Patna High Court

RAVINDRA MANDALversusTHE STATE OF BIHAR

Decided: 20 April 2026
Disposal: ALLOWED
Bench: PURNENDU SINGH

Holding

The appeal is allowed; the conviction under Section 376 IPC is set aside and the appellant is acquitted.

Summary

The appellant was convicted in 2011 for rape under Section 376 IPC based on the allegation that he assaulted a 14‑year‑old girl, promised to marry her, and later refused, leading to pregnancy. The prosecution relied on the victim’s testimony, several family witnesses, an eye‑witness, and a medical report that estimated the victim’s age at 18‑19 years, but no documentary proof of minority was produced. The defence and amicus curiae highlighted the eight‑month delay in filing the FIR, the lack of corroboration, the victim’s continued consensual relationship with the appellant, and the absence of evidence of force or recent intercourse. The Court examined the jurisprudence on false promises to marry, Section 90 IPC, and the requirement that consent be free of misconception of fact. Finding that the prosecution failed to prove the victim was a minor, that the promise to marry was not a false promise at inception, and that the relationship was consensual, the Court set aside the conviction and acquitted the appellant.

Issues considered

The appellant was guilty of rape under Section 376 IPC.
Whether the victim was a minor at the time of the alleged offence.
Whether the promise to marry constituted a false promise that vitiated consent under Section 90 IPC.
Whether the delay in lodging the FIR defeats the prosecution case.
Whether the evidence on record establishes the offence beyond reasonable doubt.

Legislation cited

Code of Criminal Procedure, 1973 — s. 156(3), 313
Indian Penal Code — s. 375, 376, 90

Subjects

rape
false promise to marry
consent
Section 376 IPC
Section 375 IPC
Section 90 IPC
delay in FIR
age of victim
consensual relationship
misconception of fact
Panchayati

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1079 of 2011
======================================================
Ravindra Mandal, Son of Asha Ram Mandal, Village-Atharah Chawnni Tola,
P.S-Pranpur, District – Katihar.

... ... Appellant/s
Versus
The State of Bihar

... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Vishwajeet Gajendra Pratap Singh, Amicus Curiae.
For the Respondent/s : Mr. Abhay Kumar, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
C.A.V. JUDGMENT
Date : 20-04-2026

Heard Mr. Vishwajeet Gajendra Pratap Singh,

learned Amicus Curiae and Mr. Abhay Kumar, learned APP for

the State.

2. The above criminal appeal has been preferred

against the judgment of conviction dated 07.09.2011 and order

of sentence dated 08.09.2011 passed in Sessions Trial No.

96/2010, arising out of Pranpur P.S. Case No. 115 of 2008, G.R.

No. 1889/2008 by learned Additional Sessions Judge, F.T.C.-I,

Katihar, whereby the learned trial court convicted the appellant

under Section 376 of the Indian Penal Code and sentenced him

to undergo 10 years R.I. and to pay a fine of Rs. 5,000, and in

default of payment of fine, to further undergo R.I. for one year.
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FACTS OF THE CASE

3. The prosecution story as per the complaint petition,

in brief, is that the victim girl aged about 14 years being a

student of Class X of Middle School, Pranpur residing with her

parents went to ease herself near Bamboo clumps of Dinesh

Mandal on 28.12.2007 and while the victim girl was tying string

of her salwar after attending natural call, the appellant came and

tied her mouth with gamchha and pushed her on the ground and

committed rape with her. The victim girl started weeping and

crying, then the appellant told her to keep quiet and promised

her that he would marry with her and she should not disclose the

incident to any member of her family. The victim girl got

convinced and she established physical relationship with the

appellant 2-3 times, as a result of which, the victim conceived.

The accused appellant refused to marry and the victim kept

persuading him to marry. The allegation is that the appellant

allegedly had assured the victim first to abort and then he would

marry. It is even alleged that the appellant himself attempted to

administer medicine of abortion to the victim but failed. The

abortion failed and the foetus developed for four months which

was recognized by the mother of the victim. Thereafter the

victim narrated the story of her relationship with the appellant
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for which a panchayati was convened in the village on

27.5.2008 and Panches asked the appellant to marry with the

victim girl, but the accused appellant refused to marry with her,

which resulted into filing of the complaint before the

Magistrate.

