesaid legal issues.
Legal principles applicable in regard to framing of charge/ discharge :-
9. Hon'ble apex court in M.E. Shivalingamurthy Vs. Central Bureau of
Investigation, (2020) 2 SCC 768, after referring to (2011) 14 SCC 608, State of A.P.
V. Obulapuram Mining Co. (P) Ltd., (2010) 2 SCC 398, P. Vijayan V. State of
Kerala, (2005) 1 SCC 568, State of Orissa V. Debendra Nath Padhi. (2002) 2 SCC
135, Dilawar Balu Kurane v. State of Maharashtra, (1995) 4 SCC 181, State of J
&K V. Sudarshan Chakkar, (1979) 3 SCC 4, Union of India Vs. Prafulla Samal, has
held as under:-
"17. This is an area covered by a large body of
case law. We refer to a recent judgment which has
referred to the earlier decisions, viz., P. Vijayan v.
State of Kerala and another (2010) 2 SCC 398
and discern the following principles:
17.1. If two views are possible and one of
them gives rise to suspicion only as
distinguished from grave suspicion, the Trial
Judge would be empowered to discharge the
accused.
17.2. The Trial Judge is not a mere Post
Office to frame the charge at the instance of
the prosecution.
17.3. The Judge has merely to sift the
evidence in order to find out whether or not
there is sufficient ground for proceeding.
Evidence would consist of the statements
recorded by the Police or the documents
produced before the Court.
17.4. If the evidence, which the Prosecutor
proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is
challenged in cross-examination or rebutted
by the defence evidence, if any, "cannot show
that the accused committed offence, then,
there will be no sufficient ground for
proceeding with the trial".
17.5. It is open to the accused to explain
away the materials giving rise to the grave
suspicion.
17.6. The court has to consider the broad
probabilities, the total effect of the evidence
and the documents produced before the court,
any basic infirmities appearing in the case
and so on. This, however, would not entitle
the court to make a roving inquiry into the
pros and cons.
17.7. At the time of framing of the charges,
the probative value of the material on record
cannot be gone into, and the material brought
on record by the prosecution, has to be
accepted as true. viii. There must exist some
materials for entertaining the strong
suspicion
which can form the basis for drawing up a
charge and refusing to discharge the accused.
17.8. There must exist some materials for
entertaining the strong suspicion which can
form the basis for drawing up a charge and
refusing to discharge the accused.
18. The defence of the accused is not to be
looked into at the stage when the accused
seeks to be discharged under Section 227 of
the Cr.PC (See State of J & K v. Sudershan
Chakkar (1995) 4 SCC). The expression, "the
record of the case", used in Section 227 of the
Cr.PC, is to be understood as the documents
and the articles, if any, produced by the
prosecution. The Code does not give any right
to the accused to produce any document at
the stage of framing of the 3 AIR 1995 SC
1954 charge. At the stage of framing of the
charge, the submission of the accused is to be
confined to the material produced by the
Police (See State of Orissa v. Debendra Nath
Padhi (2005) 1 SCC 568).
28. It is here that again it becomes necessary
that we remind ourselves of the contours of
the jurisdiction under Section 227 of the
Cr.PC. The principle established is to take the
materials produced by the prosecution, both
in the form of oral statements and also
documentary material, and act upon it
without it been subjected to questioning
through cross-examination and everything
assumed in favour of the prosecution, if a
scenario emerges where no offence, as
alleged, is made out against the accused, it,
undoubtedly, would ensure to the benefit of
the accused warranting the Trial Court to
discharge the accused.
29. It is not open to the accused to rely on
material by way of defence and persuade the
court to discharge him.
30. However, what is the meaning of the
expression "materials on the basis of which
grave suspicion is aroused in the mind of the
court's", which is not explained away? Can
the accused explain away the material only
with reference to the materials produced by
the prosecution? Can the accused rely upon
material which he chooses to produce at the
stage?
31. In view of the decisions of this Court that
the accused can only rely on the materials
which are produced by the prosecution, it
must be understood that the grave suspicion,
if it is established on the materials, should be
explained away only in terms of the materials
made available by the prosecution. No doubt,
the accused may appeal to the broad
probabilities to the case to persuade the court
to discharge him."
10. Recently also, Hon'ble Apex Court in Ram Prakash Chadha Vs. State of Uttar
Pradesh, (2024) 10 SCC 651, after referring earlier pronouncement on the issue, has
laid down the principles that need to be kept in mind for discharge or framing of charge.
The Hon'ble Apex Court in Ram Prakash Chadha (supra) has observed and held as
under :
3.-------------, we should bear in mind that exercise of power under Section
227CrPC, is legally permissible only by considering "the record of the case
and the documents submitted therewith". Therefore, necessarily, the question is
what is the meaning of the expression "the record of the case and documents
submitted therewith"? According to us, it refers only to the materials produced
by the prosecution and not by the accused. A three-Judge Bench of this Court
considered this question in State of Orissa v. Debendra Nath Padhi, (2005) 1
SCC 568. It was held that the said expression as postulated in Section
227CrPC, relates to the case and the documents referred to under Section
209CrPC.
16. We have already considered the meaning of the expression "the record of
the case and the documents submitted therewith" relying on the decision
in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 only to reassure
as to what are the materials falling under the said expression and thus,
available for consideration of an application filed for discharge under Section
227 of CrPC. In the light of the same, there cannot be any doubt with respect to
the position that at the stage of consideration of such an application for
discharge, defence case or material, if produced at all by the accused, cannot be
looked at all. Once "the record of the case and the documents submitted
therewith" are before the Court they alone can be looked into for considering
the application for discharge and thereafter if it considers that there is no
sufficient ground for proceeding against the accused concerned then he shall be
discharged after recording reasons therefor. In that regard, it is only appropriate
to consider the authorities dealing with the question as to what exactly is the
scope of consideration and what should be the manner of consideration while
exercising such power.
18. In the decision in State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709
this Court held that at a stage of consideration of an application for discharge,
the Court has to proceed with an assumption that the materials brought on
record by the prosecution are true, and evaluate the materials to find out
whether the facts taken at their face value disclose the existence of the
ingredients constituting the offence. At this stage, only the probative value of
the materials has to be gone into and the court is not expected to go deep into
the matter to hold a mini-trial.
