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CASE NO.:

Appeal (crl.) 44 of 2004

PETITIONER:

Deelip Singh @ Dilip Kumar

RESPONDENT:

State of Bihar

DATE OF JUDGMENT: 03/11/2004

BENCH:

P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT:

JUDGMENT

P. Venkatarama Reddi, J.

The appellant has been charged and convicted under

Section 376 IPC for committing rape of a minor girl (figured

as PW12 in this case) in the month of February, 1988. The

IIIrd Additional Sessions Judge of Katihar sentenced him to

rigorous imprisonment for a period of ten years. On appeal,

the High Court upheld the conviction but modified the

sentence to seven years. Aggrieved thereby, the present

appeal is filed by the accused.

Facts:

The victim girl lodged a complaint to the police on

29.11.1988 i.e., long after the alleged act of rape. By the

date of the report, she was pregnant by six months.

Broadly, the version of the victim girl was that she and the

accused were neighbours and fell in love with each other and

one day, the accused forcibly raped her and later consoled

her saying that he would marry her, that 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 to marry her and his father took

him out of the village to thwart the bid to marry. The efforts

made by the father to establish the marital tie failed and

therefore she was constrained to file the complaint after

waiting for sometime.

The prosecution adduced evidence in the form of school

certificate and medical expert's opinion to establish that by

the date of the commission of criminal act, the victim girl

was aged less than 16 years in which case her consent

becomes immaterial. It is on this aspect the attention was

focussed more by the prosecution.

The trial Court accepted the prosecution case in this

regard and found that the girl was aged less than 16 years

at the relevant point of time. The High Court affirmed this

finding. The trial Court also recorded an alternative finding

that she was forcibly raped on the first occasion and after

that incident the accused went on making false promises to

marry her. It was therefore held that either there was no

consent or the consent was involuntary. Thus, according to

the trial Court, it was a case of having sexual intercourse

against the will of the victim girl or without her consent. If

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so, irrespective of the age of the girl, the offence is deemed

to be committed. As regards this latter aspect, the High

Court did not enter into any discussion.

Before proceeding to discuss the crucial points, it would

be apposite to refer to the contents of the report given by

the victim girl to the officer-in-charge of Manihari police

station on the basis of which the FIR (Ext.1) was registered

on 25.10.1988. At this stage, we would like to observe that

her version as per the deposition given in the Court was

somewhat different, especially in regard to the manner in

which the sexual relationship was developed and the first

sexual act was resorted to. To the extent necessary, this

aspect will be referred to at a later stage. The following is

the substance of the report (marked as Ext. 3/2) given to

the police on 25.10.1988:

The informant and the accused were neighbours. The

accused, by his gestures and behaviour, tried to seduce her.

Whenever there was opportunity, he used to come to her

house and used to cut jokes and have fun with her in spite

of her protests. On one occasion, a watch was given to her

as a gift. The accused went on telling that he wanted to

marry her but she expressed her disinclination. However,

one day, she yielded to the persuasion of the accused and

had sexual contact with the accused and the same has been

going on from the month of February, 1988. The accused

allured her with promise of marriage and continued to have

intercourse with her on account of which she conceived.

During the second or third month of pregnancy, she

informed her parents about it. Her father talked to the

accused and asked him to marry his daughter. The accused

accepted before the villagers that he was responsible for the

pregnancy and he was ready to marry her. However, the

father of the accused did not agree and proclaimed that the

marriage will not take place under any circumstances. The

efforts made by her father by convening a panchayat etc.,

did not yield any result. Later on, the informant came to

know that the father of the accused Gopi Singh with the help

of other villagers took away the accused to an unknown

place. Thereafter, she was advised to file the case by her

father and other elders. On the registration of the case, the

charge sheet was filed not only against the present appellant

but also his father and others who were alleged to have

abducted the accused to prevent the marriage. However, no

charge was framed against them. The appellant is the sole

accused who faced the trial.

The victim girl was sent for medical examination to

CAS, Sadar Hospital, Katihar on 28.11.1988. PW14\027the

Doctor who along with other doctors examined her, deposed

that by the date of examination, she had pregnancy of six

months duration. The main purpose of sending her for

medical examination appears to be to assess her age. PW14

gave the opinion, on the basis of his own examination and

the examination of the Dental Surgeon and the X-rays taken

by the Radiologist that her age was between 16 and 17

years. The Investigating Officer has not been examined in

this case.

