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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL

ON THE 3

rd

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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O R D E R

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

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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

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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

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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”.

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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

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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,

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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,

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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

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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

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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

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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

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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)

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“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

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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

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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

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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

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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

18

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?

19

(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

20

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

21

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

22

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

23

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

24

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:

25

“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.”

26

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)

27

“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

28

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

29

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

30

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)

31

“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.

32

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

33

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 ---------””

34

Statement of prosecutrix recorded under Section 164 of Cr.P.C. :

“01- eSa vius ekrk&firk ,oa nknh ds lkFk xzke ---------esa jgrh gwaa A eS izkFkfed fo|ky; ------- ------

esa vfrfFk f’k{kd ds :i esa dk;Zjr gwaaA 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 gSA””

Statement of prosecutrix recorded under Section 161 of Cr.P.C. :

“01- eSa mijksDr irs esa jgrh gwaa A xzke ------ esa izkFkfed ’kkyk -------- esa vfrfFk f’k{kd ds :i esa

orZeku dk;Zjr gwaaA 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

35

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

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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

37

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.”

38

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

39

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