Holding

The conviction under Section 376 IPC was set aside because the evidence did not establish that the victim was under sixteen, that the intercourse was against her will, or that the promise to marry constituted a false promise under Section 90, but the appellant was ordered to pay compensation under Article 142.

Summary

The appellant, Deelp Singh, was convicted under Section 376 IPC for raping a girl, based on the prosecution's claim that she was under 16 and that the sexual intercourse was against her will or without consent, allegedly induced by a false promise to marry. The Supreme Court examined the age of the victim, finding the school certificate unreliable and accepting the medical opinion that she was over 16, thus excluding clause six of Section 375. It also held that the victim’s testimony about forcible rape was inconsistent and unreliable, and that her consent, though obtained on the hope of marriage, was not vitiated by a false promise under Section 90. Consequently, the conviction was set aside. However, invoking Article 142, the Court ordered the appellant to pay Rs.50,000 as compensation for the breach of promise to marry. The appeal was allowed, the conviction overturned, and compensation directed.

Issues considered

Whether the victim was under sixteen years of age at the time of the alleged intercourse, invoking Section 375(6).
Whether the sexual intercourse was "against her will" under Section 375(1).
Whether the consent was obtained without consent under Section 375(2) due to a promise to marry, and whether such promise amounts to a misconception of fact under Section 90.
Whether the prosecution proved beyond reasonable doubt the absence of consent required for a rape conviction under Section 376.
Whether the accused can be ordered to pay civil compensation despite acquittal, under Article 142 of the Constitution.

Legislation cited

Constitution of Indias. 142
Indian Evidence Act, 1872s. 114-A
Indian Penal Code, 1860s. 375, s. 376, s. 90

Subjects

rapeconsentSection 375Section 90promise to marryage of victimbreach of promisecivil compensationArticle 142evidence

Judgment

DEELIP SINGH @ DILIP KUMAR A
v.
STATE OF BIHAR

NOVEMBER 3, 2004

[P. VENKATARAMA REDD! AND P.P. NAOLEKAR, JJ.] B

Penal Code, I 860:

Section 375, clause sixth- 'With or without her consent, when she is
under I 6 years of age '-Invocation of-Held: Finding that victim girl less C
than I6 years on the date offirst sexual intercourse not sustainable-Hence,
clause sixth not atlracted

Section 375, clause first-Sexual intercourse with victim girl 'against
her wi/l'-Version of victim in court at variance with her version in FIR and D
as such improbable-Hence, cannot be said that victim subject to rape
'against her will'.

Section 375, Clause second and section 376-Rape-Commission of-
Inducement to enter into sexual intercourse on promise to marry-Consent,
given if falls within expression 'without her consent'-Section 375 clause E
second, if attracted-Held: Victim took cot1scious decision after active
application of mind to participate in the sexual act on being impressed that
accused will marry her-It cannot be said that accused had no intention to
marry her at all from the inception and that the promise made was false to
his knowledge-Statement of prosecutrix showing that there was genuine
intention which did not materialise-Hence, case of breach of promise to F
marry-Section 375 clause second not attracted

Section 90-Explanation of-What is not consent-Held: Consent given
under fear of injury or misconception offact is not consent-It is analogous
to coercion and mistake offact-First part of section 90 is from the point of
view of victim and second from the point of view of accused emphasising on G
the knowledge or reasonable belief of a person who obtains tainted consent-
Both parts should be cumulatively satisfied-However, section 90 does not
give exhaustive definition of consent for Penal Code and the normal
connotation and concept of consent is not excluded
909 H
910 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A Consent-Absence of-Burden ofproof-Is on the prosecution-In cases
covered by Section 114-A position is different-Consent or absence thereof
is to be gathered.from attendant circumstances-Previous or contemporaneous
acts or subsequent conduct are relevant-Evidence Act, 1872-Section 114-
A.

B Constitution of India, 1950: Article 142-lnherent powers-Exercise
of-Accused promising to marry victim woman, persuaded her to have sexual
relations and caused pregnancy-Acquittal under Section 376-Though
accused acquitted but on account of his reprehensible conduct is prima facie
accountable for damages under Civil /aw-Hence, in exercise ofpower under
C Article 142 accused directed to pay Rs.50,0001-towards compensation, as
offered by him-Penal Code, 1860-Section 376.

Words and Phrases:
'Consent '-Meaning of

D According to the victim girl, she and the appellant were neighbours and
fell in love with each other. One day appellant forcibly raped her and later
consoled her that he would marry her. She succumbed to the entreaties and
continued to have sexual relations and became pregnant. The intimacy
continued to the knowledge of parents and other relatives under the ·
impression that the appellant would marry her. But the accused avoided to
E marry her and as such the girl lodged a complaint long after the alleged act
of rape and FIR was registered. Trial Court convicted and sentenced the
accused under section 376 IPC for committing rape of minor girl. High Court
upheld the conviction but modified the sentence. Hence the present appeal.

Allowing the appeal, the Court
F HELD:_ I.I. The findings ofthe trial court that it was a case of having
sexual intercourse against the will of the victim girl or without her consent
and thereafter went on making false promise to marry her as such liable to
be convicted under section 376 IPC, as upheld by Higli Court are either
perverse or vitiated by non-consideration of material evidence and relevant
G .factors emerging from the prosecution evidence. Therefore, conviction and
sentence is set aside. [929-D-EI

1.2. Accused is acquitted of the charges levelled against him on the
ground of benefit of doubt. But the reprehensible conduct of the appellant,
who committed breach of the promise to marry the victim woman an.d
H persuaded her to have sexual relations and caused pregnancy cannot be
DEELIP SINGH@ DILIP KUMAR v. ST ATE OF BIHAR 91 l
ignored and as such the appellant is primafacie accountable for damages A
under Civil Law. In the interests of justice, in exercise of powers vested in
this Court under Article 142 of the Constitution, appellant is directed to pay
a sum of Rs.50,000 by way of monetary compensation as offered by him and
accepted by the parties, irrespective of acquittal. [929-F-H; 930-A)

