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Friday, June 15, 2012

Penal Code, 1860-Sections 375, 376, 417 and 90-Rape-Accused forcibly committed sexual intercourse with a girl of tender age and thereafter continued to do so by promising to marry her-Girl became pregnant and he refused to marry her-Held: He is guilty of offence punishable u/ss.376 and 417 as his intention was never bonafide-Consent of girl was not obtained voluntarily but under misconception of fact that he intends to marry her-Such consent cannot condone the offence-Section 90 IPC can be invoked-Evidence Act, Section 114-A. Prosecution's case was that the prosecutrix PW-1 had been attending to cooking at her sister's house where accused was a frequent visitor. He persuaded her to indulge in sexual intercourse. She resisted to this for sometime but one day accused forcibly committed sexual intercourse with her against her will and consent. When she protested that he had spoiled her life, he promised that he would marry her. Thereafter, he continued to have sexual intercourse with her. When she became pregnant, she insisted him to marry her but he refused. PW-1 told her sister about her pregnancy. Matter was reported to Panchayat. Accused accepted the guilt and promised to marry but subsequently absconded from village. Police registered a case for offence punishable u/ss. 376 and 417 IPC. PW-1 was sent for medical examination. Doctor confirmed about the pregnancy and further opined that the age of PW-1 was not less than 15 years and not more than 17 years. Sessions Judge acquitted the accused. On appeal, High Court held that the sexual intercourse by accused with PW-1 by falsely promising to marry her, attracts the category of offence punishable u/ss. 376 and 417 IPC and sentenced him to undergo RI for 7 years. In these appeals, the questions for consideration are, that when the accused committed sexual intercourse with PW-1 holding out a promise for marriage whether this will amount to a consent or not and whether this conduct of accused falls under any of one six description of Section 375 IPC. Dismissing the appeals, the Court HELD: 1. The conviction and sentence awarded to the appellant is correct and no case is made out for interference. The intention of the accused 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. 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. Hence, Section 90 IPC can be invoked. [767-c-d; e-f; 768-a] Jayanti Rani Panda v. State of West Bengal and Anr., (1984) Crl.L.J.1535 - distinguished. 2.1. It is always matter of evidence whether 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. [768-b-c] Emperor v. Mussammat Soma, (1917) Crl.L.J.R. 18 and Deelip Singh Alias Dilip Kumar v. State of Bihar, [2005] 1 SCC 88, distinguished. 2.2. 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. [771-b-d] Uday v. State of Karnataka, [2003] 4 SCC 46, distinguished. Reg. v. William, (1850) Crl. Law. Cases 220 Vol. IV; The Queen v. Flattery, (1877) 2 QBD 410 and The King v. Williams, (1923) 1 KB 340 - referred to. 3. In terms of Section 114 A introduced by amendment in Evidence Act, a presumption is raised as to the absence of consent in certain prosecutions for rape. 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. Sunita Pandit and Rameshwar Prasad Goyal for the Appellant. P. Vinay Kumar and D. Bharathi Reddy for the Respondent., 2006(6 )Suppl.SCR760 , 2006(11 )SCC615 , 2006(9 )SCALE692 ,


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
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
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
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
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
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.





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