Karnataka High Court
Chethan @ Chethan Kumar vs State Of Karnataka on 3 November, 2020
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CRL.A. NO.815/2014
BETWEEN:
CHETHAN @ CHETHAN KUMAR
S/O V. BALU
AGED ABOUT 29 YEARS
R/AT K. CHANNASANDRA
NO.37, HANGANAVADI KENDRA
HARAMAVU POST
BANGALORE - 43.
...APPELLANT
(BY SRI. HASHMATH PASHA, SR. COUNSEL FOR
HASHMATH PASHA ASSOCIATES)
AND:
STATE OF KARNATAKA
BY HENNUR POLICE STATION
BANGALORE CITY - 43
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI. VIJAY KUMAR MAJJAGE, SPL.P.P)
THIS CRL.A. FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:6.9.14
PASSED BY THE C/C LIII ADDL. CITY CIVIL AND S.J.,
BANGALORE IN S.C.NO.71/2013 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 313,
376, 417, 420 AND 493 OF IPC. AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
2
IMPRISONMENT FOR LIFE AND TO PAY A FINE AMOUNT OF
RS.5,000/-. IN DEFAULT OF PAYMENT OF FINE AMOUNT,
THE ACCUSED SHALL UNDERGO, THE 1/4 TH OF THE
MAXIMUM SUBSTANTIVE SENTENCE AWARDED AS ABOVE
FOR THE OFFENCE P/U/S 376 OF IPC. AND THE
APPELLANT/ACCUSED IS FURTHER SENTENCED TO
UNDERGO R.I. FOR 10 YEARS AND TO PAY A FINE AMOUNT
OF RS.5,000/-. IN DEFAULT OF PAYMENT OF FINE
AMOUNT, THE ACCUSED SHALL UNDERGO, THE 1/4TH OF
THE MAXIMUM SUBSTANTIVE SENTENCE AWARDED AS
ABOVE FOR OFFENCE U/S 313 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
Sole accused in S.C.No.71/2013, who has been convicted by Court of LIII Addl. City Civil and Sessions Judge, Bengaluru, by judgment dated 06.09.2014 for the offence punishable under Sections 313, 376, 470, 420 and 493 of IPC and sentenced to imprisonment for life and directed to pay a fine amount of Rs.5,000/- with default sentence of 1/4th of the maximum substantive sentence for the offence under Section 376; rigorous imprisonment for 10 years and to pay a fine amount of Rs.5,000/- with default sentence of 1/4 th of the maximum substantive sentence for the offence under 3 Section 313; rigorous imprisonment for 10 years and to pay a fine amount of Rs.5,000/- with default sentence of 1/4th of the maximum substantive sentence for the offence under Sections 417 and 420 IPC, is in appeal before this Court challenging the same. BRIEF BACKGROUND OF THE CASE:
2. A complaint came to be lodged by P.W.1 -
prosecutrix on 24.04.2012 against the accused alleging that she was working in SLN Real Estate Office owned by Sri. Renukeshava (C.W.6) from 2008 to 2009 and she became familiar with the accused who was working as an auto driver and they were in love with each other. She has further alleged that accused used to pick from her house and drop to her office and in the evening used to drop her back to her house and they were in deep love. She has further stated that her mother used to go for work in the morning at 8.30 a.m. and return at 8.00 p.m. and accused used to visit their house quite often and had assured her that he would marry her. She had further alleged that on the promise of marriage, during 4 March 2011 he had physical relation with her and this relationship had continued without her consent and though she offered resistance to have sexual relationship with accused, on the promise of marriage, he had sexual intercourse with her. She has further alleged that despite her request that such relationship would not be justifiable prior to marriage, yet he had assured her of marrying and as such during May 2011 she believed him and had sexual intercourse, due to which she had conceived. She further states that accused had given her pregnancy test kit and on verification she found that she was pregnant. She had alleged that she had informed this fact to the accused and insisted him to marry her. She has also alleged that accused gave her pills/tablets for terminating the pregnancy and it did not yield any result and when she was six (6) months pregnant during September 2011, accused had insisted her to abort the child and then they can get married and in spite of her request to marry her, he did not agree and against her wish, she was taken to Spandana Hospital on 19.09.2011 and informed the hospital authorities that 5 they are husband and wife and intend to terminate the pregnancy as they do not intend to have the child. She alleges that as she was weak, she was examined and on account of sixth month pregnancy she had to return back. She further alleges that again on 23.11.2011 accused took her back to the hospital and got the pregnancy aborted and thereafter, dropped her back to the house. She further states that during December 2011, accused visited her and asked for money to attend to his ailing father. She further states that she paid a sum of Rs.70,000/- and 25 grams of gold jewelry to the accused and thereafter he never returned. She has further alleged that on 14.02.2012, though accused met her and in spite of her insistence to get married, he informed her that on account of his brother having met with an accident he would come back in the evening but never returned. She has alleged that accused refused to marry her and despite her mother also requesting the accused to get married to her, he had refused to marry her and on account of a false promise made and having physical relationship with her had resulted in her 6 conceiving and thereby he had cheated. Hence, she sought for suitable action being takne against him.
