REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 629 OF 2019 (Arising out of SLP(Criminal) No.618/2019)

Anurag Soni …Appellant

Versus

State of Chhattisgarh …Respondent

J U D G M E N T

M.R. SHAH, J.

The application for impleadment of the prosecutrix is

allowed, in terms of the prayer made.

1.1 Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 10.10.2018 passed by the High Court

of Chhattisgarh at Bilaspur in Criminal Appeal No. 1270/2014,

by which the High Court has dismissed the said appeal preferred

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by the appellant herein – the original accused and has confirmed

the judgment and order of conviction passed by the learned trial

Court convicting the original accused for the offence under

Section 376(1) of the IPC  and sentencing him to undergo

rigorous   imprisonment for 10 years and to pay a fine of

Rs.50,000/­, in default  of  payment of fine, to further undergo

additional rigorous imprisonment for six  months, the original

accused has preferred the present appeal.

3. The prosecution case in brief was that the prosecutrix

was the resident of Koni, Bilaspur, District Bilaspur. Prosecutrix

was  familiar  with  the  accused since  2009 and  there  was love

affair  between them. The appellant  had even proposed her  for

marriage and this fact was within the knowledge of their

respective family members. At the time of incident, accused was

posted as Junior Doctor in the government hospital of

Maalkharoda  and  at that time the  prosecutrix  was  doing  her

studies of Pharmacy in Bhilai. On 28.4.2013 the accused

expressed his desire to the prosecutrix that he wanted to meet

her and accordingly on 29.4.2013 at 7.25 a.m. the prosecutrix

boarded Durg Danapur Express train and reached Sakti railway

station from where the accused took her on a motorcycle to his

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house situated at Maalkharoda and there she stayed from 2 pm

of 29.4.2013 to 3 p.m. of 30.4.2013 and during this period

despite refusal of the prosecutrix the accused established

physical relation with  her  on  the  pretext  of  marrying  her.  On

30.4.2013 the accused asked the prosecutrix to leave by saying

that  on 1st  or  2nd  May he will talk  to  his  parents  about their

marriage and he will soon marry with her. On 30.4.2013 at about

6 in the evening accused Anurag Soni and the prosecutrix

reached Bilaspur by train and from where their friend namely

Umashankar took them on a motorcycle to the house of Mallika

Humne, friend of  prosecutrix,  where the  accused dropped her

and went back. Next morning accused dropped the prosecutrix at

Railway Station, Bilaspur from where she boarded train for Bhilai

(Durg). Accused asked the prosecutrix not to tell about the

incident to anyone and as a result of which the prosecutrix did

not disclose the incident to anyone, but from 2.5.2013 to

5.5.2013 the prosecutrix had repeatedly asked from the accused

about the marriage and when she did not receive any reply from

the accused, on 6.5.2013, she informed her family  members

about the incident and then the family members of the

prosecutrix had gone to the house of accused at village Kharod

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and informed his family members about the incident whereupon

the family members of accused had said that now marriage of

accused and prosecutrix  was the  only  option available. In  the

meantime, members of both the families used to visit house of

each other, however, after keeping the prosecutrix and her family

members in dark for about two months, the accused had refused

to marry the prosecutrix and performed marriage with another

girl and then  on  21.6.2013 the  prosecutrix submitted  written

report (Ex. P­3) in the police station Maalkharoda in respect of

rape committed by the accused upon her on the pretext of

marriage based on  which FIR (Ex.P­4) for the offence under

Section 376 of IPC was registered against the accused.

3.1 That during the course of investigation, the

investigating officer recorded the statement of concerned

witnesses including the prosecutrix.   The investigating officer

collected the medical evidence and other evidence.  The accused

was arrested.   After completion of the entire investigation, a

charge sheet was filed against the accused for the offence

punishable under Section 376 of the IPC.   

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3.2 That the learned magistrate committed the case to the

learned Sessions Court, which was numbered as Sessions Trial

No. 201/2013.   That the learned  Sessions  Court framed the

charge against the accused for the offence under Section 376 of

the IPC.  The accused denied the charge so framed and claimed

trial, and therefore he came to be tried by the learned Sessions

Court for the aforesaid offence.

