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CASE NO.:

Appeal (crl.) 1369 of 2004

PETITIONER:

Yedla Srinivasa Rao

RESPONDENT:

State of A.P.

DATE OF JUDGMENT: 29/09/2006

BENCH:

A.K. Mathur & Altamas Kabir

JUDGMENT:

JUDGMENT

A.K. MATHUR, J.

Both these appeals arise out of two orders passed on 25.2.2004 and

18.6.2004 by the High Court of Andhra Pradesh convicting and sentencing

accused - appellant under Section 376 of the Indian Penal Code (for short,

IPC) to undergo rigorous imprisonment for 7 years and fine of Rs. 100/-, in

default, to further undergo simple imprisonment for one week and under

Section 417, IPC a fine of Rs. 100/-, in default, to further undergo simple

imprisonment for one week, therefore, they are disposed of by this common

order.

Brief facts giving rise to both these appeals are that prosecutrix (PW1)

used to attend cooking in her sister's (PW2) house in day time, as her

sister was attending to agricultural operations. The accused used to visit

the house of P.W 2 during day time between 11.00 a.m. and 12.00 noon

regularly while PW 1 was alone and persuaded her to have sexual intercourse

by telling her that he would marry her. PW1 resisted for this for sometime

but later on one day, the accused came to the house of PW2 in her absence,

closed the doors and committed forcible sexual intercourse with PW1 against

her will and consent. When she protested as to why he spoiled her life,

accused promised that he would marry her. Subsequently, the process

continued for some time. Accused used to come in the noon and had sexual

intercourse with PW1. When she became pregnant she informed the accused and

he gave tablets for abortion in order to get rid of pregnancy which did not

work. Subsequently, PW1 insisted the accused to marry her. The accused

informed PW1 that as his parents were not agreeing for the marriage, he

would not marry her. PW1 brought this fact to the notice of her sister -

PW2. Thereafter, the matter was reported to the Panchayat. The accused

accepted the guilt and promised to marry PW1 but subsequently, he absconded

from the village. Since the persuasion could not fructify, PW1 lodged a

report against the accused to police and, therefore, the police registered

a case as per the prosecutrix report for the offences punishable under

Sections 376 and 417.IPC. After completion of investigation, police filed a

challan against the accused. The accused denied the charges. Prosecution in

support of its case examined PW1 - Prosecutrix, PW2 -sister of Prosecutrix

and other witnesses. Prosecutrix was sent for medical examination and PW9 -

Smt. G. Pushpavalli -examined PW1. She found that PW1 was pregnant at the

time of examination and the age of pregnancy is 20-22 weeks. She was also

examined by Dr. Y.Jagannadha Rao - PW10 who was working as a Professor of

Forensic Medicines. He confirmed about the pregnancy. He also examined the

age of the prosecutrix and on the basis of X-Ray examination and other

physical features opined that the age of PW1 was not less than 15 years and

not more than 17 years at the time of examination.

Learned Assistant Sessions Judge after recording all the necessary evidence

and after hearing the parties acquitted the accused for the offences under

Section 417 as well as 376 of IPC. Aggrieved against the order of acquittal

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appeal was preferred by the State before the High Court. The High Court

after examining the evidence came to the conclusion that so far as the age

of prosecutrix is concerned, in view of the testimony of PW10 who conducted

the physical examination of the prosecutrix and has opined that she is not

less than 15 years and not more than 17 years at the time of examination

and there can be error of age as -1 or +1 in either way, it is highly

doubtful whether the age of PW1 is below 16 years and opined that she is

more than 16 years of age. So far as the age of the prosecutrix was

concerned, she cannot be said to be below 16 years.

However, the High Court found that testimony of PW1 being truthful that she

had sexual intercourse with the accused with the promise to marry attracts

the category of the offence punishable under Section 376 as well as 417 of

IPC. The High Court further found that in view of the statement of

prosecutrix, the accused gave a promise which was false right from the

beginning and under the misconception of fact the prosecutrix submitted to

the lust of the accused and, therefore, the High Court found the accused

guilty under Sections 376 and 417 of IPC.