4. The learned Magistrate sent the complaint petition to

the P.S. Pranpur for investigation under Section 156(3) Cr.P.C.

Thereafter, Pranpur P.S. Case No. 115 of 2008 was registered

under Section 376 of the Indian Penal Code against the

appellant. After investigation, charge-sheet was submitted under

Section 376 IPC, and upon trial in Sessions Trial No. 96/10, the

learned trial court convicted the appellant under section 376 of

the IPC vide judgment of conviction dated 07.09.2011 and order

of sentence dated 08.09.2011.

ARGUMENT OF AMICUS CURIAE

5. Mr. Vishwajeet Gajendra Pratap Singh, learned

Amicus curiae, submitted that the impugned judgment of

conviction dated 07.09.2011 and order of sentence dated

08.09.2011 passed by the learned Additional Sessions Judge,

F.T.C.-I, Katihar Patna in Sessions Trial No. 96/2010 is illegal and

unsustainable in the eye of law, as the same has been passed

without proper appreciation of the evidence on record. It is
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contended that the prosecution case is vitiated by an inordinate

and unexplained delay in lodging the FIR, as the alleged

occurrence took place on 28.12.2007 whereas the FIR was

instituted only on 04.08.2008, which creates serious doubt

regarding the authenticity of the prosecution story. It is further

submitted that the conduct of the victim, as alleged, appears

unnatural inasmuch as she continued to maintain physical

relations with the appellant on the alleged promise of marriage

without raising any alarm or complaint, thereby indicating that

the relationship, if any, was consensual in nature. Learned

counsel further submitted that the prosecution has failed to

establish the age of the victim beyond reasonable doubt, as no

documentary evidence such as school certificate or birth

certificate has been brought on record, and the Doctor (P.W. 10)

has assessed the age of the victim to be about 18–19 years,

thereby making the question of consent relevant. It is also

contended that material witnesses have not supported the

prosecution case and have been declared hostile, and the

testimony of other witnesses is either hearsay or not reliable.

The learned counsel thus submits that in view of the material

contradictions, lack of corroboration, and failure of the

prosecution to prove its case beyond reasonable doubt, the
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appellants are entitled to benefit of doubt and the impugned

judgment is liable to be set aside.

ARGUMENT ON BEHALF OF THE STATE

6. Per Contra, learned APP appearing for the State while

opposing the appeal submitted that the learned District court,

after considering all the evidences on record and exhibits

submitted on behalf of the parties during the course of trial, has

rightly convicted the appellant for said offences as the offences

alleged against the appellant appears to be serious in nature and

also constitutes cognizable offence.

ANALYSIS AND CONCLUSION

7. Heard the parties.

8. I have perused the lower court records and

proceedings and also taken note of the arguments canvassed by

learned counsel appearing on behalf of the parties.

9. During the trial, the prosecution has examined

altogether ten witnesses, namely:

P.W.-1 Yugal Mandal (brother of the victim girl),

P.W.-2 Dinesh Mandal (co-villager),

P.W.-3 Sahdeo Mandal (Father of the victim girl),

P.W.-4 Rukya Devi (mother of the victim girl),

P.W.-5 Shashi Shekhar Sharma (I.O.),
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P.W.-6 Bhagal Lal Mandal (second I.O.),

P.W.-7 Putul Kumari (victim girl).

P.W.-8 Manoj Kumar Mandal

P.W.-9 Suresh Mandal

P.W. -10 Dr. Laxmi Sen ( Medical Officer)

10. The prosecution has also relied upon following

documents exhibited during the course of trial:-

(i) Ext.1 – Endorsement on complaint petition

(ii) Ext.2 – Formal F.I.R.