20. We are in agreement with the said view taken by the High Court. At the
same time, we would add that the strong suspicion in order to be sufficient to
frame a charge should be based on the material brought on record by the
prosecution and should not be based on supposition, suspicions and
conjectures. In other words, in order to be a basis to frame charge the strong
suspicion should be the one emerging from the materials on record brought by
the prosecution.
21. In the decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal
Chordia, (1989) 1 SCC 715, this Court held that the word "ground" in Section
227CrPC, did not mean a ground for conviction, but a ground for putting the
accused on trial.
22. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, after extracting
Section 227CrPC, this Court in paras 10 and 11 held thus: (SCC pp. 401-402)
"10. ... If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage he is not to see
whether the trial will end in conviction or acquittal. Further, the words
"not sufficient ground for proceeding against the accused" clearly show
that the Judge is not a mere post office to frame the charge at the behest of
the prosecution, but has to exercise his judicial mind to the facts of the
case in order to determine whether a case for trial has been made out by
the prosecution. In assessing this fact, it is not necessary for the court to
enter into the pros and cons of the matter or into a weighing and balancing
of evidence and probabilities which is really the function of the court,
after the trial starts.
11. At the stage of Section 227, the Judge has merely to sift the evidence
in order to find out whether or not there is sufficient ground for
proceeding against the accused. In other words, the sufficiency of ground
would take within its fold the nature of the evidence recorded by the
police or the documents produced before the court which ex facie disclose
that there are suspicious circumstances against the accused so as to frame
a charge against him."
24. In the light of the decisions referred supra, it is thus obvious that it will be
within the jurisdiction of the Court concerned to sift and weigh the evidence
for the limited purpose of finding out whether or not a prima facie case against
the accused concerned has been made out. We are of the considered view that a
caution has to be sounded for the reason that the chances of going beyond the
permissible jurisdiction under Section 227CrPC, and entering into the scope of
power under Section 232CrPC, cannot be ruled out as such instances are
aplenty. In this context, it is relevant to refer to a decision of this Court in Om
Parkash Sharma v. CBI, (2000) 5 SCC 679. Taking note of the language of
Section 227 CrPC, is in negative terminology and that the language in Section
232CrPC, is in the positive terminology and considering this distinction
between the two, this Court held that it would not be open to the Court while
considering an application under Section 227CrPC, to weigh the pros and cons
of the evidence alleged improbability and then proceed to discharge the
accused holding that the statements existing in the case therein are unreliable.
It is held that doing so would be practically acting under Section 232CrPC,
even though the said stage has not reached. In short, though it is permissible to
sift and weigh the materials for the limited purpose of finding out whether or
not a prima facie case is made out against the accused, on appreciation of the
admissibility and the evidentiary value such materials brought on record by the
prosecution is impermissible as it would amount to denial of opportunity to the
prosecution to prove them appropriately at the appropriate stage besides
amounting to exercise of the power coupled with obligation under Section
232CrPC, available only after taking the evidence for the prosecution and
examining the accused.
25. Even after referring to the aforesaid decisions, we think it absolutely
appropriate to refer to a decision of the Madhya Pradesh High Court
in Kaushalya Devi v. State of M.P., 2003 SCC OnLine MP 672, It was held in
the said case that if there is no legal evidence, then framing of charge would be
groundless and compelling the accused to face the trial is contrary to the
procedure offending Article 21 of the Constitution of India. While agreeing
with the view, we make it clear that the expression "legal evidence" has to be
construed only as evidence disclosing prima facie case, " the record of the case
and the documents submitted therewith".
26. The stage of Section 227CrPC, is equally crucial and determinative to both
the prosecution and the accused, we will dilate the issue further. In this context,
certain other aspects also require consideration. It cannot be said that Section
227CrPC, is couched in negative terminology without a purpose. Charge-sheet
is a misnomer for the final report filed under Section 173(2)CrPC, which is not
a negative report and one that carries an accusation against the accused
concerned of having committed the offence(s) mentioned therein.
27. In cases, where it appears that the said offence(s) is one triable exclusively
by the Court of Session, the Magistrate shall have to commit the case to the
Court of Session concerned following the prescribed procedures under CrPC.
In such cases, though it carries an accusation as aforementioned still legislature
thought it appropriate to provide an inviolable right as a precious safeguard for
the accused, a pre-battle protection under Section 227CrPC. Though this
provision is couched in negative it obligated the court concerned to unfailingly
consider the record of the case and document submitted therewith and also to
hear the submissions of the accused and the prosecution in that behalf to arrive
at a conclusion as to whether or not sufficient ground for proceeding against
the accused is available there under. Certainly, if the answer of such
consideration is in the negative, the court is bound to discharge the accused and
to record reasons therefor. The corollary is that the question of framing the
charge would arise only in a case where the court upon such exercise satisfies
itself about the prima facie case revealing from "the record of the case and the
documents submitted therewith" against the accused concerned. In short, it can
be said in that view of the matter that the intention embedded is to ensure that
an accused will be made to stand the ordeal of trial only if "the record of the
case and the documents submitted therewith" discloses ground for proceeding
against him. When that be so, in a case where an application is filed for
discharge under Section 227CrPC, it is an irrecusable duty and obligation of
the Court to apply its mind and answer to it regarding the existence of or
otherwise, of ground for proceeding against the accused, by confining such
consideration based only on the record of the case and the documents
submitted therewith and after hearing the submissions of the accused and the
prosecution in that behalf. To wit, such conclusion on existence or otherwise of
ground to proceed against the accused concerned should not be and could not
be based on mere suppositions or suspicions or conjectures, especially not
founded upon material available before the Court. We are not oblivious of the
fact that normally, the Court is to record his reasons only for discharging an
accused at the stage of Section 227 CrPC. However, when an application for
discharge is filed under Section 227 CrPC, the Court concerned is bound to
disclose the reason(s), though, not in detail, for finding sufficient ground for
rejecting the application or in other words, for finding prima facie case, as it
will enable the superior court to examine the challenge against the order of
rejection."
Legal principles pertaining to as to whether consent given by prosecutrix is
free or under misconception of fact i.e. on false pretext of marriage :-
11. Above issue has been dealt by Hon'ble Apex Court in a number of
pronouncements. Hon'ble Apex in Pramod Suryabhan Pawar Vs. State of
Maharashtra and Another, (2019) 9 SCC 608, after discussing the issue, has held as
under :-
"10. Where a woman does not "consent" to the sexual acts described in the
main body of Section 375, the offence of rape has occurred. While Section 90
does not define the term "consent", a "consent" based on a "misconception of
fact" is not consent in the eye of the law.
