Supreme Court of India
ANURAG SONIversusSTATE OF CHHATTISGARH
- Citation
- 2019 INSC 503
- Decided
- 9 April 2019
- Disposal
- Case Partly allowed
- Bench
- L NAGESWARA RAO
Holding
Consent obtained on a false promise of marriage is a misconception of fact under Section 90 IPC and does not excuse the accused, warranting conviction under Section 376 IPC.
Summary
The appellant, Anurag Soni, had a romantic relationship with the prosecutrix and promised to marry her, while already being engaged to another woman. He lured the prosecutrix to his residence, engaged in sexual intercourse after she initially resisted, and later reneged on the marriage promise, marrying the other woman. The prosecutrix reported the incident, leading to her FIR and the appellant's conviction under Section 376 of the IPC for rape. The trial and appellate courts held that the prosecutrix's consent was obtained under a false promise, constituting a misconception of fact under Section 90 IPC, and thus could not excuse the offence. The Supreme Court affirmed the conviction, emphasizing the mala fide intent and the presumption of lack of consent under Section 114-A of the Evidence Act, but reduced the sentence from ten to seven years of rigorous imprisonment. The appeal was partly allowed, modifying only the term of imprisonment.
Issues considered
- The consent given by the prosecutrix was obtained under a false promise of marriage and whether it constitutes a misconception of fact under Section 90 IPC.
- Whether such consent can excuse the accused from liability under Section 375 and 376 IPC.
- The applicability of Section 114-A of the Indian Evidence Act in presuming lack of consent.
- The appropriate quantum of sentence for the offence under Section 376 IPC.
Legislation cited
- Indian Evidence Act, 1872s. 114-A
- Indian Penal Code, 1860s. 375, s. 376, s. 90
Subjects
rapeconsentmisconception of factfalse promise of marriageSection 90 IPCSection 376 IPCSection 114-A Evidence Actcriminal lawIndian Penal Code
Judgment
972 [2019]REPORTS
SUPREME COURT 6 S.C.R. 972 [2019] 6 S.C.R.
A ANURAG SONI
v.
STATE OF CHHATTISGARH
(Criminal Appeal No. 629 of 2019)
B APRIL 09, 2019
[L. NAGESWARA RAO AND M. R. SHAH, JJ.]
Penal Code, 1860 – ss.90, 375 and 376 – Prosecution case
that the prosecutrix was familiar with the accused-appellant since
2009 and there was love affair between them – Appellant established
C
physical relation with her on the pretext of marrying her, however
after keeping the prosecutrix and her family members in dark for
about two months, the appellant refused to marry the prosecutrix
and performed marriage with another girl – Sessions Court
convicted the appellant for the offence u/s. 376, IPC – High Court
D confirmed the judgment – On appeal, held: Prosecution has been
successful in proving the case that the promise given by the appellant
to marry the prosecutrix was false and from the very beginning the
appellant had no intention to marry the prosecutrix as his marriage
with another girl was already fixed long back – Despite the same,
he continued to give false promise and alluded the prosecutrix to
E
give her consent for the physical relationship – Initially the
prosecutrix resisted, however, gave the consent relying upon the
false promise of the appellant that he will marry her – Her consent
can be said to be a consent on misconception of fact as per s.90,
IPC – Both the Courts below rightly held that the consent given by
F the prosecutrix was on misconception of fact and, therefore, the
same cannot be said to be a consent so as to excuse the appellant
for the charge of rape as defined u/s.375, IPC – Appellant’s
conviction u/s.376, IPC, maintained – However, in the facts and
circumstances of the case, sentence of 10 years’ rigorous
imprisonment awarded by the courts below is reduced to seven years’
G
rigorous imprisonment – Indian Evidence Act, 1872 – s.114-A.
Partly allowing the appeal, the Court
HELD: 1.1 If it is established and proved that from the
inception the accused who gave the promise to the prosecutrix
H
972
ANURAG SONI v. STATE OF CHHATTISGARH 973
to marry, did not have any intention to marry and the prosecutrix A
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 and, in such a case, such a consent would not excuse
the offender and such an offender can be said to have committed
B
the rape as defined under Section 375 of the IPC and can be
convicted for the offence under Section 376 of the IPC.
[Para 12][990-C-D]
1.2 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 C
prosecutrix to marry her and on such false promise he had physical
relation with the prosecutrix; the prosecutrix initially resisted,
however, gave the consent relying upon the false promise of the
accused that he will marry her and, therefore, her consent can be
said to be a consent on misconception of fact as per Section 90 of D
the IPC and such a consent shall not excuse the accused from
the charge of rape and offence under Section 375 of the IPC.