2. The finding of trial Court relying on the school transfer certificate B
of the victim that the girl was aged less than 16 years at the relevant point of
time as affirmed by High Court is based on no evidence or evidence which is
doubtful. The certificate should have been excluded from consideration.
Furthermore, the Medical Officer assessed the age of the girl as 16-17 years.
The defence is entitled to rely on the higher side of the age given by the doctor. C
If so, the victim girl would be aged more than 16 years when the alleged offence
took place. The finding that the victim girl was less than 16 years of age on
the date of the first sexual intercourse which the appellant had committed,
cannot be sustained. Clause sixthly of Section 375 'with or without her
consent, when she is under 16 years of age' is not attracted.
(916-G; 917-H; 918-AJ D

3. The expression 'against the will' seems to connote that the offending
act was done despite resistance and opposition of the woman. The victim
deposed before the court that the first sexual intercourse took place against
her will, though she became a consenting party later on. She categorically
stated in the FIR that she 'surrendered before him' in view of his repeated E
promises to marry. The version given by her in the court is at variance with
the version set out in the FIR. Her version about the first incident of rape
bristles with improbabilities, improvements and exaggerations. It is a different
matter that she became a consenting party under the impact of his promise to
marry her. Therefore, it is not safe to lend credence to the version of the F
victim that she was subjected to rape 'against her will' in the first instance
even before the appellant held out the promise to marry.
[918-D; 919-A, E, F, G)

4.1 Though will and consent often interlace and an act done against the
will of a person can be said to be an act done without consent, the Penal Code G
categorizes these two expressions under separate heads in order to be as
comprehensive as possible. The concept and dimensions of 'consent' in the
context of Section 375 IPC has been viewed from different angles which may
not necessarily be dichotomous. Of course, the ultimate conclusion depends
on the facts of each case. (920-B, DI
H
912 ' [2004) SUPP. 5 S.C.R.
SUPREME COURT REPORTS
,;:.,;,

A 4.2. Penal Code does not define 'consent' in positive terms, but what
cannot be regarded as 'consent' under the Code is explained by section 90.
Consent given firstly under fear of injury and secoiidly under a misconception
of fact is not 'consent' at all. This is enjoined by the first part of section 90.
These two grounds are analogous to coercion and mistake of fact which are
B the familiar grounds that can vitiate a transaction under the jurisprudence
of our country as well as other countries. The factors set out in the first part
of Section 90 are from the point of view of the victim. The second part of Seetion
90 enacts the corresponding provision from the point of view of the accused.
It envisages that the accused too has knowledge or has reason to believe that
the consent was given by the victim in consequence of fear of injury or
C misconception of fact. Thus, the second part lays emphasis on the knowledge
or reasonable belief of the person who obtains the tainted consent. The
requirements of both the parts should be cumulatively satisfied. The Court
has to see whether the person giving the consent had given it under fear of
injury or misconception of fact and the Court should also be satisfied that the
person doing the act i.e. the alleged offender, is conscious of the fact or should
D have reason to think that but for the fear or misconception, the consent would
not have been given. This is the scheme of Section 90 which is couched in
negative terminology. However, Section 90 cannot be construed as an
exhaustive definition of consent for the purposes of the Penal Code. The
, normal connotation and concept of 'consent' is not intended to be excluded.
E [920-D; F, H; 921-A-C)

Uday v. State of Karnataka, (2003) 2 Scale 329; Rao Harnarain Singh
v. State, AIR (1958) Punjab 123; Jn Re Anthony, AIR (1960) Madras 308, Gopi
Shankar v. State, AIR (1967) Raj. 159, Bhimrao v. State of Maharashtra,
(1975) Mah. L.J. 660, Vijayan Pillai v. State of Kera/a, (1989) 2 K.L;J. 234
F and State of H.P. v. Mango Ram, [2000) 7 SCC 224, referred to.

Stroud's Judicial Dictionary; Jowitt's Dictionary on English Law; Words
& Phrases - Permanent Edition, Volume 8A, referred to.

5.1. A misrepresentation as regards the intention of the person seeking
consent, i.e. the accused, could give rise to the misconception of fact. Applying
G the principle to a case arising under Section 375, consent given pursuant to
a false representation that the accused intends to marry, could be regarded
as consent given under misconception of fact. However, a promise to marry
without anything more will not give rise to 'misconception of fact' within the
meaning of Section 90. A representation deliberately made by the accused
H with a view' to elicit the assent of the victim without having the intention or
DEELIP SINGH @ DILIP KUMAR v. STATE OF BIHAR 913

inclination to marry her, will vitiate the consent. If on the facts it is A
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 mete 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. [924-A, B; 926-A-E)
B
In re N. Jaladu ILR 36 Madras 453, approved.

Uday v. State of Karnataka, (2003) 2 Scale 329, relied on.

Purshottam Mahadev v. State of Bombay, AIR (1963) Bombay 74 and C
Jayanti Rani Panda v. State of West Bengal, (1984) Crl.L.J. 1535, referred
to.

Edgomgtpm v. Fotz,airoce, (1885) 29 Ch.D 459, referred to.