3.3 The  prosecution in  support  of its  case  examined as

many as 13 witnesses including the prosecutrix (PW3) as under:

1. Pritam Soni PW1 2. Manikchand PW2 3. Prosecutrix PW3 4. Patwari Ghanshyam PW4 5. Dr. C.K. Singh PW5 6. Dr. K.L. Oraon PW6 7. Amritlal PW7 8. Pankaj Soni PW8 9. Dr. P.C. Jain PW9 10. Constable Jawaharlal PW10 11. Sub-Inspector S.P. Singh PW11 12. Inspector Sheetal Sidar PW12 13. Srimati Priyanka Soni PW13

3.4 After the closing pursis were submitted by the

prosecution, three  witnesses  were examined on behalf of the

accused in  defence.   The statement of appellant­accused  was

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recorded under Section 313 of the Cr.P.C. wherein he denied the

circumstances appearing against him and pleaded innocence and

false implication.   As per the accused his marriage was already

fixed with one Priyanka Soni and this was in the knowledge of the

prosecutrix, even then the prosecutrix and her family members

continued to pressurise him to marry the prosecutrix, and then

he married  with Priyanka Soni  on 10.06.2013  in Arya Samaj.

Therefore, it was the case on behalf of the accused that a false

FIR was lodged against him.

4. That on appreciation of evidence, the learned Sessions

Court observed and held that the prosecutrix gave consent for

sexual intercourse on a misrepresentation of fact and the

promise by the accused that he would marry the prosecutrix and

therefore the said consent cannot be said to be a consent and

therefore the accused committed the offence under Section 376 of

the IPC.   Thereupon, the learned Sessions Court convicted the

accused for the offence under Section 376 of the IPC and

sentenced him to undergo 10 years rigorous imprisonment.

5. Feeling aggrieved and dissatisfied with the  judgment

and order of conviction and sentence passed by the learned

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Sessions  Court, the  accused  preferred  appeal  before the  High

Court.  By the impugned judgment and order, the High Court has

dismissed the appeal and has confirmed the judgment and order

passed by the learned Sessions Court convicting the accused for

the offence under Section 376 of the IPC.

6. Feeling aggrieved and dissatisfied with the impugned

judgment  and order  passed by  the  High Court  dismissing the

appeal and confirming the conviction and sentence of the

accused for the offence under Section 376 of the IPC, the original

accused has preferred the present appeal.

6.1 Shri S. Nagamuthu, learned Senior Advocate has

appeared on behalf of the accused and Shri Pranav Sachdeva and

Shri  Praveen Chaturvedi, learned  advocates  have  appeared on

behalf of the State as well as the original complainant –

prosecutrix respectively.

6.2 Shri  Nagamuthu, learned Senior  Advocate  appearing

on behalf of the accused has vehemently submitted that in the

facts and circumstances of the case, both the courts below have

materially erred in convicting the accused for the offence under

Section 376 of the IPC.   It is further submitted that while

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convicting the accused for the offence under Section 376 of the

IPC and  while holding that the accused committed the rape

under Section 375 of the IPC, the courts below have not at all

considered Section 90 of the IPC and Section 114­A of the

Evidence Act in its true perspective.   

6.3 It is further submitted by the learned Senior Advocate

appearing on behalf of the accused that in the present case as

such the prosecutrix was in love with the accused and she

wanted to marry the accused.  It is submitted that it  was the

specific case on behalf of the accused, so stated in his 313

statement, that as such the prosecutrix and her family members

were in the knowledge that the  marriage of the appellant is

already fixed with Priyanka Soni and even then the prosecutrix

and her family members continued to pressurise the accused to

marry the prosecutrix.

6.4 It is further submitted by the learned Senior Advocate

appearing on behalf of the accused that even assuming that the

accused gave promise to the prosecutrix to marry and thereafter

the accused did not marry the prosecutrix, the same can be said

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to be a ‘breach of promise’ and cannot be said to be a rape under

Section 375 of the IPC.

6.5 In support of  his submissions,  Shri  S.  Nagamuthu,

learned  Senior  Advocate  has  heavily relied  upon  the following

decisions of this Court; Dr. Dhruvaram Murlidhar Sonar v. The

State of Maharashtra (2019) SCC Online 3100; Tilak Raj v. State

of Himachal Pradesh (2016) 4 SCC 140; Deepak Gulati v. State of

Haryana (2013) 7 SCC 675; Uday v. State of Karnataka (2003) 4

SCC 46; Deelip Singh v. State of Bihar  (2005) 1 SCC 88; and

Shivashankar alias Shiva v. State of Karnataka (2018) SCC

Online SC 3106.

6.6 Therefore, Shri S. Nagamuthu, learned senior counsel

appearing on behalf of the accused, has submitted that in fact

thereafter the accused has married one Priyanka Soni and even

the prosecutrix also got married.