The prosecutrix, in the present case, was an educated girl studying
in B. Pharmacy. Therefore, it is not believable that despite having
knowledge that that appellant’s marriage is fixed with another
lady, the prosecutrix and her family members would continue to E
pressurise the accused to marry and the prosecutrix will give
the consent for physical relation. In the deposition, the prosecutrix
specifically stated that initially she did not give her consent for
physical relationship, however, on the appellant’s promise that
he would marry her and relying upon such promise, she consented F
for physical relationship with the appellant-accused. Even
considering Section 114-A of the Indian Evidence Act, which has
been inserted subsequently, 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. From the very inception, the G
promise given by the accused to marry the prosecutrix was a
false promise and from the very beginning there was no intention
of the accused to marry the prosecutrix as his marriage with ‘PS’
was already fixed long back and, despite the same, he continued
H
974 SUPREME COURT REPORTS [2019] 6 S.C.R.
A to give promise/false promise and alluded the prosecutrix to give
her consent for the physical relationship. Both the Courts below
rightly held that the consent given by the prosecutrix was on
misconception of fact and, therefore, 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. Both the Courts below
B
rightly convicted the accused for the offence under Section 376
of the IPC. Such incidents are on increase now-a-days. Such
offences are against the society. Rape is the most morally and
physically reprehensible crime in a society, an assault on the body,
mind and privacy of the victim. While a murderer destroys the
C physical frame of the victim, a rapist degrades and defiles the
soul of a helpless female. Rape reduces a woman to an animal, as
it shakes the very core of her life. By no means can a rape victim
be called an accomplice. Rape leaves a permanent scar on the
life of the victim. Rape is a crime against the entire society and
violates the human rights of the victim. Being the most hated
D
crime, 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
E under Section 376 of the IPC. The appellant-accused must face
the consequences of the crime committed by him.
[Paras 14, 15][991-G-H; 992-A-G; 993-C-E]
1.3 Both the Courts below rightly convicted the appellant-
accused under Section 376 of the IPC. The conviction of the
F appellant-accused under Section 376 of the IPC is maintained.
However, in the facts and circumstances of the case and the
request made by the counsel appearing on behalf of the appellant-
accused, the sentence of 10 years’ RI awarded by the courts below
is reduced to seven years RI, the minimum which was prescribed
at the relevant time of commission of offence under Section 376
G of the IPC. [Para 16][993-F-G]
Tilak Raj v. State of Himachal Pradesh (2016) 4 SCC
140; Uday v. State of Karnataka (2003) 4 SCC 46 :
H
ANURAG SONI v. STATE OF CHHATTISGARH 975
[2003] 2 SCR 231 ; Deelip Singh v. State of Bihar A
(2005) 1 SCC 88 : [2004] 5 Suppl. SCR 909;
Shivashankar alias Shiva v. State of Karnataka (2018)
SCC Online SC 3106 – held inapplicable.
Kaini Rajan v. State of Kerala (2013) 9 SCC 113 : [2013]
10 SCR 196 ; Yedla Srinivasa Rao v. State of A.P. (2006) B
11 SCC 615 : [2006] 6 Suppl. SCR 760 ; State of U.P.
v. Naushad (2013) 16 SCC 651 – relied on.
Dr. Dhruvaram Murlidhar Sonar v. The State of
Maharashtra (2019) SCC Online 3100 ; Deepak Gulati
v. State of Haryana (2013) 7 SCC 675 : [2013] 6 SCR C
544; Sujit Ranjan v. State Decision dated 27.01.2011
of High Court of Delhi in Criminal Appeal No.248
of 2011 – referred to.
Case Law Reference
(2016) 4 SCC 140 held inapplicable Para 6.5 D
[2003] 2 SCR 231 held inapplicable Para 6.5
[2004] 5 Suppl. SCR 909 held inapplicable Para 6.5
[2013] 10 SCR 196 relied on Para 10.1
[2013] 6 SCR 544 referred to Para 10.2 E
[2006] 6 Suppl. SCR 760 relied on Para 10.3
(2013) 16 SCC 651 relied on Para 10.4
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 629 of 2019
From the Judgment and Order dated 10.10.2018 of the High Court
of Chhattisgarh at Bilaspur in Criminal Appeal No. 1270 of 2014.
Nagamuthu, Sr. Adv., C. B. Gururaj, Vishnu Unnikrishnan, Prakash G
Ranjan Nayak, Advs. for the Appellant.
Praveen Chaturvedi, Ms. Jyoti Chaturvedi, Addya Mishra, Pranav
Sachdeva, Ms. Neha Rathi, Jatin Bhardwaj, Advs. for the Respondent.
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976 SUPREME COURT REPORTS [2019] 6 S.C.R.
A The Judgment of the Court was delivered by
M. R. SHAH, J.
The application for impleadment of the prosecutrix is allowed, in
terms of the prayer made.