5.2. The burden is on the prosecution to prove that there was absence D
of consent. The position is different if the case is covered by Section 114-
A of Evidence Act. Consent or absence of it could be gathered from the
attendant circumstances. The previous or contemporaneous acts or the
subsequent conduct can be legitimate guides. (927-D-EJ

Uday v. State of Karnataka, (2003) 2 Scale 329, relied on. E

6.1. The part of prosecutrix's version accusing the appellant of
forcible sexual indulgence on the first occasion is unreliable and excluded
from consideration. It is fairly clear from the evidence of the victim that
the predominant reason which weighed with her in agreeing for sexual F
intimacy with the accused was the hope generated in her &bout the
prospect of marriage with the accused. There is. nothing in her evidence
to demonstrate that without any scope for deliberation, she succumbed
to the psychological pressure exerted or allurements made by the accused
in a weak moment. The statements of the prosecutrix indicate that she was
fully aware of the moral quality of the act and the inherent risk involved G
and that she considered the pros and cons of the act. The prospect of the
marriage proposal not materializing had also entered her mlµd. Thus, her
own evidence reveals that she took a conscious decision ~fter active
application of mind to the things that were happening.
[927-F; 928-B-C, F-GJ H
9l4
/
SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 6.2. There is no doubt that the accused's promise to marry the victim
was the predominant reason for her to agree to the sexual intimacy with
him. Prosecutrix was also too keen to marry him as specifically stated by
her. But there is no evidence which gives rise to an inference beyond
reasonable doubt that the accused had no intention to marry-her at all
from the inception and that the promise he made was false to his
B knowledge. On the other hand, the statement of the prosecutrix that 'later
on', the accused became ready to marry her but his father and others took
him away from the village would indicate that the accused might have been
prompted by a genuine intention to marry which did not materialize on
account of the pressure exerted by his family elders. It is case of breach
C of promise to marry rather than a case of false promise to marry.
[929-A-C)

Uday v. State of Karnataka, (2003) 2 Scale 329, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
D 44 of 2004.

From the Judgment and Order dated 17. 7 .2003 of the Patna High Court
in Crl. A. No. 330 of 199I(SJ).

D.K. Thakur, Ravi Shalikar Kumar and Debasis Misra for the Appellant.

E H.L. Aggarwal,: Kum~r Rajesh Singh for B.B. Singh with him for the
Respondents.

The Judgment of the Court was delivered by

· P. VENKAT ARAMA REDDI, J. The appellant has been charged and
F . convicted under Section 376 IPC for committing rape of a minor girl (figured
as PW12 in this case) in the month of February, 1988. The Illrd Additional
Sessions Judge of Katihar sentenced him to rigorous imprisonment for a
period of ten years. On appeal, the High Court upheld the conviction but
0

modified the sentence to seven ye ars. Aggrieved thereby, the present appeal
is filed by the accused.
G
Facts:

The victim girl lodged a complaint to the police on 29.11.1988 i.e.,
long after the alleged act of rape. By the date of the report, she was pregnant
by six months. Broadly, the version of the victim girl was that she and the
H accused were neighbours and fell in love with each other and one day, the
•

DEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDD!, J.] 915
accused forcibly raped her and later consoled her saying that he would marry A
her, that she succumbed t~ the entreaties of the accused to have sexual relations
with him, on account of the promise made by him to marry her and therefore
'"I:·
continued to have sex on several occasions. After she became pregnant, she
revealed the matter to her parents. Even thereafter the intimacy continued to
the knowledge of the parents and other relations who were under the
impression that the accused would marry the girl but the accused avoided to B
marry her and his father took him out of the village to thwart the bid to
marry. The efforts made by the father to establish the marital tie failed and
therefore she was constrained to file the complaint after waiting for sometime.

The prosecution adduced evidence in the fonn of school certificate and
medical expert's opinion to establish. that by the date of the commission of
c

- criminal act, the victim girl was aged less than 16 years in which case her
consent becomes immaterial. It is on this aspect the attention was focussed
more by the prosecution.

The trial Court accepted the prosecution case in this regard and found D
that the girl was aged less than 16 years at the relevant point of time. The
High Court affirmed this finding. The trial Court also recorded an alternative
finding that she was forcibly raped on the first occasion and after that incident
the accused went on making false promises to marry her. It was therefore
held that either there was no consent or the consent was involuntary. Thus,
according to the trial Court, it was a case of having sexual intercourse against E
the will of the victim girl or without her consent. If so, irrespective of the age
of the girl, the offence is deemed to be committed. As regards this latter
aspect, the High Court did not enter into any discussion .
•
Before proceeding to discuss the crucial points, it would be apposite to
refer to the contents of the report given by the victim girl to the officer-in-
F
charge of Manihari police station on the basis of which the FIR (Ext. I) was
registered on 25.l 0.1988. At this stage, we would like to observe that her
version as per the deposition given in the Court was somewhat different,
especially in regard to the manner in which the sexual relationship was
developed and the first sexual act was resorted to. To the extent necessary, G
this aspect will be referred to at a later stage. The following is the substance
of the report (marked as Ext. 3/2) given to the police on 25.10.1988:

The informant and the accused were neighbours. The accused, by his
gestures and behaviour, tried to seduce her. Whenever there was opportunity,
he used to come to her house and used to cut jokes and have fun with her H
916 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.
....
A in spite of her protests. On one occasion, a watch was given to her as a gift.
The accused went on telling that he wanted to marry her but she expressed
her disinclination. However, one day, she yielded to the persuasion of the
accused and had sexual contact with the accused and the same has been
going on from the month of February, 1988. The accused allured her with
promise of marriage and continued to have intercourse with her on account
',B of which she conceived. During the second or third month of pregnancy, she
infonned her parents about it. Her father talked to the accused and asked him
to marry his daughter. The accused accepted before the villagers that he was
responsible for the pregnancy and he was ready to marry her. However, the
father of the accused did not agree and proclaimed that the marriage will not
C take place under any circumstances; The efforts made by her father by

-
convening a panchayat etc., did not yield.any result. Later on, the infonnant
came to khow that the father of the accused Gopi Singh with the help of other
villagers took away the accused to an unknown place. Thereafter, she was
advised to file the case by her father and other elders. On the registration of
the case, the charge sheet was filed not only against the present appellant but
D also his father and others who were alleged to have abducted the accused to
prevent the marriage. However, no charge was framed against them. The
appellant is the sole accused who faced the trial.

