2006 Supreme(SC) 911

2006(8) Supreme 326
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
A.K. Mathur and Altamas Kabir, JJ.
Yedla Srinivasa Rao—Appellant
versus
State of A.P.—Respondent
Criminal Appeal No. 1369/2004
With
Criminal Appeal No. 1370/2004
Decided on 29-9-2006
Counsel for the Parties :
For the Appellant : Sunita Pandit and Rameshwar Prasad Goyal, Advocates.
For the Respondent : P. Vinay Kumar and Mrs. D. Bharathi Reddy, Advocates.

IMPORTANT POINT
When a girl aged 16 years was persuaded to sexual intercourse with assurance of marriage which accused never intended to fulfil and it was totally under misconception on part of victim that accused is likely to marry her that she submitted to lust of accused, such fraudulent consent could not be said to be a consent so as to condone the offence of accused.

Headnote:Indian Penal Code, 1860—Sections 376 and 417—Appellant convicted in appeal against acquittal by High Court and sentenced to seven years imprisonment—Appeal—Question for consideration was when accused committed sexual intercourse with prosecutrix holding out a promise for marriage whether that would amount to a consent or not?—Intention of accused from the beginning was not honest and he kept on promising that he will marry her till she became pregnant and such consent could not be said to be consent because she was under misconception of fact that accused intended to marry her who was of tender age just above 16 years—Such a fraudulent consent could not be said to be a consent so as to condone the offence—Conviction and sentence were not liable to be interfered with.

       Held : The question in the present case in whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 of IPC as mentioned above. It is clear that the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the Indian Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be construed to be valid consent.(Para 9)

       It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.(Para 10)

       If it is fully grown up girl who gave the consent then it is different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked. Therefore, so far as Jayanti Rani Panda (supra) is concerned, the prosecutrix was aged 21-22 years old. But, here in the present case the age of the girl was very tender between 15-16 years. Therefore, Jayanti Rani Panda’s case is fully distinguishable on facts. It is always matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intended to fulfil. If the court of facts come to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that the he would marry her then in that case it can always be said that such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence.(Para 10)

       But, in the instant case, a girl though aged 16 years was persuaded to sexual intercourse with the assurance of marriage which the accused never intended to fulfil and it was totally under misconception on the part of the victim that the accused is likely to marry her, therefore, she submitted to the lust of the accused. Such fraudulent consent cannot be said to be a consent so as to condone the offence of the accused.(Para 10)

       It is apparent in this case that the accused had no intention to marry and it became further evident when Panchayat was convened and he admitted that he had committed sexual intercourse with the victim and also assured her to marry within 2 days but did not turn up to fulfil his promise before the Panchayat. This conduct of the accused stands out to hold him guilty. What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but prosecutrix was also equally keen, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what the consequences may result for indulging into such acts and when the accused promised to marry but he never intended to marry right from the beginning then the consent of the girl is of no consequence and falls in the second category as enumerated in Section 375 – “without her consent”. A consent obtained by misconception while playing a fraud is not a consent.(Para 10)

       In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of PW1 as well as PW6 who was functioning as Panchayat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutrix that he would marry her. Therefore, we are satisfied that the conviction and sentence awarded to the appellant is correct and no case is made out for our interference.(Para 17)