11. The primary contention advanced by the complainant is that the appellant
engaged in sexual relations with her on the false promise of marrying her, and
therefore her "consent", being premised on a "misconception of fact" (the
promise to marry), stands vitiated.
12. This Court has repeatedly held that consent with respect to Section 375 IPC
involves an active understanding of the circumstances, actions and
consequences of the proposed act. An individual who makes a reasoned choice
to act after evaluating various alternative actions (or inaction) as well as the
various possible consequences flowing from such action or inaction, consents
to such action. In Dhruvaram Murlidhar Sonar v. State of Maharashtra,
(2019) 18 SCC 191, which was a case involving the invoking of the
jurisdiction under Section 482, this Court observed : (SCC para 15)
"15. ... An inference as to consent can be drawn if only based on evidence
or probabilities of the case. "Consent" is also stated to be an act of reason
coupled with deliberation. It denotes an active will in mind of a person to
permit the doing of the act complained of."
This understanding was also emphasised in the decision of this Court in Kaini
Rajan v. State of Kerala, (2013) 9 SCC 113 : (SCC p. 118, para 12)
"12. ... "Consent", for the purpose of Section 375, requires voluntary
participation not only after the exercise of intelligence based on the
knowledge of the significance of the moral quality of the act but after
having fully exercised the choice between resistance and assent. Whether
there was consent or not, is to be ascertained only on a careful study of all
relevant circumstances."
14. In the present case, the "misconception of fact" alleged by the complainant
is the appellant's promise to marry her. Specifically in the context of a promise
to marry, this Court has observed that there is a distinction between a false
promise given on the understanding by the maker that it will be broken, and the
breach of a promise which is made in good faith but subsequently not fulfilled.
In Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : (SCC para 12)
"12. The sum and substance of the aforesaid decisions would be that if it is
established and proved that from the inception the accused who gave the
promise to the prosecutrix to marry, did not have any intention to marry
and the prosecutrix gave the consent for sexual intercourse on such an
assurance by the accused that he would marry her, such a consent can be
said to be a consent obtained on a misconception of fact as per Section 90
IPC and, in such a case, such a consent would not excuse the offender and
such an offender can be said to have committed the rape as defined under
Sections 375 IPC and can be convicted for the offence under Section 376
IPC."
Similar observations were made by this Court in Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (SCC p. 682, para 21)
"21. ... 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;"
15. In Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615 : the accused
forcibly established sexual relations with the complainant. When she asked the
accused why he had spoiled her life, he promised to marry her. On this
premise, the accused repeatedly had sexual intercourse with the complainant.
When the complainant became pregnant, the accused refused to marry her.
When the matter was brought to the panchayat, the accused admitted to having
had sexual intercourse with the complainant but subsequently absconded.
Given this factual background, the Court observed : (SCC pp. 620-21, para 10)
"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 the 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 persuading 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."
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 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. The "consent" of a woman under Section 375 is vitiated
on the ground of a "misconception of fact" where such misconception was the
basis for her choosing to engage in the said act. In Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675, this Court observed : (SCC pp. 682-84, paras 21
& 24)
"21. ... 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.
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 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, [Ed. : The matter between two asterisks has been
emphasised in original.] unless the court is assured of the fact that from the
very beginning, the accused had never really intended to marry her [Ed. :
The matter between two asterisks has been emphasised in original.] ."
(emphasis supplied)
17. In Uday v. State of Karnataka, (2003) 4 SCC 46, the complainant was a
college-going student when the accused promised to marry her. In the
complainant's statement, she admitted that she was aware that there would be
significant opposition from both the complainant's and accused's families to the
proposed marriage. She engaged in sexual intercourse with the accused but
nonetheless kept the relationship secret from her family. The Court observed
that in these circumstances the accused's promise to marry the complainant was
not of immediate relevance to the complainant's decision to engage in sexual
intercourse with the accused, which was motivated by other factors : (SCC p.
58, para 25)
"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 are madly in love, that they promise to each other
several times that come what may, they will get married."
(emphasis supplied)
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."
12. Similarly Hon'ble Apex Court in Dr.Dhruvarma Murlidhar Sonar Vs. State of
Maharashtra and Others, (2019) 18 SCC 191, has also discussed the issue and has
held as under :
"15. Section 375 defines the offence of rape and enumerates six descriptions
of the offence. The first clause operates where the woman is in possession of
her senses and, therefore, capable of consenting but the act is done against her
will and the second where it is done without her consent; the third, fourth and
fifth when there is consent but it is not such a consent as excuses the offender,
because it is obtained by putting her, or any person in whom she is interested,
in fear of death or of hurt. The expression "against her 'will' " means that the
act must have been done in spite of the opposition of the woman. An inference
as to consent can be drawn if only based on evidence or probabilities of the
case. "Consent" is also stated to be an act of reason coupled with deliberation.
It denotes an active will in mind of a person to permit the doing of the act
complained of.
16. Section 90 IPC defines "consent" known to be given under fear or
misconception:
"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;"
17. Thus, Section 90 though does not define "consent", but describes what is
not "consent". Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. If the consent is given by the
complainant under misconception of fact, it is vitiated. Consent for the
purpose of Section 375 requires voluntary participation not only after the
exercise of intelligence based on the knowledge of the significance and moral
quality of the act, but also after having fully exercised the choice between
resistance and assent. Whether there was any consent or not is to be
ascertained only on a careful study of all relevant circumstances.
18. In Uday v. State of Karnataka, (2003) 4 SCC 46, this Court was
considering a case where the prosecutrix, aged about 19 years, had given
consent to sexual intercourse with the accused with whom she was deeply in
love, on a promise that he would marry her on a later date. The prosecutrix
continued to meet the accused and often had sexual intercourse and became
pregnant. A complaint was lodged on failure of the accused to marry her. It
was held that consent cannot be said to be given under a misconception of
fact. It was held thus : (SCC pp. 56-57, paras 21 & 23)
"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.
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 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."
