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CASE NO.: Appeal (crl.)  1086 of 2007

PETITIONER: Pradeep Kumar @ Pradeep Kumar Verma

RESPONDENT: State of Bihar and Anr

DATE OF JUDGMENT: 17/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  (Arising out of SLP (Crl.) No. 3072 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Patna High Court calling in  question correctness of the judgment of the Additional  Sessions Judge, Fast Track Court No.III, Buxar, in Sessions  Trial No.280 of 2004, whereby the application filed by the  appellant for discharge was rejected.  

3.      A brief reference to the factual aspects would suffice.  

       Respondent No.2 lodged the First Information Report (in  short the \021FIR\022) alleging that with an assurance that the  accused-appellant would marry her, he had sexual  relationship with her. When this went on for some time, the  informant had been taken to a temple where in the presence of  deity he accepted her to be his wife and there was an  agreement of marriage entered into.  Alleging that the accused  was likely to get married with some other lady, an FIR was  lodged. Investigation was undertaken and statement of the  informant was recorded under Section 164 of the Code of  Criminal Procedure, 1973 (in short the \021Code\022) wherein it was  accepted that first with a promise of marriage, the accused  had physical relationship with the informant and then, had  married her. Since the accused disowned having ever married  the informant and much less having ever had any physical  relationship with her, she was forced to file the FIR.  After  investigation, charge sheet was filed wherein it was indicated  an offence punishable under Sections 376 and 406 of IPC was  made out. An application was filed by the present appellant  before the trial Court for discharge in terms of Section 227 of  the Code. By order dated 21.7.2005 the same was rejected.  It  was inter alia noted as follows:

\023\005.As a matter of fact the poor victim Binita  Kumari was put under misconception of fact  as promise to marry her by the accused and in  this light the accused has done sexual  intercourse with her. The accused had done  such act with other girls also and further the  accused has made a Akrarnama for marriage

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with the victim. The love letters and  Akrarnama photocopy are also with the case  diary and the same are on the record. From  the case diary it is also clear that the accused  has taken consent of the victim girl on a false  promise of marriage and further a Akrarnama  is also made here. Hence the consent is not  with free will or voluntary act. Hence there are  sufficient grounds for framing charge against  the accused person.\024    4.      Charges were framed for offences punishable under  Sections 376 and 406 of IPC.  As noted above, the order was  challenged before the High Court which rejected the  application in summary manner holding as follows:

\023The learned Judge finding sufficient material  showing petitioner\022s complicity in the crime  rejected his prayer for discharge.

I do not find any error in the same. Application  stands dismissed.\024

5.      Learned counsel for the appellant submitted that the trial  Court failed to notice that the lady accepted that whatever  physical relationships were there were with her consent.  According to her, she was married to the accused. That being  so, the question of any offence punishable under Section 376  IPC does not arise.  

6.      Further, the ingredients of Section 406 IPC have  absolutely no application. Even a bare reading of the  statement recorded under Section 164 of the Code shows that  Section 406 has no application. Section 406 IPC relates to  punishment for criminal breach of trust. The expression  \023criminal breach of trust\024 is defined in Section 405. The same  relates to only entrustment of property or dominion over the   property. There is no allegation of any entrustment of any  property in this case and therefore Section 406 does not apply  to this case. The High Court should not have rejected the  application summarily without even dealing with the  submissions made by the appellant.  

7.      Learned counsel for the State submitted that though  prima facie Sections 376 and 406 do not appear to have any  application, yet the case is one which is covered by other  Sections like 415 and 493 IPC. Learned counsel for the  informant submitted that since on the pretext of marriage and  by cheating the victim the accused had physical relationship  with her, it cannot be said that there is element of consent and  Section 376 has rightly been applied. Both learned counsel for  the State and the informant stated that the charges can be  altered during the trial and there is no scope for interference.  It would not be appropriate to express any view with regard to  acceptability or otherwise of the submissions made by the  appellant.  8.      As rightly submitted by learned counsel for the State,  Sections 376 and 406 prima facie do not appear to have any  application. It would have been appropriate for the High Court  to deal with various submissions and consider their  acceptability.   That apparently has not been done. This is not  a case where the application should have been dismissed in a  summary manner.