Since the acquittal was being reversed and accused was found guilty the

High Court deferred the imposition of sentence till the examination of the

accused as to the quantum of sentence. The High Court, however, directed

the learned Sessions Judge to summon the accused for examining about the

quantum of sentence, therefore, record was sent back to the Sessions Judge

for necessary evidence to be recorded for imposition of sentence. The

Sessions Judge took up the matter and after recording necessary findings

sent the record back to the High Court and the High Court by order dated

18.6.2004, on the basis of the evidence recorded by the Sessions Judge,

convicted the accused - appellant under Sections 376 and 417 of IPC and

sentenced the accused to undergo rigorous imprisonment for a period of

seven years for the offence punishable under Section 376 IPC and also

sentenced to pay a fine of Rs. 100/-, in default, to suffer simple

imprisonment for one week. The accused was also convicted and sentenced to

pay a fine of Rs. 1007 for the offence punishable under Section 417 of IPC

in default, to suffer simple imprisonment for one week.

Being aggrieved against both the orders i.e. one dated 25.2.2004 whereby he

was found guilty and the second dated 18.6.2004 whereby he was sentenced as

aforesaid, the accused filed these two appeals. Hence both these appeals

are now being disposed of by a common judgment.

The question that falls for our consideration is that when the accused

committed sexual intercourse with the prosecutrix holding out a promise for

marriage whether this will amount to a consent or not? Section 375 of IPC

enumerates six circumstances wherein the sexual intercourse committed

amounts to rape which read as under:

"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

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age."

It is admitted fact that the sexual intercourse was committed with the

prosecutrix by the accused. She had deposed unequivocally in her statement

that after the death of her father she and her mother started residing at

Neelavathi Village. PW2 is her elder sister. She studied upto 4th class.

She obtained puberty at the age of 12 years. She went to her sister's (PW2)

house for giving help as her sister and brother-in-law used to go for

agricultural operations in the fields and used to return back in the

evening. During this time she used to remain alone. She deposed that the

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

daily and asked her for sexual intercourse with him. She refused to

participate in the said act but the accused kept on persisting and

persuading her. She resisted for about 3 months. She deposed that one day

the accused came to her sister's house at about 12 noon and closed the

doors and had sexual intercourse forcibly without her consent and against

her will. When she asked the accused as to why he spoiled her life he gave

assurance that he would marry her and asked not to cry though, his parents

are not agreeing for the marriage. But on the basis of the assurance given

by the accused this process of sexual intercourse continued and he kept on

assuring that he would marry her. This state of affair was not disclosed by

the prosecutrix to her sister. When she became pregnant she informed about

the pregnancy to the accused. He got certain tablets for abortion but they

did not work. When she was in the third month of pregnancy, she again

insisted for the marriage and the accused answered that his parents are not

agreeable. She also deposed that had he not promised, she would not have

allowed him sexual intercourse with her. Thereafter she informed her sister

(PW2) and her husband (PW3) and they asked the accused to marry her and the

accused informed that he would not marry with the prosecutrix. The question

was raised before the Panchayat of elders and the prosecutrix was present

in the Panchayat along with her sister and brother-in-law. Accused and his

father both attended the Panchayat and accused admitted about the illegal

contacts with the prosecutrix and causing pregnancy. Accused asked for two

days' time for marrying prosecutrix and the Panchayat accordingly granted

time. But after Panchayat meeting accused absconded from the village and

when the accused did not fulfil his promise which was made before the

Panchayat exhibit P-1 was lodged at the Police Station.

The question in the present case is whether this conduct of the accused

apparently falls under any of the six descriptions of Section 375 of IPC as

mentioned above. It is clear that the prsoecutrix had sexual intercourse

with the accused on the representation made by the accused that he would

marry her. This was a false promise held out by the accused. Had this

promise not been given perhaps, she would not have permitted the accused to

have sexual intercourse. Therefore, whether this amounts to a consent or

the accused obtained a consent by playing fraud on her. Section 90 of the

Indian Penal Code says that if the consent has been given under fear of

injury or a misconception of fact, such consent obtained, cannot be

construed to be valid consent. Section 90 reads as under:

"Section 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 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."

It appears that the intention of the accused as per the testimony of PW1

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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 Panchayat of elders of the

village. It is more than clear that the accused made a false promise that

he would marry her. Therefore, the intention of the accused right from the

beginning was not bona fide and the poor girl submitted to the lust of the

accused completely being misled by the accused who held out the promise for

marriage. This kind of consent taken by the accused with clear intention

not to fulfil the promise and persuaded 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. In this

connection, reference may be made to a decision of the Calcutta High Court

in the case of Jayanti Rani Panda v. State of West Bengal & Anr., (1984)

Cri.L.J.1535. In that case it was observed that in order to come within the

meaning of misconception of fact, the fact must have an immediate

relevance. It was also observed that if a fully grown up 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 and

it was held that Section 90 IPC cannot be invoked unless the court can be

assured that from the inception accused never intended to marry her.

