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CASE NO.:

Appeal (crl.) 336 of 1996

PETITIONER:

Uday

RESPONDENT:

State of Karnataka

DATE OF JUDGMENT: 19/02/2003

BENCH:

N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT:

J U D G M E N T

B.P. Singh, J.

This appeal by special leave is directed against the judgment

and order of the High Court of Karnataka at Bangalore dated 20th

April, 1995 in Criminal Appeal No. 428 of 1992 whereby the High

Court while dismissing the appeal and upholding the conviction of

the appellant under Section 376 of the Indian Penal Code reduced

the sentence to two years rigorous imprisonment and a fine of

Rs.5000/- and in default, to undergo further rigorous imprisonment

for 6 months. Earlier the Sessions Judge, Karwar before whom

the appellant was tried in Sessions Case No.16/90, by his judgment

and order dated 27th November, 1992 sentenced the appellant to

seven years rigorous imprisonment under Section 376 of the Indian

Penal Code and a fine of Rs.20,000/- and in default, to undergo

further rigorous imprisonment for six months. He also directed

that out of the fine, if realized, a sum of Rs.10,000/- be given to the

prosecutrix/complainant. The trial court as well as the High Court

have concurrently held that though the prosecutrix had consented

to sexual intercourse with the appellant, the consent was obtained

by fraud and deception inasmuch as the appellant induced her to

consent on the promise that he shall marry her. It was under such

mis-conception that for several months thereafter the prosecutrix,

who claimed to be deeply in love with the accused, continued to

have sexual intercourse with him till it was discovered that she was

pregnant. When the appellant did not agree to the performance of

the marriage, at that stage, the complainant lodged a report in the

police station pursuant to which investigation was taken up and the

appellant put up for trial before the Sessions Judge, Karwar.

It is not in dispute that the prosecutrix, PW-1 was aged

about 19 years on the date of occurrence i.e. in the last week of

August, 1988 or the first week of September, 1988. She deposed

that her date of birth was 6th August, 1969. The appellant also was

a young man of about 20-21 years of age when the occurrence took

place, as he claimed to be 25 years of age in the year 1992 when he

was examined under Section 313 of the Code of Criminal

Procedure. There is, therefore, no dispute that the prosecutrix was

above the age of 16 on the date of occurrence. The prosecutrix

was studying in a college and residing with her parents, brothers

and sisters in Majali Gaongeri. In her deposition, she stated that

the appellant was a friend of her elder brother Jagdish, PW.3. The

appellant resided in the neighbourhood and used to frequently visit

her house almost daily and used to talk to her also, apart from

other members of the family. A friendship developed between

them and one day, the appellant proposed to her to marry him. The

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prosecutrix told him that since they belong to different castes such

a marriage was not possible. The prosecutrix is a native of

Tamilnadu and belongs to the Goundar community, while the

appellant claims to be a Daivanya Brahim. However, it is not

disputed that they fell in love with each other, but the prosecutrix

avoided talking to the appellant in presence of her parents.

In the last week of August, 1988 or first week of September,

1988 at about 12 O' clock in the night when she was studying, the

appellant came to the window of the room and called her out to

talk to her. Since she was deeply in love with him, she responded

to his invitation and thereafter they went to the place where the

house of the appellant was under construction. The appellant

talked to her and thereafter kissed her and embraced her and

promised to marry her. He also had sexual intercourse with her.

She was not willing to have sexual intercourse, but in the

circumstances she consented to the sexual intercourse because the

accused had promised to marry her. They continued to meet

thereafter and went out frequently. During this period as well, the

appellant had stated many times that he would marry her. She also

admits that she had sexual intercourse with him about 15-20 times

and that they used to have sexual intercourse once or twice a week.

She also admits that they were both noticed together by several

persons whom she has named in her deposition. When one

Vanamala, who had noticed her, questioned her about the affair,

she had told her that they were madly in love with each other and

that the appellant had promised to marry her. She also requested

her not to reveal this fact to anyone.