The victim girl was ·sent for medical examination to CAS, Sadar Hospital,
E Katihar on 28.11.1988. PW14 the Doctor who along with other doctors
examined her, deposed that by the date of examination, she had pregnancy
of six months duration. The main purpose of sending her for medical
examination appears to be to assess her age. PW14 gave the opinion, on the
basis of his own examination and the examination of the Dental Surgeon and
the X-rays taken by the Radiologist that her age was between 16 and 17
•
F years. The Investigating Officer has not been examined in this case.

Age of victim:

The question of age of the victim girl is the first and foremost aspect
that needs to be considered. in the present appeal. On this question we are
G unable to .concur with the finding of the trial Court as affinned by the High.
Court. In our view; the finding as reached by the trial Court is based on no
evidence or evidence which is doubtful. The prosecution wanted to prove her
age by filing the school transfer certificate through PW13. The certificate is
Ext. P4. It was purportedly issued by the Headmaster of the Primary/ Secondary
School, Nawabganj. Her date of birth, as recorded in the admission register,
H
DEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDD!, J.] 917

is stated to be 4.2.1974. The date of admission is mentioned as 22.2.1980 and A
the date of leaving the sc_hool as 31. I 2. I 981. It is mentioned in column 5 that
the admission was given on the basis of declaration of the father i.e. PWI I~
By the time she left the school, she passed II Class. The date of issuance of
the certificate was 7.1.1991 i.e. after the trial commenced. No explanation is
forthcoming as to why the Investigation Officer did not obtain the certificate
in the course of investigation and why the certificate was not produced by the B
father of the girl (PWl I). Apparently, the age was given on the basis of the
declaration made by the father. If so, the father was the best witness to speak
about her age. However, he did not say a word about her age.

If this certificate had been filed beforehand or if PWl 1 had said anything C
about her age, the defence counsel would have been in a position to question
the father about the correctness of his declaration. That is one aspect. The
other and more important aspect is that the certificate (Ext.P4) has no
evidentiary value inasmuch as it is not properly proved by a witness who is
competent to speak to the relevant facts connected with the issuance and
custody of the certificate. The Headmaster or the staff of the school has not D
been examined.

The two witnesses examined to prove this document are PWs 13 and
15, whose evidence, in our view, is really worthless. The certificate was
produced by PW13, who is said to be a clerk in Court (Mujeeb). It was
marked subject to objection raised by the defence. Who applied for it and E
how he came in possession of it has not been explained. Though he stated in
the chief examination that the certificate was issued by the Headmaster of
Nawabganj School, in cross-examination, he frankly stated that he could not
say whose signature was there on the certificate. He further stated that he had
never gone to the school. F
PWI5-an advocate's clerk, is another witness examined by prosecution
to prove Ext.4. He stated in the chief-examination that the school leaving
certificate related to victim girl and it was in the handwriting of the Headmaster
Akhileshwar Thakur. In cross-examination, he admitted that he did not see
the certificate earlier and he met the Headmaster of the school I0 or I 5 years G
back. He also stated that the signature was illegible. Thus the evidence of
PWs 13 & 15 does not throw any light on the authenticity or the genuineness
of the certificate. Obviously, they did not have any knowledge of the issuance
of the certificate. The original register was not before the Court. The certificates
have not come from proper custody. In the circumstances, the certific1te H
918 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A should have been eschewed from consideration. However the trial Court and
the High Court acted on it without demur and rested their conclusions on this
document. Ifwe exclude Ext.P4 from consideration, the Court is left with the
evidence of the Medical Officer, PW14, according to whose assessment the
age of the girl was 16-17 years. The defence is entitled to rely on the higher
side of the age given by the Doctor. If so, the victim girl would be aged more
B than 16 years when the alleged offence took place in February, 1988. At the
time of examination in the Court, it appears that the Court assessed the age
as 17, without any further elaboration. It is not safe to rely on such estimate.

For all these reasons we are of the view that the finding that the victim
C girl was less than 16 years of age on the date of the first sexual intercourse
which the appellant had committed, cannot be sustained. If so, Clause sixthly
of Section 375 which says-or without her consent, when she is under 16
years of age", is not attracted. ....

Whether accused guilty under clause first of Section 375:
D
The next question is whether the appellant had sexual intercourse with
the victim girl against her will (vide first Clause of Section 375). The
expression_ 'against the will' seems to connote that the offending act was
done despite resistance and opposition of the woman. On this aspect, the trial
court did believe the version of the informant victim - without much of
E discussion. In reaching this factual finding, the trial Court failed to analyse
and evaluate the evidence of PW 12 - the victim girl. The High Court merely
affirmed the_trial Court's finding on this paint. We should, therefore, scrutinize
her evidence and examine whether it would, beyond reasonable doubt, lead
to the conclusion of the accused having had sexual contact against her will.
F Though in the FIR, the version of forcible sexual intercourse has not been put
forward, in the deposition before the Court, PW12 tried to build up this plea.
According to PW12, the first act of rape took place in the wheat field of her
father. This is how she described the incident:

"In the field, once getting a chance, Dilip Singh forcibly raped me.
G Dilip Singh told, 'you marry me', when I was weeping. He said weeping is
useless and we shall marry. He promised me of marriage and raped me
several times."

