Misconception of fact under IPC: Consent for 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.

It would be folly to treat each breach of promise to marry as false promise and to prosecute a person for the offence under Section 376 on the basis of proved facts before the Court - Supreme Court.

                                        

The Hon’ble Supreme Court of India has set aside the impugned judgment and order of the High Court of Delhi who modified the order of the Sessions Court by reducing the sentence of the accused/appellant to 7 years imprisonment with fine, except the order for payment of compensation of Rs. 5,00,000/- to the prosecutrix in an offence under Section 376 of IPC, 1860. The Apex Court acquitted the appellant from all the charges levelled against him and directed to be set free.

          The prosecutrix  was a neighbour of the accused in a tenanted premises. According to complaint made by prosecutrix, it was alleged that accused in the year 2009 forced her to divorce her husband telling her he was not earning much. He also assured her that he would marry with her. He told her he is unmarried. Therefore he had illicit intercourse with her. As a result she got pregnant in 2011. Even after the birth of their son, he did not marry her. He continued to have illicit relationship with her. One day he left her saying that he is going to native place. She further alleged that the accused had lied to her that he was unmarried and he had gone to his native place. In fact, he was married and had not gone to his native place. Even, the accused kept on assuring her that he will marry her. But he did not. Therefore the prosecutrix filed a complaint and the same was registered as FIR at police station against the accused u/S 376 of IPC in 2015, after six years.

          The accused denied the allegations leveled against him and further stated that he was having consensual physical relations with the prosecutrix and the she was aware that he was a married person having children and that she had also met his wife at his house.  He stated that he was providing financial help to her regularly. He stated that when he refused to fulfill her demand of 2 lakhs, she lodged a false case against him.

          The Sessions Court after appreciating the evidence on record convicted and sentenced the appellant/accused to undergo rigorous imprisonment fir a period of 10 years and pay fine of Rs. 50,000/- in default thereof to suffer further imprisonment for a period of one year. The Court also directed the appellant to pay compensation of 5,00,000 to the prosecutrix to enable her to maintain herself as well as the minor child.

          On an appeal against the said conviction and order of sentence, the High Court modified the order of sentence by reducing the substantive sentence to 7 years with fine of Rs. 5000/- but confirmed the direction with regard to the payment of compensation to the prosecutrix. The compensation of Rs. 5,00,000/- was stated to be paid to the prosecutrix as directed by the High Court.

          The order of sentence became the subject matter of the appeal in the Hon’ble Supreme Court.

Also Read:

A senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case - Supreme Court.

SUBMISSION ON BEHALF OF APPELLANT/CONVICT.

The Sessions Court and the High Court had failed to appreciate the evidence in the right perspective and convicted the appellant under Section 376 IPC which has caused gross miscarriage of justice.

The prosecutrix having admitted in her evidence that she a consenting party to the sexual relationship since 2009-2010 and continued after the delivery of child in 2011 till filing of the complaint in 2015. It could not be said that the appellant had committed rape within the meaning of Section 375 read with Section 90 of IPC.

          The prosecutrix has misused the process of law by making false allegations against the appellant/accused after she gave birth and after she visited his native place. He submitted, her action reflected the intention to grab money from him.

The appellant had not disowned the responsibility of the child.

The learned counsel relied upon the decisions in the case of Deelip Singh alias Dilip Kumar vs. State of Bihar (2005), Prashant Bharati vs. State (NCT of Delhi) (2013) and recent one of Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra and Others (2019) to buttress his submission that the consensual sexual relationship which if continued between parties for quite a long time could not be said to have continued under the misconception of fact under Section 90 and could not be said to rape under Section 375 IPC.

The learned counsel for the State reportedly brought to light the fact that the appellant has committed breach of promise after she delivered the child which clearly proves that her consent was obtained by the appellant under the misconception of fact. The Sessions Court and the High Court have rightly hold him guilty under Section 376 and thus should not be interfered.

The Amicus Curiae for the prosecutrix, Ms. Indira Jaishingh also appreciated the decisions of both the courts. She emphasised on the  point that the court should carefully examine that whether the accused made false promise of marriage with malafide motives or was it a mere breach of promise by the accused.

The Hon’ble Apex Court has reportedly put emphasis on the legal presumption pertaining to consent with regard to rape. Such legal presumption contains in Section 114A of the Indian Evidence Act, 1872. As per the Section, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the women alleged to have been raped and if she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

          The Court taking note of the argument on behalf of State and the fact of the present case, opined that  there is difference between giving false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise.

Therefore the Court viewed that it would be folly to treat each breach of promise to marry as false promise and to prosecute a person for the offence under Section 376 on the basis of proved facts before the Court.

On the fact of the case, the Court observed that, the prosecutrix was a married woman with 3 children, therefore could not have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship. She was a matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting. Her entire conduct appears that she had betrayed her husband and her three children. She even obtained divorce from her husband. She filed complaint only when some dispute arose between prosecutrix and appellant. So the facts and circumstances, it could not be said that the prosecutrix had consented for the sexual relationship under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC.

The Hon’ble Court referred to the various judgments which interpreted the different dimensions and angles of the word ‘consent’ in the context of Section 90 and Section 375 of  IPC which would be beneficial for deciding the present case. Those judgments were also followed by the courts below which the Apex Court found it fallacy to hold the appellant guilty under Section 376.

Uday vs. State of Karnataka (2003) 4 SCC 46 was a case where a prosecutrix aged about 19 years has given a consent for having a sexual intercourse with the accused with whom she was deeply in love. She continues to meet the accused as he had given her promise to marry her on a later date. The fact is that they belonged to different castes, so marriage was not possible. So the Supreme Court holding the circumstances of the case, said that consent could not have given under  a misconception of fact under Section 90. It was opined 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.

The Court had viewed that there is no straitjacket formula to determine whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The tests provided by the courts give guidance while considering a question of consent. 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.

          The case of Deelip Singh Alias Dilip Kumar vs. State of Bihar further explained the observation made in Uday’s case. It was observed  –   a promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. It on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly.

          Another case, Deepak Gulati vs. State of Haryana (2013) 7 SCC 675 gave more dimension of the word ‘consent’ by distinguishing ‘rape’ and consensual sex in the following words –

1.       Consent may be express or implied, coerced or misguided, obtained willingly or through deceit.

2.       There is a clear distinction between rape and consensual sex. In a case like this, the Court must 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. Such amounts to cheating or deception.

3.       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 a 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.

4.       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.

5.       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.

6.       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.

7.       In order to come within the meaning of the term ‘misconception of fact’, the fact must have an immediate relevance.

8.       Section 90 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”.

          Again in Dr. Dhruvaram Murlidhar Sonar case Supreme Court interpreted the Section 90 and clause secondly of Section 375 of IPC and observed –

a.       In case of rape and consensual sex, the Court must 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 (consensual sex) false within the ambit of cheating or deception.

b.       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.

c.       There may be 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. These two cases must be treated differently.

d.       If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.

e.       The acknowledged  consensual  physical relationship between the parties would not constitute an offence under Section 376.

 

Coram:

Justice Ajay Rastogi and Justice Bela M. Trivedi

Case:

Naim Ahamed vs. State (NCT of Delhi) Criminal Appeal no. 257 of 2023.

Date of judgment: 30.01.2023

Click here for judgment.

Also Read:

“A Litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”