3. The said complaint came to be registered in Crime No.105/2012 for the offence punishable under Section 493, 376, 313 and 420 of IPC by the Hennur Police Station. During the course of investigation complainant was subjected to medical check at Dr.B.R.Ambedkar Medical College Hospital. The accused came to be arrested on 26.04.2012 who was also subjected to medical examination at the same hospital and after recording the statement of the accused, was produced before the jurisdictional Court and remanded to judicial custody on 27.04.2012. During the course of the investigation the IO recorded the statement of witnesses and on completion of the investigation charge sheet came to be submitted on 03.11.2012 for the offences punishable under Sections 493, 376, 313, 417 and 420 of IPC, which came to be registered in C.C.No.24822/2012. Accused was enlarged on bail by the jurisdictional Sessions Court on 19.07.2012 and was 7 in judicial custody as an under trial prisoner from 24.07.2012 to 19.07.2012. On committal of the case to the Sessions Court it was numbered as SC No.41/2013 and on securing the presence of the accused the Sessions Court released him on fresh bail on 21.02.2013.
4. Charge came to be framed on 14.02.2013 and on accused pleading not guilty and claiming for being tried, trial was commenced. On behalf of the prosecution 10 witnesses out of 13 chargesheeted witnessed were examined as P.W.1 to P10 and the prosecution in all got marked 12 documents as Ex.P-1 to P-12(b). On the incriminating material being suggested to, statement of the accused came to be recorded under Section 313 of Cr.P.C. on 28.07.2014.
FINDINGS OF THE SESSIONS COURT:
5. The learned Sessions Judge has held that accused had taken alternative inconsistent and mutually 8 destructive pleas. It has been further held that accused used to pick and drop P.W.1 - prosecutrix from her house to the real estate office where he was working and as such they became acquainted with other, which blossomed into deep love and as such they started spending time together. The accused came to know about the routine time of complainant's mother going to work and taking advantage of the same and assuring the complainant that he would marry her, had physical relationship with her from March 2011. It is further held though complainant had requested several times not to indulge in such acts prior to marriage and it would not be proper for them to have sex before marriage, without heeding to her words, he had forced upon her and believing his words, assurances and promise made, both of them had sexual intercourse on several occasions. Though accused had pleaded that prosecutrix was in a compromising position on 14.02.2012 with another person, name of the said person has not been disclosed. The cross examination of P.W.1 suggests the existence of love affair between P.W.1 and accused. In statement 9 recorded under Section 313, nothing is stated about the character of P.W.1. On these amongst other grounds the accused came to be convicted. Hence, this appeal.
6. We have heard the arguments of Sri. Hashmath Pasha, learned Senior Counsel appearing on behalf of appellant-accused and Sri. Vijaykumar Majage, learned Addl. SPP appearing for respondent-State.
7. It is the contention of Sri. Hashmath Pasha, learned Senior Counsel appearing for the appellant that trial court committed a serious error in convicting the accused though no reliable evidence was available. He would submit that even according to prosecution complainant-P.W.1 and the accused were in love with each other and this fact is also admitted by the mother of P.W.1 i.e., P.W.5 and on account of this relationship they had consensual sex. He would also contend that a complete reading of the evidence of P.W.1 and P.W.5 does not indicate about accused having promised to get married to P.W.1 and on such promise accused had sexual intercourse with P.W.1. Hence, he contends in 10 the absence of this ingredient being present, the charge of rape against the accused does not have legs to stand.