She then stated that after she became pregnant, she revealed to her
mother about the rape. Later on, the accused became ready to marry her but
H his father and others took him away from the village. She also stated that the
DEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDD!, J.] 919

accused time and again told her that they will have a 'court marriage' (means, A
registered marriage). In substance, what she deposed was that the first sexual
intercourse took place against her will, though she became a consenting party
later on. The first thing to be noticed is that in the report which she admittedly
gave to the police, this version was not given by her and she did not complain
of forcible rape. That apart, the version of rape in the wheat field seems to
be highly doubtful when tested in the light of her statements in the cross- B
examination. She stated in paragraph 14 that "one day, while talking, he
pulled me down and forcibly raped me. This incident occurred at 12.00 in the
night". That means, according to her version, the first incident of rape took
place on the wheat field at 12.00 in the midnight. It is highly doubtful whether
they would go to the wheat fields at that hour. Moreover, in cross-examination, C
she makes a further improvement by stating that at the time of first incident
of rape at midnight, when she started shouting, the accused gagged her mouth.
One more thing which affects the credibility of her version is her statement
in the cross-examination that when the accused kept on making gestures, she
went to the house of the accused and lodged her protest with his Bhabi. It is
most unlikely that such unwilling person will go to a secluded place in the D
company of the accused at an odd time in the night and take the risk of being
sexually assaulted. In any case, if the rape was committed by the accused
much against her will, ·she would not have volunteered to submit to his wish
subsequent to the alleged first incident of rape. She admitted that the accused
used to talk to her for hours together and that was within the knowledge of E
her parents and brother. This statement also casts an element of doubt on her
version that she was· subjected to sexual intercourse in spite of her resistance.
Above all, the version given by her in the Court is at variance with the
version set out in the FIR. As already noticed, she categorically stated in the
first information report that she 'surrendered before him' in view of his
repeated promises to ~arry. In short, her version about the first incident of F
rape bristles whh improbabilities, improvements and exaggerations. It is a
different matter that she became a consenting party under the impact of his
promise to marry her. That aspect, we will examine later. But, what we
would like to point out at this juncture is, it is not safe to lend credence to
the version of PW12 that she was subjected to rape against her will in the G
first instance even before the appellant held out the promise to marry. We
cannot, therefore, uphold the~finding of the trial Court that the girl was raped
forcibly on the first occasion and that the talk of marriage emerged only later.
The finding of the trial Court in this respect is wholly unsustainable.

H
920 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A Whether clause secondly (without consent) is attracted:

The last question which calls for consideration is whether the accused
is guilty of having sexual intercourse with PWI2 'with·out her consent' (vide
Clause secondly of Section 375 IPC). Though will and consent often interlace
and an act done against the will of a person can be said to be an act done
B without consent, the Indian Penal Code categorizes these two expressions
under separate heads in order to be as comprehensive as possible.

What then is the meaning and content of the expression 'without her
consent'? Whether th~ consent given by a woman believing the man's promise
to marry her is a consent which excludes the offence of rape? These are the
C questions which have come up for debate directly or incidentally.

D
The concept and dimensions of 'consent' in the context of Section 375
IPC has been viewed from different angles. The decided cases on the issue
reveal different approaches which may not necessarily be dichotomous. Of
course, the ultimate conclusio(l depends on the facts of each case.
-
Indian Penal Code does not define 'consent' in positive terms, but what
cannot be regarde~ as 'consent' under the Code is explained by Section 90.
Section 90 reads as follows:

"90. Consent known to be given under fear or misconception-A
E 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; "
F
Consent given firstly under fear of injury and secondly under a
misconception of fact is not 'consent' at all. That is what is enjoined by the
first part of Section 90. These two grounds specified in Section 90 are
analogous to coercion and mistake of fact which are the familiar grounds that
can vitiate a transaction under the jurisprudence of our country as well as
G other countries.

The factors set ou_t in the first part of Section 90 are from the point !>f
view_ of the victim. The second part of Section 90 enacts the corresponding
provision from the point of view of the accused. It envisages that the accused
too has knowledge or has reason to believe that the consent was given by the
H
DEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDDI, J.] 921
victim in consequence of fear of injury or misconception of fact. Thus, the A
second part lays emphasis on the knowledge or reasonable belief of the
person who obtains the tainted consent. The requirements of both the parts
should be cumulatively satisfied. In other words, the Court has to see whether
the person giving the consent had given it under fear of injury or misconception
of fact and the Court should also be satisfied that the person doing the act
i.e. the alleged offender, is conscious of the fact or should have reason to B
think that but for the fear or misconception, the consent would not have been
given. This is the scheme of Section 90 which is couched in negative
terminology.

Section 90 cannot, however be construed as an exhaustive definition of C
consent for the purposes of the Indian Penal Code. The normal connotation
and concept of 'consent' is not intended to be excluded. Various decisions of
the High Court and of this Court have not merely gone by the language of
Section 90, but travelled a wider field, guided by the etymology of the word
'consent'.
D
In most of the decisions in which the meaning of the expression 'consent'
under the Indian Penal Code was discussed, reference was made to the passa~
occurring in Stroud's Judicial Dictionary, Jowitt's Dicti0nary on English Law,
Words-Phrases Permanent Edition and other legal Dictionaries. Stroud defines

- consent as "an act of reason, accompanied with deliberation, the mind
weighing, as in a balance, the good and evil on each side". Jowitt, while
employing the same language added the following:
E

"Consent supposes three things-a physical power, a mental power
and a free and serious use of them. Hence it is that if consent be
obtained by intimidation, force, mediated imposition, circumvention,
surprise or undue influence, it is to be treated as a delusion, and not F
as a deliberate and free act of the mind."

In Words & Phrases-Permanent Edition, Volume 8A, the following
passages culled out from certain old decisions of the American Courts are
found:
G
" ......... adult female's understanding of nature and consequences of
sexual act must be intelligent understanding to constitute 'consent'.

"Consent within penal law, defining rape, requires exercise of
intelligence based on knowledge of its significance and moral quality
H
922 SUPREME COURT REPORTS [2004) S,UPP. 5 S.C.R.

A and there must be a choice between resistance and assent."

It was observed by B.P. Singh, J. speaking for the Court in Uday v.
State of Karnataka, (2003) 2 Scale 329, "the Courts in India have, by and
large, adopted these tests to discover whether the consent was voluntary or
whether it was vitiated so as not to be legal consent".
B
There is a good analysis of the expression 'consent' in the context of
Section 375 IPC by Tekchand, J. in Rao Harnarain Singh v. State AIR
(1958) Punjab 123. The learned Judge had evidently drawn inspiration from
the above passages in the law dictionaries. The observation of the learned
Judge that "there is a difference between consent and submission and every .....
C consent involves a submission but the converse does not follow and a mere
act of submission does not involve consent", is quite apposite. The said
proposition is virtually a repetition of what was said by Coleridge, J. in
Regina v. Day in 1841 as quoted in Words and Phrases (Permanent Edition)
at page 205. The following remarks in Harnarain 's case are also pertinent:
D "Consent is an act of reason accompanied by deliberation, a mere act
_ of helpless resignation in the face of inevitable compulsion, non
· ~resistance and passive giving in cannot be deemed to be Consent."