Therefore, it depends on case to case that what is the evidence led in the

matter. If it is fully grown up girl who gave the consent then it is

different case but a girl whose age is very tender and she is giving a

consent after persuasion of three months on the promise that the accused

will marry her which he never intended to fulfil right from the beginning

which is apparent from the conduct of the accused, in our opinion, Section

90 can be invoked. Therefore, so far as Jayanti Rani Panda (supra) is

concerned, the porseuctirx was aged 21-22 years old. But, here in the

present case the age of the girl was very tender between 15-16 years.

Therefore, Jayanti Rani Panda's case is fully distinguishable on facts. It

is always matter of evidence whether the consent was obtained willingly or

consent has been obtained by holding a false promise which the accused

never intended to fulfil. If the court of facts come to the conclusion that

the consent has been obtained under misconception and the accused persuaded

a girl of tender age that he would marry her then in that case it can

always be said that such consent was not obtained voluntarily but under a

misconception of fact and the accused right from the beginning never

intended to fulfil the promise. Such consent cannot condone the offence.

Reliance can also be made in the case of Emperor v. Mussammat Soma reported

in (1917) Crl. Law Journal Reports 18 (Vol.18). In that case the question

of consent arose in the context of an allegation of kidnapping of a minor

girl. It was held that the intention of the accused was to marry the girl

to one Dayaram and she obtained Kujan's consent to take away the girl by

misrepresenting her intention. In that context it was held that at the time

of taking away the girl there was a positive misrepresentation i.e. taking

the girls to the temple at Jawala Mukhi and thereafter they halted for the

night in Kutiya (hut) some three miles distance from Pragpur and met Daya

Ram, Bhag Mal and Musammat Mansa and Musammat Sarasti was forced into

marrying Daya Ram. This act was found to be act of kidnapping without

consent. But, in the instant case, a girl though aged 16 years was

persuaded to sexual intercourse with the assurance of marriage which the

accused never intended to fulfil and it was totally under misconception on

the part of the victim that the accused is likely to marry her, therefore,

she submitted to the lust of the accused. Such fraudulent consent cannot be

said to be a consent so as to condone the offence of the accused. Our

attention was also invited to the decision of this Court in the case of

Deelip Singh Alias Dilip Kumar v. State of Bihar, [2005] 1 SCC 88 wherein

this Court took the view that prosecturix had taken a conscious decision to

participate in the sexual act only on being impressed by the accused who

promised to marry her. But accused's promise was not false from its

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inception with the intention to seduce her to sexual act. Therefore, this

case is fully distinguished from the facts as this Court found that the

accused promise was not false from its inception. But in the present case

we found that first accused committed rape on victim against her will and

consent but subsequently, he held out a hope of marrying her and continued

to satisfy his lust. Therefore, it is apparent in this case that the

accused had no intention to marry and it became further evident when

Panchayat was convened and he admitted that he had committed sexual

intercourse with the victim and also assured her to marry within 2 days but

did not turn up to fulfil his promise before the Panchayat. This conduct of

the accused stands out to hold him guilty. What is a voluntary consent and

what is not a voluntary consent depends on the facts of each case. In order

to appreciate the testimony, one has to see the factors like the age of the

girl, her education and her status in the society and likewise the social

status of the boy. If the attending circumstances lead to the conclusion

that it was not only the accused but prosecutrix was also equally keen,

then in that case the offence is condoned. But in case a poor girl placed

in a peculiar circumstance where her father has died and she does not

understand what the consequences may result for indulging into such acts

and when the accused promised to marry but he never intended to marry right

from the beginning then the consent of the girl is of no consequence and

falls in the second category as enumerated in Section 375 -"without her

consent". A consent obtained by misconception while playing a fraud is not

a consent.