19. In Deelip Singh v. State of Bihar, (2005) 1 SCC 88, the Court framed the
following two questions relating to consent : (SCC p. 104, para 30)
(1) Is it a case of passive submission in the face of psychological pressure
exerted or allurements made by the accused or was it a conscious decision
on the part of the prosecutrix knowing fully the nature and consequences of
the act she was asked to indulge in?
(2) Whether the tacit consent given by the prosecutrix was the result of a
misconception created in her mind as to the intention of the accused to
marry her?
In this case, the girl lodged a complaint with the police stating that she and the
accused were neighbours and they fell in love with each other. One day in
February 1988, the accused forcibly raped her and later consoled her by
saying that he would marry her. 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 girl to
establish the marital tie failed. Therefore, she was constrained to file the
complaint after waiting for some time.20. With this factual background, the
Court held that the girl had taken a conscious decision, after active application
of mind to the events that had transpired. It was further held that at best, it is a
case of breach of promise to marry rather than a case of false promise to
marry, for which the accused is prima facie accountable for damages under
civil law. It was held thus : Deelip Singh v. State of Bihar, (2005) 1 SCC 88 ,
SCC p. 106, para 35)
"35. The remaining question is whether on the basis of the evidence on
record, it is reasonably possible to hold that the accused with the fraudulent
intention of inducing her to sexual intercourse, made a false promise to
marry. We have no doubt that the accused did hold out the promise to
marry her and that was the predominant reason for the victim girl to agree
to the sexual intimacy with him. PW 12 was also too keen to marry him as
she said so specifically. But we find no evidence which gives rise to an
inference beyond reasonable doubt that the accused had no intention to
marry her at all from the inception and that the promise he made was false
to his knowledge. No circumstances emerging from the prosecution
evidence establish this fact. On the other hand, the statement of PW 12 that
"later on", the accused became ready to marry her but his father and others
took him away from the village would indicate that the accused might have
been prompted by a genuine intention to marry which did not materialise
on account of the pressure exerted by his family elders. It seems to be a
case of breach of promise to marry rather than a case of false promise to
marry. On this aspect also, the observations of this Court in Uday v. State
of Karnataka, (2003) 4 SCC 46 at para 24 come to the aid of the
appellant."
21. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 , the Court has
drawn a distinction between rape and consensual sex. This is a case of a
prosecutrix aged 19 years at the time of the incident. She had an inclination
towards the accused. The accused had been giving her assurances of the fact
that he would get married to her. The prosecutrix, therefore, left her home
voluntarily and of her own free will to go with the accused to get married to
him. She called the accused on a phone 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 a place called Karna Lake where they indulged in sexual
intercourse. She did not raise any objection at that stage and made no
complaints to anyone. Thereafter, she went to Kurukshetra with the accused,
where she lived with his relatives. Here too, the prosecutrix voluntarily
became intimate with the accused. She then, for some reason, went to live in
the hostel at Kurukshetra University illegally, and once again came into
contact with the accused at Birla Mandir there. Thereafter, she even proceeded
with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so
that the two of them could get married at the court in Ambala. At the bus
station, the accused was arrested by the police. The Court held that the
physical relationship between the parties had clearly developed with the
consent of the prosecutrix as there was neither a case of any resistance nor had
she raised any complaint anywhere at any time, despite the fact that she had
been living with the accused for several days and had travelled with him from
one place to another. The Court further held that it is not possible to
apprehend the circumstances in which a charge of deceit/rape can be levelled
against the accused.
22. Recently, this Court, in Shivashankar v. State of Karnataka, (2019) 18 SCC
204, disposed of on 6-4-2018, has observed that it is difficult to hold that sexual
intercourse in the course of a relationship which has continued for eight years is
"rape", especially in the face of the complainant's own allegation that they lived
together as man and wife. It was held as under :[Shivashankar v. State of
Karnataka, (2019) 18 SCC 204], SCC p. 205, para 4)
"4. In the facts and circumstances of the present case, it is difficult to
sustain the charges levelled against the appellant who may have possibly,
made a false promise of marriage to the complainant. It is, however,
difficult to hold sexual intercourse in the course of a relationship which has
continued for eight years, as "rape" especially in the face of the
complainant's own allegation that they lived together as man and wife."
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."
13. Recently, three Judges Bench of Hon'ble Apex court in Maheshwar Tigga Vs.
State of Jharkhand, (2020) 10 SCC 108, after referring and relying upon earlier
pronouncement, has held as under :
"13. The question for our consideration is whether the prosecutrix consented
to the physical relationship under any misconception of fact with regard to the
promise of marriage by the appellant or was her consent based on a fraudulent
misrepresentation of marriage which the appellant never intended to keep since
the very inception of the relationship. If we reach the conclusion that he
intentionally made a fraudulent misrepresentation from the very inception and
the prosecutrix gave her consent on a misconception of fact, the offence of rape
under Section 375 IPC is clearly made out. It is not possible to hold in the
nature of evidence on record that the appellant obtained her consent at the
inception by putting her under any fear. Under Section 90 IPC a consent given
under fear of injury is not a consent in the eye of the law. In the facts of the
present case, we are not persuaded to accept the solitary statement of the
prosecutrix that at the time of the first alleged offence her consent was obtained
under fear of injury.
14. Under Section 90 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. It hardly needs any elaboration that the consent by the appellant was a
conscious and informed choice made by her after due deliberation, it being
spread over a long period of time coupled with a conscious positive action not
to protest. The prosecutrix in her letters to the appellant also mentions that
there would often be quarrels at her home with her family members with
regard to the relationship, and beatings given to her.
15. In Uday v. State of Karnataka, (2003) 4 SCC 46, the appellant and the
prosecutrix resided in the same neighbourhood. As they belonged to different
castes, a matrimonial relationship could not fructify even while physical
relations continued between them on the understanding and assurance of
marriage. This Court observed as follows : (SCC pp. 56-57, para 21)
"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."
16. The appellant, before the High Court, relied upon Kaini Rajan v. State of
Kerala, (2013) 9 SCC 113 in his defence. The facts were akin to the present
case. The physical relationship between the parties was established on the
foundation of a promise to marry. This Court set aside the conviction under
Section 376 IPC also noticing K.P. Thimmappa Gowda v. State of Karnataka,
(2011) 14 SCC 475. Unfortunately, the High Court did not even consider it
necessary to deal with the same much less distinguish it, if it was possible. It is
indeed unfortunate that despite a judicial precedent of a superior court having
been cited, the High Court after mere recitation of the facts and the respective
arguments, cryptically in one paragraph opined that in the nature of the
evidence, the letters, the photograph of the appellant with the prosecutrix and
the statement of the appellant under Section 313 CrPC, his conviction and
sentence required no interference.