The passages occurring in the above decision were either verbatim
E quoted with approval or in condensed form in the subsequent decisions: vide
Jn Re: Anthony, AIR (1960) Madras 308, Gopi Shankar v. State, AIR (1967)
Raj. 159, Bhimrao v. State of Maharashtra, (1975) Mah. L.J. 660, Vijayan
Pillai v. State of Kera/a, (1989) 2 K.L.J. 234. All these decisions have been
considered in a recent pronouncement of this Court in Uday v. State of
Karnataka. The enunciation of law on the meaning and content of the
F expression 'consent' in the context of penal law as elucidated by Tekchand,
J. in Harnarain 's case (which in turn was based on the above extracts from
law Dictionaries) has found its echo in the three Judge Bench decision of this
Court in State of H.P. v. Mango Ram. [2000] 7 SCC 224. K.G. Balakrishnan,
J. speaking for the Court stated thus:

G "Submission of the body under the fear or terror cannot be construed
as a consented sexual act. Consent for the purpose of Section 375
requires voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and moral
quality of the act but after having fully exercised the choice between
resistance and assent. Whether there was consent or not, is to be
H
DEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDDI, J.] 923
ascertained only on a careful stiidy of all relevant circumstances." A
On the facts, it was held that there was resistance by the prosecutrix and there
was no voluntary participation in the sexual act. That case would therefore
fall more appropriately within Clause first of Section 375.

We shall turn our attention to the cases which dealt with the specific B
phraseology of Section 90, IPC. We have an illuminating decision' of the
Madras High Court rendered in 1913 in Re: N. Ja/adu [ILR 36 Madras 453]
in which a Division Bench of that Court considered the scope and amplitude
of the expression 'misconception of fact' occurring in Section 90 in the
context of the offence of kidnapping under Section 361 IPC. The 2nd accused
in that case obtained the consent of the girl's guardian by falsely representing C
that the object of taking her was for participating in a festival. However, after
the festival was over, the 2nd accused took her to a temple in another village
and married her to the I st accused against her will. The question arose whether
the guardian gave consent under a misconception of fact. While holding that
there was no consent, Sundara Ayyar J. speaking for the Bench observed D
thus:

"We are of opinion that the expression 'under a misconception of
fact' is broad enough to include all cases where the consent is obtained
by misrepresentation; the misrepresentation should be regarded as
leading to a misconception of the facts with reference to which the E
consent is given. In Section 3 of the Evidence Act illustration (d) that
a person has a certain intention is treated as a fact. So, here the fact
about which the second and third prosecution witnesses were made to
entertain a mistonception was the fact that the second accused intended
to get the girl married. In considering a similar statute, it was held in
England in R. v; f!opkins (l 842), Car & M 17, 254 that a consent F
obtained by fraud would not be sufficient to justify the taking of a
minor. See also Halsbury's Laws of England, Volume 9, page 623.
In Stephen's Digest Of the Criminal Law of England (sixth edition,
page 217), the learned author says with reference to the law relating
to "abduction of girls under sixteen" "thus ...... If the consent of the G
pefson from whose possession the girl is taken is obtained by fraud,
the taking is deemed to be against the will of goach a person." .. Although
in cases of contracts a consent obtained by coercion or fraud is only
voidable by the party affected by it, the effect of Section 90, IPC is
that such consent cannot, under the criminal law, be availed of to ,
H
924 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A justify what would otherwise be an offence."

This decision is an authority for the proposition that a misrepresentation as
regards the intention of the person seeking consent, i.e. the accused, could
give rise to the misconception of fact. This view of the Madras High Court
was accepted by a Division Bench of Bombay High Court in Purshottam
B Mahadev v. State of Bombay, AIR (l 963) Bombay 74. Applying that principle
to a case arising under Section 375, consent given pursuant to a false
representation that the accused intends to marry, could be regarded as consent
given under misconception of fact.

On the specific question whether the consent obtained on the basis of
C promise to marry which was not acted upon, could be regarded as consent for
the purpose of Section 375 IPC, we have the decision of Division Bench of
Calcutta High Court in Jayanti Rani Panda v. State of West Bengal, (1984)
Crl.L.J. 1535. The relevant passage in this case has been cited in several
other decisions. This is one of the cases referred to by this Court in Uday
D (supra) approvingly. Without going into the details of that case, the crux of
the case can. be discerned from the following summary given at para 7:

"Here the allegation of the complainant is that the accused used to
visit her house and proposed to marry her. She consented to have
sexual intercourse with the accused on a belief that the accused would
E really marry her. But one thing that strikes us is ........ why should she
keep it a secret from her parents if really she had belief in that
promise. Assuming that she had believed the accused when he held
out a promise, if he did at all, there is no evidence that at that time
the accused had no intention of keeping that promise. It may be that
subsequently when the girl conceived the accused might have fe~t
F otherwise. But even then the case in the petition of complainant is
that the accused did not till then back out. Therefore it cannot be said
that till then the accused had no intention of marrying .the complainant
even if he had held out any promise at all as alleged."

