03 November 2004
Supreme Court


Case number: Crl.A. No.-000044-000044 / 2004
Diary number: 23951 / 2003



CASE NO.: Appeal (crl.)  44 of 2004

PETITIONER: Deelip Singh @ Dilip Kumar

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 03/11/2004



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



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.



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



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



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



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



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



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



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."



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



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



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



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.