17. This Court recently in Dhruvaram Murlidhar Sonar v. State of
Maharashtra, (2019) 18 SCC 191 and in Pramod Suryabhan Pawar v. State
of Maharashtra, (2019) 9 SCC 608, arising out of an application under
Section 482 CrPC 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.
18. We have given our thoughtful consideration to the facts and circumstances
of the present case and are of the considered opinion that the appellant did not
make any false promise or intentional misrepresentation of marriage leading to
establishment of physical relationship between the parties. The prosecutrix was
herself aware of the obstacles in their relationship because of different religious
beliefs. An engagement ceremony was also held in the solemn belief that the
societal obstacles would be overcome, but unfortunately differences also arose
whether the marriage was to solemnised in the church or in a temple and
ultimately failed. It is not possible to hold on the evidence available that the
appellant right from the inception did not intend to marry the prosecutrix ever
and had fraudulently misrepresented only in order to establish physical relation
with her. The prosecutrix in her letters acknowledged that the appellant's
family was always very nice to her."
14. Likewise, in the case of Sonu alias Subhash Kumar Vs. State of Uttar
Pradesh and Another, (2021) 18 SCC 517, the Hon'ble Apex Court has observed as
under:-
"10. Bearing in mind the tests which have been enunciated in the above
decision [Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9
SCC 608, 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 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 482CrPC on the
basis that it was only the evidence at trial which would lead to a
determination as to whether an offence was established."
15. The Hon'ble Apex Court in the case of Uday Vs. State of Karnataka, (2003) 4
SCC 46, has dealt with the issue in detail considering the respective provisions of IPC
i.e. Section 375 and Section 90 of IPC and has observed as under :
"9. We may at the threshold notice the relevant provisions of the Penal
Code, 1860, namely, Section 375 and Section 90 which read as follows:
"375. Rape.--A man is said to commit 'rape' who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions--
First.--Against her will.
Secondly.--Without her consent.
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 sixteen
years of age.
Explanation.--Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.--Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape."
"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."
10. Learned counsel for the appellant submitted that in the context of Section
375 of the Penal Code, 1860, which is a special provision, the general
provision, namely, Section 90 of the Penal Code, 1860 was not of much
assistance to the prosecution. According to him, Section 375 Thirdly, Fourthly
and Fifthly exhaustively enumerate the circumstances in which the consent
given by the prosecutrix is vitiated and does not amount to consent in law.
According to him, one has to look to Section 375 alone for finding out whether
the offence of rape had been committed. Secondly, he submitted that even
under Section 90 of the Penal Code, 1860 the consent is vitiated only if it is
given under a misconception of fact. A belief that the promise of marriage was
meant to be fulfilled is not a misconception of fact. The question of
misconception of fact will arise only if the act consented to, is believed by the
person consenting to be something else, and on that pretext sexual intercourse
is committed. In such cases it cannot be said that she consented to sexual
intercourse. He sought to illustrate this point by reference to English cases
where a medical man had sexual intercourse with a girl who suffered from a
bona fide belief that she was being medically treated, or where under the
pretence of performing surgery a surgeon had carnal intercourse with her.
In Stroud's Judicial Dictionary (5th Edn.) p. 510 "consent" has been given the
following meaning:
"Consent is an act of reason, accompanied with deliberation, the
mind weighing, as in a balance, the good and evil on each side."
It refers to the case of Holman v. R. [1970 WAR 2] wherein it was held
that
"there does not necessarily have to be complete willingness to
constitute consent. A woman's consent to intercourse may be hesitant,
reluctant or grudging, but if she consciously permits it there is
consent".
Similar was the observation in R. v. Olugboja [(1981) 3 WLR 585 :
(1981) 3 All ER 443 : 1982 QB 320 (CA)] wherein it was observed
that "consent in rape covers states of mind ranging widely from actual
desire to reluctant acquiescence, and the issue of consent should not be
left to the jury without some further direction". Stephen, J.
in R. v. Clarence [(1888) 22 QBD 23 : (1886-90) All ER Rep 133 :
58 LJMC 10] observed: (All ER p. 144 C-D)
"It seems to me that the proposition that fraud vitiates consent
in criminal matters is not true if taken to apply in the fullest
sense of the word, and without qualification. It is too short to be
true, as a mathematical formula is true."
Wills, J. observed: (All ER p. 135 I)
"That consent obtained by fraud is no consent at all is not true
as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in
order to procure her consent to intercourse with him, he obtains
her consent by fraud, but it would be childish to say that she did
not consent."
11. Some of the decisions referred to in Words and Phrases, Permanent
Edition, Vol. 8A at p. 205 have held
"that adult female's understanding of nature and consequences of
sexual act must be intelligent understanding to constitute 'consent'.
Consent within penal law, defining rape, requires exercise of
intelligence based on knowledge of its significance and moral quality
and there must be a choice between resistance and assent. Legal
consent, which will be held sufficient in a prosecution for rape,
assumes a capacity to the person consenting to understand and
appreciate the nature of the act committed, its immoral character, and
the probable or natural consequences which may attend it".
(See People v. Perry [26 Cal App 143] .)
12. The courts in India have by and large adopted these tests to discover
whether the consent was voluntary or whether it was vitiated so as not to be
legal consent. In Rao Harnarain Singh Sheoji Singh v. State Punj 123 : 1958
Cri LJ 563 : 59 Punj LR 519] it was observed: (AIR p. 126, para 7)
"7. A mere act of helpless resignation in the face of inevitable
compulsion, quiescence, non-resistance, or passive giving in, when
volitional faculty is either clouded by fear or vitiated by duress,
cannot be deemed to be 'consent' as understood in law. Consent, on
the part of a woman as a defence to an allegation of rape, requires
voluntary participation, not only after the exercise of intelligence,
based on the knowledge, of the significance and moral quality of the
act, but after having freely exercised a choice between resistance and
assent.
