Point of Law: While we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent.

Headnote:
Criminal Procedure Code, 1973 - Section 397 r/w 401 - Indian Penal Code, 1860 - Sections 419/366, 376 and Rape - Cheating by presentation - Kidnapped and Rape - One 20 years old girl was having a love affair with present petitioner. Both eloped from their houses and co-habited - Father of girl had lodged FIR before Police that his 20 years old daughter was kidnapped by present petitioner on a promise of marriage - Subsequently, petitioner handed over girl to his paternal uncle, thereafter girl informed her parents over telephone and ultimately she was brought home - Whether consent given by prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact - Whether consent was voluntary, or was given under a misconception of fact.
Finding of the Court:
Appellant had reason to believe that consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that prosecutrix stealthily went out with appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young person are madly in love, that they promise to each other several times that come what may, they will get married - a simple promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, IPC - In the instant case, the victim claimed that the present petitioner proposed to her to marry and she had accepted proposal. That is why, she had gone with him. The victim girl had already attained sufficient maturity at the relevant time of occurrence. Now, this Court has reason to hold that victim girl was a consenting party to the act of present petitioner - Evidence of victim girl failed to inspire confidence to effect that she was ever kidnapped and later on raped by present petitioner. Both Courts below has committed serious error while appreciating the evidence available in record and arrived at erroneous findings - Judgments passed by trial court as well as appellate court are not sustainable in law.
Result: Petition is allowed.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

1. Heard Md. K. Rahman, learned counsel appearing for the petitioners as well as Ms. M.B. Baruah, learned Legal Aid Counsel representing the respondents.

2. This is an application under Section 397 read with Section 401 of the Cr.P.C. whereby the Judgment and Order dated 18.12.2017 passed by the learned Sessions Judge, Jorhat in Criminal Appeal No. 34/2017 arising out of the Judgment and Order dated 09.12.2016 passed by the learned Assistant Sessions Judge, Jorhat in Sessions Case No. 89 (JT)/2016 are put to challenge.

3. One 20 years old girl was having a love affair with the present petitioner. Both eloped from their houses and co-habited. The father of the girl had lodged FIR before the Police that his 20 years old daughter was kidnapped by the present petitioner on a promise of marriage. Subsequently, the petitioner handed over the girl to his paternal uncle. Thereafter, the girl informed her parents over telephone and ultimately she was brought home.

4. After a routine investigation, Police filed the Charge Sheet against the present petitioner and his paternal uncle named Bitu Saikia under Sections 419/366 of the IPC. An additional Charge Sheet was also filed by putting Section 376 of the IPC against the present petitioner.

5. While testifying before the trial court, the victim girl admitted that she was in love with the present petitioner. She further stated that one day the present petitioner proposed to marry her. According t the victim girl, on 18.01.2016, she was called by the petitioner and by informing her parents that she would be going to her elder sister, she went with the petitioner. They went to the house of their paternal uncle Bitu Saikia and she was told that this Bitu Saikia shall arrange the marriage. The victim girl has stated that she told the present petitioner that she was not interested in marriage. The victim girl has stated that when she refused to marry the present petitioner he beat her and his paternal uncle Bitu Saikia had forcibly put vermilion on her head. The victim girl has stated that neighbours were present at that time but she did not inform them that Bitu Saikia had forcibly put vermilion on her head.

6. The victim girl had disclosed after the said incident she stayed there for next four days and in those four days the present petitioner had forcible sexual intercourse with her against her will. The victim girl borrowed the mobile phone from the elder sister of Bitu Saikia and informed her parents.

7. At this stage, the law pertaining to the subject is relevant. The section 90 of the IPC has defined the word consent as under:

Section 90: Consent known to be given under fear or misconception

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.

Consent of insane person

If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent.

Consent of child

Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

8. In the case of Uday vs. State of Karnataka, 2003 Cri. L.J. 1539, the Apex Court considered the earlier decisions on the subject and held as follows:

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 straitjacket formula for determining whether consent given by the p

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2021 Supreme(Gau) 575

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESHPARTHIVJYOTI SAIKIA, J.Sri Raktim Saikia S/o Sri Dimbeswar Saikia – PetitionerVersusThe State of Assam and Another – RespondentsCrl. Rev. Pet. No. 228 of 2018Decided On : 10-12-2021

Cases Referred (5)

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PARTHIVJYOTI SAIKIA, J.
Sri Raktim Saikia S/o Sri Dimbeswar Saikia – Petitioner
Versus
The State of Assam and Another – Respondents
Crl. Rev. Pet. No. 228 of 2018
Decided On : 10-12-2021