7.1) He would also contend that there was no promise to P.W.1 by accused before sexual act and as such question of misconception of fact does not arise. He would also contend that P.W.1 has admitted that she was working in SLN Real Estate office and having developed love towards accused and also allowing him to her house even in the absence of her mother and the fact she did not complain to anyone muchless to PW5 (mother) about accused having had forcible sexual intercourse with P.W.1 would belie the case of the prosecution.
7.2) He would further submit that knowing fully well that she was pregnant and alleging that she was not willing to terminate her pregnancy, yet she had consumed the tablets brought by accused for terminating the pregnancy, which did not yield positive result and thereafter both accused and P.W.1 had met P.W.4-Dr.Sandhya and informed her about they being 11 husband and wife and complainant had developed continuous bleeding and as such had requested the doctor for being treated, who referred the complainant to Spandana Hospital and on examination by PW2, DNC procedure was undertaken and pregnancy was terminated to save the life of P.W.1, during which procedure P.W.1 had signed the consent form without raising any objection and these sequence of events would clearly suggest that out of vengeance she had lodged a complaint by creating a false theory.
7.3) He would also contend there was no ingredients of offence under Section 376 of IPC made out against accused and learned Sessions Judge had failed to appreciate the evidence of P.W.1 in proper perspective. He would draw the attention of the Court to the evidence of PW7 to contend that said evidence would disclose that P.W.1 and the accused were in physical relationship for long and not on 'one occasion' only as deposed by P.W.1 and the very fact that they had indulged in sexual activities without resistance for long time was sufficient 12 to hold it was consensual sex. He would contend that the medical evidence negatives the allegation of the prosecution and hence he prays for allowing the appeal.
7.4) He would contend that alleged incident that took place according to P.W.1 during February 2011 was result of the love between P.W.1 and the accused, which commenced from 2008 and the alleged abortion took place on 23.09.2011 and yet the complaint was filed on 24.04.2012 i..e, 1 year 1 month from the date of incident.
7.5) He would also submit that fact of there being consensual sex between P.W.1 and the accused is admitted by P.W.1 herself and when her (P.W.1) evidence not disclosing of accused having promised her of marriage preceding the act of sexual intercourse, question of accused being tried for the offence punishable under Section 376 of IPC does not arise. He would also contend that only after confirmation of pregnancy complainant had insisted for marriage and if she had not conceived, the relationship would have 13 continued. He would submit that when Medical Termination of Pregnancy (for short 'MTP') is on account of excessive bleeding of complainant and such MTP having been carried out in good faith and the doctors having not been proceeded with for illegal MTP, question of accused being prosecuted for the offence under Section 376 IPC does not arise. He would also contend that the very fact that she consumed the pills/tablets for terminating her pregnancy, admitting to going to the hospital, not complaining to the doctors about the reason of her pregnancy would reflect her conduct and reveals that she had consented for sexual intercourse. On these grounds amongst others raised in the appeal memorandum, he prays for allowing the appeal by setting aside the judgment of conviction and order of sentence.
8. Per contra, Sri. Vijaykumar Majage, learned Addl. SPP would support the judgment of the trial court and he would fairly submit that Section 313 and Section 493 of IPC is not attracted to the facts on hand and to 14 that extent, the appellant has to succeed. However, he would hasten to add that judgment of the trial court insofar as convicting the accused and sentencing him for the offence punishable under Section 376, 417 and 420 of IPC is justified and as such he seeks for confirming the same. He would also contend that learned Sessions Judge has elaborately discussed the inconsistent and mutually destructive pleas raised by the accused to hold the defence of the accused was multifold and having not been substantiated, being a ground for convicting the accused. He would also contend that accused on the promise of marrying complainant - P.W.1 had forced her to have sexual intercourse, which would attract Section 376 of IPC and hence, he prays for disposing of the appeal by confirming the judgment of conviction and order of sentence for the offence punishable under Section 376, 417 and 420 of IPC.
9. Having heard the learned Advocates appearing for the parties and after bestowing our careful and anxious consideration to the rival contentions raised 15 at the bar, we are of the considered view that following points would arise for our consideration:
(i) Whether the judgment of conviction and order of sentence passed against the appellant-accused in SC No.71/2013 for the offence punishable under Sections 493, 376, 313, 417 and 420 of IPC is based on proper appreciation of evidence and as such, it is liable to be sustained?