G The discussion that follows the above passage is important and is extracted
hereunder:

"The failure to keep the promise ·at a future uncertain date due to
reasons not very clear on the evidence does not always amount to a
misconception of fact at the inception of the act itself. In order to
come within the meaning of misconception of fact, the fact must have
H
DEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDDI, I.) 925

an immediate relevance. The matter would have been different if the A
consent was obtained by creating a belief that they were already
married. In such a case the consent could be said to result from a
misconception of fact. But here the fact alleged is a promise to marry
we do not know when. If a full grown girl consents to the act of
sexual intercourse on a promise of marriage and continues to indulge
in such activity until she becomes pregnant it is an act of promiscuity B
on her part and not an act induced by misconception of fact. S. 90
IPC cannot be called in aid in such a case to pardon the act of the girl
and fasten criminal liability on the other, unless the Court can be
assured that from the very inception the accused never really intended
to marry her. " c
(emphasis supplied)

The learned Judges referred to the decision of Chancery Court in
Edgomgtpm v. Fotz,airoce (1885) 29 Ch.D 459 and observed thus:

"This decision Jays down that a misstatement of the intention of the D
'.
defendant in doing a particular act may be a misstatement of fact, and
if the plaintiff was misled by it, an action of deceit may be founded
on it. The particular observation at p. 483 runs to the following effect:
"There must be a misstatement of an existing fact." Therefore, in
order to amount to a misstatement of fact the existing state of things E
and a misstatement as to that becomes relevant. In the absence of
such evidence Sec. 90 cannot by called in aid in support of the
contention that the consent of the complainant was obtained on a
misconception of fact."

After referring to the case law on the subject, it was observed in Uday, supra F
at paragraph 21 :

"It therefore appears that the consensus of judicial opinion is in favour
of the view that the consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply in love on a
promise that he would marry her on a later date, cannot be said to be G
given under a misconception of fact. A false promise is not a fact
within the meaning of the Code. We are inclined to agree with this
view, but we must add that there is no strait jacket formula for
determining whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under a misconception H
926 SUPREME COURT REPORTS (2004) SUPP. 5 S.C.R.

A of fact. In the ultimate analysis, the tests laid down by the Courts
provide at best guidance to the judicial mind while considering a
question o~ consent, but the Court mtist, in each case, consider the
evidence before it and the surrou~ding circumstances, before reaching
a conclusion, because each case has its own peculiar facts which may
have a bearing on the question whether the consent was voluntary, or
B was given under a misconception of fact. It must also weigh the
evidence keeping in view the fact that the burden is on the prosecution
to prove each and every ingredient of the offence, absence of consent
being one of them."

C 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
D 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 "'.hat in fact was stressed by the Division Bench of
E the Calcutta High Court in the case of Jayanti Rani Panda, supra which was
approvingly referred to in Uday's case, (supra). The Calcutta High Court
rightly qualified the proposition which it stated earlier by adding the
qualification at the end-unless the Court can 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
F 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 's case, supra (vi de 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
G 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 strait jacket formula could be evolved for determining
whether the consent was given under a misconception of fact. Reading the
judgment in Uday 's case. as a whole, we do not understand the Court laying
H down a broad proposition that a promise to marry could never amount to a
QEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDDI, J.] 927

misconception of fact. That is not, in our understanding, the ratio of the A
decision. In fact, there was a specific finding in that case that initially the
accused's intention to marry cannot be ruled out.

Having discussed the legal aspects bearing on the interpretation of the
term 'consent' with special reference to Section 90 IPC, we must now tum
our attention to the factual aspects of the case related to consent. B
Is it a case of passive submission in the face of psychological pressure
exerted or allurements made by the accused· or was it a conscious decision
on the part of the prosecutrix knowing fully the nature and consequences of
the act she was asked to indulge in? Whether the tacit consent given by the
prosecutrix was the result of a misconception created in her mind as to the C
intention of the accused to marry her? These are the questions which have to
be answered on an analysis of the evidence. The last question raises the allied
question, whether the promise to marry, if made by the accused, was false to
his knowledge and belief from the very inception and it was never intended
to be acted upon by him. As pointed out by this Court in Uday 's case the D
burden is on the prosecution to prove that there was absence of consent. Of
course, the position is different if the case is covered by Section l 14-A of
Evidence Act. Consent or absence of it could be gathered from the attendant
circumstances. The previous or contemporaneous acts or the subsequent
conduct can be legitimate guides.
E
Whether on the basis of the evidence adduced by the prosecution, it is
reasonably possible to infer the lack of consent on the part of the prosecutrix
is the ultimate point to be decided.

A close scrutiny of evidence of the prosecutrix-PWl2 is what is called
for, there being no other evidence in the case which could throw light on the F
point at issue. First, we must exclude from consideration that part of her
version which accuses the appellant of forcible sexual indulgence on the first
occasion. We have already discussed this aspect and rejected her version as
unreliable. Therefore, we have to address ourselves to the twin questions (l)
whether there was voluntary participation in the sexual.act quite mindful and G
conscious of what she was doing and its possible consequences and (2)
whether the victim girl was misled by the false promise of the accused to
marry her and therefore agreed to have sexual contact with him. In a way,
these two aspects overlap and are interconnected.

Coming to the first question, it is not easy to find a dividing line H
928 SUPREME COURT REPORTS [2004) SUPP. 5 $.C.R.

A between submission and consent - a distinction which was pointed out by
Coleridge J., reiterated by Tekchand J. in the Punjab decision and further
reiterated by this Court in the two decisions referred to supra, except in the
situation contemplated by clause fifthly of Section 375. Yet, the evidence has
to be carefully scanned. It is fairly clear from the evidence of the victim -
B PWI2 that the predominant reason which weighed with her in agreeing for
sexual intimacy with the accused was the hope generated in her about the
prospect of marriage with the accused. That she came to the decision to have
a sexual affair only after being convinced that the accused would marry her,
is quite clear from her evidence which is in tune with her earliest version in
the first information report. There is nothing in her evidence to demonstrate
C that without any scope for deliberation, she succumbed to the psychological
pressure exerted or allurements made by the accused in a weak moment. Nor
does her evidence indicate that she was incapable of understanding the nature
and implications of the act which she consented to. On the other hand, the
scrutiny of evidence of PWI2 gives a contra indication.