Submission of her body under the influence of fear or terror is no
consent. There is a difference between consent and submission. Every
consent involves a submission but the converse does not follow and a
mere act of submission does not involve consent. Consent of the girl
in order to relieve an act, of a criminal character, like rape, must be an
act of reason, accompanied with deliberation, after the mind has
weighed as in a balance, the good and evil on each side, with the
existing capacity and power to withdraw the assent according to one's
will or pleasure."
13. The same view was expressed by the High Court of Kerala in Vijayan
Pillai v. State of Kerala [(1989) 2 Ker LJ 234] . Balakrishnan, J., as he then
was, observed: (Ker LJ pp. 238-39, para 10)
"10. The vital question to be decided is whether the above circumstances
are sufficient to spell out consent on the part of PW 1. In order to prove
that there was consent on the part of the prosecutrix it must be established
that she freely submitted herself while in free and unconstrained
possession of her physical and mental power to act in a manner she
wanted. Consent is an act of reason accompanied by deliberation, a mere
act of helpless resignation in the face of inevitable compulsion, non-
resistance and passive giving in cannot be deemed to be 'consent'.
Consent means active will in the mind of a person to permit the doing of
the act of and knowledge of what is to be done, or of the nature of the act
that is being done is essential to a consent to an act. Consent supposes a
physical power to act, a moral power of acting and a serious and
determined and free use of these powers. Every consent to act involves
submission, but it by no means follows that a mere submission involves
consent. In Jowitt's Dictionary of English Law, IInd Edn., Vol. 1 explains
consent as follows:
'An act of reason accompanied with deliberation, the mind weighing, as
in a balance, the good or evil on either side. Consent supposes three things
-- a physical power, a mental power and a free and serious use of them.
Hence it is that if consent be obtained by intimidation, force, mediated
imposition, circumvention, surprise, or undue influence, it is to be treated
as a delusion, and not as a deliberate and free act of the mind.' "
14. In Anthony, In re [AIR 1960 Mad 308 : 1960 Cri LJ 927] , Ramaswami,
J. in his concurring opinion fully agreed with the principle laid down in Rao
Harnarain Singh case [AIR 1958 Punj 123 : 1958 Cri LJ 563 : 59 Punj LR
519] and went on to observe: (AIR pp. 311-12, para 21)
"A woman is said to consent only when she agrees to submit herself while
in free and unconstrained possession of her physical and moral power to
act in a manner she wanted. Consent implies the exercise of a free and
untrammelled right to forbid or withhold what is being consented to; it
always is a voluntary and conscious acceptance of what is proposed to be
done by another and concurred in by the former."
16. The High Court of Calcutta has also consistently taken the view that the
failure to keep the promise on a future uncertain date does not always amount to
misconception of fact at the inception of the act itself. In order to come within
the meaning of misconception of fact, the fact must have an immediate
relevance. In Jayanti Rani Panda v. State of W.B. [1984 Cri LJ 1535 : (1983)
2 CHN 290 (Cal)] the facts were somewhat similar. The accused was a teacher
of the local village school and used to visit the residence of the prosecutrix. One
day during the absence of the parents of the prosecutrix he expressed his love
for her and his desire to marry her. The prosecutrix was also willing and the
accused promised to marry her once he obtained the consent of his parents.
Acting on such assurance the prosecutrix started cohabiting with the accused
and this continued for several months during which period the accused spent
several nights with her. Eventually when she conceived and insisted that the
marriage should be performed as quickly as possible, the accused suggested an
abortion and agreed to marry her later. Since the proposal was not acceptable to
the prosecutrix, the accused disowned the promise and stopped visiting her
house. A Division Bench of the Calcutta High Court noticed the provisions of
Section 90 of the Penal Code, 1860 and concluded: (Cri LJ p. 1538, para 7)
"The failure to keep the promise at a future uncertain date due to reasons
not very clear on the evidence does not always amount to a misconception
of fact at the inception of the act itself. In order to come within the
meaning of misconception of fact, the fact must have an immediate
relevance. The matter would have been different if the consent was
obtained by creating a belief that they were already married. In such a case
the consent could be said to result from a misconception of fact. But here
the fact alleged is a promise to marry we do not know when. If a full-
grown girl consents to the act of sexual intercourse on a promise of
marriage and continues to indulge in such activity until she becomes
pregnant it is an act of promiscuity on her part and not an act induced by
misconception of fact. Section 90 IPC cannot be called in aid in such a
case to pardon the act of the girl and fasten criminal liability on the other,
unless the Court can be assured that from the very inception the accused
never really intended to marry her."
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. The approach to the subject of consent as indicated by the Punjab High
Court in Rao Harnarain Singh [AIR 1958 Punj 123 : 1958 Cri LJ 563 : 59
Punj LR 519] and by the Kerala High Court in Vijayan Pillai [(1989) 2 Ker
LJ 234] has found approval by this Court in State of H.P. v. Mango
Ram [(2000) 7 SCC 224 : 2000 SCC (Cri) 1331]. Balakrishnan, J. speaking for
the Court observed: (SCC pp. 230-31, para 13)
"The evidence as a whole indicates that there was resistance by the
prosecutrix and there was no voluntary participation by her for the
sexual act. Submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the purpose of Section
375 requires voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and moral
quality of the act but after having fully exercised the choice between
resistance and assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant circumstances."
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 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.
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 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."