(iii) Ext.3 – Charge Sheet

(iv) Ext. 4 to 4/3 Signature of Putul Kumari on

complaint

petition

(v) Ext. 5 – Medical report of the victim girl.

11. It would be apposite to discuss the

oral/documentary evidences. The evidence of the prosecution

witnesses (PWs) can be summarized as follows:

(i) P.W.1 – Yugul Mandal (Brother of the victim)

(Hearsay Witness): This witness has deposed that he was not

present at the time of occurrence. He came to know about the

incident from his mother, who informed him that the accused

committed rape upon his sister, as a result of which she became
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pregnant. He has further stated that a Panchayati was convened

wherein the accused refused to marry the victim. His evidence is

purely hearsay in nature.

(ii) P.W.2 – Dinesh Mandal (Eye Witness): This

witness has deposed that on the date of occurrence at about 9:00

P.M., while going towards the bamboo clumps situated near his

house, he saw the accused committing rape upon the victim girl

after gagging her mouth with a cloth. Upon being noticed, the

accused fled away after threatening him. He has further stated

that a Panchayati was held wherein the accused agreed to marry

the victim but later refused.

(iii) P.W.3 – Sahdeo Mandal (Father of the victim)

(Hearsay Witness): This witness has stated that he came to know

about the occurrence from his daughter. According to him, the

accused committed rape upon his daughter and thereafter she

became pregnant. He has also stated about the Panchayati

wherein the accused initially agreed but subsequently refused to

marry the victim.

(iv) P.W.4 – Rukiya Devi (Mother of the victim):

This witness has deposed that her daughter informed her that the

accused committed rape upon her at about 9:00 P.M. in the

bamboo clumps. She has further stated that Panchayati was
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held, but the accused ultimately refused to marry the victim,

after which the case was instituted.

(v) P.W.5 – Sashi Sekhar Sharma (Investigating

Officer): This witness has deposed that he took up investigation,

visited the place of occurrence, recorded statements of

witnesses, and proved the formal F.I.R. and endorsement. He

has also brought on record the defence version through a

petition submitted by the mother of the accused alleging false

implication.

(vi) P.W.6 – Bhagat Lal Mandal (Second

Investigating Officer): This witness has submitted charge-sheet

against the accused under Section 376 IPC. He has also

recorded the statement of the accused during investigation.

(vii) P.W.7 – Putul Kumari (Victim Girl): The

victim has fully supported the prosecution case. She has

deposed that on 28.12.2007 at about 9:00 P.M., while she had

gone to the bamboo clumps to attend the call of nature, the

accused came, gagged her mouth, threatened her, and committed

rape upon her. She has further stated that due to the occurrence,

she became pregnant and later gave birth to a female child. She

has also stated about the Panchayati where the accused agreed

to marry her but later refused.
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(viii) P.W.8 – Manoj Kumar Mandal (Hostile

Witness): This witness has not supported the prosecution case

and has been declared hostile. He denied his previous statement

made before the police.

(ix) P.W.9 – Suresh Mandal (Hostile Witness): This

witness has also not supported the prosecution case and was

declared hostile. He denied having made any incriminating

statement before the police.

(x) P.W.10 – Dr. Laxmi Sen (Medical Witness):

This witness has deposed that she examined the victim and

found her age to be about 18–19 years. She found that the

victim was pregnant (about 32–34 weeks) and her hymen was

old torn. However, she did not find any sign of recent forceful

intercourse.

12. The record reveals that P.W.-8 and P.W.-9 were

declared hostile during the trial as nothing transpired from their

testimony during the trial which may be said relevant for the

purpose of corroborating or contradicting the version of other

prosecution witnesses, who supported the crime in question

during the trial. Therefore, the testimony of these witnesses are

not relevant qua establishing guilt of the accused/appellant.

13. On the basis of materials surfaced during the
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trial, the appellant/accused was examined under Section 313 of

the Cr.PC by putting incriminating circumstances/evidences

surfaced against him, which he denied and shows his complete

innocence.

