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IN THE HIGH COURT AT CALCUTTA
Tirthankar Ghosh, J.
Ainul Haque & Anr. - Appellants
Versus
State Of West Bengal & Anr. - Respondents
Criminal Revision No. 195 of 2021
Decided On : 19-01-2023
RAPE - CONSENT - MISCONCEPTION OF FACT - PROMISE TO MARRY - FALSE PROMISE - IMMEDIATE RELEVANCE - BURDEN OF PROOF - SECTION 90 IPC - SECTION 375 IPC - SECTION 376 IPC - SECTION 417 IPC: Where a woman does not 'consent' to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 does not define the term 'consent', a 'consent' based on a 'misconception of fact' is not consent in the eye of the law.
Fact of the Case:
Petitioners challenged the proceedings and charge-sheet in a case under Sections 376, 417, 323, 506, and 34 of the Indian Penal Code (IPC) for alleged rape, cheating, assault, and criminal intimidation. The complainant, a 40-year-old woman, alleged that the first petitioner, a married man, promised to marry her and had a physical relationship with her on several occasions. When she asked him to marry her, he started abusing and assaulting her. The petitioners denied the allegations and argued that the complainant was a consenting adult who understood the consequences of the physical relationship.
Finding of the Court:
The court held that the complainant's consent was not vitiated by a misconception of fact arising out of a promise to marry. The physical relationship was between two consenting adults, and there was no evidence that the first petitioner made a false promise to marry the complainant with no intention of adhering to it. The court also noted that the complainant was 40 years old and able to understand the consequences of entering into such a physical relationship.
Issues: 1. Whether the complainant's consent to the physical relationship was vitiated by a misconception of fact arising out of a promise to marry? 2. Whether the first petitioner made a false promise to marry the complainant with no intention of adhering to it?
Ratio Decidendi: 1. The court relied on the Supreme Court judgments in Pramod Suryabhan Pawar v. State of Maharashtra, Sonu @ Subhash Kumar v. State of Uttar Pradesh & Another, and Shambhu Kharwar v. State of Uttar Pradesh & Another to hold that the 'consent' of a woman with respect to Section 375 IPC must involve an active and reasoned deliberation towards the proposed act. 2. To establish whether the 'consent' was vitiated by a 'misconception of fact' arising out of a promise to marry, two propositions must be established: (i) the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given; and (ii) the false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.
Final Decision: The court allowed the revisional application and quashed all further proceedings arising out of the case, including the charge-sheet.
JUDGMENT
Tirthankar Ghosh, J. - The present revisional application has been preferred challenging the proceedings arising out of Burdwan Women Police Station Case No. 147 of 2019 dated 13.05.2019 as well as the charge-sheet submitted in connection with the said case under Sections 376/417/323/506/34 of the Indian Penal Code.
2. The present petitioners approached this Court pursuant to the charge-sheet being submitted before the jurisdictional court being the learned Chief Judicial Magistrate, Purba Bardhaman. The allegations made in the letter of complaint which has been treated to be the FIR in the instant case is to the effect that the complainant is aged about 40 years. She is a resident of Muchipara, Central Park, Baronilpur, Uttarpara, P.S. Burdwan. She stated, that her husband for the purposes of his job was staying at Jharkhand and taking this opportunity on or about October 2017 one Ainul Haque, petitioner no.1 herein started coming to her home regularly. The said accused represented that he liked and loved her and promised to marry her; with such representation the accused had physical relationship with her and with passage of time both of them developed a relationship. The complainant alleges that the accused on several occasions had physical relationship with her and presently when she asked the petitioner no.1 to marry her, he started abusing and assaulting her and for the last six months snapped all relationship; when the complainant went to his house, his wife along with him assaulted her severely, abused her and threatened her of dire consequences. The complainant prayed for taking necessary action against the accused/petitioner no.1 and his wife/petitioner no.2 herein.
3. On such complaint, the aforesaid case being Burdwan Women Police Station Case No. 147 of 2019 dated 13.05.2019 was registered for investigation against the petitioner no.1 and the petitioner no.2 herein.
4. The investigating authorities on completion of investigation submitted charge-sheet under Sections 376/417/323/506/34 of the Indian Penal Code against the present petitioners wherein the investigating officer opined regarding a case being made out.
5. I have considered the contents of the report under Section 173 of the Code of Criminal Procedure and I find that the investigating officer in order to establish the case relied upon five witnesses, viz. CSW-1, Sunita Bokshi, CSW-2, Sukriti Chatterjee, CSW-3, Kripa Sindhu Koner and two police officers of Burdwan Women Police Station viz. Radhamani Banerjee and Atreyi Mukherjee. So far as the statement of CSW-2, Sukriti Chatterjee is concerned, recorded by the investigating officer of the case, it reflects that she is acquainted with the fact that the accused/petitioner no.1 used to come to the house of the complainant but was not aware regarding their relationship. So far as the statement of CSW-3 Kripa Sindhu Koner is concerned, the witness stated that he is the father of the complainant and was acquainted with the petitioner no.1 for a considerable period of time; it was well within his knowledge that the petitioner no.1 used to come at the residence of the complainant. However, he stated that he was not aware regarding the existence of any relationship of the petitioner no.1 with the complainant. The complainant being cited as CSW-1 apart from her allegations made in the letter of complaint addressed to the Inspector-in-Charge, Burdwan Women Police Station also gave her version before the learned Judicial Magistrate, 5th Court, Burdwan which was recorded under Section 164 of the Code of Criminal Procedure. The contents of the said statement recorded under Section 164 of the Code of Criminal Procedure reflect that the complainant is aged about 40 years and knew the petitioner no.1 as he was acquaintance of his father. They were both associated with a particular political party and with passage of time the petitioner no.1 started visiting her residence, she addressed him as uncle. The complainant a
A false promise to marry, given in bad faith and with no intention of being adhered to at the time it was given, can vitiate the consent of a woman to a sexual act under Section 375 IPC, but only if ....
The main legal point established in the judgment is the requirement for active understanding and reasoned deliberation for consent, the distinction between a false promise given in bad faith and a br....
Consent given for sexual intercourse based on a promise of marriage may not be considered a consent obtained on a misconception of fact, and the need for voluntary participation and active understand....
In order 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....
The main legal point established in the judgment is the requirement for voluntary and informed consent, as well as the careful examination of circumstances in cases involving allegations of enticemen....
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