According to the prosecutrix whenever she talked to the

appellant about the marriage, he assured her that he would marry

her after completion of the construction of the house, and that it

would be a registered marriage. This state of affairs continued till

she discovered that she was pregnant. She told the appellant about

the pregnancy but he assured her that she should not worry and that

he will marry her after sometime. The suspicion of her mother was

aroused during the 6th month of pregnancy and she was, therefore,

compelled to disclose everything to her mother. She told the

appellant about her having disclosed everything to her mother, and

the appellant again assured her that he would take her to some

other place and get married. Gradually when others came to know

about the affair and her pregnancy, her brother, PW.3 enquired of

the appellant as to whether he would marry her. The appellant told

her brother that he would marry her, but this fact should not be

revealed to his (Appellant's) parents. In the 8th month of

pregnancy the appellant asked her to be ready to go with him and it

was planned that they would leave early in the morning. The

appellant did not turn up but the cousin of the appellant informed

her that the appellant had gone to Sangli. Eight days later when

the appellant returned from Sangli, her brother again asked the

appellant as to whether he would marry her. The appellant told her

brother to keep her at some other place and that he would bear her

maintenance expenses and after her delivery and completion of the

construction of his house, he would marry her. This suggestion

was not acceptable to the prosecutrix and her brother and this

angered the appellant. Next day when her brother wanted to meet

the appellant he did not come out of his house. Thereafter

followed a quarrel between female members of the two families.

Since the appellant did not marry her as promised, she lodged the

complaint with the police on 12th May, 1989 which was recorded

by PW.10, PSI. She gave birth to a child on 29th May, 1989. On

13th May, 1989 she was examined by the doctor, PW.14 who gave

the opinion that the prosecutrix was about 18-20 years of age. In

cross-examination questions were put to her about her intimacy

with other boys which she denied.

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PW.2, the mother of the prosecutrix and PW.3, the brother

of the prosecutrix, were examined, apart from other witnesses, to

prove the case of the prosecution.

The defence of the appellant was one of outright denial.

The Sessions Judge accepting the evidence of the

prosecutrix concluded that though she had consented to have

sexual intercourse with the appellant, that consent was not consent

within the meaning of Section 375 Secondly IPC having regard to

Section 90. According to him the consent was obtained by making

a false promise of marriage and, therefore, it was a consent

obtained by fraud and mis-representation. He, therefore, held that

in the facts and circumstances of the case, the appellant had sexual

intercourse with the prosecutrix without her consent and was,

therefore, guilty of the offence of rape punishable under Section

376 of the Indian Penal Code.

The High Court in appeal affirmed the finding of the trial

court substantially for the same reasons.

We may at the threshold notice the relevant provisions of the

Indian Penal Code, namely Section 375 and Section 90 which

read as follows :-

"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

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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 it 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

of 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."

Learned counsel for the appellant submitted that in the

context of Section 375 of the Indian Penal Code, which is a special

provision, the general provision namely Section 90 of the Indian

Penal Code 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 Indian

Penal Code 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

bonafide belief that she was being medically treated, or where

under pretence of performing surgery a surgeon had carnal

intercourse with her. In Stroud's Judicial Dictionary (Fifth

Edition) page 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 vs. The Queen : [1970] W.A.R. 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. vs. Olugboja : [1981] 3 W.L.R. 585 wherein it

was observed that "consent in rape covers states of mind ranging

widely from actual desire to reluctant acquiescence, and the issue

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of consent should not be left to the jury without some further

direction". Stephen, J. in Queen vs. Clarence : (1888) 22 QBD 23

observed - "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

"the consent obtained by fraud is not 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."

Some of the decisions referred to in Words and Phrases

Permanent Edition Volume 8A at page 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 vs. Perry, 26 Cal. App. 143).

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 vs.

State : AIR 1958 Punjab 123 it was observed :-

" A mere act of helpless resignation in the

face of inevitable compulsion, acquiescence, 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 a rape,

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 freely exercised a choice between

resistance and assent.

Submission of her body under the influence

of fear or terror is not consent. There is a

difference between consent and submission. Every

consent involves a submission but the converse

does now 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."

The same view was expressed by the High Court of Kerala

in Vijayan Pillai @ Babu vs. State of Kerala : 1989 (2) K.L.J.

234. Balakrishnan, J., as he then was, observed :-

"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

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there was consent on the part of the prosecutrix it

must be established that she freely submitted

herself while in free and unconstrained position 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 is by no means follows that a mere

submission involves consent. In Jowitt's

Dictionary of English Law II 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 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 re Anthony alias Bakthavatsalu : AIR 1960 Madras 308,

Ramaswami, J. in his concurring opinion fully agreed with the

principle laid down in Rao Harnarain Singh's case (supra) and

went on to observe :-

"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 untrammeled 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."