In this connection our attention was also invited to the decision of this

Court in the case of Udav v. State of Karnataka, [2003] 4 SCC 46. In this

case also this Court held that for determining whether consent given by the

prosecutrix was voluntary or under a misconception of fact, no straitjacket

formula can be laid down but following factors stand out; (i) where a girl

was of 19 years of age and had sufficient intelligence to understand the

significance and moral quality of the act she was consenting to; (ii) she

was conscious of the fact that her marriage was difficult on account of

caste considerations; (iii) it was difficult to impute to the appellant

knowledge the prosecutrix had consented in consequence of a misconception

of fact arising from his promise, and (iv) there was no evidence to prove

conclusively that the appellant never intended to marry the prosecutrix. On

the basis of the above factors this Court did not feel persuaded to hold

that consent was obtained by misconception of facts on the part of the

victim. But as already mentioned above, in the present case we are

satisfied that looking to the antecedent and subsequent events that the

accused never intended to fulfil the promise of marriage, this was not a

case where the accused was deeply in love. In the present case in our hand

the accused persuaded her for couple of months but she resisted it

throughout. But, on one day he came to the house of her sister and closed

the doors and committed forcible sexual intercourse against her will and

consent, holding out a promise for marriage and continued to satisfy his

lust. Therefore, this case stands entirely on different footing. We may aid

a word of caution that the court of fact while appreciating evidence in

such cases should closely scrutinize evidence while taking into

consideration the factors like the age of the girl, her education, her

social status and likewise the social status of the boy.

In the case of Reg. v. William Case, (a) (1850) Crl. Law Cases 220 (Vol.

IV) if a girl does not resist intercourse in consequence of

misapprehension, this will not amount to a consent on her part. It was held

that where a medical man, to whom a girl of fourteen years of age was sent

for professional advice, had criminal connection with her, she making no

resistance from a bona fide belief that he was treating her medically, he

could be convicted for rape.

Similarly, in the case of The Queen v. Flattery (1877) 2 QBD 410 where the

accused professed to give medical advice for money, and a girl of nineteen

consulted him with respect to illness from which she was suffering, and he

advised that a surgical operation should be performed and, under pretence

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of performing it, had carnal intercourse with her, it was held that he was

guilty of rape.

Likewise, in the case of The King v. Williams (1923)1 KB 340 the accused

was engaged to give lessons in singing and voice production to the girl of

sixteen years of age had sexual intercourse with her under the pretence

that her breathing was not quite right and he had to perform an operation

to enable her to produce her voice properly. The girl submitted to what was

done under the belief, wilfully and fraudulently induced by the accused

that she was being medically and surgically treated by the accused and not

with any intention that he should have sexual intercourse with her. It was

held that the accused was guilty of rape.

In this connection reference may be made to the amendment made in the

Indian Evidence Act. Section 114 A was introduced and the presumption has

been raised as to the absence of consent in certain prosecutions for rape.

Section 114-A reads as under:

`Section 114 A- Presumption as to the absence of consent in certain

prosecutions for rape.- In a prosecution for rape under Cl. (a) or Cl.(b)

or Cl.(c) or Cl. (d) or Cl. (e) or Cl. (g) of sub-section (2) of Section

376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the

accused is proved and the question is whether it was without the consent of

the woman alleged to have been raped and she states in her evidence before

the court that she did not consent, the Court shall presume that she did

not consent."

If sexual intercourse has been committed by the accused and if it is proved

that it was without the consent of the prosecutrix and she states in her

evidence before the court that she did not consent, the court shall presume

that she did not consent. Presumption has been introduced by the

legislature in the Evidence Act looking to atrocities committed against

women and in the instant case as per the statement of PW, she resisted and

she did not give consent to the accused at the first instance and he

committed the rape on her. The accused gave her assurance that he would

marry her and continued to satisfy his lust till she became pregnant and it

became clear that the accused did not wish to marry her.

In the present case in view of the facts as mentioned above we are

satisfied that the consent which had been obtained by the accused was not a

voluntary one which was given by her under misconception of fact that the

accused would marry her but this is not a consent in law. This is more

evident from the testimony of PW1 as well as PW6 who was functioning as

Panchayat where the accused admitted that he had committed sexual

intercourse and promised to marry her but he absconded despite the promise

made before the Panchayat. That shows that the accused had no intention to

marry her right from the beginning and committed sexual intercourse totally

under the misconception of fact by prosecutrix that he would marry her.

Therefore, we are satisfied that the conviction and sentence awarded to the

appellant is correct and no case is made out for our interference. The

appeals are dismissed.