6.7 Making the above submissions and relying upon the

above  decisions, it is  prayed to  allow  the  present  appeal  and

quash and set aside the conviction and sentence of the appellant­

accused for the offence under Section 376 of the IPC.

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7. The present appeal is vehemently opposed by the

learned advocates appearing on behalf of the State as well as the

original complainant – prosecutrix.

7.1 It is  vehemently submitted by the  learned advocates

appearing on behalf of the State as well as the prosecutrix that

the  present case is  not  a case  of  mere  breach  of promise to

marry, as contended by the learned Senior Advocate appearing

on behalf  of the accused.  It is  submitted that in the present

case, from the very beginning and from the inception, the

intention of the accused was not to marry with the prosecutrix

and  he  was to  marry  one  another lady  Priyanka  Soni.   It is

submitted that despite the above he called the prosecutrix at his

residence and by giving promise that he would marry, he had a

sexual intercourse with the prosecutrix.  It is submitted that, in

fact, the prosecutrix initially objected to have any sexual

intercourse, however, as the accused gave assurance and

promise that he would marry, the prosecutrix gave consent. It is

submitted that as the consent was obtained by the accused on

misconception of fact  and therefore the same cannot be said to

be a consent even considering Section 90 of the  IPC,  and the

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consent was on misconception of fact, both the courts below have

rightly held the accused guilty for the offence under Section 376

of the IPC.

7.2 It is further submitted by the learned advocates

appearing on behalf of the State as well as the prosecutrix that

even the conduct on the part of the accused which is born out

from the record that when the parents of the accused and the

prosecutrix subsequently  met to fix the  marriage, instead of

remaining present the accused ran away.  It is submitted that it

has come in evidence that the accused was already to marry one

another lady Priyanka Soni and therefore there was no intention

on the part of the accused from the very inception not to marry

the prosecutrix and despite the same by giving false promise to

marry,  he  obtained the  consent  of the  prosecutrix  and had a

sexual intercourse.  It is submitted that therefore in the facts and

circumstances of the case,  it  has been established and proved

beyond doubt that the consent given by the prosecutrix was on

misconception of fact and therefore the same cannot be said to be

a consent and therefore the appellant­accused is rightly

convicted under Section 376 of the IPC.

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7.3 Learned advocates appearing on behalf of the

respondent­State as well as the original complainant –

prosecutrix have relied upon certain decisions of this Court on

Section 375 of the IPC, Section 90 of the IPC and on consent on

misconception of fact and on consensual sex, which will be

referred to and considered hereinafter.

7.4 Now so far as the reliance placed on the decisions of

this  Court, relied  upon by the learned counsel appearing on

behalf of the accused, referred to hereinabove, learned advocates

appearing on behalf of the State as well as the original

complainant – prosecutrix have submitted that none of the

aforesaid decisions shall be applicable to the facts of the case on

hand. It is submitted that even some of the observations made by

this Court in the aforesaid decisions, relied upon by the learned

senior counsel appearing on  behalf of the accused,  would  be

applicable in favour of the prosecutrix, more particularly, para 20

of Dhruvaram Murlidhar Sonar (supra), para 21 of Deepak Gulati

(supra); and paras 21 and 23 in the case of Uday (supra).

7.5 Making the above submissions and relying upon the

above decisions, it is prayed to dismiss the present appeal.  

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8. Heard learned counsel appearing on behalf of the

respective parties at length.   

9. In the present case, the accused has been convicted for

the offence under Section 376 of the IPC.  It is the case on behalf

of the appellant­accused that as it is a case of a consensual sex,

the  Courts below have committed an error in convicting the

accused for the offence under Section 376 of the IPC.   Both the

Courts below have accepted the case of the prosecution that the

consent of the prosecutrix was given on the basis of

misconception of  fact and, therefore, considering Section 90 of

the  IPC,  such a consent cannot be said to be a consent and,

therefore, the accused has committed the rape as defined under

Section 375 of the  IPC and thereby has committed an offence

under Section 376 of the IPC.   Therefore, the question which has

been posed before this Court is, whether in the facts and

circumstances of the case and considering the evidence on

record, the Courts below have committed any error in holding the

accused guilty for the offence under Section 376 of the IPC?