14. Before I proceed to analyze the allegations

based on the facts and evidences which has come in course of

trial, I find it appropriate to reproduce the provisions of Sections

375 and 376 of the Indian Penal Code and governing law settled

by the Apex Court for the sake of convenience and better

understanding of the facts, which are as under:-

“375. Rape.— A man is said to commit "rape" if he
—(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so
with him or any other person; or
(c) manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra,
anus or any part of body of such woman or makes
her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of
a woman or makes her to do so with him or any
other person,under the circumstances falling under
any of the following seven descriptions:
(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
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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 eighteen years of age.
(Seventhly.) — When she is unable to communicate
consent.
Explanation 1.— For the purposes of this section,
"vagina" shall also include labia majora.
Explanation 2.— Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting
to the sexual activity.
Exception 1.— A medical procedure or intervention
shall not constitute rape.
Exception 2.— Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under
fifteen years of age, is not rape.”
376. Punishment for rape.— (1)Whoever, except in
the cases provided for in sub-section (2), commits
rape, shall be punished with rigorous imprisonment
of either description for a term which [shall not be
less than ten years, but which may extend to
imprisonment for life, and shall also be liable to
fine]”

15. Section 375 of IPC clearly lays down that a

person is said to have committed rape if he performs any of the

sexual acts mentioned in sub-clauses (a), (b), (c), and (d),
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without the consent of a woman. Further, in terms of Section 90

of IPC, if a consent is given under misconception of fact, such

consent is not a consent in the eyes of law and cannot be

considered lawful and voluntary. While discussing the

ingredients of Section 375 of IPC and Section 90 of IPC, the

Hon'ble Supreme Court has held in the case of Mahesh Damu

Khare v. State of Maharashtra, reported in (2024) 11 SCC 398

which is as under:

22. Section 90IPC reads as follows:
“90. Consent known to be given under
fear or misconception.—A 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; or.”
25. Keeping this aspect in mind as to what amounts
to consent with reference to Section 375IPC, this
Court has examined and considered in a number
of cases that if the person acts with an active
understanding of the circumstances, actions and
consequences of the act, it would indicate the
presence of consent. It was observed in Shambhu
Kharwar v. State of U.P. [Shambhu Kharwar v.
State of U.P., (2024) 16 SCC 502 : 2022 SCC
OnLine SC 1032] as follows: (SCC para 9)
“9. In Pramod Suryabhan Pawar v. State of
Maharashtra [Pramod Suryabhan Pawar v. State of
Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC
(Cri) 903] , a two-Judge Bench of this Court of
which one of us was a part (D.Y. Chandrachud J.),
held in Sonu v. State of U.P. [Sonu v. State of U.P.,
(2021) 18 SCC 517] , observed that: (Pramod
Suryabhan Pawar case [Pramod Suryabhan Pawar
v. State of Maharashtra, (2019) 9 SCC 608 : (2019)
3 SCC (Cri) 903] , SCC pp. 616-18 & 620, paras
12, 14, 16 & 18)
‘12. This Court has repeatedly held that consent
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with respect to Section 375IPC involves an active
understanding of the circumstances, actions and
consequences of the proposed act. An individual
who makes a reasoned choice to act after evaluating
various alternative actions (or inaction) as well as
the various possible consequences flowing from
such action or inaction, consents to such action. …
***
14. … Specifically in the context of a promise to
marry, this Court has observed that there is a
distinction between a false promise given on the
understanding by the maker that it will be broken,
and the breach of a promise which is made in good
faith but subsequently not fulfilled. …
***
16. Where the promise to marry is false and the
intention of the maker at the time of making the
promise itself was not to abide by it but to deceive
the woman to convince her to engage in sexual
relations, there is a “misconception of fact” that
vitiates the woman's “consent”. On the other hand,
a breach of a promise cannot be said to be a false
promise. To establish a false promise, the maker of
the promise should have had no intention of
upholding his word at the time of giving it. The
“consent” of a woman under Section 375 is vitiated
on the ground of a “misconception of fact” where
such misconception was the basis for her choosing
to engage in the said act. …
***
18. To summarise the legal position that emerges
from the above cases, the “consent” of a woman
with respect to Section 375 must involve an active
and reasoned deliberation towards the proposed act.
To establish whether the “consent” was vitiated by a
“misconception of fact” arising out of a promise to
marry, two propositions must be established. The
promise of marriage must have been a false
promise, given in bad faith and with no intention of
being adhered to at the time it was given. The false
promise itself must be of immediate relevance, or
bear a direct nexus to the woman's decision to
engage in the sexual act.’ ”
(emphasis supplied
26. The complainant had taken the plea that the
appellant had physical relationship with her against
her consent by making a false promise that he would
marry her. In this regard, it has to be considered
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whether making a false promise to marry amounts to
an offence. If a false promise of marriage is made to
a woman by a man, thus deceiving the woman
leading her to engage in sexual relations, it may
amount to misconception of fact, in which case the
consent given by the woman may be vitiated. In this
regard one may refer to the decision of this Court in
Naim Ahamed v. State (NCT of Delhi) [Naim
Ahamed v. State (NCT of Delhi), (2023) 15 SCC
385] : (SCC p. 398, para 21)
“21. The bone of contention raised on behalf of the
respondents is that the prosecutrix had given her
consent for sexual relationship under the
misconception of fact, as the accused had given a
false promise to marry her and subsequently he did
not marry, and therefore such consent was no
consent in the eye of law and the case fell under the
Clause — Secondly of Section 375IPC. In this
regard, it is pertinent to note that there is a
difference between giving a false promise and
committing breach of promise by the accused. In
case of false promise, the accused right from the
beginning would not have any intention to marry the
prosecutrix and would have cheated or deceited the
prosecutrix by giving a false promise to marry her
only with a view to satisfy his lust, whereas in case
of breach of promise, one cannot deny a possibility
that the accused might have given a promise with all
seriousness to marry her, and subsequently might
have encountered certain circumstances unforeseen
by him or the circumstances beyond his control,
which prevented him to fulfil his promise. So, it
would be a folly to treat each breach of promise to
marry as a false promise and to prosecute a person
for the offence under Section 376.”
27. In our view, if a man is accused of
having sexual relationship by making a false
promise of marriage and if he is to be held
criminally liable, any such physical relationship
must be traceable directly to the false promise made
and not qualified by other circumstances or
consideration. A woman may have reasons to have
physical relationship other than the promise of
marriage made by the man, such as personal liking
for the male partner without insisting upon formal
marital ties.
28. Thus, in a situation where physical relationship
is maintained for a prolonged period knowingly by
the woman, it cannot be said with certainty that the
said physical relationship was purely because of the
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alleged promise made by the appellant to marry her.
Thus, unless it can be shown that the physical
relationship was purely because of the promise of
marriage, thereby having a direct nexus with the
physical relationship without being influenced by
any other consideration, it cannot be said that there
was vitiation of consent under misconception of fact.

29. It must also be clear that for a promise to be a
false promise to amount to misconception of fact
within the meaning of Section 90IPC, it must have
been made from the very beginning with an intention
to deceive the woman to persuade her to have a
physical relationship. Therefore, if it is established
that such consent was given under a misconception
of fact, the said consent is vitiated and not a valid
consent. In this regard we may refer to Deepak
Gulati v. State of Haryana [Deepak Gulati v. State
of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri)
660] , in which it was held as follows: (SCC pp.
682-84, paras 21 & 24)
“21. 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 misrepresentation 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.
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***
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the
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
90IPC 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.”
(emphasis in original and supplied)

EMERGING TREND OF CRIMINALIZING
CONSENSUAL RELATIONSHIP
16. It is equally well settled that a mere breach of a

genuine promise to marry, where the promise was made in good

faith but could not be fulfilled due to subsequent circumstances

beyond the control of the promisor, does not amount to a false

promise and cannot be said to vitiate consent. The Supreme

Court has repeatedly emphasized that to establish rape on the

ground of a false promise to marry, it must be shown that (i) the

promise was false at the inception (ii) the sexual relationship

was entered into solely on the basis of that promise and (iii) the

consent of the woman was vitiated by the misconception of fact.