D According to PWI2, she did not like accused making passionate g~stures
and therefore, she went to the house of the accused and made a complaint to
his 'Bhabhi'. Though she promised to restrain him, the accused continued to
do so. Her further version is that she was not willing to marry the accused;
even then the accused· used to come to the courtyard of her house many a
E time and it was within the knowledge of her parents and brother that the
accused used to talk to her for hours. She used to accompany him whenever
he wanted. Another statement of significance is that she tried to resist the talk
of marriage by telling the accused that marriage was not possible because
they belonged to different castes. However, she agreed to marry him after she ·-
was raped and under the impression that he would marry, she did not complain
F to anybody. These statements do indicate that she was fully aware of the
moral quality of the act and the inherent risk involved and that she considered
the pros and cons of the act. The prospect of the marriage proposal not
materializing had also entered her mind. Thus, her own evidence reveals that
she took a conscious decision after active application of mind to the things
G that were happening. Incidentally, we may point out that the awareness of the
prosecutrix that the marriage may not take place. at all in view of the caste
barrier was an important factor that weighed with the learned Judges in
Uday 's case in holding that her participation in the sexual act was voluntary
and deliberate.

H The remaining question is whether on the basis of the evidence on
DEELIP SINGH@ DILIP KUMAR v. STATE OF BIHAR [REDD!, J.) 929

record, is it reasonably possible to hold that the accused with the fraudulent A
intention of inducing her to sexual intercourse, made a false promise to
marry? We have no doubt that the accused did hold out the promise to marry
her and that was the predominant reason for the victim girl to agree to the
sexual intimacy with him. PW12 was also too keen to marry him as she said
so specifically. But we find no evidence which gives rise to an inference B
beyond reasonable doubt that the accused had no intention to marry her at all
from the inception and that the promise he made was false to his knowledge.
No circul!lstances emerging from the prosecution evidence establish this fact.
On the other hand, the statement of PW-12 that 'later on', the accused became
ready to marry her but his father and others took him away from the village
would indicate that the accused might have been prompted by a genuine C
intention to marry which did not materialize on account of the pressure
exerted by his family elders. It seems to be a case of breach of promise to
marry rather than a case of false promise to marry. On this aspect also, the
observations of this Court in Uday's case·at paragraph 24 comes to the aid
of the appellant.
D
We reach the ultimate conclusion that the findings of the trial court as
affirmed by the High Court are either perverse or vitiated by non-consideration
of material evidence and relevant factors emerging from the prosecution
evidence. We cannot, therefore, sustain the conviction.

In the result, the conviction and sentence is set aside and the appeal is E
allowed.

With this verdict, the appellant, no doubt extricates himself from the
clutches of the penal law by getting the benefit of doubt on charge levelled
against him. But, we cannot ignore the reprehensible conduct of the appellant, F
who by promising to marry the victim woman, persuaded her l:o have sexual
relations and caused pregnancy. The act of the accused left behind her a trail ·
of misery, ignominy and trauma. The only solace is that she married
subsequently. We are informed that the female child born out of the illicit
relationship is now living with her married mother and she is about 14 year
old now. Though there is no evidence to establish beyond reasonable doubt G
that the appellant made a false or fraudulent promise to marry, there can be
no denial of the fact that the appellant did commit breach of the promise to
marry, for which the accused is prima facie accountable for damages under
civil law. When we apprised the appellant's counsel of our primafacie view
point on this aspect and elicited his response on· passing a suitable order in H
930 SUPREME COURT REPORTS (2004) SUPP. 5 S.C.R.

A exercise of power vested in this Court under Article 142 of the Constitution,
the learned counsel took time to get instructions. We are now informed that
the appellant is prepared to pay a sum of Rs.50,000 by way of monetary
compensation irrespective of acquittal. Though the said amount is not an
adequate compensation, we are not inclined to call upon the appellant to pay
B more for more than one reason: firstly, the appellant has been in jail for about
two years by now; secondly, we are informed that the accused belongs to a .
backward class and his family is not affluent though they have some
agricultural lands; lastly, the incident took place about 15 years back and in
the supervening period, the prosecutrix as well as the appellant married and
we are told that he has two children. In these circumstances, we accept the
C offer of the appellant.

The appellant's counsel has brought a Demand Draft for Rs.50,000
drawn in favour of the Chief Judicial Magistrate, Sahibganj. The Draft is
handed over just now to the Court Officer. The concerned Registrar of this
Court shall send the Draft to the C.J.M., Sahibganj for being .credited to his
D account in the first instance. The C.J.M. shall take immediate steps to summon ·
the prosecutrix whose name and address shall be furnished by the counsel for
the appellant in. the course of the day to the Registrar of this Court. Out of
the amount of Rs.5o;ooo, a sum of Rs. I 0,000 shall be paid over to the
prosecutrix in cash if she makes a request and the remaining amount of
Rs.40,000 shall be kept in a fixed deposit in a Bank in the name of the minor
E girl namely Miss Sangeeta Kumari with the prosecutrix as her guardian. The
accrued interest shall be paid to the prosecutrix once in two years. The
amount of Rs. 40,000 with remaining interest thereon shal! be disbursed to
the girl after she attains the majority by getting an account opened in a Bank
in her name. However, for the purpose of meeting the imminent needs of the
F minor girl, the C.J.M. can permit the amount to be paid over to the guardian
(prosecutrix) either partly or in whole depending on the genuine and reasonable
requirements concerning the maintenance of the child. The C.J.M. shall submit
a report to the Registrar of this Court on the action taken in this regard within
two months. A translated copy of the part of the judgment starting from page
37 shall be furnished to the prosecutrix by the CJM. The CJM may appoint
G a counsel under the legal aid scheme to assist the prosecutrix and the girl
whenever necessary in connection with the implementation of this order.

Accordingly, the order is passed in the interests of justice in exercise
of powers vested in this Court under Article !42 of the Constitution.

H N.J. Appeal allowed.