A false promise of marriage, given in bad faith and with no intention of being adhered to at the time it was given, would constitute a misconception of fact vitiating the woman's consent.

JUDGMENT

anuja Prabhudessai, J. - This appeal under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 19/02/1999 passed by the learned additional Sessions Judge, Palghar, in Sessions Case No.334 of 1996.

2. By the impugned judgment, learned Judge held the appellant (hereinafter referred to as 'accused') guilty of offences punishable under Section 417 of the IPC. He has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/- i/d. to undergo rigorous imprisonment for six months.

3. The case of the prosecution in brief is as under:-

The prosecutrix(PW1) had lodged the FIR alleging that the accused had sexual relationship with her with promise of marriage. He subsequently declined to marry her. Based on the FIR at Exhibit-6 lodged by the prosecutrix crime came to be registered against the accused for offences punishable under Sections 376 and 417 of the IPC.

4. The crime was investigated by PW8-P.H.C.,Vishwas Bhosale. He recorded the statements of the witnesses, referred the prosecutrix for medical examination and after completion of the investigation filed the charge sheet against the accused for above stated offence. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution in support of its case examined 8 witnesses. The statement of the accused came to be recorded under Section 313 of Cr.P.C. The defence of the accused was of total denial. The learned Judge upon appreciating and analysing the evidence on recorded acquitted the accused of offence under Section 376 of the IPC and held him guilty of the offence under Section 417 of the IPC. Being aggrieved by the conviction and sentence, the accused has preferred this appeal.

5. Heard Ms Vrishali Raje, learned counsel for the accused and Mr. S.V. Gavand, learned counsel for the Respondent-State. I have perused the records and considered the submissions advanced by the learned counsel for the respective parties.

6. The evidence of PW1- Prosecutrix reveals that the accused was known to her. She had sexual relationship with the accused for over about 3 years. Evidence of PW2- sister of the prosecutrix also reveals that there was love affair between the accused and the prosecutrix. The evidence on record thus indicates that sexual relationship between the prosecutrix and the accused was consensual. The accused has been held guilty of offence under Section 417 of the IPC solely for the reason that he refused to marry the prosecutrix. The question is whether in such circumstances refusal to marry constitutes an offence of cheating.

7. While considering a similar issue, in Sonu @ Subhash Kumar vs. State of Uttar Pradesh and anr., 2021 SCC Online SC 181 the Hon'ble Supreme Court has observed as under :

'9. In Pramod Suryabhan Pawar vs. State of Maharashtra, (2019) 9 SCC 608, while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:-

'Where the promise to marry is false and the intention of the maker at the time 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'

10 Further, the Court has observed:

'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 ad