Age of victim:

The question of age of the victim girl is the first and

foremost aspect that needs to be considered in the present

appeal. On this question we are unable to concur with the

finding of the trial Court as affirmed by the High Court. In

our view, the finding as reached by the trial Court is based

on no evidence or evidence which is doubtful. The

prosecution wanted to prove her age by filing the school

transfer certificate through PW13. The certificate is Ext. P4.

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It was purportedly issued by the Headmaster of the Primary/

Secondary School, Nawabganj. Her date of birth, as

recorded in the admission register, is stated to be 4.2.1974.

The date of admission is mentioned as 22.2.1980 and the

date of leaving the school as 31.12.1981. It is mentioned in

column 5 that the admission was given on the basis of

declaration of the father i.e. PW11. By the time she left the

school, she passed II Class. The date of issuance of the

certificate was 7.1.1991 i.e. after the trial commenced. No

explanation is forthcoming as to why the Investigation

Officer did not obtain the certificate in the course of

investigation and why the certificate was not produced by

the father of the girl (PW11). Apparently, the age was given

on the basis of the declaration made by the father. If so, the

father was the best witness to speak about her age.

However, he did not say a word about her age.

If this certificate had been filed beforehand or if PW11

had said anything about her age, the defence counsel would

have been in a position to question the father about the

correctness of his declaration. That is one aspect. The other

and more important aspect is that the certificate (Ext.P4)

has no evidentiary value inasmuch as it is not properly

proved by a witness who is competent to speak to the

relevant facts connected with the issuance and custody of

the certificate. The Headmaster or the staff of the school has

not been examined.

The two witnesses examined to prove this document

are PWs 13 and 15, whose evidence, in our view, is really

worthless. The certificate was produced by PW13, who is

said to be a clerk in Court (Mujeeb). It was marked subject

to objection raised by the defence. Who applied for it and

how he came in possession of it has not been explained.

Though he stated in the chief examination that the

certificate was issued by the Headmaster of Nawabganj

School, in cross-examination, he frankly stated that he could

not say whose signature was there on the certificate. He

further stated that he had never gone to the school.

PW15\027an Advocate's clerk, is another witness

examined by prosecution to prove Ext.4. He stated in the

chief-examination that the school leaving certificate related

to victim girl and it was in the handwriting of the

Headmaster Akhileshwar Thakur. In cross-examination, he

admitted that he did not see the certificate earlier and he

met the Headmaster of the school 10 or 15 years back. He

also stated that the signature was illegible. Thus the

evidence of PWs 13 & 15 does not throw any light on the

authenticity or the genuineness of the certificate. Obviously,

they did not have any knowledge of the issuance of the

certificate. The original register was not before the Court.

The certificates have not come from proper custody. In the

circumstances, the certificate should have been eschewed

from consideration. However the trial Court and the High

Court acted on it without demur and rested their conclusions

on this document. If we exclude Ext.P4 from consideration,

the Court is left with the evidence of the Medical Officer,

PW14, according to whose assessment the age of the girl

was 16-17 years. The defence is entitled to rely on the

higher side of the age given by the Doctor. If so, the victim

girl would be aged more than 16 years when the alleged

offence took place in February, 1988. At the time of

examination in the Court, it appears that the Court assessed

the age as 17, without any further elaboration. It is not safe

to rely on such estimate.

For all these reasons we are of the view that the

finding that the victim girl was less than 16 years of age on

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the date of the first sexual intercourse which the appellant

had committed, cannot be sustained. If so, Clause sixthly of

Section 375 which says\027"with or without her consent, when

she is under 16 years of age", is not attracted.

Whether accused guilty under clause first of Section 375:

The next question is whether the appellant had sexual

intercourse with the victim girl against her will (vide first

Clause of Section 375). The expression 'against the will'

seems to connote that the offending act was done despite

resistance and opposition of the woman. On this aspect, the

trial court did believe the version of the informant\027victim

without much of discussion. In reaching this factual finding,

the trial Court failed to analyse and evaluate the evidence of

PW12\027the victim girl. The High Court merely affirmed the

trial Court's finding on this paint. We should, therefore,

scrutinize her evidence and examine whether it would,

beyond reasonable doubt, lead to the conclusion of the

accused having had sexual contact against her will. Though

in the FIR, the version of forcible sexual intercourse has not

been put forward, in the deposition before the Court, PW12

tried to build up this plea. According to PW12, the first act of

rape took place in the wheat field of her father. This is how

she described the incident:

"In the field, once getting a chance, Dilip Singh forcibly

raped me. Dilip Singh told, 'you marry me', when I was

weeping. He said weeping is useless and we shall marry. He

promised me of marriage and raped me several times."