The intention of the accused at the initial stage, and the
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immediacy of the nexus between the promise and the act of

sexual intercourse, are critical elements in determining whether

consent was indeed vitiated.

17. The Apex Court in case of Deepak Gulati v. State

of Haryana reported in (2013) 7 SCC 675, has observed as

under:

“24. Hence, it is evident that there must be
adequate evidence to show that at the relevant time i.e. at
the 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.”
(emphasis supplied)

18. The Apex Court reiterating the principle in case of

Pramod Suryabhan Pawar v. State of Maharashtra reported in

(2019) 9 SCC 608 has observed as under:

“16. Where the promise to marry is false and the intention
of the maker at the time of making the promise itself was not
to abide by it but to deceive the woman to convince her to
engage in sexual relations, there is a “misconception of
fact” that vitiates the woman's “consent”. On the other
hand, a breach of a promise cannot be said to be a false
promise. To establish a false promise, the maker of the
promise should have had no intention of upholding his word
at the time of giving it. The “consent” of a woman under
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
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Section 375 is vitiated on the ground of a “misconception of
fact” where such misconception was the basis for her
choosing to engage in the said act. In Deepak Gulati
[Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 :
(2013) 3 SCC (Cri) 660] this Court observed : (SCC pp.
682-84, paras 21 & 24)
“21. … 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 misrepresentation
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.
***
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the 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, [Ed. : The matter between two asterisks has been
emphasised in original.] unless the court is assured of the
fact that from the very beginning, the accused had never
really intended to marry her [Ed. : The matter between two
asterisks has been emphasised in original.] .”
(emphasis supplied)
18. To summarise the legal position that
emerges from the above cases, the “consent” of a woman
with respect to Section 375 must involve an active and
reasoned deliberation towards the proposed act. To
establish whether the “consent” was vitiated by a
“misconception of fact” arising out of a promise to marry,
two propositions must be established. The promise of
marriage must have been a false promise, given in bad faith
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
19/28

and with no intention of being adhered to at the time it was
given. The false promise itself must be of immediate
relevance, or bear a direct nexus to the woman's decision to
engage in the sexual act.”
19. In case of Naim Ahamed, vs. State (NCT of

Delhi), reported in (2023) 15 SCC 385, the Apex Court has held

that “a promise to marry without anything more will not give

rise to “misconception of fact” within the meaning of Section

90”.

“16. In Deelip Singh v. State of Bihar [Deelip Singh
v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri)
253] , this Court after discussing various earlier
decisions of this Court and other High Courts,
further explained the observations made in Uday
case [Uday v. State of Karnataka, (2003) 4 SCC 46 :
2003 SCC (Cri) 775] and observed as under :
(Deelip Singh case [Deelip Singh v. State of Bihar,
(2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p.
104, para 28)
“28. 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
Jayanti Rani Panda [Jayanti Rani Panda v. State of
W.B., 1983 SCC OnLine Cal 98 : (1983) 2 CHN 290
: 1984 Cri LJ 1535] which was approvingly referred
to in Uday case [Uday v. State of Karnataka, (2003)
4 SCC 46 : 2003 SCC (Cri) 775] . The Calcutta
High Court rightly qualified the proposition which it
stated earlier by adding the qualification at the end
(SCC OnLine Cal para 7) — ‘unless the court can
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
20/28

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
case [N. Jaladu, In re, 1911 SCC OnLine Mad 3 :
ILR (1913) 36 Mad 453 : 1914 Cri LJ 24] (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 straitjacket
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 misrepresentation 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.
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the
initial stage itself, the accused had no intention
whatsoever, of keeping his promise to marry the
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
21/28