OR Same has to be set aside for lack of material evidence and contradictions if any?
(ii) What order?
DISCUSSION AND FINDINGS ON THE POINTS FORMULATED ABOVE:
RE. POINT NO.(i):
10. As observed by us herein above the learned Sessions Judge had also charged the accused for the offence punishable under Sections 313 and 493 of IPC apart from Sections 316, 417 & 420 IPC and it was on the basis of the charge sheet material. The learned Sessions Judge has framed charge Nos.2 and 5 on this issue. A plain reading of the charges framed against the 16 accused found in paragraph 25 of the judgment of the Sessions court would indicate that accused had been charged for forcibly taking CW1 to Spandana Hospital and having got aborted her child against her wish. Likewise, charge No.5 as framed against the accused would indicate that accused by deceit caused CW1 who is not married to him to believe that she is lawfully married to her and to cohabit with her under such belief and thereby accused had committed an offence punishable under Section 493 of IPC.
11. Section 313 IPC penalizes a person who voluntarily causes a woman with child to miscarry, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman. Miscarriage with consent is dealt with under Section 312 IPC. Under Section 313 IPC, the person procuring the abortion without the consent of a woman alone is liable to punishment. The prosecution has relied upon the evidence of P.W.1, P.W.2 and P.W.4 namely, complainant, Dr. Neelima and Dr. Sandhya to drive 17 home the guilt of the accused for the said offence. Even according to P.W.2-Dr. Neelima, it is clear that P.W.1 had visited Spandana Hospital on 22.09.2012 at 5.00 p.m. and had found that P.W.1 was suffering from severe bleeding. She has further deposed that bleeding could not be stopped and she had advised P.W.1 and the accused about there being no possibility of survival of the baby. Thus, in order to save the life of the P.W.1 it was advised by PW2 that P.W.1 should undergo DNC procedure and consent form was signed by P.W.1 herself. The case sheet of the hospital which is at Ex.P-1 would clearly indicate to protect the life of the P.W.1, MTP procedure was conducted to terminate the pregnancy of P.W.1 and the entire evidence of the prosecution does not even remotely suggest that P.W.1 was not willing to undergo MTP or she having protested for the said procedure or accused having caused miscarriage. P.W.2 has deposed in her evidence that she had issued the certificate - Ex.P-5. A plain reading of Ex.P-5 namely certificate issued by P.W.2, which contains the details of treatment given by her to P.W.1, would disclose that 18 P.W.1 was suffering from severe bleeding and it was suggested by P.W.2 to P.W.1 to undergo MTP. The evidence of P.W.2 also does not disclose about any act on the part of accused in getting the pregnancy terminated without the consent of P.W.1. The only allegation against the accused is that he had taken P.W.1 to the Doctor who caused the abortion. It is not the case of the prosecutrix that she had been taken by accused to the Doctor without her consent. On the other hand, the evidence on hand would indicate that P.W.1 had willingly submitted herself for abortion or MTP as it was in her interest and in good faith. There is no material on record which would indicate or establish that abortion was conducted at the instance of the accused. On the other hand, the evidence of the Doctor - P.W.2 would clearly indicate that on account of her opinion that chances of survival of the baby being remote and in the interest of patient (P.W.1), she had aborted the pregnancy by taking consent of P.W.1. The evidence of P.W.2 in this regard reads:
19
"2. Since there was no chance of survival of baby, so in the interest of patient, I advised for abortion and accordingly, I aborted by taking the consent of Manjula and the person who had accompanied her."
She has also deposed that she had talked to the patient and taken her consent. In fact, the evidence of the Doctor does not disclose about accused having made any request to the Doctor to have abortion. The Doctor who conducted the abortion is not made an accused which means, the complainant - P.W.1 had no grievance against the doctor. As such, we are of the considered view that an offence under Section 313 Cr.P.C. is not made out from the allegation. Hence, the learned Sessions Judge committed a serious error in convicting the accused for the offence punishable under Section 313 of IPC and same cannot be sustained.
