Obtaining consent under a misconception of fact constitutes rape as defined under Section 376 IPC.

DAYA CHAUDHARY, J.

1. The present petition has been filed under Section 438 Cr.P.C. for grant of anticipatory bail to the petitioner in case FIR No. 12 dated 31.1.2016 registered under Sections 376/506 IPC at Women Police Station, District Gurgaon.

2. Learned counsel for the petitioner contends that the petitioner has falsely been implicated in this case, whereas, he was not involved. The petitioner is unmarried, whereas, the complainant is a divorcee and is having a 12 years old daughter as well. Both the parties were known to each other for the last few months. The complainant introduced herself as an unmarried girl to the petitioner with an ulterior motive and there was involvement of her family members also. Even in whatsapp messages, the complainant has shown herself to be an unmarried girl and the factum of her earlier marriage was not told to the petitioner. Learned counsel also submits that both the parties were having liking for each other but no promise of marriage was ever made. Learned counsel has relied upon the judgments of Hon'ble the Apex Court in the case of K.P. Thimmappa Gowda v. State of Karnataka 2011 (14) SCC 475, Tilak Raj v. State of Himachal Pradesh 2016 (1) RCR (Criminal) 802, of this Court in Ram Lubhaya v. State of Punjab passed in Crl. Misc. No. M-14699 of 2014 on 26.5.2014, Neeraj Kumar v. State of Haryana passed in Crl. Misc. No. M-131 of 2016 on 10.3.2016, of Delhi High Court in Vikul Bakshi v. The State (NCT of Delhi) 2016 (1) JCC 54, Rohit Chauhan v. State NCT of Delhi 2014 (1) RCR (Criminal) 1030, Nirmal Vaid v. State NCT of Delhi 2014 (12) RCR (Criminal) 2406 and of Bombay High Court in Mahesh Balkrishna Dandane v. State of Maharashtra 2014 (4) Crimes 37, in support of his contentions.

3. Mr. Dinesh Arora, Advocate appears on behalf of the complainant and submits that the petitioner was well aware about the marriage of the complainant and her daughter from the earlier marriage. Not only promise for marriage was made but under the pretext of marriage, physical relations were also made with the complainant. The petitioner subsequently backed out from the marriage and offence under Section 376 IPC is made out as has been held by Hon'ble the Apex Court in the case of State of U.P. v. Naushad, 2013 (16) SCC 651.

4. Heard the arguments advanced by learned counsel for the parties and have also gone through the allegations levelled in the FIR as well as other documents available on the file including the whatsapp messages exchanged between the parties.

5. Learned counsel for the petitioner has contended that the petitioner was ready to marry with the complainant but it was not told to the petitioner that the complainant was earlier married and a daughter was also born from the said wedlock. It is also the argument of learned counsel that no promise to marry was ever made to the complainant.

It is apparent from the whatsapp messages exchanged between the parties that the petitioner was well aware about the earlier marriage of the complainant and the daughter from the earlier marriage. Now the question for consideration is with regard to the consent of the victim. Section 90 IPC defines consent known to be given under `fear or misconception', which reads as under:-

"90. Consent known to be given under fear or misconception - A consent is not such 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."

Section 376 IPC is also relevant in the present case, which reads as under:-

376. Punishment for rape.-

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be lia