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.””
(emphasis in original)
26. The Apex Court has also cautioned against the
emerging trend of criminalizing consensual
relationships simply because they end in
disappointment. In Mahesh Damu Khare v. State of
Maharashtra and Prashant v. State of Delhi,
reported in (2024) 11 SCC 398, the Apex Court
noted that where a physical relationship has been
maintained for a prolonged period by mutual
consent, it cannot be assumed with certainty that the
sexual acts were solely induced by the promise of
marriage. Mere breakup of a long-term consensual
relationship or subsequent refusal to marry does
not, by itself, constitute rape. Courts must, therefore,
carefully distinguish between deception at the
inception of a relationship and later unfulfilled
expectations, ensuring that criminal law is not
invoked to settle personal disputes, while
simultaneously safeguarding women against
deliberate fraud or false promises that induce sexual
intercourse.formula could be evolved for
determining whether the consent was given under a
misconception of fact. Reading the judgment in
Uday case [Uday v. State of Karnataka, (2003) 4
SCC 46 : 2003 SCC (Cri) 775] 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.”
(emphasis in original)
17. In Deepak Gulati v. State of Haryana [Deepak
Gulati v. State of Haryana, (2013) 7 SCC 675 :
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
22/28

(2013) 3 SCC (Cri) 660] , this Court gave one more
dimension of the word “consent” by distinguishing
“rape” and “consensual sex” and observed as
under : (SCC pp. 682-84, paras 21 & 24)
“21. 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 misrepresentation 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.
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the
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
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
23/28

assured of the fact that from the very beginning, the
accused had never really intended to marry her.””
(emphasis in original)
20. The Apex Court has also cautioned against the

emerging trend of criminalizing consensual relationships simply

because they end in disappointment. Recently in the case of

Mahesh Damu Khare v. State of Maharashtra and Prashant v.

State of Delhi, reported in (2024) 11 SCC 398, the Apex Court

has held that where a physical relationship has been maintained

for a prolonged period by mutual consent, it cannot be assumed

with certainty that the sexual acts were solely induced by the

promise of marriage. Mere breakup of a long-term consensual

relationship or subsequent refusal to marry does not, by itself,

constitute rape. Courts must, therefore, carefully distinguish

between deception at the inception of a relationship and later

unfulfilled expectations, ensuring that criminal law is not

invoked to settle personal disputes, while simultaneously

safeguarding women against deliberate fraud or false promises

that induce sexual intercourse.

21. Based on the above principles of law, now I

conclude that the offence of rape under Section 375 of the

Indian Penal Code arises only where sexual intercourse is

committed against the will of a woman or without her consent.
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
24/28

Consent itself must be free, voluntary, and uninfluenced by fear

or misconception of fact. Section 90 IPC provides that consent

obtained under a misconception of fact is not true consent. In

cases involving promises to marry, the principle has been

consistently held by the Apex Court that if such a promise is

made fraudulently, with no intention of being fulfilled, and

solely to induce a woman to engage in sexual intercourse, it

constitutes a “misconception of fact” that vitiates consent. In

such circumstances, sexual intercourse carried out under the

false pretext of marriage may constitute the offence of rape.

ON THE POINT OF DELAY IN LODGING OF
F.I.R. UNDER SECTION 376 IPC
22. The Hon’ble Supreme Court has consistently held

that delay in lodging the F.I.R. under Section 376 IPC cannot be

used as ritualistic formula for discarding the prosecution case

and doubting its authenticity as has been held in the case

Tulshidas Kanolkar Vs. State of Goa, reported in (2003) 8

SCC 590. Upon a thorough re-appreciation of the evidence on

record, the alleged occurrence took place on 28.12.2007, it is

admitted that the complaint was instituted on 04.08.2008, nearly

after eight months, but it is settled that the delay in sexual

offences is not always fatal. In the present case, the delay was

caused in negotiating through a Panchayati between the parties
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
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which failed due to non-acceptance of proposal of marriage by

the appellant. The criminal machinery has been set in motion

only after the marriage proposal had failed. In above

background, applying the principle of law laid down by the

Apex Court in Deepak Gulati (Supra) and Naim Ahamed

(Supra), which mandates the Courts to first distinguish between

a "false promise of marriage" made with a mala fide intent from

the inception and a "breach of promise" arising out of

unforeseen circumstances. The evidence on record indicates

admitted relationship between the appellant and the

complainant-Respondent for several years, during which period

the complainant-Respondent had conceived baby without

raising an alarm or taking any legal action against the appellant

suggests that the sexual relationship was consensual in nature.