B 1.1 Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 10.10.2018 passed by the High Court of Chhattisgarh at
Bilaspur in Criminal Appeal No. 1270/2014, by which the High Court
has dismissed the said appeal preferred by the appellant herein – the
C original accused and has confirmed the judgment and order of conviction
passed by the learned trial Court convicting the original accused for the
offence under Section 376(1) of the IPCand sentencing him to undergo
rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/-, in
default of payment of fine, to further undergo additional rigorous
imprisonment for six months, the original accused has preferred the
D present appeal.
3. The prosecution case in brief was that the prosecutrix was the
resident of Koni, Bilaspur, District Bilaspur. Prosecutrix was familiar
with the accused since 2009 and there was love affair between them.
The appellant had even proposed her for marriage and this fact was
E within the knowledge of their respective family members. At the time of
incident, accused was posted as Junior Doctor in the government hospital
of Maalkharoda and at that time the prosecutrix was doing her studies
of Pharmacy in Bhilai. On 28.4.2013 the accused expressed his desire
to the prosecutrix that he wanted to meet her and accordingly on 29.4.2013
F at 7.25 a.m. the prosecutrix boarded Durg Danapur Express train and
reached Sakti railway station from where the accused took her on a
motorcycle to his house situated at Maalkharoda and there she stayed
from 2 pm of 29.4.2013 to 3 p.m. of 30.4.2013 and during this period
despite refusal of the prosecutrix the accused established physical relation
with her on the pretext of marrying her. On 30.4.2013 the accused asked
G the prosecutrix to leave by saying that on 1st or 2nd May he will talk to his
parents about their marriage and he will soon marry with her. On
30.4.2013 at about 6 in the evening accused Anurag Soni and the
prosecutrix reached Bilaspur by train and from where their friend namely
H
ANURAG SONI v. STATE OF CHHATTISGARH 977
[M. R. SHAH, J.]
Umashankar took them on a motorcycle to the house of Mallika Humne, A
friend of prosecutrix, where the accused dropped her and went back.
Next morning accused dropped the prosecutrix at Railway Station,
Bilaspur from where she boarded train for Bhilai (Durg). Accused asked
the prosecutrix not to tell about the incident to anyone and as a result of
which the prosecutrix did not disclose the incident to anyone, but from
B
2.5.2013 to 5.5.2013 the prosecutrix had repeatedly asked from the
accused about the marriage and when she did not receive any reply
from the accused, on 6.5.2013, she informed her family members about
the incident and then the family members of the prosecutrix had gone to
the house of accused at village Kharod and informed his family members
about the incident whereupon the family members of accused had said C
that now marriage of accused and prosecutrix was the only option
available. In the meantime, members of both the families used to visit
house of each other, however, after keeping the prosecutrix and her
family members in dark for about two months, the accused had refused
to marry the prosecutrix and performed marriage with another girl and
D
then on 21.6.2013 the prosecutrix submitted written report (Ex. P-3) in
the police station Maalkharoda in respect of rape committed by the
accused upon her on the pretext of marriage based on which FIR (Ex.P-
4) for the offence under Section 376 of IPC was registered against the
accused.
3.1 That during the course of investigation, the investigating officer E
recorded the statement of concerned witnesses including the prosecutrix.
The investigating officer collected the medical evidence and other
evidence. The accused was arrested. After completion of the entire
investigation, a charge sheet was filed against the accused for the offence
punishable under Section 376 of the IPC. F
3.2 That the learned magistrate committed the case to the learned
Sessions Court, which was numbered as Sessions Trial No. 201/2013.
That the learned Sessions Court framed the charge against the accused
for the offence under Section 376 of the IPC. The accused denied the
charge so framed and claimed trial, and therefore he came to be tried by G
the learned Sessions Court for the aforesaid offence.
3.3 The prosecution in support of its case examined as many as
13 witnesses including the prosecutrix (PW3) as under:
H
978 SUPREME COURT REPORTS [2019] 6 S.C.R.
A
1. Pritam Soni PW1
2. Manikchand PW2
3. Prosecutrix PW3
4. Patwari Ghanshyam PW4
5. Dr. C.K. Singh PW5
B
6. Dr. K.L. Oraon PW6
7. Amritlal PW7
8. Pankaj Soni PW8
9. Dr. P.C. Jain PW9
10. Constable Jawaharlal PW10
C 11. Sub-Inspector S.P. Singh PW11
12. Inspector Sheetal Sidar PW12
13. Srimati Priyanka Soni PW13
3.4 After the closing pursis were submitted by the prosecution,
three witnesses were examined on behalf of the accused in defence.
D The statement of appellant-accused was recorded under Section 313 of
the Cr.P.C. wherein he denied the circumstances appearing against him
and pleaded innocence and false implication. As per the accused his
marriage was already fixed with one Priyanka Soni and this was in the
knowledge of the prosecutrix, even then the prosecutrix and her family
members continued to pressurise him to marry the prosecutrix, and then
E he married with Priyanka Soni on 10.06.2013 in Arya Samaj. Therefore,
it was the case on behalf of the accused that a false FIR was lodged
against him.