She then stated that after she became pregnant, she

revealed to her mother about the rape. Later on, the

accused became ready to marry her but his father and

others took him away from the village. She also stated that

the accused time and again told her that they will have a

'court marriage' (means, registered marriage). In substance,

what she deposed was that the first sexual intercourse took

place against her will, though she became a consenting

party later on. The first thing to be noticed is that in the

report which she admittedly gave to the police, this version

was not given by her and she did not complain of forcible

rape. That apart, the version of rape in the wheat field

seems to be highly doubtful when tested in the light of her

statements in the cross-examination. She stated in

paragraph 14 that "one day, while talking, he pulled me

down and forcibly raped me. This incident occurred at 12.00

in the night". That means, according to her version, the first

incident of rape took place on the wheat field at 12.00 in the

midnight. It is highly doubtful whether they would go to the

wheat fields at that hour. Moreover, in cross-examination,

she makes a further improvement by stating that at the time

of first incident of rape at midnight, when she started

shouting, the accused gagged her mouth. One more thing

which affects the credibility of her version is her statement

in the cross-examination that when the accused kept on

making gestures, she went to the house of the accused and

lodged her protest with his Bhabi. It is most unlikely that

such unwilling person will go to a secluded place in the

company of the accused at an odd time in the night and take

the risk of being sexually assaulted. In any case, if the rape

was committed by the accused much against her will, she

would not have volunteered to submit to his wish

subsequent to the alleged first incident of rape. She

admitted that the accused used to talk to her for hours

together and that was within the knowledge of her parents

and brother. This statement also casts an element of doubt

on her version that she was subjected to sexual intercourse

in spite of her resistance. Above all, the version given by her

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in the Court is at variance with the version set out in the

FIR. As already noticed, she categorically stated in the first

information report that she 'surrendered before him' in view

of his repeated promises to marry. In short, her version

about the first incident of rape bristles with improbabilities,

improvements and exaggerations. It is a different matter

that she became a consenting party under the impact of his

promise to marry her. That aspect, we will examine later.

But, what we would like to point out at this juncture is, it is

not safe to lend credence to the version of PW12 that she

was subjected to rape against her will in the first instance

even before the appellant held out the promise to marry.

We cannot, therefore, uphold the finding of the trial Court

that the girl was raped forcibly on the first occasion and that

the talk of marriage emerged only later. The finding of the

trial Court in this respect is wholly unsustainable.

Whether clause secondly (without consent) is attracted:

The last question which calls for consideration is

whether the accused is guilty of having sexual intercourse

with PW12 'without her consent' (vide Clause secondly of

Section 375 IPC). Though will and consent often interlace

and an act done against the will of a person can be said to

be an act done without consent, the Indian Penal Code

categorizes these two expressions under separate heads in

order to be as comprehensive as possible.

What then is the meaning and content of the

expression 'without her consent'? Whether the consent given

by a woman believing the man's promise to marry her is a

consent which excludes the offence of rape? These are the

questions which have come up for debate directly or

incidentally.

The concept and dimensions of 'consent' in the context

of Section 375 IPC has been viewed from different angles.

The decided cases on the issue reveal different approaches

which may not necessarily be dichotomous. Of course, the

ultimate conclusion depends on the facts of each case.

Indian Penal Code does not define 'consent' in positive

terms, but what cannot be regarded as 'consent' under the

Code is explained by Section 90. Section 90 reads as

follows:

"90. Consent known to be given under fear

or misconception\027A 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; \005"

Consent given firstly under fear of injury and secondly

under a misconception of fact is not 'consent' at all. That is

what is enjoined by the first part of Section 90. These two

grounds specified in Section 90 are analogous to coercion

and mistake of fact which are the familiar grounds that can

vitiate a transaction under the jurisprudence of our country

as well as other countries.

