2003(2) Crimes 176 (SC)
Supreme Court of India
(From Karnataka High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Uday — Appellant
versus
State of Karnataka —Respondent
Criminal Appeal No. 336 of 1996
Decided on 19-2-2003

Very important point
Consent given by the prosecutrix to sexual intercourse with a person with whom she is in love on a promise that he would marry her on a later date but known to the prosecutrix that their marriage may not take place at all on account of caste considerations cannot be said to have been given under a mis-conception of a fact.

Headnote:Indian Penal Code, 1860—Sections 375 secondly and 90—Offence of rape—Sexual intercourse with a woman without her consent—Distinction with consent given under misconception of fact not amounting to consent—Prosecutrix in love with appellant—Appellant promissing to marry—Under that misconception sexual intercourse with prosecutrix—Prosecutrix knowing that marriage was not possible—Whether amounts to rape—Sessions Judge and High Court holding it was rape—Appeal to Supreme Court—Whether High Court is right in law and on facts?—(No)—Appeal allowed.

       Held : The Sessions Judge accepting the evidence of the prosecutrix concluded that though she had consented to have sexual intercourse with the appellant, that consent was not consent within the meaning of Section 375 Secondly IPC having regard to Section 90. According to him the consent was obtained by making a false promise of marriage and, therefore, it was a consent obtained by fraud and mis-representation. He, therefore, held that in the facts and circumstances of the case, the appellant had sexual intercourse with the prosecutrix without her consent and was, therefore, guilty of the offence of rape punishable under Section 376 of the Indian Penal Code. The High Court in appeal affirmed the finding of the trial court substantially for the same reasons. (Paras 7 and 8)

       Held after case law : 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 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 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 of consent, but the Court must, in each case, consider the evidence before it and the surrounding 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 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. (Para 21)

       Held on evidence : Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the ­appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact. (Para 23)

       Held finally : In the result, this appeal must succeed, and is accordingly allowed. The impugned judgment and order convicting and sentencing the appellant for the offence punishable under Section 376 IPC is set aside, and the appellant stands acquitted of the charge. Since the appellant was granted exemption from surrendering when the special leave was granted, no further order for his release is necessary. (Para 27)