4. That on appreciation of evidence, the learned Sessions Court
observed and held that the prosecutrix gave consent for sexual intercourse
F 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. Thereupon, the learned Sessions Court
convicted the accused for the offence under Section 376 of the IPC and
G sentenced him to undergo 10 years rigorous imprisonment.
5. Feeling aggrieved and dissatisfied with the judgment and order
of conviction and sentence passed by the learned Sessions Court, the
accused preferred appeal before the High Court. By the impugned
judgment and order, the High Court has dismissed the appeal and has
H
ANURAG SONI v. STATE OF CHHATTISGARH 979
[M. R. SHAH, J.]
confirmed the judgment and order passed by the learned Sessions Court A
convicting the accused for the offence under Section 376 of the IPC.
6. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court dismissing the appeal and confirming
the conviction and sentence of the accused for the offence under Section
376 of the IPC, the original accused has preferred the present appeal. B
6.1 Shri S. Nagamuthu, learned Senior Advocate has appeared
on behalf of the accused and Shri Pranav Sachdeva and Shri Praveen
Chaturvedi, learned advocates have appeared on behalf of the State as
well as the original complainant – prosecutrix respectively.
6.2 Shri Nagamuthu, learned Senior Advocate appearing on behalf C
of the accused has vehemently submitted that in the facts and
circumstances of the case, both the courts below have materially erred
in convicting the accused for the offence under Section 376 of the IPC.
It is further submitted that while convicting the accused for the offence
under Section 376 of the IPC and while holding that the accused committed D
the rape under Section 375 of the IPC, the courts below have not at all
considered Section 90 of the IPC and Section 114-A of the Evidence
Act in its true perspective.
6.3 It is further submitted by the learned Senior Advocate appearing
on behalf of the accused that in the present case as such the prosecutrix E
was in love with the accused and she wanted to marry the accused. It
is submitted that it was the specific case on behalf of the accused, so
stated in his 313 statement, that as such the prosecutrix and her family
members were in the knowledge that the marriage of the appellant is
already fixed with Priyanka Soni and even then the prosecutrix and her
family members continued to pressurise the accused to marry the F
prosecutrix.
6.4 It is further submitted by the learned Senior Advocate appearing
on behalf of the accused 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’ G
and cannot be said to be a rape under Section 375 of the IPC.
6.5 In support of his submissions, Shri S. Nagamuthu, learned
Senior Advocate has heavily relied upon the following decisions of this
Court; Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra
H
980 SUPREME COURT REPORTS [2019] 6 S.C.R.
A (2019) SCC Online 3100; Tilak Raj v. State of Himachal Pradesh (2016)
4 SCC 140; Deepak Gulati v. State of Haryana (2013) 7 SCC 675; Uday
v. State of Karnataka (2003) 4 SCC 46; Deelip Singh v. State of Bihar
(2005) 1 SCC 88; and Shivashankar alias Shiva v. State of Karnataka
(2018) SCC Online SC 3106.
B 6.6 Therefore, Shri S. Nagamuthu, learned senior counsel
appearing on behalf of the accused, has submitted that in fact thereafter
the accused has married one Priyanka Soni and even the prosecutrix
also got married.
6.7 Making the above submissions and relying upon the above
C decisions, it is prayed to allow the present appeal and quash and set
aside the conviction and sentence of the appellant-accused for the offence
under Section 376 of the IPC.
7. The present appeal is vehemently opposed by the learned
advocates appearing on behalf of the State as well as the original
D complainant – prosecutrix.
7.1 It is vehemently submitted by the learned advocates appearing
on behalf of the State as well as the prosecutrix that the present case is
not a case of mere breach of promise to marry, as contended by the
learned Senior Advocate appearing on behalf of the accused. It is
E submitted that in the present case, from the very beginning and from the
inception, the intention of the accused was not to marry with the
prosecutrix and he was to marry one another lady Priyanka Soni. It is
submitted that despite the above he called the prosecutrix at his residence
and by giving promise that he would marry, he had a sexual intercourse
with the prosecutrix. It is submitted that, in fact, the prosecutrix initially
F objected to have any sexual intercourse, however, as the accused gave
assurance and promise that he would marry, the prosecutrix gave consent.
It is submitted that as the consent was obtained by the accused on
misconception of fact and therefore the same cannot be said to be a
consent even considering Section 90 of the IPC, and the consent was on
G misconception of fact, both the courts below have rightly held the accused
guilty for the offence under Section 376 of the IPC.