Factual analysis of the case :-
16. Now, in the light of principles of law enunciated in aforesaid pronouncements,
facts of the case would be examined and considered. But for the same, it would be
appropriate to reproduce written report filed by the prosecutrix and statements of
prosecutrix recorded under Section 164 and 161 of Cr.P.C. which are as follows :
Written report
izkfFkZ;k dk fyf[kr vkosnu
"lsok esa]
Jheku Fkkuk izHkkjh egksn;]
Fkkuk jktsUnzxzke ftyk vuwiiqj ¼e-iz-½
fo"k; & Qfj;kfn;k ds lkFk vt; pkS/kjh fuoklh :axVk dkyksuh cq<kj ds }kjk 'kknh dk >klk
nsdj cykRdkj djus ds lEcU/k esa A
egksn;]
fuosnu gS fd eSa izkfFkZ;k ------------------- mez 24 o"kZ ---------------] izkFkfed fo|ky; -------- esa
vfrfFk f'k{kd gwa] o"kZ 2019 esa esjh tku igpku vt; pkS/kjh fuoklh :axVk dkyksuh cq<kj ds
lkFk gqbZ FkhA ftlds ckn vt; pkS/kjh }kjk cksyk x;k fd eSa rqEgsa iRuh cukdj j[kwaxk dgdj
'kknh dk >kalk ndj esjs ?kj g"kZokg esa esjs lkFk ckj&ckj 'kkjhfjd lEcU/k cukrk jgk] ckn esa eSa
vt; pkS/kjh dks 'kknh djus ds fy;s cksyh rks vt; pkS/kjh 'kknh djus ls budkj dj fn;k vkSj
esjs ls fcuk crk;s nwljh 'kknh dj jgk gSA vr% Jheku th ls fuosnu gS fd vt; pkS/kjh ds
fo:) mfpr dk;Zokgh dh tk;sA
पारररया
--------------------
mez 24 o"kZ ---------""
Statement of prosecutrix recorded under Section 164 of Cr.P.C. :
"01- eSa vius ekrk&firk ,oa nknh ds lkFk xzke ---------esa jgrh gwa A eS izkFkfed fo|ky; ------- ------
esa vfrfFk f'k{kd ds :i esa dk;Zjr gwaA eS vfHk;qDr vt; pkS/kjh dks tkurh gwa] tks ,l-bZ-
lh-,y- /kuiqjh esa xkMZ ds :i esa dk;Zjr gS A o"kZ 2019 esa vt; pkS/kjh fuoklh :axVk dkyksuh
cq<kj ls fookg ds lEcU/k esa ckr phr gqbZ Fkh rFkk esjs ifjokj okyksa us mlls esjk fookg djus
dk fu'p; fd;k Fkk] ftl dkj.k ls vt; pkS/kjh eq>ls feyus esjs ?kj ------ vkrk tkrk FkkA o"kZ
2019 ls o"kZ 2021 ds chp vt; pk/skjh eq>ls feyus esjs ?kj yxHkx 15&20 ckj vk;k Fkk vkSj
og ges'kk 'kke dks vkrk Fkk vkSj jkr esa og M;wVh gksus ds dkj.k okil pyk tkrk FkkA og
vk[kjh ckj eq>ls feyus fnukad 25-02-21 dks vk;k FkkA tc tc vt; pkS/kjh eq>ls feyus esjs ?
kj g"kZokg vkrk Fkk] rc gj ckj mlds vkSj esjs e/; 'kkjhfjd lEcU/k LFkkfir gq;s FksA mDr
'kkjhfjd lEcU/k LFkkfir djrs oDr esjh lgefr ugha jgrh Fkh] ijUrq vt; pkS/kjh tcjtLrh
djrk FkkA vt; pkS/kjh us tc izFke ckj esjs lkFk ekg ekpZ o"kZ 2020 dks tcjtLrh 'kkjhfjd
lEcU/k LFkkfir fd;s Fks] ftlds ckjs esa eSus vius ekrk firk ls f'kdk;r dh Fkh] ftUgksaus mls [kwc
MkaVk FkkA mlds ckn Hkh vt; pkS/kjh esjs ?kj vkrk tkrk jgrk Fkk vkSj eq>ls dgrk Fkk fd ^^ rw
esjh iRuh gS vkSj esa rq>ls gh 'kknh d:axk^^A 'kkjhfjd lEcU/k LFkkfir djrs oDr esjs ?kj esa ekrk
th vkSj nhnh th ?kj ij gh jgrs Fks] ijUrq firk th ?kj ls ckgj x;s jgrs FksA blds ckn fnukad
26-03-21 dks esjs firk fookg ds lEcU/k esa ckr djus vt; pkS/kjh ds ekek&ekeh ls feyus xzke
cVqjk rglhy cq<kj x;s Fks] ftl ij vt; pkS/kjh ds eke&ekeh us esjs firk ds lkFk vHknz
O;ogkj fd;k ,oa xkyh xkykSp dh rFkk ;g dgrs gq;s esjs firk th dks Hkxk fn;k fd og
vuwiiqj dh yMdh ds lkFk vt; dk fookg djok;saxs A vt; pkS/kjh eq>ls 'kknh djuk pkgrk
gS] ijUrq mlds ekek&ekeh vkSj ekSlh mls eq>ls 'kknh djus ugha ns jgsa gS A""
Statement of prosecutrix recorded under Section 161 of Cr.P.C. :
"01- eSa mijksDr irs esa jgrh gwa A xzke ------ esa izkFkfed 'kkyk -------- esa vfrfFk f'k{kd ds :i esa
orZeku dk;Zjr gwaA vt; pkS/kjh dks eSa tkurh igpkurh gwa] tks ,l-bZ-lh-,y- /kuiqjh esa xkMZ
ds :i esa dk;Zjr gS A lu 2019 esa vt; pkS/kjh fuoklh :axVk dkyksuh ds lkFk 'kknh r; gqbZ
Fkh tks nksuksa ifjokjksa esa esjh 'kknh o vt; dh 'kknh ls [kq'k FksA vt; pkS/kjh eq>ls feyus esjs ?
kj g"kZokg vkrk tkrk FkkA lu 2019 ls o"kZ 2021 ds e/; vt; pkS/kjh esjs ?kj esjs ls feyus dbZ
ckj vkrk tkrk jgrk FkkA tc vt; pkS/kjh esjs ls feyus esjs ?kj g"kZokg esa ?kj vkrk Fkk vkSj esjs
ls cksyrk Fkk fd gekjh 'kknh gksus okyh gS dgdj esjs ls fcuk ethZ ds esjs ls 'kkjhfjd lEcU/k
cukrk FkkA ml le; esjs ?kj esa mldh eka o nknh -------- jgrs Fks ysfdu mldks ;g irk Fkk fd
vt; pkS/kjh 'kknh dh ckr phr djus ?kj vkrk Fkk ysfdu eka ------o nknh ----- dks ;g ugha irk
Fkk fd vt; pkS/kjh esjs ls tcjtLrh 'kkjhfjd lEcU/k cukrk Fkk] vt; pkS/kjh cksyrk Fkk fd
vxj rqe esjs lkFk 'kkjhfjd lEcU/k ugha cukvksxh rks eS rsjs ls 'kknh djus ls euk dj nwaxk
ftlls rqEgkjs ?kj dh cnukeh gksxh vkSj cksyrk Fkk fd ?kj esa fdlh dks er crkuk ugh arks esa
''kknh ugha d:axk dgrk FkkA ftlds dkj.k esa vius eka ]nknh o firk th dks ?kVuk dh ckr
ugha crkrh FkhA blds ckn fnukad 26-03-21 dks esjs firk vt; pkS/kjh ds ?kj xzke lejk dkyksuh
fookg ds lEcU/k esa ckr djus x;s Fks rc vt; pkS/kjh ''kknh djus ls badkj dj fn;k vkSj
vt; pkS/kjh ds ekek&ekeh vkSj ekSlh Hkh 'kknh ls badkj dj fn;s rc esa vius ekrk firk dks ?