The factors set out in the first part of Section 90 are

from the point of view of the victim. The second part of

Section 90 enacts the corresponding provision from the

point of view of the accused. It envisages that the accused

too has knowledge or has reason to believe that the consent

was given by the victim in consequence of fear of injury or

misconception of fact. Thus, the second part lays emphasis

on the knowledge or reasonable belief of the person who

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obtains the tainted consent. The requirements of both the

parts should be cumulatively satisfied. In other words, the

Court has to see whether the person giving the consent had

given it under fear of injury or misconception of fact and the

Court should also be satisfied that the person doing the act

i.e. the alleged offender, is conscious of the fact or should

have reason to think that but for the fear or misconception,

the consent would not have been given. This is the scheme

of Section 90 which is couched in negative terminology.

Section 90 cannot, however be construed as an

exhaustive definition of consent for the purposes of the

Indian Penal Code. The normal connotation and concept of

'consent' is not intended to be excluded. Various decisions of

the High Court and of this Court have not merely gone by

the language of Section 90, but travelled a wider field,

guided by the etymology of the word 'consent'.

In most of the decisions in which the meaning of the

expression 'consent' under the Indian Penal Code was

discussed, reference was made to the passages occurring in

Stroud's Judicial Dictionary, Jowitt's Dictionary on English

Law, Words & Phrases\027Permanent Edition and other legal

Dictionaries. Stroud defines consent as "an act of reason,

accompanied with deliberation, the mind weighing, as in a

balance, the good and evil on each side". Jowitt, while

employing the same language added the following:

"\005Consent supposes three things\027a 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 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."

In Words & Phrases\027Permanent Edition, Volume 8A,

the following passages culled out from certain old decisions

of the American Courts are found:

"\005\005.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. \005"

It was observed by B.P. Singh, J. speaking for the

Court in Uday Vs. State of Karnataka [2003 (2) Scale

329], "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".

There is a good analysis of the expression 'consent' in

the context of Section 375 IPC by Tekchand, J. in Rao

Harnarain Singh Vs. State [AIR 1958 Punjab 123]. The

learned Judge had evidently drawn inspiration from the

above passages in the law dictionaries. The observation of

the learned Judge that "there is a difference between

consent and submission and every consent involves a

submission but the converse does not follow and a mere act

of submission does not involve consent", is quite apposite.

The said proposition is virtually a repetition of what was said

by Coleridge, J. in Regina vs Day in 1841 as quoted in

Words and Phrases (Permanent Edition) at page 205. The

following remarks in Harnarain's case are also pertinent:

"Consent is an act of reason accompanied by

deliberation, a mere act of helpless resignation in

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the face of inevitable compulsion, non resistance

and passive giving in cannot be deemed to be

Consent."

The passages occurring in the above decision were

either verbatim quoted with approval or in condensed form

in the subsequent decisions: vide In Re : Anthony [AIR

1960 Madras 308], Gopi Shankar Vs. State [AIR 1967

Raj. 159], Bhimrao Vs. State of Maharashtra [1975

Mah. L.J. 660], Vijayan Pillai Vs. State of Kerala [1989

(2) K.L.J. 234]. All these decisions have been considered

in a recent pronouncement of this Court in Uday Vs. State

of Karnataka. The enunciation of law on the meaning and

content of the expression 'consent' in the context of penal

law as elucidated by Tekchand, J. in Harnarain's case

(which in turn was based on the above extracts from law

Dictionaries) has found its echo in the three Judge Bench

decision of this Court in State of H.P. Vs. Mango Ram

[(2000) 7 SCC 224]. K.G. Balakrishnan, J. speaking for

the Court stated thus:

"Submission of the body under the fear or 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."

On the facts, it was held that there was resistance by

the prosecutrix and there was no voluntary participation in

the sexual act. That case would therefore fall more

appropriately within Clause first of Section 375.