7.2 It is further submitted by the learned advocates appearing on
behalf of the State as well as the prosecutrix that even the conduct on
the part of the accused which is born out from the record that when the
parents of the accused and the prosecutrix subsequently met to fix the
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ANURAG SONI v. STATE OF CHHATTISGARH 981
[M. R. SHAH, J.]
marriage, instead of remaining present the accused ran away. It is A
submitted that it has come in evidence that the accused was already to
marry one another lady Priyanka Soni and therefore there was no intention
on the part of the accused from the very inception not to marry the
prosecutrix and despite the same by giving false promise to marry, he
obtained the consent of the prosecutrix and had a sexual intercourse. It
B
is submitted that therefore in the facts and circumstances of the case, it
has been established and proved beyond doubt that the consent given by
the prosecutrix was on misconception of fact and therefore the same
cannot be said to be a consent and therefore the appellant-accused is
rightly convicted under Section 376 of the IPC.
7.3 Learned advocates appearing on behalf of the respondent- C
State as well as the original complainant – prosecutrix have relied upon
certain decisions of this Court on Section 375 of the IPC, Section 90 of
the IPC and on consent on misconception of fact and on consensual sex,
which will be referred to and considered hereinafter.
7.4 Now so far as the reliance placed on the decisions of this D
Court, relied upon by the learned counsel appearing on behalf of the
accused, referred to hereinabove, learned advocates appearing on behalf
of the State as well as the original complainant – prosecutrix have
submitted that none of the aforesaid decisions shall be applicable to the
facts of the case on hand. It is submitted that even some of the E
observations made by this Court in the aforesaid decisions, relied upon
by the learned senior counsel appearing on behalf of the accused, would
be applicable in favour of the prosecutrix, more particularly, para 20 of
Dhruvaram Murlidhar Sonar (supra), para 21 of Deepak Gulati
(supra); and paras 21 and 23 in the case of Uday (supra).
F
7.5 Making the above submissions and relying upon the above
decisions, it is prayed to dismiss the present appeal.
8. Heard learned counsel appearing on behalf of the respective
parties at length.
9. In the present case, the accused has been convicted for the G
offence under Section 376 of the IPC. It is the case on behalf of the
appellant-accused that as it is a case of a consensual sex, the Courts
below have committed an error in convicting the accused for the offence
under Section 376 of the IPC. Both the Courts below have accepted
the case of the prosecution that the consent of the prosecutrix was given
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982 SUPREME COURT REPORTS [2019] 6 S.C.R.
A on the basis of misconception of fact and, therefore, considering Section
90 of the IPC, such a consent cannot be said to be a consent and,
therefore, the accused has committed the rape as defined under Section
375 of the IPC and thereby has committed an offence under Section
376 of the IPC. Therefore, the question which has been posed before
this Court is, whether in the facts and circumstances of the case and
B
considering the evidence on record, the Courts below have committed
any error in holding the accused guilty for the offence under Section 376
of the IPC?
10. While considering this appeal on merits further, some of the
decisions of this Court on Section 375 and Section 90 of the IPC and on
C the consent/consensual sex are required to be referred to and considered:
10.1 In the case of Kaini Rajan v. State of Kerala (2013) 9 SCC
113, this Court has explained the essentials and parameters of the offence
of rape. In the said decision, in para 12, this Court observed and held as
under:
D
“12. 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
E 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. The expression “against her
will” means that the act must have been done in spite of the
opposition of the woman. An inference as to consent can be drawn
F if only based on evidence or probabilities of the case. “Consent”
is also stated to be an act of reason coupled with deliberation. It
denotes an active will in the mind of a person to permit the doing
of an act complained of. Section 90 IPC refers to the expression
“consent”. Section 90, though, does not define “consent”, but
describes what is not consent. “Consent”, for the purpose of
G 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
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ANURAG SONI v. STATE OF CHHATTISGARH 983
[M. R. SHAH, J.]
circumstances. (See State of H.P. v. Mango Ram (2000) 7 SCC A
224"
10.2 In the case of Deepak Gulati v. State of Haryana (2013)
7 SCC 675, this Court observed and held in paragraphs 21 and 24 as
under:
“21. Consent may be express or implied, coerced or misguided, B
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 C
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 D
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 E
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. F
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 G
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 H
984 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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.”
B 10.3 In the case of Yedla Srinivasa Rao v. State of A.P. (2006)
11 SCC 615, this Court also considered the amendment made in the
Indian Evidence Act – Section 114-A of the Evidence Act. In that case,
the sexual intercourse was committed with the prosecutrix by the
accused. As per the prosecutrix, the accused used to come to her sister’s
house in between 11 a.m. and 12 noon daily and asked her for sexual
C 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. On 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
D he spoiled her life, he gave assurance that he would marry her and
asked her not to cry, though his parents were not agreeing for the
marriage. It was found that 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. When she became pregnant, she
informed about the pregnancy to the accused. He got certain tablets for
E 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 deposed that had he not promised,
she would not have allowed him to have sexual intercourse with her.
