Jagdish Prasad Gupta JUDGMENT
Jagdish Prasad Gupta, J.
1. The appellant has preferred this appeal against the judgment dated 08/01/2016 passed by the IIIrd Additional Sessions Judge, Burhanpur in S.T. No. 45/2015 whereby the appellant has been convicted for the offence under Section 376(2)(n) of the IPC and sentenced to undergo RI for 10 years with fine of Rs. 2,500/-, in case of default further undergo 3 months R.I.
2. In brief the facts of the prosecution case are that the applicant and prosecutrix (PW-3) were studying in B.I.M.S. College and fall in love and in January, 2014 the applicant committed sexual intercourse with the prosecutrix on getting her consent on promise to marry with her and thereafter again in March, 2015 he committed sexual intercourse and when the prosecutrix asked him to marry her, he refused to marry her stating that his family members are not agreeing to marry with the prosecutrix. Then the prosecutrix disclosed the aforesaid fact to her parents and brother and lodged FIR Ex. P-3 on 20/06/2015 in the police station Nimbola District Burhanpur and police registered Crime No. 156/2015 under section 376(2)(n) of IPC against the applicant. After completion of the formalities of investigation, charge sheet was filed before the JMFC, Burhanpur and after taking cognizance the JMFC committed the case to the Session Court, Burhanpur where the IIIrd Additional Session Judge tried the case.
3. During trial, the trial Court framed charge under Section 376(2)(n) of IPC against the applicant, who abjured his guilt and claimed to be tried. His defence was that he has been falsely implicated.
4. Learned trial court after considering the evidence adduced by the parties and on the basis of the material available on record convicted and sentenced the applicant as mentioned earlier.
5. The finding of the learned trial Court has been assailed by the applicant on the ground that the evidence produced by the prosecution establish that the applicant committed sexual intercourse with the prosecutrix with her will and consent and they were major at the time of the incident, hence no offence is made out but the learned trial Court has wrongly appreciated the evidence and arrived at the conclusion that consent was given by the prosecutrix under the misrepresentation of promise of marriage, hence it can't be considered legal consent. The aforesaid approach is against the law as the Hon'ble Apex Court in the case of Deepak Gulati Vs. State of Haryana reported in MANU/SC/0546/2013 : (2013) 7 SCC 675 has held that the prosecution has to prove the fact that the accused acted with mala fide intention of seducing prosecutrix by making false promise of marriage and not keeping his promise. But mere breach of promise without mala fide intention cannot amount to deception. In the present case, the prosecutrix (PW-3) being a major and educated girl having understanding the impact of his consent and conduct, it can't be said that she submitted herself on account of promise of marriage and there is no iota or material to suggest the fact that the applicant initially made false promise. It is a case of breach of promise without mala fide intention. Further submitted that later on the prosecutrix and applicant have solemnized marriage and having a child with their wedlock. This circumstance also shows that the promise of marriage was not false. Hence, the appeal be allowed and the appellant/accused be acquitted of the aforesaid offence.
6. Learned GA has argued in support of the aforesaid judgment of the trial court stating that the prosecutrix did not give consent but submitted herself under the false promise of marriage, hence the finding of the learned trial court does not require any interference and prayed that the appeal be dismissed.
7. Having heard the learned counsel for both the parties and perusal of the record it is found that the finding of the learned trial court with regard to fact that the prosecution has established the fact that the applicant committed repeated sexual intercourse with the prosecutrix and prosecutrix was major. Therefore the only question for consideration is that whether the applicant committed sexual intercourse with the prosecutrix with her consent or will. Prosecutrix (PW-3) has categorically stated that the sexual intercourse was committed by the applicant with her consent, but she give her consent because the applicant promised her to marry her and thereafter he refused to marry with her. From the statement of the prosecutrix (PW-3), it also emerges that she was 21 years old and studying in B.I.M.S. College and fall in love with the applicant. Her statement does not show that first time she gave her consent for commission of sexual intercourse on the promise of marriage. She has stated that the applicant usually said her that he will marry with her and he will take consent of her family member. It means that the prosecutrix understands that the marriage will be solemnized after getting permission from the family members and it might be possible that family members could not agree and the prosecutrix has stated that the applicant refused to marry with her as his family members were not agreeing. In the circumstance, it can't be said that the applicant made any false promise with the prosecutrix to get her consent for sexual intercourse.