We shall turn our attention to the cases which dealt

with the specific phraseology of Section 90, IPC. We have an

illuminating decision of the Madras High Court rendered in

1913 in Re: N. Jaladu [ILR 36 Madras 453] in which a

Division Bench of that Court considered the scope and

amplitude of the expression 'misconception of fact' occurring

in Section 90 in the context of the offence of kidnapping

under Section 361 IPC. The 2nd accused in that case

obtained the consent of the girl's guardian by falsely

representing that the object of taking her was for

participating in a festival. However, after the festival was

over, the 2nd accused took her to a temple in another village

and married her to the 1st accused against her will. The

question arose whether the guardian gave consent under a

misconception of fact. While holding that there was no

consent, Sundara Ayyar J. speaking for the Bench observed

thus:

"We are of opinion that the expression 'under a

misconception of fact' is broad enough to include

all cases where the consent is obtained by

misrepresentation; the misrepresentation should

be regarded as leading to a misconception of the

facts with reference to which the consent is given.

In Section 3 of the Evidence Act illustration (d)

that a person has a certain intention is treated as

a fact. So, here the fact about which the second

and third prosecution witnesses were made to

entertain a misconception was the fact that the

second accused intended to get the girl married.

In considering a similar statute, it was held in

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England in R. v. Hopkins 1842, Car & M 17, 254

that a consent obtained by fraud would not be

sufficient to justify the taking of a minor. See

also Halsbury's Laws of England, Volume 9, page

623. In Stephen's Digest of the Criminal Law of

England (sixth edition, page 217), the learned

author says with reference to the law relating to

"abduction of girls under sixteen" "thus \005\005\005\005\005..

If the consent of the person from whose

possession the girl is taken is obtained by fraud,

the taking is deemed to be against the will of

such a person." \005\005\005\005.. Although in cases of

contracts a consent obtained by coercion or fraud

is only voidable by the party affected by it, the

effect of Section 90, IPC is that such consent

cannot, under the criminal law, be availed of to

justify what would otherwise be an offence."

This decision is an authority for the proposition that a

misrepresentation as regards the intention of the person

seeking consent, i.e. the accused, could give rise to the

misconception of fact. This view of the Madras High Court

was accepted by a Division Bench of Bombay High Court in

Purshottam Mahadev vs. State of Bombay [AIR 1963

Bombay 74]. Applying that principle to a case arising under

Section 375, consent given pursuant to a false

representation that the accused intends to marry, could be

regarded as consent given under misconception of fact.

On the specific question whether the consent obtained

on the basis of promise to marry which was not acted upon,

could be regarded as consent for the purpose of Section 375

IPC, we have the decision of Division Bench of Calcutta High

Court in Jayanti Rani Panda vs. State of West Bengal

[1984 Crl.L.J. 1535]. The relevant passage in this case

has been cited in several other decisions. This is one of the

cases referred to by this Court in Uday (supra) approvingly.

Without going into the details of that case, the crux of the

case can be discerned from the following summary given at

para 7:

"Here the allegation of the complainant is that the

accused used to visit her house and proposed to

marry her. She consented to have sexual

intercourse with the accused on a belief that the

accused would really marry her. But one thing

that strikes us is \005\005\005\005\005\005\005\005\005. why should she

keep it a secret from her parents if really she had

belief in that promise. Assuming that she had

believed the accused when he held out a promise,

if he did at all, there is no evidence that at that

time the accused had no intention of keeping that

promise. It may be that subsequently when the

girl conceived the accused might have felt

otherwise. But even then the case in the petition

of complainant is that the accused did not till then

back out. Therefore it cannot be said that till

then the accused had no intention of marrying the

complainant even if he had held out any promise

at all as alleged."

The discussion that follows the above passage is important

and is extracted hereunder:

"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

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the 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. S. 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."

(emphasis supplied)

The learned Judges referred to the decision of Chancery

Court in Edgomgtpm vs. Fotz,airoce (1885) 29 Ch.D

459 and observed thus:

"This decision lays down that a misstatement of

the intention of the defendant in doing a

particular act may be a misstatement of fact, and

if the plaintiff was misled by it, an action of deceit

may be founded on it. The particular observation

at p. 483 runs to the following effect: "There

must be a misstatement of an existing fact."

Therefore, in order to amount to a misstatement

of fact the existing state of things and a

misstatement as to that becomes relevant. In

the absence of such evidence Sec. 90 cannot be

called in aid in support of the contention that the

consent of the complainant was obtained on a

misconception of fact."

After referring to the case law on the subject, it was

observed in Uday, supra at paragraph 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 strait jacket 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."