The same view has been reiterated by the Punjab High Court

in Arjan Ram vs. The State : AIR 1960 Punjab 303 by the

Rajasthan High Court in Gopi Shankar vs. State : AIR 1967 Raj.

159 and by the Bombay High Court in Bhimrao Harnooji Wanjari

vs. State of Mahrashtra : 1975 Mah. L.J. 660.

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 vs. State of West Bengal and another :

1984 Crl. L.J. 1535 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

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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

Indian Penal Code and concluded :-

"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 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."

The same view was reiterated in Hari Majhi vs. The State :

1990 Crl. L.J. 650 and Abhoy Pradhan vs. State of West Bengal :

1999 Crl. L.J. 3534.

The impugned judgment and order in this appeal is by a

learned Single Judge of the High Court of Karnataka but it appears

that in a recent judgment, a Division Bench of the same High

Court in State of Karnataka vs. Anthonidas : ILR 2000 Kar. 266

has taken the contrary view. Similar is the view of the Orissa High

Court in Nilambar Goudo vs. The State and another : 1982 Crl.

L. J. NOC 172 (Orissa)

Only one judgment of the Patna High Court was brought to

our notice, which appears to take a contrary view. (Saleha

Khatoon vs. State of Bihar and another : 1989 Crl. L.J. 202).

However, the observations in that judgment must be understood in

the facts and circumstances of that case. That was a case where the

Magistrate instead of committing the case to the Court of Sessions

for trial, on similar allegations, proceeded to try the case himself

for the charge under Section 498 IPC and declined to commit the

accused to the Court of Sessions for trial for the offence under

Section 376 IPC. This order was challenged before the High Court

and in those circumstances the Court held that in the facts and

circumstances of the case, having regard to the narrow jurisdiction

of the Magistrate under Section 209 Cr. P.C., he was not required

to balance and weigh the evidence as is done by the trial court. In

the facts and circumstances of the case he ought to have committed

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the case to the Court of Sessions for trial under Section 376 IPC.

In this background the learned Judge made the following

observations :-

"The first point which attracts my attention is the

second ingredient 'without her consent'. Consent

always means free will or voluntary act. In this

case consent was obtained on the basis of some

fraud and allurment or practicing deception upon

the lady on the pretext that ultimately she will be

married and under that pretext she allowed

opposite party No.2 to have sexual intercourse

with her. Therefore, this tainted consent or a

consent of this nature which is based on deception

and fraud, cannot be termed, prima facie, to

conclude that it was 'with consent'. Had the lady

known that ultimately she would be deserted, the

facts and circumstances stated above and the

materials placed would go to show that she would

have refrained from giving such consent. Then a

question would arise what was the purpose for

which she gave consent. It was a fraud that was

practiced on her or she was deceived by giving

false assurance. Such type of consent must be

termed to be consent obtained without her consent.

Consent obtained by deceitful means is no consent

and comes within the ambit of the ingredients of

definition of rape."

We may only observe that another Single Judge of the Patna

High Court in 1990 BBCJ 530 while quashing a charge framed

under Section 376 IPC has taken the contrary view following the

Calcutta High Court judgment in Jayanti Rani Panda (supra).

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.

The approach to the subject of consent as indicated by the

Punjab High Court in Rao Har Narain Singh (supra) and by the

Kerala High Court in Vijayan Pillai (supra) has found approval by

this Court in State of H.P. vs. Mango Ram (2000) 7 SCC 224.

Balakrishnan, J. speaking for the Court observed :-

"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

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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."

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 it. 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.

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.

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

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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, is 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 over come 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 the mind of the prosecutrix when

she consented, because there were more reasons than one for her to

consent.

In view of our findings aforesaid, we do not consider it

necessary to consider the question as to whether in a case of rape

the misconception of fact must be confined to the circumstances

falling under Section 375 Fourthly and Fifthly, or whether consent

given under misconception of fact contemplated by Section 90 has

a wider application so as to include circumstances not enumerated

in Section 375 IPC.

In the result, this appeal must succeed, and is accordingly

allowed. The impugned judgment and order convicting and

sentencing the appellant for the offence punishable under Section

376 IPC is set aside, and the appellant stands acquitted of the

charge. Since the appellant was granted exemption from

surrendering when the special leave was granted, no further order

for his release is necessary.