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9.      The crucial expression in Section 375 which defines  \021rape\022 as \023against her will\024. It seems to connote that the  offending act was despite resistance and opposition of the  woman. IPC does not define \023consent\024 in positive terms. But  what cannot be regarded as \021consent\022 is explained by Section  90 which reads as follows:

\023consent given firstly under fear of injury and  secondly under a  misconception of fact is not  consent at all.\024  

That is what is explained in first part of Section 90. There are  two grounds specified in Section 90 which 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 first  part of Section 90 are from the point of view of the victim and  second part of Section 90 enacts the corresponding provision  from the point of view of the accused. It envisages that the  accused 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 has  given it under fear 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. As observed by this  Court in Deelip Singh @ Dilip Kumar v. State of Bihar (2005  (1) SCC 88), Section 90 cannot be considered as an exhaustive  definition of consent for the purposes of IPC. The normal  connotation and concept of consent is not intended to be  excluded.  

10.     In most of the decisions in which the meaning of the  expression \023consent\024 under the IPC was discussed, reference  was made to the passages occurring in Stroud\022s Judicial  Dictionary, Jowitt\021s Dictionary on English Law, Words and  Phrases, Permanent Edn. and other legal dictionaries. Stroud  defines consent as \023an act of reason, accompanied with  deliberation, the mind weighing, as in a balance, the good and  evil on each side\024. Jowitt, while employing the same language  added the following:

\023Consent supposes three things \027 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, meditated  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.\024

11.     In Words and Phrases, Permanent Edn., Vol. 8-A, the  following passages culled out from certain old decisions of the  American courts are found:

\023\005.adult female\022s understanding of nature and  consequences of sexual act must be intelligent  understanding to constitute \021consent\022.

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    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\024

12.    It was observed in Uday v. State of Karnataka  (2003 (4)  SCC 46) as under:  

\02312. 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.\024

13.     There is a good analysis of the expression \023consent\024 in  the context of Section 375 IPC in Rao Harnarain Singh Sheoji  Singh v. State. (AIR 1958 Punj 123). The learned Judge had  evidently drawn inspiration from the above passages in the law  dictionaries. The observation of the learned Judge is as  follows:  

\023there 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\024,

14.     The said proposition is virtually a repetition of what was  said by Coleridge, J. in R. v. Day (173 E.R. 1026) in 1841 as  quoted in Words and Phrases (Permanent Edn.) at p. 205. The  following remarks in Harnarain\022s case (supra) are also  pertinent:  

\023Consent 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.\024

15.    The passages occurring in the above decision were either  verbatim quoted with approval or in condensed form in the  subsequent decisions: vide Anthony, In Re (AIR 1960 Madras  308), Gopi Shanker v. State of Rajasthan (AIR 1967 Rajasthan  159),  Bhimrao v. State of Maharashtra (1975 Mah.LJ 660)  and Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234).  All  these decisions have been considered in Uday\022s case (supra).   The enunciation of law on the meaning and content of the  expression \023consent\024 in the context of penal law as elucidated  by Tekchand, J. in Harnarain\022s case (supra) (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. v. Mango Ram (2000 (7) SCC 224). It was  observed as follows:  

\023Submission of the body under the fear of  terror cannot be construed as a consented  sexual act. Consent for the purpose of Section  375 requires voluntary participation not only  after the exercise of intelligence based on the  knowledge of the significance and moral  quality of the act but after having fully  exercised the choice between resistance and  assent. Whether there was consent or not, is to  be ascertained only on a careful study of all  relevant circumstances.\024

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16.     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.