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The first two sentences in the above passage need

some explanation. While we reiterate that 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. If 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. This is what in fact was stressed by the

Division Bench of the Calcutta High Court in the case of

Jayanti Rani Panda, supra which was approvingly referred

to in Uday's case, (supra). The Calcutta High Court rightly

qualified the proposition which it stated earlier by adding the

qualification at the end\027"unless the Court can be

assured that from the very inception, the accused

never really intended to marry her". In the next para,

the High Court referred to the vintage decision of the

Chancery Court which laid down that a misstatement of the

intention of the defendant in doing a particular act would

tantamount to a misstatement of fact and an action of

deceit can be founded on it. This is also the view taken by

the Division Bench of the Madras High Court in Jaladu's

case, supra (vide passage quoted supra). By making the

solitary observation that "a false promise is not a fact within

the meaning of the Code", it cannot be said that this Court

has laid down the law differently. The observations following

the aforesaid sentence are also equally important. The Court

was cautious enough to add a qualification that no strait

jacket formula could be evolved for determining whether the

consent was given under a misconception of fact. Reading

the judgment in Uday's case as a whole, we do not

understand the Court laying down a broad proposition that a

promise to marry could never amount to a misconception of

fact. That is not, in our understanding, the ratio of the

decision. In fact, there was a specific finding in that case

that initially the accused's intention to marry cannot be

ruled out.

Having discussed the legal aspects bearing on the

interpretation of the term 'consent' with special reference to

Section 90 IPC, we must now turn our attention to the

factual aspects of the case related to consent.

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? 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? These are the questions which have

to be answered on an analysis of the evidence. The last

question raises the allied question, whether the promise to

marry, if made by the accused, was false to his knowledge

and belief from the very inception and it was never intended

to be acted upon by him. As pointed out by this Court in

Uday's case the burden is on the prosecution to prove that

there was absence of consent. Of course, the position is

different if the case is covered by Section 114-A of Evidence

Act. Consent or absence of it could be gathered from the

attendant circumstances. The previous or contemporaneous

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acts or the subsequent conduct can be legitimate guides.

Whether on the basis of the evidence adduced by the

prosecution, it is reasonably possible to infer the lack of

consent on the part of the prosecutrix is the ultimate point

to be decided.

A close scrutiny of evidence of the prosecutrix\027PW12

is what is called for, there being no other evidence in the

case which could throw light on the point at issue. First, we

must exclude from consideration that part of her version

which accuses the appellant of forcible sexual indulgence on

the first occasion. We have already discussed this aspect

and rejected her version as unreliable. Therefore, we have

to address ourselves to the twin questions (1) whether there

was voluntary participation in the sexual act quite mindful

and conscious of what she was doing and its possible

consequences and (2) whether the victim girl was misled by

the false promise of the accused to marry her and therefore

agreed to have sexual contact with him. In a way, these two

two aspects overlap and are interconnected.

Coming to the first question, it is not easy to find a

dividing line between submission and consent - a distinction

which was pointed out by Coleridge J., reiterated by

Tekchand J. in the Punjab decision and further reiterated by

this Court in the two decisions referred to supra, except in

the situation contemplated by clause fifthly of Section 375.

Yet, the evidence has to be carefully scanned. It is fairly

clear from the evidence of the victim\027PW12 that the

predominant reason which weighed with her in agreeing for

sexual intimacy with the accused was the hope generated in

her about the prospect of marriage with the accused. That

she came to the decision to have a sexual affair only after

being convinced that the accused would marry her, is quite

clear from her evidence which is in tune with her earliest

version in the first information report. There is nothing in

her evidence to demonstrate that without any scope for

deliberation, she succumbed to the psychological pressure

exerted or allurements made by the accused in a weak

moment. Nor does her evidence indicate that she was

incapable of understanding the nature and implications of

the act which she consented to. On the other hand, the

scrutiny of evidence of PW12 gives a contra indication.

