NEWS



When It Is Established and Proved That Consent for Sexual Intercourse Was on Pretext of False Marriage Promise, It Is Rape: Rules Supreme Court



When It Is Established and Proved That Consent for Sexual Intercourse Was on Pretext of False Marriage Promise, It Is Rape: Rules Supreme Court

Recently, the Supreme Court bench comprising Justice L. Nageswara Rao and Justice MR Shah, has elucidated that the consent for sexual intercourse on an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact and it would not excuse an accused from the charges of rape.

The bench observed,

"...while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."

It was further maintained,

"Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant­accused must face the consequences of the crime committed by him."

The observation of the bench came while dealing with a criminal appeal (Anurag Soni vs. State of Chhattisgarh).

The accused-appellant, a junior Doctor, in the case was convicted by the Sessions Court for the offence under Section 376 of the IPC and sentenced him to undergo 10 years rigorous imprisonment.

Notably, the learned Sessions Court observed and held that the prosecutrix gave consent for sexual intercourse on a "misrepresentation of fact" and the promise by the accused that he would marry the prosecutrix and therefore the said consent cannot be said to be a consent and therefore the accused committed the offence under Section 376 of the IPC.

Aggrieved by the Session Court's decision, the accused prefered an appeal in the High Court. The High Court, however, dismissed the appeal and confirmed the judgment and order passed by the learned Sessions Court.

The accused-appeallant then approached Supreme Court on the ground that the prosecutrix, who was a pharmacy student and her family members were in knowledge that his marriage was already fixed with an another girl, even then, the prosecutrix and her family pressurized him the to marry the prosecutrix.

Noting that the accused-appeallant has not proved the said allegation, the bench said,

"The prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix.......her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC"

Brief facts of the case says,

In April 2013, despite refusal of the prosecutrix, the accused though not forcibly, established physical relation with her on the pretext of marrying her.

In May 2013, after repeated follow-ups and eventually on not getting any positive response from the accused-appellant, the prosecutrix submitted a written report in the police station in respect of rape committed by the accused upon her on the pretext of marriage based on which FIR for the offence under Section 376 of IPC was registered against the accused.

The investigating officer(IO) collected the medical evidence and other evidence and the accused was arrested for the same.

In the month of May only, the accused whose marriage was already fixed with another girl, tied his knot in Arya Samaj.

The learned Counsel appearing for the accused appeallant submitted before the Court that while convicting the accused for the offence under Section 376 of the IPC and while holding that the accused committed the rape under Section 375 of the IPC, the lower Courts have not at all considered Section 90 of the IPC and Section 114­A of the Evidence Act in its true perspective.

Arguing that even assuming that the accused gave promise to the prosecutrix to marry and thereafter the accused did not marry the prosecutrix, the same can be said to be a ‘breach of promise’ and cannot be said to be a rape under Section 375 of the IPC.

However, brushing aside the aforesaid arguments, the bench clarified that when it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a "consent obtained on a misconception of fact as per Section 90 of the IPC".

Adding that in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.

Noting that the prosecutrix, in the deposition, had specifically stated that initially she did not give her consent for physical relationship, however, on the appellant's promise that he would marry her, she consented for physical relationship with the appellant accused.

Regarding Section 114-A of the Indian Evidence Act, which has been inserted subsequently, the Court said that there is a presumption and the Court shall presume that "she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. "

In the present case,the Court relied on cantena of judgements and ruled that the consent given by the prosecutrix was on misconception of facts and the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC and thus the lower Courts have rightly convicted the accused appellant under 376 of the IPC.

However, the Supreme Court reduced the sentence of accused apeallant from 10 years rigourous imprisonment to 7 years rigourous imprisonment.

Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt.

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.

breach of promise
Rape Case
Section 114­A of the Evidence Act
Section 376 of the IPC

All Comments

Post Comment


Related Reads