Consent obtained by fraud amounts to no consent, and if sexual intercourse is obtained by fraud, it amounts to rape.

Mridula Bhatkar, J.

This is an application for pre-arrest bail as the applicant/accused is prosecuted for the offences punishable under sections 376, 504 and 506 of the Indian Penal Code in C.R. No.993 of 2016 registered with Yerwada police station, Pune. The complainant is 21 years old girl, doing the course of interior designer. She came in contact with the applicant/accused, who is 21 years old, in 2015 and became friendly with him. On 13.12.2015, he invited her for celebration of his birthday, so she attended the party along with her friends. Thereafter, according to her supplementary statement, she spent Rs. 2.5 lakhs for gifting gold chain, mobile phone of Samsung company, laptop and hair straightner and clothes to him. The applicant/accused has promised her to marry. On 13.2.2016, when she went to his house at Kalyani nagar, he promised her to marry and had forcible intercourse with her. Thereafter, he took her to various hotels and under the promise to marry, he had forcible sexual intercourse with her, without her consent. He consumed liquor, drugs at the time of sexual intercourse. So, the prosecturix informed about their relationship to the parents of the applicant/accused. However, they did not react in any manner. On 31.7.2016, she realised that she was pregnant out of sexual relations with the applicant/accused. When she informed him, he told her to go for termination of pregnancy. He, against her wish, gave her pills for termination of pregnancy. However, it was not successful. Then again on 16.9.2016 in hotel Sudarshan at Kalyani Nagar at Pune, nearly for 10 days, he had forcible intercourse with her. Thereafter on 24.10.2016, she went to Dubai to her parents where her parents are residing. In Dubai, she had medical check-up and found that pregnancy was not terminated. Thereafter, on 4.12.2016, she returned to India and contacted the applicant/accused. At that time, he abused her and also threatened that she should not give any complaint against him to the police. Thus, it is a case of the prosecutrix that the applicant/accused under the false representation of marriage had obtained her consent fradulently and had sexually abused her.

2. The learned Senior Counsel for the applicant/accused has submitted that the sexual relationship was consensual. So there was no question of obtaining consent by fraud. The applicant/accused is innocent and has not committed any offence. The learned Senior Counsel submitted that the applicant/accused is 21 years old boy who is working in a company. He spent Rs. 2.5 lakhs on the prosecutrix in gifting her various things and not the prosecutrix. He has no criminal record and therefore, he be granted pre-arrest bail.

3. Learned Prosecutor has opposed the application and submitted that the applicant/accused has promised to marry and because of him, the complainant became pregnant. Against her wish, she was compelled to go for termination of pregnancy and thereafter, the applicant avoided her and broke his promise to marry. The offence is serious as the girl remained pregnant and the applicant/accused is to be taken into custody. The custody of the applicant/accused is required and hence, the bail is to be rejected.

4. This is an unfortunate but routine case of a boy and girl having affair, indulging into sexual relationship and ultimately ending into a breakup. Considering the facts of the case, undoubtedly, the complainant and the applicant/accused had consensual sexual relationship and were in love with each other.

5. In a case of rape, the act of sexual intercourse is forcible and without consent of the woman. However, the consent obtained by fraud amounts to no consent and therefore, if there is sexual intercourse with consent but obtained by fraud, it amounts to rape. For example, if an illiterate woman is given promise to marry and under that promise, her consent is obtained for sexual intercourse, then, it can be said that the consent is obtained by fraud. Similarly, if by