The question was raised before the Panchayat of elders and the
F prosecutrix was present in the Panchayat along with her sister and
brother-in-law. The accused and his father both attended the Panchayat
and the accused admitted about the illegal contacts with the prosecutrix
and causing pregnancy. The accused asked for two days’ time for
marrying the prosecutrix and the Panchayat accordingly granted time.
But after the Panchayat meeting the accused absconded from the village
G and when the accused did not fulfil his promise which was made before
the Panchayat, the prosecutrix lodged the complaint. Considering the
aforesaid facts and after considering Section 90 of the IPC, this Court
convicted the accused for the offence under Section 376 of the IPC.
While convicting the accused, this Court in paragraphs 9, 10,15 and 16
H observed and held as under:
ANURAG SONI v. STATE OF CHHATTISGARH 985
[M. R. SHAH, J.]
“9. The question in the present case is whether this conduct of A
the accused apparently falls under any of the six descriptions of
Section 375 IPC as mentioned above. It is clear that the prosecutrix
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
B
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 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 a valid consent. Section 90 reads as under: C
“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, D
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 E
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.”
10. It appears that the intention of the accused as per the testimony F
of PW 1 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 G
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 the
panchayat of elders of the village. It is more than clear that the
accused made a false promise that he would marry her. Therefore,
H
986 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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 persuading the girl to
believe that he is going to marry her and obtained her consent for
B
the sexual intercourse under total misconception, cannot be treated
to be a consent. …….
15. In this connection reference may be made to the amendment
made in the Evidence Act. Section 114-A was introduced and the
presumption has been raised as to the absence of consent in certain
C prosecutions for rape. Section 114-A reads as under:
“114-A. Presumption as to absence of consent in certain
prosecutions for rape.—In a prosecution for rape under
clause (a) or clause (b) or clause (c) or clause (d) or clause
(e) or clause (g) of sub-section (2) of Section 376 of the Indian
D 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.”
E 16. 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
F Act looking to atrocities committed against women and in the
instant case as per the statement of PW 1, 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
G marry her.”
10.4 In the case of State of U.P. v. Naushad (2013) 16 SCC
651, in the similar facts and circumstances of the case, this Court reversed
the acquittal by the High Court and convicted the accused for the offence
under Section 376 of the IPC. This Court observed and held as under:
H
ANURAG SONI v. STATE OF CHHATTISGARH 987
[M. R. SHAH, J.]
“17. Section 376 IPC prescribes the punishment for the offence A
of rape. Section 375 IPC defines the offence of rape, and
enumerates six descriptions of the offence. The description
“secondly” speaks of rape “without her consent”. Thus, sexual
intercourse by a man with a woman without her consent will
constitute the offence of rape. We have to examine as to whether
B
in the present case, the accused is guilty of the act of sexual
intercourse with the prosecutrix “against her consent”. The
prosecutrix in this case has deposed on record that the accused
promised marriage with her and had sexual intercourse with her
on this pretext and when she got pregnant, his family refused to
marry him with her on the ground that she is of “bad character”. C
18. How is “consent” defined? Section 90 IPC defines consent
known to be given under “fear or misconception” which reads as
under:
“90.Consent known to be given under fear or
misconception.—A consent is not such a consent as is intended D
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;” E
(emphasis supplied)
Thus, if consent is given by the prosecutrix under a misconception
of fact, it is vitiated.
19. In the present case, the accused had sexual intercourse with F
the prosecutrix by giving false assurance to the prosecutrix that
he would marry her. After she got pregnant, he refused to do so.
From this, it is evident that he never intended to marry her and
procured her consent only for the reason of having sexual relations
with her, which act of the accused falls squarely under the definition
of rape as he had sexual intercourse with her consent which was G
consent obtained under a misconception of fact as defined under
Section 90 IPC. Thus, the alleged consent said to have been
obtained by the accused was not voluntary consent and this Court
is of the view that the accused indulged in sexual intercourse with
the prosecutrix by misconstruing to her his true intentions. It is
H
988 SUPREME COURT REPORTS [2019] 6 S.C.R.
A apparent from the evidence that the accused only wanted to indulge
in sexual intercourse with her and was under no intention of
actually marrying the prosecutrix. .........”
10.5 Even in the case of Dr. Dhruvaram Murlidhar Sonar
(supra), upon which reliance has been placed by the learned counsel
B appearing on behalf of the accused, in paragraph 23, this Court has
observed that there is a clear distinction between rape and consensual
sex. The court, in such cases, must very carefully examine whether the
complainant 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 later falls within the ambit of cheating or deception, this
C Court observed and held as under:
“23. Thus, there is a clear distinction between rape and consensual
sex. The court, in such cases, must very carefully examine whether
the complainant had actually wanted to marry the victim or had
mala fide motives and had made a false promise to this effect
D only to satisfy his lust, as the later falls within the ambit of cheating
or deception. There is also a distinction between mere breach of
a promise and not fulfilling a false promise. If the accused has not
made the promise with the sole intention to seduce the prosecutrix
to indulge in sexual acts, such an act would not amount to rape.