12. Now turning our attention to the judgment of conviction for the offence punishable under Section 493 of IPC, it cannot sustain even for a minute for the simple reason that prosecution has not laid its case contending 20 that P.W.1 was married and she was deceived with the said belief, resulting in accused indulging in sexual intercourse with her. In fact, no evidence has come on record constituting the offence under Section 493 of IPC. Hence, the learned Sessions Judge committed a serious error in convicting the accused for the offence punishable under Section 493 of IPC and same cannot be sustained.
13. Even otherwise, the learned Additional SPP has been fair to state before this Court that Sections 313 and 493 of IPC not being attracted and on this ground also the judgment of conviction and order of sentence imposed on the appellant-accused for these two offences cannot be sustained and it is liable to be set aside.
14. It is the case of the prosecution that P.W.1 had deposed that she was in love with accused and in the year 2011, appellant had visited her house in the absence of her mother and had sexual intercourse with her on the assurance and promise of marriage. It is also contended by the prosecution that P.W.1 found after 21 three (3) months that she was pregnant and to terminate the pregnancy, tablets had been given by the accused, which did not yield result and during the sixth month of pregnancy they had consulted Dr.Sandhya - P.W.4 at Spandana Hospital and thereafter she was admitted to the said hospital where she got her pregnancy terminated by D&C procedure through Doctor Neelima- P.W.2.
15. At the outset it requires to be noticed that according to the complainant-P.W.1 herself, she was in deep love with the accused and he was picking her from her house and dropping at her office namely, at SLN Real Estate and vice-versa. She has also deposed that accused used to visit their house quite often. She further states that in the year 2011 accused had visited her house when no one was present and he had forcibly had sexual intercourse with her and thereafter she had conceived. However, this statement is not found in the complaint. She further states that she was in love with the accused from 2008 and for the first time they had 22 sexual intercourse during March 2011. Complaint - Ex.P-3 came to be lodged by P.W.1 on 24.04.2012. Even according to the accused the abortion or MTP took place during September 2011. Thus, from the date of alleged incident i.e., March 2011 till date of complaint i.e., 24.03.2012, the delay would be 1 year 2 months and from the date of MTP i.e., 23.09.2011 to date of complaint i.e., 24.04.2012, the delay in lodging the complaint is 7 months. There is no acceptable explanation forthcoming for this inordinate delay. She does not state in her complaint - Ex.P-3 the reason for said delay. On the other hand, she has alleged in her complaint that during December 2011 accused had visited her house and took money from her mother and 25 grams of gold and thereafter did not meet her. She further alleges that accused had met her again on 14.02.2012 and on demand made by her that they should get married, he had stated that on account of his brother having met with an accident he had to rush back and would return in the evening, did not do so. She further states that in spite of demanding accused to 23 marry her, he refused to marry her. Even if the allegations made in the complaint is taken at its face value, no reasons are forthcoming as to why she did not lodge the complaint either during December 2011 or February 2012 when accused refused to marry her. On the other hand, she had lodged the complaint - Ex.P-3 on 24.04.2012. This inordinate delay would be fatal to the case of the complainant and prosecution. The delay in filing the complaint and no plausible reason having been assigned for such delay in lodging the complaint, would be the first stumbling block in the case of the prosecution.
16. By ignoring the issue of delay in lodging the complaint and the case of the prosecution is examined on merits, it requires to be noticed that prosecution has laid its case based on the complaint lodged by P.W.1 whereunder she has alleged that she and accused were in love with each other and on the promise of marrying her, he had forced her to have sexual intercourse with him and as a result of it, she had conceived and later 24 pregnancy was terminated at the instance of the accused.
17. It is the case of the prosecution that P.W.1 was residing with her mother namely PW5 and to prove that accused and P.W.1 were in love with each other the prosecution has relied upon their evidence. In fact, there is no dispute to the fact that appellant and prosecutrix being in love with each other. As to whether there was consensual sex or not between the appellant-accused and P.W.1, requires to be examined in the background of evidence tendered by the prosecution and the defence raised by the accused. Before embarking upon the same, it would be necessary to note that P.W.1 has alleged in her complaint that accused was visiting her house quite often and it was within the knowledge of her mother-PW5 and from the year 2011 they were having physical relationship or in other words, accused was having sexual intercourse with her from March 2011. It is also her case that she had informed the accused that before marriage they should not have sexual intercourse 25 and yet the accused had assured her to get married and on such assurances given by accused she had sexual intercourse with him. The contents of the complaint - Ex.P-3 has been reiterated in her deposition.
