Penal Code, 1860 – ss.90, 375 and 376 – Prosecution case that the prosecutrix was familiar with the accused-appellant since 2009 and there was love affair between them – Appellant established physical relation with her on the pretext of marrying her, however after keeping the prosecutrix and her family members in dark for about two months, the appellant refused to marry the prosecutrix and performed marriage with another girl – Sessions Court convicted the appellant for the offence u/s. 376, IPC – High Court confirmed the judgment – On appeal, held: Prosecution has been successful in proving the case that the promise given by the appellant to marry the prosecutrix was false and from the very beginning the appellant had no intention to marry the prosecutrix as his marriage with another girl was already fixed long back – Despite the same, he continued to give false promise and alluded the prosecutrix to give her consent for the physical relationship – Initially the prosecutrix resisted, however, gave the consent relying upon the false promise of the appellant that he will marry her – Her consent can be said to be a consent on misconception of fact as per s.90, IPC – Both the Courts below rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the appellant for the charge of rape as defined u/s.375, IPC – Appellant’s conviction u/s.376, IPC, maintained – However, in the facts and circumstances of the case, sentence of 10 years’ rigorous imprisonment awarded by the courts below is reduced to seven years’ rigorous imprisonment – Indian Evidence Act, 1872 – s.114-A. Partly allowing the appeal, the Court
HELD: 1.1 If it is established and proved that from 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 of the 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 Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC. [Para 12][990-C-D]
1.2 The prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant’s marriage is fixed with another lady, the prosecutrix and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant-accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. From the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with ‘PS’ was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Both the Courts below rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below rightly convicted the accused for the offence under Section 376 of the IPC. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, 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. 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. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him. [Paras 14, 15][991-G-H; 992-A-G; 993-C-E]
1.3 Both the Courts below rightly convicted the appellantaccused under Section 376 of the IPC. The conviction of the appellant-accused under Section 376 of the IPC is maintained. However, in the facts and circumstances of the case and the request made by the counsel appearing on behalf of the appellantaccused, the sentence of 10 years’ RI awarded by the courts below is reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC. [Para 16][993-F-G]
Tilak Raj v. State of Himachal Pradesh (2016) 4 SCC 140; Uday v. State of Karnataka (2003) 4 SCC 46 : [2003] 2 SCR 231 ; Deelip Singh v. State of Bihar (2005) 1 SCC 88 : [2004] 5 Suppl. SCR 909;
Shivashankar alias Shiva v. State of Karnataka (2018) SCC Online SC 3106 – held inapplicable.
Kaini Rajan v. State of Kerala (2013) 9 SCC 113 : [2013]
10 SCR 196 ; Yedla Srinivasa Rao v. State of A.P. (2006)
11 SCC 615 : [2006] 6 Suppl. SCR 760 ; State of U.P. v. Naushad (2013) 16 SCC 651 – relied on.
Dr. Dhruvaram Murlidhar Sonar v. The State of
Maharashtra (2019) SCC Online 3100 ; Deepak Gulati v. State of Haryana (2013) 7 SCC 675 : [2013] 6 SCR 544; Sujit Ranjan v. State Decision dated 27.01.2011 of High Court of Delhi in Criminal Appeal No.248 of 2011 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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