E 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 the misconception created by 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. Such cases
F must be treated differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a clear case of
rape. The acknowledged consensual physical relationship between
the parties would not constitute an offence under Section 376 of
the IPC.”
G 10.6 The High Court of Delhi in Sujit Ranjan v. State [Criminal
Appeal No. 248 of 2011 decided on 27.01.2011], after referring to and
considering several decisions of this Court, ultimately in paragraph 16,
observed and held as under:
H
ANURAG SONI v. STATE OF CHHATTISGARH 989
[M. R. SHAH, J.]
“16. Legal position which can be culled out from the judicial A
pronouncements referred above is that the consent given by the
prosecutrix to have sexual intercourse with whom she is in love,
on a promise that he would marry her on a later date, cannot be
considered as given under “misconception of fact”. Whether
consent given by the prosecutrix to sexual intercourse is voluntary
B
or whether it is given under “misconception of fact” depends on
the facts of each case. While considering the question of consent,
the Court must consider the evidence before it and the surrounding
circumstances before reaching a conclusion. Evidence adduced
by the prosecution has to be weighed keeping in mind that the
burden is on the prosecution to prove each and every ingredient C
of the offence. Prosecution must lead positive evidence to give
rise to inference beyond reasonable doubt that accused had no
intention to marry prosecutrix at all from inception and that promise
made was false to his knowledge. The failure to keep the promise
on a future uncertain date may be on account of variety of reasons
D
and could not always amount to “misconception of fact” right
from the inception.”
11. So far as the decisions upon which reliance has been placed
by the learned counsel appearing on behalf of the accused referred to
hereinabove are concerned, the same shall not be applicable to the facts
of the case on hand. In the case of Tilak Raj (supra), the prosecutrix E
was an adult and matured lady of around 40 years at the time of the
incident. It was admitted by the prosecutrix in her testimony that she
was in a relationship with the accused for last two years prior to the
incident and he used to stay overnight at her residence. Therefore,
considering the evidence as a whole, including FIR, testimony of the F
prosecutrix and the MLC report, this Court found that the story of the
prosecutrix regarding sexual intercourse on false pretext of marrying
her is concocted and not believable and on facts it was found that the
act of the accused seems to be consensual. It is required to be noted
that before this Court the accused was acquitted for the offence under
Section 376 of the IPC, however, the High Court convicted him under G
Sections 417 and 506 of the IPC. Therefore, on facts, the said decision
shall not be of any assistance to the appellant in the present case.
H
990 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 11.1 Even in the case of Deepak Gulati (supra) it was observed
that the accused can be convicted for rape if the court reaches the
conclusion that the intention of the accused was mala fide, and that he
had clandestine motives.
11.2 Even the decisions of this Court in Uday (supra), Deelip
B Singh (supra) and Shivashankar alias Shive v. State of Karnataka
(2108) SCC Online 3106 shall not be applicable to the case of the accused
on hand.
12. The sum and substance of the aforesaid decisions would be
that if it is established and proved that from the inception the accused
C 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 and, in such a case, such a consent would not
D 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.
13. Applying the law laid down by this Court in the aforesaid
decisions, the following facts emerging from the evidence on record are
E required to be considered:
(i) That the family of the prosecutrix and the accused were known
to each other and, therefore, even the prosecutrix and the accused were
known to each other;
F (ii) That though the accused was to marry another girl – Priyanka
Soni, the accused continued to talk of marriage with the prosecutrix and
continued to give the promise that he will marry the prosecutrix;
(iii) That on 28.04.2013 the appellant expressed his wish
telephonically to meet with the prosecutrix and responding to that the
prosecutrix went to the place of the accused on 29.04.2013 by train,
G
where the accused received her at the railway station Sakti and took her
to his place of residence in Malkharauda;
(iv) That during her stay at the house of the accused from 2.00
pm on 29.04.2013 to 3.00 pm on 30.04.2013, they had physical relation
thrice;
H
ANURAG SONI v. STATE OF CHHATTISGARH 991
[M. R. SHAH, J.]
(v) That as per the case of the prosecutrix, the prosecutrix initially A
refused to have physical relation, but then the appellant allured her with
a promise to marry and had physical relation with her;
(vi) That, thereafter the prosecutrix called the accused number
of times asking him about the marriage, however, the accused did not
reply positively; B
(vii) That thereafter the prosecutrix informed about the incident
to her family members on 06.05.2013;
(viii) That the family members of the prosecutrix negotiated with
the family members of the accused;
C
(ix) That on 23.05.2013, the appellant expressed his willingness
to marry the prosecutrix and a social function was scheduled on
30.05.2013, which did not take place;
(x) That, again the family members of both the parties had talks,
in which the marriage was negotiated and a social function was scheduled D
on 10.06.2013, which was again not held and further, the social event
was fixed for 20.06.2013;
(xi) That on 20.06.2013, the appellant telephonically informed the
prosecutrix that he has already married;
(xii) That, Priyanka Soni PW-13, who is the wife of the accused E
stated that one year prior to the marriage that took place on 10.06.2013,
the negotiations were going on; and
(xiii) That the accused married Priyanka Soni on 10.06.2013 in
Arya Samaj, even prior to the social function for the marriage of the
accused the prosecutrix was scheduled on 10.06.2013 and even F
thereafter the social event was fixed for 20.06.2013.