18. Section 375 of IPC discloses 7 descriptions of how the offence of rape is to be construed. In the instant case, we are concerned with the second description which is to be read along with Section 90 of IPC and they read:
"375. Rape - A man is said to commit "rape"
if he -----
(a) to (d) xxx under the circumstances falling under any of the following seven descriptions:-
First.-xxx Secondly.-Without her consent.
Thirdly.-xxx Fourthly.-xxx Fifthly.-xxx Sixthly.-xxx Seventhly.-xxx Explanation 1.-xxx Explanation 2. - Consent means an unequivocal voluntary agreement when the 26 woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity."
"90. Consent known to be given under fear or misconception.-A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;
or"
"A man is said to have committed rape" if he under the circumstances falling under the 7 descriptions of Section 375 IPC, is said to have committed a rape. As noticed by us herein above, where a man has sexual intercourse with a woman, without her consent, Section 375 of IPC is attracted. Explanation 2 though does not define the term of 'consent' would indicate that an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non verbal communication, communicates willingness to participate 27 in the specific sexual act, amounts to consent. The proviso to Explanation 2 would indicate that a woman who does not physically resist to the act of penetration, shall not by reason only of that fact, be regarded as consenting to the sexual activity. Section 90 of IPC would indicate that a where a woman does not 'consent' to the sexual acts described in Section 375, the offence of rape is said to have occurred. The Hon'ble Apex Court in the case of PRAMOD SURYABHAN PAWAR vs. STATE OF MAHARASHTRA AND ANOTHER reported in (2019) 9 SCC 608 has held:
"10. Where a woman does not "consent" to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 define the term "consent", a "consent" based on a "misconception of fact" is not consent in the eye of law."
19. The Apex Court has repeatedly held that consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act in DR. DHRUVRAM 28 MURLIDHAR SONAR vs. STATE OF MAHARASHTRA AND OTHERS reported in (2019) 18 SCC 191 it was observed:
"15. .......... An inference as to consent can be drawn if only based on evidence of probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of."
20. In the instant case, the "misconception of fact" which is alleged by P.W.1 against accused is, he promised to marry her. The Apex Court in case of ANURAG SONI Vs. STATE OF CHATTISGARH reported in (2019) 13 SCC 1 has held in the context of a promise to marry, there is a distinction between a false promise given on the understanding by the maker that it would be broken, and the breach of the promise which is made in good faith but subsequently not fulfilled. It has been further held:
"12. The sum and substance of the aforesaid decision would be that if it is established and proved that from the inception the accused who gave promise 29 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 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC."
21. The Hon'ble Apex Court in PRAMOD SURYABHAN PAWAR's case referred to supra has held a breach of promise cannot be said to be a false promise. Specifically in the context of promise to marry there is a distinction between false promise given on understanding by the maker that it will be broken and breach of promise which is made in good faith but subsequently not fulfilled. It is further held that to establish false promise, maker of the promise should have had no intention of upholding his word at the time of giving it. It is also held:
"16 Where the promise to marry is false and the intention of the maker at the time 30 of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:
"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.
Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, 31 the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
22. The issue relating to failure to marry as promised and such promise having resulted in the prosecutrix and the accused indulging in sexual 32 intercourse would it amount to rape as defined under Section 376 of IPC has been considered by the Hon'ble Apex Court and in its authoritative pronouncement in the matter of DR. DHRUVRAM MURLIDHAR SONAR vs. STATE OF MAHARASHTRA AND OTHERS reported in (2019) 18 SCC 191 and it has been held:
"15. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or 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 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 mind of a person to permit the doing of the act complained of.
16. Section 90 of the IPC defines "consent"
known to be given under fear or misconception:-
33
"Section 90:
Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the con- sent 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"
17. Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Con- sent 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 also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances."
"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 only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction 34 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. 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 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."