According to PW12, she did not like accused making

passionate gestures and therefore, she went to the house of

the accused and made a complaint to his 'Bhabhi'. Though

she promised to restrain him, the accused continued to do

so. Her further version is that she was not willing to marry

the accused; even then the accused used to come to the

courtyard of her house many a time and it was within the

knowledge of her parents and brother that the accused used

to talk to her for hours. She used to accompany him

whenever he wanted. Another statement of significance is

that she tried to resist the talk of marriage by telling the

accused that marriage was not possible because they

belonged to different castes. However, she agreed to marry

him after she was raped and under the impression that he

would marry, she did not complain to anybody. These

statements do indicate that she was fully aware of the moral

quality of the act and the inherent risk involved and that she

considered the pros and cons of the act. The prospect of

the marriage proposal not materializing had also entered her

mind. Thus, her own evidence reveals that she took a

conscious decision after active application of mind to the

things that were happening. Incidentally, we may point out

that the awareness of the prosecutrix that the marriage may

not take place at all in view of the caste barrier was an

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important factor that weighed with the learned Judges in

Uday's case in holding that her participation in the sexual

act was voluntary and deliberate.

The remaining question is whether on the basis of the

evidence on record, is it 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. PW12

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 materialize 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's case at paragraph 24

comes to the aid of the appellant.

We reach the ultimate conclusion that the findings of

the trial court as affirmed by the High Court are either

perverse or vitiated by non-consideration of material

evidence and relevant factors emerging from the

prosecution evidence. We cannot, therefore, sustain the

conviction.

In the result, the conviction and sentence is set

aside and the appeal is allowed.

With this verdict, the appellant, no doubt extricates

himself from the clutches of the penal law by getting the

benefit of doubt on charge levelled against him. But, we

cannot ignore the reprehensible conduct of the appellant,

who by promising to marry the victim woman, persuaded

her to have sexual relations and caused pregnancy. The act

of the accused left behind her a trail of misery, ignominy and

trauma. The only solace is that she married subsequently.

We are informed that the female child born out of the illicit

relationship is now living with her married mother and she is

about 14 year old now. Though there is no evidence to

establish beyond reasonable doubt that the appellant made

a false or fraudulent promise to marry, there can be no

denial of the fact that the appellant did commit breach of the

promise to marry, for which the accused is prima facie

accountable for damages under civil law. When we apprised

the appellant's counsel of our prima facie view point on this

aspect and elicited his response on passing a suitable order

in exercise of power vested in this Court under Article 142 of

the Constitution, the learned counsel took time to get

instructions. We are now informed that the appellant is

prepared to pay a sum of Rs.50,000 by way of monetary

compensation irrespective of acquittal. Though the said

amount is not an adequate compensation, we are not

inclined to call upon the appellant to pay more for more than

one reason: firstly, the appellant has been in jail for about

two years by now; secondly, we are informed that the

accused belongs to a backward class and his family is not

affluent though they have some agricultural lands; lastly,

the incident took place about 15 years back and in the

supervening period, the prosecutrix as well as the appellant

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married and we are told that he has two children. In these

circumstances, we accept the offer of the appellant.

The appellant's counsel has brought a Demand Draft

for Rs.50,000 drawn in favour of the Chief Judicial

Magistrate, Sahibganj. The Draft is handed over just now to

the Court Officer. The concerned Registrar of this Court shall

send the Draft to the C.J.M., Sahibganj for being credited to

his account in the first instance. The C.J.M. shall take

immediate steps to summon the prosecutrix whose name

and address shall be furnished by the counsel for the

appellant in the course of the day to the Registrar of this

Court. Out of the amount of Rs.50,000, a sum of Rs.10,000

shall be paid over to the prosecutrix in cash if she makes a

request and the remaining amount of Rs.40,000 shall be

kept in a fixed deposit in a Bank in the name of the minor

girl namely Miss Sangeeta Kumari with the prosecutrix as

her guardian. The accrued interest shall be paid to the

prosecutrix once in two years. The amount of Rs. 40,000/-

with remaining interest thereon shall be disbursed to the girl

after she attains the majority by getting an account opened

in a Bank in her name. However, for the purpose of meeting

the imminent needs of the minor girl, the C.J.M. can permit

the amount to be paid over to the guardian (prosecutrix)

either partly or in whole depending on the genuine and

reasonable requirements concerning the maintenance of the

child. The C.J.M. shall submit a report to the Registrar of this

Court on the action taken in this regard within two months.

A translated copy of the part of the judgment starting from

page 37 shall be furnished to the prosecutrix by the CJM.

The CJM may appoint a counsel under the legal aid scheme

to assist the prosecutrix and the girl whenever necessary in

connection with the implementation of this order.

Accordingly, the order is passed in the interests of

justice in exercise of powers vested in this Court under

Article 142 of the Constitution.