Pradeep
Kumar @ Pradeep Kumar Verma Vs. State of Bihar and Anr [2007] Insc 834 (17 August 2007)
Dr.
Arijit Pasayat & D.K. Jain
(Arising
out of SLP (Crl.) No. 3072 of 2006) Dr. ARIJIT PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Patna High Court calling in question correctness of the judgment of the
Additional Sessions Judge, Fast Track Court No.III, Buxar, in Sessions Trial
No.280 of 2004, whereby the application filed by the appellant for discharge
was rejected.
3. A
brief reference to the factual aspects would suffice.
Respondent
No.2 lodged the First Information Report (in short the FIR) alleging
that with an assurance that the accused-appellant would marry her, he had
sexual relationship with her. When this went on for some time, the informant
had been taken to a temple where in the presence of deity he accepted her to be
his wife and there was an agreement of marriage entered into. Alleging that the
accused was likely to get married with some other lady, an FIR was lodged.
Investigation was undertaken and statement of the informant was recorded under
Section 164 of the Code of Criminal Procedure, 1973 (in short the
Code) wherein it was accepted that first with a promise of marriage,
the accused had physical relationship with the informant and then, had married
her. Since the accused disowned having ever married the informant and much less
having ever had any physical relationship with her, she was forced to file the
FIR. After investigation, charge sheet was filed wherein it was indicated an
offence punishable under Sections 376 and 406 of IPC was made out. An
application was filed by the present appellant before the trial Court for
discharge in terms of Section 227 of the Code. By order dated 21.7.2005 the
same was rejected. It was inter alia noted as follows:
.As
a matter of fact the poor victim Binita Kumari was put under misconception of
fact as promise to marry her by the accused and in this light the accused has
done sexual intercourse with her. The accused had done such act with other
girls also and further the accused has made a Akrarnama for marriage with the
victim. The love letters and Akrarnama photocopy are also with the case diary
and the same are on the record. From the case diary it is also clear that the
accused has taken consent of the victim girl on a false promise of marriage and
further a Akrarnama is also made here. Hence the consent is not with free will
or voluntary act. Hence there are sufficient grounds for framing charge against
the accused person.
4.
Charges were framed for offences punishable under Sections 376 and 406 of IPC.
As noted above, the order was challenged before the High Court which rejected
the application in summary manner holding as follows:
The
learned Judge finding sufficient material showing petitioners complicity
in the crime rejected his prayer for discharge.
I do
not find any error in the same. Application stands dismissed.
5.
Learned counsel for the appellant submitted that the trial Court failed to
notice that the lady accepted that whatever physical relationships were there
were with her consent.
According
to her, she was married to the accused. That being so, the question of any
offence punishable under Section 376 IPC does not arise.
6.
Further, the ingredients of Section 406 IPC have absolutely no application.
Even a bare reading of the statement recorded under Section 164 of the Code
shows that Section 406 has no application. Section 406 IPC relates to
punishment for criminal breach of trust. The expression criminal breach of
trust is defined in Section 405. The same relates to only entrustment of
property or dominion over the property. There is no allegation of any
entrustment of any property in this case and therefore Section 406 does not
apply to this case. The High Court should not have rejected the application
summarily without even dealing with the submissions made by the appellant.
7.
Learned counsel for the State submitted that though prima facie Sections 376 and
406 do not appear to have any application, yet the case is one which is covered
by other Sections like 415 and 493 IPC. Learned counsel for the informant
submitted that since on the pretext of marriage and by cheating the victim the
accused had physical relationship with her, it cannot be said that there is
element of consent and Section 376 has rightly been applied. Both learned
counsel for the State and the informant stated that the charges can be altered
during the trial and there is no scope for interference.
It
would not be appropriate to express any view with regard to acceptability or
otherwise of the submissions made by the appellant.
8. As
rightly submitted by learned counsel for the State, Sections 376 and 406 prima
facie do not appear to have any application. It would have been appropriate for
the High Court to deal with various submissions and consider their
acceptability. That apparently has not been done. This is not a case where the
application should have been dismissed in a summary manner.
9. The
crucial expression in Section 375 which defines rape as against
her will. It seems to connote that the offending act was despite
resistance and opposition of the woman. IPC does not define consent
in positive terms. But what cannot be regarded as consent is
explained by Section 90 which reads as follows:
consent
given firstly under fear of injury and secondly under a misconception of fact
is not consent at all. That is what is explained in first part of Section
90. There are two grounds specified in Section 90 which are analogous to
coercion and mistake of fact which are the familiar grounds that can vitiate a
transaction under the jurisprudence of our country as well as other countries.