23. A consent given by a woman believing the man's promise to marry her would fall within the expression "without her consent" as defined under Section 90 of IPC, only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax. The burden lies heavily on the prosecution to prove absence of consent from attendant circumstances and evidence requires to 35 be scanned meticulously. The Hon'ble Apex Court in DEELIP SINGH ALIAS DILIP KUMAR vs. STATE OF BIHAR reported in (2005) 1 SCC 88 has held:
"30. 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 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 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 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."
24. Keeping these authoritative principles in mind, when the facts on hand are examined, it would 36 clearly indicate that P.W.1 has admitted in her evidence that she was in deep love with appellant-accused and in fact, P.W.5 - mother of P.W.1 has also admitted that P.W.1 and accused were in love with each other and were moving around like husband and wife. It is for this reason, they were having sexual intercourse and it was a consensual sex. In fact, in the evidence of P.W.1 she has not even whispered a word about either accused having promised to marry her or had given an impression or assurance that he would marry P.W.1 and on that assurance, he had sexual intercourse with her. Thus, unless there is an allegation by prosecutrix that accused had induced her to have sexual intercourse with him with assurance of marriage and under belief that he would marry her, she was under misconception, and thereby gave-in to his demand, such consent would be no consent in the eye of law or in other words, it would be a consent given under "misconception of fact" or no consent in the eye of law. Said situation has not arisen in the instant case for reasons more than one. Firstly, both P.W.1 and P.W.5 admit that accused and P.W.1 37 were in love with each other and they were like husband and wife. Secondly, P.W.1 has not either alleged in her complaint or deposed before the Court that prior to indulging in sexual intercourse for the first time in 2011, accused had promised to marry P.W.1 and on such promise, the complainant had given consent for sexual intercourse. When there is no promise to marry P.W.1 by the accused before commission of sexual act, question of misconception of fact does not arise.
25. The evidence on record would clearly indicate that P.W.1 is an educated lady having studied B.Sc. was working in a real estate firm as office assistant and being in deep love with accused had allowed him to enter the house even in the absence of her mother. P.W.1 clearly admits for the first time in the year 2011 they had sexual intercourse and yet she did not complain to her mother or anyone else. Knowing fully well that she had conceived, she had contacted P.W.4-Dr. Sandhya who had referred P.W.1 to P.W.2 - Dr. Neelima, who had 38 conducted D&C procedure on P.W.1 for terminating the pregnancy. During this entire period, there is not even a whisper by the complainant about accused having forced upon her or having had sexual intercourse with her on the promise of marriage and she has never raised her voice. This would clearly indicate that on account of complainant having not fulfilled the promise has resulted in vengeance developed by P.W.1 and as such, she had created a false theory of rape and had lodged a complaint on imaginary grounds.
26. Yet another fact which cannot go unnoticed is the evidence of P.W.9. - Ms.Jerrie @ Manjula, who was examined by prosecution as panch witness to Spot Mahazar - Ex.P-4, she has admitted in her cross examination dated 29.04.2013 that she is residing in the vicinity of complainant's (P.W.1) home and second husband of complainant's mother is residing nearly their house and this evidence is contrary to what has been stated by P.W.1 and P.W.2. In fact, P.W.9 has deposed 39 that her husband and second husband of P.W.5 are friends. She has also deposed that about 10 to 15 male members were visiting the home of prosecutrix - P.W.1.
27. For the reasons aforestated, we are of the considered view that conviction and order of sentence imposed on the appellant-accused for the offence punishable under Sections 493, 376, 313, 417 and 420 IPC cannot be sustained.
RE: POINT NO(ii) :
For the reasons aforestated, we proceed to pass the following:
JUDGMENT
(i) Appeal is allowed.
(ii) Judgment of conviction and order of sentence dated 06.09.2014 passed by LIII Additional City Civil & Sessions Judge, Bengaluru city in S.C.No.71/2013 is set aside and appellant-
accused is acquitted of the offence 40 punishable under Sections 493, 376, 313, 417 and 420 IPC.
(iii) Appellant-accused is ordered to be set free if not required in any other case.
(iv) Bail bond furnished by the appellant -
accused and the surety stands discharged.
(v) Registry is directed to refund the fine amount
deposited by appellant - accused by
transferring the said amount through
RTGS/NEFT to the account of appellant -
accused on appellant furnishing the Bank details.
Sd/-
JUDGE Sd/-
JUDGE *sp/DR