14. Considering the aforesaid facts and circumstances of the
case and the evidence on record, 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 G
to marry her and on such false promise he had a physical relation with
the prosecutrix; the prosecutrix initially resisted, however, gave the
consent relying upon the false promise of the accused that he will marry
her and, therefore, her consent can be said to be a consent on
misconception of fact as per Section 90 of the IPC and such a consent
H
992 SUPREME COURT REPORTS [2019] 6 S.C.R.
A shall not excuse the accused from the charge of rape and offence under
Section 375 of the IPC. Though, in Section 313 statement, the accused
came up with a case that the prosecutrix and his family members were
in knowledge that his marriage was already fixed with Priyanka Soni,
even then, the prosecutrix and her family members continued to pressurise
the accused to marry the prosecutrix, it is required to be noted that first
B
of all the same is not proved by the accused. Even otherwise, considering
the circumstances and evidence on record, referred to hereinabove, such
a story is not believable. The prosecutrix, in the present case, was an
educated girl studying in B. Pharmacy. Therefore, it is not believable
that despite having knowledge that that appellant’s marriage is fixed
C with another lady – Priyanka Soni, she and her family members would
continue to pressurise the accused to marry and the prosecutrix will give
the consent for physical relation. In the deposition, the prosecutrix
specifically stated that initially she did not give her consent for physical
relationship, however, on the appellant’s promise that he would marry
her and relying upon such promise, she consented for physical relationship
D
with the appellant-accused. Even considering Section 114-A of the Indian
Evidence Act, which has been inserted subsequently, 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. As observed hereinabove, from the
E very inception, the promise given by the accused to marry the prosecutrix
was a false promise and from the very beginning there was no intention
of the accused to marry the prosecutrix as his marriage with Priyanka
Soni was already fixed long back and, despite the same, he continued to
give promise/false promise and alluded the prosecutrix to give her consent
for the physical relationship. Therefore, considering the aforesaid facts
F
and circumstances of the case and considering the law laid down by this
Court in the aforesaid decisions, we are of the opinion that both the
Courts below have rightly held that the consent given by the prosecutrix
was on misconception of fact and, therefore, the same cannot be said to
be a consent so as to excuse the accused for the charge of rape as
G defined under Section 375 of the IPC. Both the Courts below have
rightly convicted the accused for the offence under Section 376 of the
IPC.
15. Now, so far as the submission on behalf of the accused-appellant
that the accused had marriage with Priyanka Soni on 10.06.2013 and
H even the prosecutrix has also married and, therefore, the accused may
ANURAG SONI v. STATE OF CHHATTISGARH 993
[M. R. SHAH, J.]
not be convicted is concerned, the same cannot be accepted. The A
prosecution has been successful by leading cogent evidence that from
the very inspection the accused had no intention to marry the victim and
that he had mala fide motives and had made false promise only to satisfy
the lust. But for the false promise by the accused to marry the prosecutrix,
the prosecutrix would not have given the consent to have the physical
B
relationship. It was a clear case of cheating and deception.
As observed hereinabove, the consent given by the prosecutrix
was on misconception of fact. Such incidents are on increase now-a-
days. Such offences are against the society. Rape is the most morally
and physically reprehensible crime in a society, an assault on the body,
mind and privacy of the victim. As observed by this Court in a catena of C
decisions, while a murderer destroys the physical frame of the victim, a
rapist degrades and defiles the soul of a helpless female. Rape reduces
a woman to an animal, as it shakes the very core of her life. By no
means can a rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim. Rape is a crime against the D
entire society and violates the human rights of the victim. 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 E
IPC. The appellant-accused must face the consequences of the crime
committed by him.
16. In view of the above and for the reasons stated above, we are
of the opinion that both the Courts below have rightly convicted the
appellant-accused under Section 376 of the IPC. We also maintain the F
conviction of the appellant-accused under Section 376 of the IPC.
However, in the facts and circumstances of the case and the request
made by the learned counsel appearing on behalf of the appellant-
accused, the sentence of 10 years’ RI awarded by the courts below is
hereby reduced to seven years RI, the minimum which was prescribed
G
at the relevant time of commission of offence under Section 376 of the
IPC. Consequently, the present appeal is partly allowed to the aforesaid
modification in the sentence only.
Divya Pandey Appeal partly allowed.
H
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