10. While considering this appeal on merits further, some

of the decisions of this Court on Section 375 and Section 90 of

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the IPC and on the consent/consensual sex are required to be

referred to and considered:

10.1 In the case of Kaini Rajan v. State of Kerala (2013)

9 SCC 113, this Court has explained the essentials and

parameters of the offence of rape.   In the said decision, in para

12, this Court observed and held as under:

“12. Section 375 IPC defines the expression “rape”, which indicates that 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 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 on 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 the  mind of a  person to permit the doing of an act complained of. Section 90 IPC refers to the  expression  “consent”.  Section 90, though, does not define “consent”, but describes what  is  not  consent. “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. (See  State  of H.P. v. Mango Ram (2000) 7 SCC 224”

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10.2 In the case of  Deepak Gulati v. State of Haryana

(2013) 7 SCC 675, this Court observed and held in paragraphs

21 and 24 as under:

“21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception.  There  is  a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved  was given after  wholly  understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation  made to  her  by the  accused, or where an accused on account of circumstances which  he could not have foreseen, or  which  were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the

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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.”

10.3 In the case of  Yedla Srinivasa Rao v. State of A.P.

(2006) 11 SCC 615, this Court also considered the amendment

made in the Indian Evidence Act – Section 114­A of the Evidence

Act.  In that case, the sexual intercourse was committed with the

prosecutrix by the accused.  As per the prosecutrix, the accused

used to come to her sister's house in between 11 a.m. and 12

noon daily and asked her for sexual intercourse with him.

She refused to participate in the said act but the accused

kept on persisting and persuading her. She resisted for

about 3  months. On one day, the accused came to her

sister's house at about 12 noon and closed the doors and

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had sexual intercourse forcibly,  without her consent and

against her will. When she asked the accused as to why he

spoiled her life, he gave assurance that he would marry her

and asked her not to cry, though his parents were not

agreeing for the marriage. It was found that on the basis of

the assurance given by the accused this process of sexual

intercourse continued and he kept on assuring that he would

marry her. When she became pregnant, she informed about

the pregnancy to the accused.  He got certain tablets for

abortion but they did not work. When she was in the third

month of pregnancy, she again insisted for the marriage and

the  accused answered  that  his  parents  are  not  agreeable.

She deposed that had he not promised, she would not have

allowed him to have sexual intercourse with her. The

question was raised before the Panchayat of elders and the

prosecutrix  was  present in the  Panchayat along  with  her

sister and brother­in­law. The accused and his father both

attended the Panchayat and the accused admitted about the

illegal contacts with the prosecutrix and causing pregnancy.

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The accused asked for two days' time for  marrying the

prosecutrix and the Panchayat accordingly granted time. But

after the Panchayat meeting the accused absconded from the

village and when the accused did not fulfil his promise which

was made before the Panchayat, the prosecutrix lodged the

complaint. Considering the aforesaid facts and after

considering Section 90 of the IPC, this Court convicted the

accused for the offence under Section 376 of the IPC.  While

convicting the accused, this Court  in paragraphs 9, 10,15

and 16 observed and held as under:

“9. The question in the present case is whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 IPC as mentioned above. It is clear that the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a  false promise held out by the accused.  Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore,  whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be construed to be a valid consent. Section 90 reads as under:

“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

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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. 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. …….

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15. In this connection reference may be made to the amendment made in the Evidence Act. Section 114­A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114­A reads as under:

“114­A. Presumption as to absence of consent in certain prosecutions for rape.—In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub­ section (2) of  Section  376 of the Indian  Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”

16. If sexual intercourse has been committed by the accused and if  it  is proved that  it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the  court  shall  presume that  she did not  consent. Presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against  women and  in  the instant  case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape  on  her.  The  accused  gave  her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her.”

10.4 In the  case of  State of  U.P.  v.  Naushad  (2013)  16

SCC 651, in the similar facts and circumstances of the case, this

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Court reversed the acquittal by the High Court and convicted the

accused for the offence under Section 376 of the IPC.  This Court

observed and held as under:

“17. Section 376 IPC prescribes the punishment for the offence of rape. Section 375 IPC defines the offence of rape, and enumerates six descriptions of the offence. The description “secondly” speaks of rape “without her consent”. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix “against  her  consent”.  The prosecutrix  in this  case has  deposed  on record that the  accused  promised marriage with her and had sexual  intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of “bad character”.

18. How is “consent” defined? Section 90 IPC defines consent known to be given under “fear or misconception” which reads as under:

“90.Consent known to be given under fear or  misconception.—A consent is not such 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;”

(emphasis supplied) Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated.