8. The Hon'ble Apex Court in the case of Deepak Gulati Vs. State of Haryana (supra) has held in relevant para 19, 20, 21, 22, 23 and 24 as under:-
19. This Court considered the issue involved herein at length in Uday v. State of Karnataka [Uday v. State of Karnataka, MANU/SC/0162/2003 : (2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639], Deelip Singh v. State of Bihar [Deelip Singh v. State of Bihar, MANU/SC/0948/2004 : (2005) 1 SCC 88 : 2005 SCC (Cri) 253 : AIR 2005 SC 203], Yedla Srinivasa Rao v. State of A.P. [MANU/SC/8531/2006 : (2006) 11 SCC 615 : (2007) 1 SCC (Cri) 557] and Pradeep Kumar v. State of Bihar [Pradeep Kumar v. State of Bihar, MANU/SC/3266/2007 : (2007) 7 SCC 413 : (2007) 3 SCC (Cri) 407 : AIR 2007 SC 3059] and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
22. In Deelip Singh [Deelip Singh v. State of Bihar, MANU/SC/0948/2004 : (2005) 1 SCC 88 : 2005 SCC (Cri) 253 : AIR 2005 SC 203] it has been observed as under: (SCC p. 99, para 19)
"19. 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."
23. This Court, while deciding Pradeep Kumar [Pradeep Kumar v. State of Bihar, MANU/SC/3266/2007 : (2007) 7 SCC 413 : (2007) 3 SCC (Cri) 407 : AIR 2007 SC 3059], placed reliance upon the judgment of the Madras High Court in N. Jaladu, In re [MANU/TN/0288/1911 : ILR (1913) 36 Mad 453], wherein it has been observed: (Pradeep Kumar case [Pradeep Kumar v. State of Bihar, MANU/SC/3266/2007 : (2007) 7 SCC 413 : (2007) 3 SCC (Cri) 407 : AIR 2007 SC 3059], SCC pp. 418-19, para 11)
"11. '26. ... "... 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." (N. Jaladu, In re case [MANU/TN/0288/1911 : ILR (1913) 36 Mad 453], ILR pp. 456-57)' (Deelip Singh case [Deelip Singh v. State of Bihar, MANU/SC/0948/2004 : (2005) 1 SCC 88 : 2005 SCC (Cri) 253 : AIR 2005 SC 203], SCC pp. 101-02, para 26)"
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, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.
9. So far present case is concerned, the facts are similar as of the aforesaid cited judgment. The prosecutrix was 21 years old, who had adequate intelligence and maturity to fully understand the significance and morality associated with the act she was consenting and she was conscious of the fact that her marriage may not take place in case of refusal of the parent of the applicant. Further it was difficult to impute to the applicant, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. Further there is no evidence on record to establish the fact that the applicant had never intended to marry the prosecutrix and made promise simply to get her consent only to satisfy her lust.
10. In view of the aforesaid discussion, it can't be held that the prosecution has succeeded to establish the fact beyond the reasonable doubt that the applicant committed sexual intercourse with the prosecutrix without her consent or will. Hence, the finding of the learned trial court with regard to commission of rape by the applicant can't be upheld. Therefore, applicant conviction and sentence under section under sections 376(2)(n) of the IPC is set aside and he is acquitted of the aforesaid charge. Accordingly, this appeal is allowed. The applicant is on bail, his bail bonds be discharged and fine amount, if paid, be returned.
A copy of this judgment be sent to the concerned trial court for information and necessary action.
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