Deepak Gulati vs. State of Haryana, Criminal Appeal No. 2322 of 2010, Decided on May 20, 2013
The Hon’ble
Supreme Court held as under:
“Consent may be express or
implied, coerced or misguided, obtained willingly or through deceit. Consent is
an act of reason, accompanied by deliberation, the mind weighing, as in a
balance, the good and evil on each side. There is a clear distinction between
rape and consensual sex and in a case like this, the court must very carefully
examine whether the accused had actually wanted to marry the victim, or had
mala fide motives, and had made a false promise to this effect only to satisfy
his lust, as the latter falls within the ambit of cheating or deception. There
is a distinction between the mere breach of a promise, and not fulfilling a
false promise. Thus, the court must examine whether there was made, at an early
stage a false promise of marriage by the accused; and whether the consent
involved was given after wholly, understanding the nature and consequences of
sexual indulgence. There may be a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the accused, and not solely
on account of mis-representation made to her by the accused, or where an
accused on account of circumstances which he could not have foreseen, or which
were beyond his control, was unable to marry her, despite having every
intention to do so. Such cases must be treated differently. An accused can be
convicted for rape only if the court reaches a conclusion that the intention of
the accused was mala fide, and that he had clandestine motives. [Para 18]
“..there must be adequate
evidence to show that at the relevant time, i.e. at initial stage itself, the
accused had no intention whatsoever, of keeping his promise to marry the victim.
There may, of course, be circumstances, when a person having the best of
intentions is unable to marry the victim owing to various unavoidable
circumstances. The “failure to keep a promise made with respect to a future
uncertain date, due to reasons that are not very clear from the evidence
available, does not always amount to misconception of fact. In order to come
within the meaning of the term misconception of fact, the fact must have an
immediate relevance.” Section 90 IPC cannot be called into aid in such a situation,
to pardon the act of a girl in entirety, and fasten criminal liability on the
other, unless the court is assured of the fact that from the very beginning,
the accused had never really intended to marry her. [Para 21]
The Court
allowed the appeal observing as under:
“..the prosecutrix had left
her home voluntarily, of her own free will to get married to the appellant. She
was 19 years of age at the relevant time and was, hence, capable of
understanding the complications and issues surrounding her marriage to the
appellant. According to the version of events provided by her, the prosecutrix had
called the appellant on a number given to her by him, to ask him why he had not
met her at the place that had been pre-decided by them. She also waited for him
for a long time, and when he finally arrived she went with him to the Karna
lake where they indulged in sexual intercourse. She did not raise any objection
at this stage and made no complaints to any one. Thereafter, she also went to Kurukshetra
with the appellant, where she lived with his relatives. Here to, the
prosecutrix voluntarily became intimate with the appellant. She then, for some
reason, went to live in the hostel at Kurukshetra University illegally, and
once again came into contact with the appellant at the Birla Mandir.
Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra,
toleave for Ambala so that the two of them could get married in court at Ambala.
However, here they were apprehended by the police. [Para
23]
“If the prosecutrix was in
fact going to Ambala to marry the appellant, as stands fully established from
the evidence on record, we fail to understand on what basis the allegation of
“false promise of marriage” has been raised by the prosecutrix. We also fail to
comprehend the circumstances in which a charge of deceit/rape can be leveled
against the appellant, in light of the afore-mentioned fact situation”.[Para
24]
The Court also
noted following case laws:
Deelip Singh v.
State of Bihar, AIR 2005 SC 203, in which it has been observed as under:
“20. 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.”
Pradeep Kumar
Verma a v. State of Bihar & Anr., AIR 2007 SC 3059, the Court placed reliance
upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR
(1913) 36 Mad 453, wherein it has been observed:
“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) states 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……..
“thus … 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”.
… 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.
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