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19. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the  prosecutrix that  he  would  marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having  sexual relations  with  her,  which  act  of the accused falls squarely under the definition of rape as he  had sexual intercourse  with  her  consent  which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. .........”

10.5 Even in the case of Dr. Dhruvaram Murlidhar Sonar

(supra),  upon  which reliance  has  been  placed  by the learned

counsel appearing on behalf of the accused, in paragraph 23, this

Court has observed that there is a clear distinction between rape

and consensual sex. The court, in such cases, must very

carefully examine whether the complainant had actually wanted

to marry the victim or had mala fide motives and had made a

false promise to this effect only to satisfy his lust, as the later

falls within the ambit of cheating or deception, this Court

observed and held as under:

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“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  later  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 of the IPC.”

10.6 The  High  Court of  Delhi in  Sujit  Ranjan v.  State

[Criminal Appeal No. 248 of 2011 decided on 27.01.2011], after

referring to and considering several decisions of this Court,

ultimately in paragraph 16, observed and held as under:

“16. Legal position which can be culled out from the judicial  pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be considered  as  given  under "misconception  of fact". Whether consent given by the prosecutrix to sexual

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intercourse is voluntary or whether it is given under "misconception of fact" depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to "misconception of fact" right from the inception.”

11. So far as the decisions upon which reliance has been

placed by the learned counsel appearing on behalf of the accused

referred to  hereinabove  are concerned, the same  shall  not  be

applicable to the facts of the case on hand.   In the case of Tilak

Raj  (supra), the prosecutrix was an adult and matured lady of

around 40 years at the time of the incident.  It was admitted by

the prosecutrix in her testimony that she was in a relationship

with the accused for last two years prior to the incident and he

used to stay overnight at her residence.   Therefore, considering

the evidence as a whole, including FIR, testimony of the

prosecutrix and the MLC report, this Court found that the story

of the prosecutrix regarding sexual intercourse on false pretext of

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marrying her is concocted and not believable and on facts it was

found that the act of the accused seems to be consensual.  It is

required to be  noted that  before this  Court the accused  was

acquitted for the offence under Section 376 of the IPC, however,

the High Court convicted him under Sections 417 and 506 of the

IPC.   Therefore, on facts, the said decision shall not be of any

assistance to the appellant in the present case.

11.1 Even in the case of  Deepak  Gulati  (supra) it  was

observed that the accused can be convicted for rape if the court

reaches the  conclusion  that the intention of the  accused  was

mala fide, and that he had clandestine motives.

11.2 Even the decisions of this Court in  Uday  (supra),

Deelip Singh  (supra) and Shivashankar alias Shive v. State

of Karnataka (2108) SCC Online 3106 shall not be applicable to

the case of the accused on hand.

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

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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.

13. Applying the law laid down by this Court in the

aforesaid decisions, the following facts emerging from the

evidence on record are required to be considered:

(i) That the family  of the  prosecutrix and the  accused

were known to each other and, therefore, even the prosecutrix

and the accused were known to each other;

(ii) That though the accused was to marry another girl –

Priyanka Soni, the accused continued to talk of marriage with the

prosecutrix and continued to give the promise that he will marry

the prosecutrix;

(iii) That on 28.04.2013 the appellant expressed his wish

telephonically to  meet  with the  prosecutrix  and responding to

that the prosecutrix went to the place of the accused on

29.04.2013 by train, where the accused received her at the

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railway station Sakti and took her to his place of residence in

Malkharauda;

(iv) That during her stay at the house of the accused from

2.00 pm on 29.04.2013  to  3.00 pm on 30.04.2013, they  had

physical relation thrice;

(v) That as per the case of the prosecutrix, the prosecutrix

initially refused to have physical relation, but then the appellant

allured her with a promise to marry and had physical relation

with her;

(vi) That, thereafter the prosecutrix called the accused

number of times asking him about the marriage, however, the

accused did not reply positively;

(vii) That thereafter the prosecutrix informed about the

incident to her family members on 06.05.2013;

(viii) That the family members of the prosecutrix negotiated

with the family members of the accused;

(ix) That on 23.05.2013, the appellant expressed his

willingness to marry the prosecutrix and a social function was

scheduled on 30.05.2013, which did not take place;

(x) That, again the family members of both the parties had

talks, in which the marriage was negotiated and a social function

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was scheduled on 10.06.2013,  which was again not  held  and

further, the social event was fixed for 20.06.2013;

(xi) That on 20.06.2013, the appellant telephonically

informed the prosecutrix that he has already married;

(xii) That, Priyanka  Soni PW­13,  who is the  wife of the

accused stated that one year prior to the marriage that took place

on 10.06.2013, the negotiations were going on; and

(xiii) That the accused married Priyanka Soni on

10.06.2013 in Arya Samaj, even prior to the social function for

the marriage of the accused the prosecutrix was scheduled on

10.06.2013 and even thereafter the  social event  was fixed for

20.06.2013.