The family members accepting the relationship also preferred

not to take any legal action against the appellant but tried to

negotiate by way of panchayati which failed. However, reason

for the failure could not be determined in absence of

examination of any of the panches that it was appellant’s denial.

ON THE POINT OF DETERMINATION OF AGE

23. The doctor (PW-10) who had found hymen was

torn, however did not find any recent forceful intercourse
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
26/28

suggesting that the victim was fully aware of the nature and

consequences of the relationship. In light of the consistent view

of the Apex Court, a consensual sexual relationship does not

constitute the offence of rape. The surrounding circumstances

suggest that there was no use of force or any attempt for

penetrative sex in the absence of medical evidence shows that

the prosecution has failed to establish proximity to the offence

of rape. At the same time, I find that the prosecution has failed

to establish the victim's minority at the time of the incident in

absence of documentary evidence like birth certificate or school

records. The testimony of the Medical Officer (P.W. 10), shows

that he had assessed the victim's age as 18–19 years, which

becomes the most reliable indicator. The other question which is

required to be answered is, as to whether, the conduct of the

appellant falls within the category of (i) breach of promise to

marriage, and (ii) secondly, active and reasoned deliberation.

The victim being adult at the relevant time, her "active and

reasoned deliberation" in maintaining a physical relationship

over several years vitiates the claim that her consent was

obtained under a "misconception of fact." Following the ratio in

Pramod Suryabhan Pawar (supra), “a breach of a promise to

marry” cannot be equated to a false promise unless it is proved
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
27/28

that the accused had no intention to marry from the very

beginning. In this case, the victim in her own statement

demolishes the story of refusal to marry which appears to be a

subsequent development rather than a pre-meditated deception.

There are material contradictions in the testimonies of the

prosecution witnesses of P.W.-1(brother of the victim), P.W.-3

(father of the victim) and P.W.-4(mother of the victim), leaving

the prosecution case unsupported by independent corroboration.

24. This Court observes that the prosecution has not

convincingly established that the appellant, at the inception of

the relationship, lacked a genuine intention to fulfill the promise

of marriage. The material indicates a prolonged association

between the parties, reflecting continued consensual

involvement, which does not support the inference that the

relationship was solely induced by such promise. The

subsequent failure or refusal to marry, in the absence of clear

and cogent evidence of deceit from the very beginning, cannot

by itself lead to the conclusion that the consent was obtained

under a misconception of fact. In such circumstances, this Court

is of the considered view that the essential ingredients necessary

to attract the alleged offence are not satisfactorily made out.

25. Accordingly, the present appeal is allowed.
Patna High Court CR. APP (SJ) No.1079 of 2011 dt.20-04-2026
28/28

26. The impugned judgment of conviction dated

07.09.2011 and order of sentence dated 08.09.2011, is hereby

set aside. Consequently, the above-named appellant/accused is

acquitted from all the charges levelled against him. Since the

appellant is on bail, as such, he is discharged from the liability

of his bail bonds. The fine deposited by the appellant, if any,

shall be refunded to him.

27. The Patna High Court, Legal Services Committee

is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees ten

thousand) to Mr. Vishwajeet Gajendra Pratap Singh, learned

Amicus Curiae, as consolidated fee, for rendering his valuable

professional service.

28. Office is directed to send back the lower court

records along with a copy of the judgment to the learned District

Court forthwith.

(Purnendu Singh, J)

mantreshwar/-
AFR/NAFR AFR
CAV DATE 03.04.2026
Uploading Date 20.04.2026
Transmission Date 20.04.2026

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