Indian Penal Code, 1860—Section 90—Misconception of fact—Scheme of Section 90 starts with a negative covenant—Section 90 only provides what is not a consent—If a consent is given under fear of injury or under a misconception of fact, that is no consent at all—Accused too should have knowledge or should have reasons to believe that consent was given by victim in consequence of fear of injury or misconception of fact—First part of Section 90 is from point of view of victim and, second part deals with corresponding provision from point of view of accused—Requirement of both parts of Section 90 has perforce to be cumulatively satisfied—If consent is obtained by intimidation, force, circumvention, surprise or undue influence, such consent is synonymous with delusion and cannot be said to be outcome of weighing pros and cons in a balanced manner—So far as consent for sexual act is concerned, especially on part of a female, question is whether she is understanding nature and consequence of sexual act and whether such understanding is intelligent understanding—Then only, it can qualify to be called her consent. (Paras 27, 28, 31, 35 and 36)

Protection of Children from Sexual Offences Act, 2012—Section 6—Indian Penal Code, 1860—Section 376(2)(n) read with Section 90—Indian Evidence Act, 1872—Section 114A—Sexual exploitation on false promise of marriage—Conviction and sentence—Rigors of POCSO Act, 2012 operates proprio vigore under Indian Penal Code also in its Section 376 IPC where consent of a girl below age of 16 years is immaterial—There being complete absence of any record of her being a minor, especially non-examination of parents of victim, victim was a major and had been taking conscious decision—It is not a case of passive submission of victim in face of any psychological pressure or allurement made by appellant—She was fully conscious and knew nature and consequences of act that she was asked to indulge in—Tacit consent given by her was not result of misconception created in her mind as to intention of appellant in marrying her—Reverse presumption can be triggered only when prosecution proves its case, which in present case does not appear to have been done—Appellant acquitted. (Paras 47, 48, 49, 68, 69, 75 and 77)

Cases Referred:

Deelip Singh alias Dilip Kumar vs. State of Bihar, (2005) 1 SCC 88; Rao Harnarain Singh Sheoji Singh vs State, AIR 1958 Punjab 123; Uday vs. State of Karnataka, (2003) 4 SCC 46; Jayanti Rani Panda vs. State of West Bengal, 1984 CriLJ 1535—Relied.

Ashutosh Kumar, J.—Heard Mr. Rajesh Kumar Singh, learned Senior Advocate for the appellant and Mr. Abhimanyu Sharma for the State.

2. The appellant has been convicted under Section 376 (2)(n) of the Indian Penal Code and Section 6 of the POCSO Act, 2012 vide judgment dated 22.01.2019, passed in POCSO Trial No. 06 of 2015 and Reg. No. Session 379 of 2015, arising out of Bhabhua Mahila P.S. Case No. 23 of 2015 by the learned Additional Sessions Judge-1st-cum-Special Judge, Kaimur at Bhabhua and by order dated 31.01.2019, he has been sentenced to undergo R.I. for 15 years, to pay a fine of Rs. 50,000/- and in default of payment of fine to further undergo R.I. for six months under Section 376 (2)(n) of the IPC.

3. No separate sentence has been awarded under Section 6 of the POCSO Act, 2012.

4. The victim/P.W. 3 (hereinafter referred to as ‘X’) had fallen in love with the appellant. The appellant is stated to be related to the victim, though in a remote way. They met in a family function held at the neighbours. The relationship continued from there and existed for about a year when the promise of marriage was not fulfilled and the victim was finally made to understand that the appellant shall not marry her.

5. Hence the case.

6. The victim in her FIR has categorically stated that she was on visiting terms with the appellant since January, 2014. Her parents and the parents of the appellant were aware of the blossoming relationship between the parties. According to h