kVuk crk;h Fkh rc eSa fnukad 05-04-21 dks vius ekrk frik ds lkFk vkdj vt; pkS/kjh ds
fo:) Fkkuk esa fjiksVZ ntZ djk;h FkhA esjh eka ----- o nknh -------dks esjs gq;s cykRdkj ds lEcU/k esa
igys ls ekyqe ugha Fkk tc esas ?kVuk dh ckr eka o nknh dks crk;h Fkh rc mudks ?kVuk dh
tkudkjh feyh FkhA ;gh esjk dFku gSA"
17. Thus, perusal of aforesaid written report filed by prosecutrix as well as
statements recorded under Sections 161 and 164 of Cr.P.C. of prosecutrix, reveals
following facts/allegations mentioned therein that are relevant for present purpose and
they are as follows :-
"(i) that, At relevant point of time, prosecutrix was aged
22-24 years;
(ii) that, At the relevant point of time, prosecutrix was
working as Guest teacher in Primary School;
(iii) that, incident is said to have occurred from 2019 to
2021 and prosecutrix filed written report on 05.04.2021;
(iv) that, in written report, it is only mentioned that
applicant established physical relation with prosecutrix
repeatedly on false pretext of marriage;
(v) that, In prosecutrix's statement recorded under
Section 164 of Cr.P.C., it is mentioned that in the
year 2019, talks were held with respect to
solemnization of marriage of prosecutrix with
applicant Ajay Choudhary and family members of
prosecutrix had decided to solemnize marriage of
prosecutrix with applicant and on account of which
applicant used to come to prosecutrix's house to meet
her;
(vi) that, similarly, in prosecutrix's statement
recorded under Section 161 of Cr.P.C., it is
mentioned that in the year 2019, prosecutrix's
marriage was fixed with applicant and both the
families were happy with prosecutrix and applicant's
marriage and on account of which applicant used to
come to the house of prosecutrix to meet her;
(vii) that, in statement of prosecutrix recorded under
Section 161 as well as 164 of Cr.P.C., it is mentioned
that in between 2019 to 2021, applicant had come
multiple times (15-20 times) to meet prosecutrix at
her house;
(viii) that, in prosecutrix's statement recorded under
Section 161 and 164 of Cr.P.C., it is mentioned that
applicant used to establish physical relation with
prosecutrix forcibly and without her consent;
(ix) that aforesaid facts are not mentioned in written
report filed by prosecutrix i.e. applicant used to
establish physical relation with prosecutrix forcibly
and without her consent;
(x) that, it is also evident from prosecutrix's
statement recorded under Section 161 as well as 164
of Cr.P.C. that physical relations between prosecutrix
and applicant have been established at the house of
prosecutrix and at that time, prosecutrix's mother
and grand-mother were always present in the house;
(xi) that, it is apparent from written report filed by
the prosecutrix as well as statement of prosecutrix's
recorded under Section 161 and 164 of Cr.P.C., that
prosecutrix did not make any complaint to her
mother/grand-mother about that applicant has
established physical relation with his forcibly and
without her consent;"
(xi) that, further, from prosecutrix's statement
recorded under Section 164 of Cr.P.C., it is evident
that applicant Ajay Choudhary intends/wishes to
marry prosecutrix but his maternal uncle and
aunt/Mausi are not permitting him to marry with
prosecutrix;
(xii) that, further, from the prosecutrix's statement
recorded under Sections 161 and 164 of Cr.P.C., it
appears that on 26.03.2021, when prosecutrix's
father had gone to meet applicant's maternal uncle
and aunt to discuss the matter about marriage, than,
some dispute took place between maternal uncle and
aunt and prosecutrix's father and thereafter,
maternal uncle and aunt of applicant refused to
marry applicant with prosecutrix."
Final Conclusions :-
18. Thus, if facts/allegations, as mentioned in the preceding para, are examined and
considered conjointly/cumulatively in the light of principles of law as discussed in the
foregoing paras, in this Court's considered opinion, even if the allegations as
mentioned in the preceding para are taken at their face value and accepted in their
entirety, they do not make out the case against applicant and it cannot be said that the
promise made by the applicant to marry was false.
19. Further, it is not a case of passive submission in the face of any psychological
pressure exerted and there was tacit consent and the tacit consent given by prosecutrix
was not the result of any misconception created in her mind. It is apparent that
prosecutrix had taken a decision after active application of mind to the things that had
happened. In the facts and circumstances of the case, it cannot be said that applicant
established physical relation with prosecutrix on false pretext of marriage.
20. Further, having regard to overall facts and circumstances of the case, prima facie, it
cannot be said that applicant established physical relation with prosecutrix forcibly and
without her consent. Hence, in this Court's considered opinion, material ingredients, for
constituting the offence of rape are missing in the present case.
21. Resultantly, in view of aforesaid, in this Court's considered opinion, there is no
sufficient grounds/material to prima facie proceed further against the applicant and
frame charges under section 376(2)(n) and 376 of IPC. Prima facie evidence collected
during investigating against applicant & filed with the charge-sheet do not make out
ingredients necessary to consitute offence under Section 376(2)(n) and 376 of IPC.
Learned trial Court has committed material/grave illegality in framing charge under
Section 376(2)(n) and 376 of IPC against the applicant.
22. Hence, in view of discussion in the foregoing paras & for the reasons stated as
above, instant criminal revision is allowed and the impugned order dated 05.10.2021
passed in S.T. No.81/2021 by Additional Sessions Judge, Rajendragram District
-Anuppur, being illegal/incorrect is hereby set aside & applicant is discharged with
respect to charge/offence under section 376(2)(n) and 376 of IPC.
23. Accordingly, this criminal revision is disposed off.
(ACHAL KUMAR PALIWAL)
JUDGE
sm