14. Considering the aforesaid facts and circumstances of

the case and the evidence on record, the prosecution has been

successful in proving the case that from the very beginning the

accused never intended to marry the prosecutrix; he gave false

promises/promise to the prosecutrix to marry her and on such

false promise he had a physical relation with the prosecutrix; the

prosecutrix  initially resisted, however, gave the consent relying

upon the false promise of the accused that he will marry her and,

therefore, her consent can be said to be a consent on

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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.   Though, in Section 313

statement, the accused came up with a case that the prosecutrix

and his family members were in knowledge that his marriage was

already fixed with Priyanka Soni, even then, the prosecutrix and

her family  members continued to pressurise the accused to

marry the prosecutrix, it is required to be noted that first of all

the same is not proved by the accused.   Even otherwise,

considering the circumstances and evidence on record, referred

to hereinabove, such a story is not believable.   The prosecutrix,

in the present case, was an educated girl studying in B.

Pharmacy.  Therefore, it is  not  believable that  despite  having

knowledge  that  that  appellant’s  marriage  is fixed with another

lady – Priyanka Soni, she and her family members would

continue to pressurise the accused to marry and the prosecutrix

will give the consent for physical relation.   In the deposition, the

prosecutrix specifically stated that initially she did not give her

consent for physical relationship, however, on the appellant’s

promise that he would marry her and relying upon such promise,

she consented for physical relationship with the appellant­

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accused.  Even considering Section 114­A of the Indian Evidence

Act, which has been inserted subsequently, there is a

presumption and the court shall presume that she gave the

consent for the  physical relationship  with the  accused  relying

upon the promise by the accused that he will marry her.   As

observed hereinabove, from the very inception, the promise given

by the accused to marry the prosecutrix was a false promise and

from the very beginning there was no intention of the accused to

marry the prosecutrix as his marriage with Priyanka Soni was

already fixed long back and, despite the same, he continued to

give promise/false promise and alluded the prosecutrix to give

her consent for the physical relationship.  Therefore, considering

the aforesaid facts and circumstances of the case and

considering the law laid  down by this  Court in the  aforesaid

decisions, we are of the opinion that both the Courts below have

rightly  held  that the consent given by  the  prosecutrix  was on

misconception of fact and, therefore, the same cannot be said to

be a consent so as to excuse the accused for the charge of rape

as defined under Section 375 of the IPC.  Both the Courts below

have rightly convicted the accused for the offence under Section

376 of the IPC.   

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15. Now, so far as the submission on behalf of the

accused­appellant that the accused had marriage with Priyanka

Soni on 10.06.2013 and even the prosecutrix has also married

and, therefore, the accused may not be convicted is concerned,

the same cannot be accepted. The prosecution has been

successful by leading cogent evidence that from the very

inspection the accused had no intention to marry the victim and

that he had mala fide motives and had made false promise only

to satisfy the lust.   But for the false promise by the accused to

marry the prosecutrix, the prosecutrix would not have given the

consent to have the physical relationship. It was a clear case of

cheating and deception.   

As observed hereinabove, the consent given by the

prosecutrix was on misconception of fact.  Such incidents are on

increase now­a­days.   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.

As observed by this  Court in a catena of decisions,  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

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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, the 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 appellant­accused must face the consequences of the crime

committed by him.

16. In view of the above and for the reasons stated above,

we are of  the opinion that both the Courts below have rightly

convicted the appellant­accused under Section 376 of  the  IPC.

We also maintain the conviction of the appellant­accused under

Section 376 of the IPC.  However, in the facts and circumstances

of the case and the request made by the learned counsel

appearing on behalf of the appellant­accused, the sentence of 10

years’ RI awarded by the courts below is hereby reduced to seven

years RI, the minimum which was prescribed at the relevant time

of commission of offence under Section 376 of the IPC.

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Consequently, the present appeal is partly allowed to the

aforesaid modification in the sentence only.

........................................J. [L. NAGESWARA RAO]   

New Delhi;     ........................................J. April 09, 2019.     [M. R. SHAH]

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