17.     It would be appropriate to deal with the specific  phraseology of Section 90 IPC. We have an illuminating  decision of the Madras High Court rendered in 1913 in N.  Jaladu, Re (ILR (1913) 36 Madras 453) in which a Division  Bench of that Court considered the scope and amplitude of the  expression \023misconception of fact\024 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\022s 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:  \023We are of opinion that the expression \021under a  misconception of fact\022 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 254)  that a consent obtained by fraud would not be  sufficient to justify the taking of a minor. See  also Halsbury\022s Laws of England, Vol. 9, p.  623. In Stephen\022s Digest of the Criminal Law of  England (6th Edn.,p. 217) the learned author  says with reference to the law relating to  \021abduction of girls under sixteen\022 \021thus ... 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\022 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.\024

18.     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 the Bombay High Court in  Parshottain Mahadev v. State (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.

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19.     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,  was dealt with by a Division Bench of the Calcutta High Court  in Jayanti Rani Panda v. State of WB (1984 Cr.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\022s case (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:  

\023Here 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 ... 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.\024

The discussion that follows the above passage is important  and is extracted hereunder:  

\023The 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. Section 90  IPC cannot be called in aid in such a case to  pardon the act of the girl and fasten criminal  liability on the other, unless the court can be  assured that from the very inception the  accused never really intended to marry  her.\024  

                                       (emphasis supplied)

The learned Judges referred to the decision of the Chancery  Court in Edgington v. Fitzmaurice (1885 (29) Ch.D.459) and  observed :

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\023This 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: \021There must be a misstatement of an  existing fact.\022 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  Section 90 cannot be called in aid in support  of the contention that the consent of the  complainant was obtained on a misconception  of fact.\024

After referring to the case-law on the subject, it was observed  in Uday\022s case (supra):  

\023It therefore appears that the consensus of  judicial opinion is in favour of the view that the  consent given by the prosecutrix to sexual  intercourse with a person with whom she is  deeply in love on a promise that he would  marry her on a later date, cannot be said to be  given under a misconception of fact. A false  promise is not a fact within the meaning of the  Code. We are inclined to agree with this view,  but we must add that there is no straitjacket  formula for determining whether consent given  by the prosecutrix to sexual intercourse is  voluntary, or whether it is given under a  misconception of fact. In the ultimate analysis,  the tests laid down by the courts provide at  best guidance to the judicial mind while  considering a question of consent, but the  court must, in each case, consider the  evidence before it and the surrounding  circumstances, before reaching a conclusion,  because each case has its own peculiar facts  which may have a bearing on the question  whether the consent was voluntary, or was  given under a misconception of fact. It must  also weigh the evidence keeping in view the  fact that the burden is on the prosecution to  prove each and every ingredient of the offence,  absence of consent being one of them\024.     20.     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 \023misconception of  fact\024 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 second. This is what in fact  was stressed by the Division Bench of the Calcutta High Court  in the case of Jayanti Rani Panda\022s case (supra) which was  approvingly referred to in Uday\022s case (supra). The Calcutta

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High Court rightly qualified the proposition which it stated  earlier by adding the qualification at the end - \023unless the  court can be assured that from the very inception the accused  never really intended to marry her\024. (emphasis supplied) 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 case (vide  passage quoted supra). By making the solitary observation  that \023a false promise is not a fact within the meaning of the  Code\024, 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 straitjacket formula could be  evolved for determining whether the consent was given under  a misconception of fact. Reading the judgment in Uday 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\022s intention to marry cannot  be ruled out.

21.     These aspects have been elaborately dealt with in Deelip  Singh\022s case (supra). The stage of analyzing the factual  materials was yet to be undertaken. But as rightly contended  by the appellant if on a bare reading of the FIR, it shows that  no offence had been made out for proceeding situation would  be different.  It would have been proper for the High Court as  noted above to deal with the matter elaborately. That  apparently has not been done. Therefore, without expressing  any opinion on the merits of the case, we set aside the order of  the High Court and remit the matter to it for fresh  consideration.  

22.     The appeal is disposed of accordingly.