The factors set out in first part of Section 90 are from the point of view of
the victim and second part of Section 90 enacts the corresponding provision
from the point of view of the accused. It envisages that the accused has
knowledge or has reason to believe that the consent was given by the victim in
consequence of fear of injury or misconception of fact. Thus the second part
lays emphasis on the knowledge or reasonable belief of the person who obtains
the tainted consent. The requirements of both the parts should be cumulatively
satisfied. In other words, the Court has to see whether the person giving the
consent has given it under fear or misconception of fact and the court should
also be satisfied that the person doing the act i.e. the alleged offender is
conscious of the fact or should have reason to think that but for the fear or
misconception, the consent would not have been given. This is the scheme of
Section 90 which is couched in negative terminology. As observed by this Court
in Deelip Singh @ Dilip Kumar v. State of Bihar (2005 (1) SCC 88), Section 90 cannot be considered as an exhaustive
definition of consent for the purposes of IPC. The normal connotation and
concept of consent is not intended to be excluded.
10. In
most of the decisions in which the meaning of the expression consent
under the IPC was discussed, reference was made to the passages occurring in
Strouds Judicial Dictionary, Jowitts Dictionary on English Law, Words
and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines
consent as an act of reason, accompanied with deliberation, the mind
weighing, as in a balance, the good and evil on each side. Jowitt, while
employing the same language added the following:
Consent
supposes three things a physical power, a mental power and a free and serious
use of them. Hence it is that if consent be obtained by intimidation, force,
meditated imposition, circumvention, surprise, or undue influence, it is to be
treated as a delusion, and not as a deliberate and free act of the mind.
11. In
Words and Phrases, Permanent Edn., Vol. 8-A, the following passages culled out
from certain old decisions of the American courts are found:
.adult
females understanding of nature and consequences of sexual act must be
intelligent understanding to constitute consent.
Consent
within penal law, defining rape, requires exercise of intelligence based on
knowledge of its significance and moral quality and there must be a choice
between resistance and assent
12. It
was observed in Uday v. State of Karnataka (2003 (4) SCC 46) as under:
12.
The courts in India have by and large adopted these
tests to discover whether the consent was voluntary or whether it was vitiated
so as not to be legal consent.
13.
There is a good analysis of the expression consent in the context of
Section 375 IPC in Rao Harnarain Singh Sheoji Singh v. State. (AIR 1958 Punj
123). The learned Judge had evidently drawn inspiration from the above passages
in the law dictionaries. The observation of the learned Judge is as follows:
there
is a difference between consent and submission and every consent involves a
submission but the converse does not follow and a mere act of submission does
not involve consent,
14.
The said proposition is virtually a repetition of what was said by Coleridge,
J. in R. v. Day (173 E.R. 1026) in 1841 as quoted in Words and Phrases
(Permanent Edn.) at p. 205. The following remarks in Harnarains case
(supra) are also pertinent:
Consent
is an act of reason accompanied by deliberation, a mere act of helpless
resignation in the face of inevitable compulsion, non- resistance and passive
giving in cannot be deemed to be consent.
15.
The passages occurring in the above decision were either verbatim quoted with
approval or in condensed form in the subsequent decisions: vide Anthony, In Re
(AIR 1960 Madras 308), Gopi Shanker v. State of Rajasthan (AIR 1967 Rajasthan
159), Bhimrao v. State of Maharashtra (1975 Mah.LJ 660) and Vijayan Pillai v.
State of Kerala (1989 (2) KLJ 234). All these decisions have been considered in
Udays case (supra).
The
enunciation of law on the meaning and content of the expression
consent in the context of penal law as elucidated by Tekchand, J. in Harnarains
case (supra) (which in turn was based on the above extracts from law
dictionaries) has found its echo in the three-Judge Bench decision of this
Court in State of H.P. v. Mango Ram (2000 (7) SCC 224). It was observed as
follows:
Submission
of the body under the fear of terror cannot be construed as a consented sexual
act. Consent for the purpose of Section 375 requires voluntary participation
not only after the exercise of intelligence based on the knowledge of the
significance and moral quality of the act but after having fully exercised the
choice between resistance and assent. Whether there was consent or not, is to
be ascertained only on a careful study of all relevant circumstances.
16. On
the facts, it was held that there was resistance by the prosecutrix and there
was no voluntary participation in the sexual act. That case would, therefore,
fall more appropriately within clause first of Section 375.
17. It
would be appropriate to deal with the specific phraseology of Section 90 IPC.
We have an illuminating decision of the Madras High Court rendered in 1913 in
N. Jaladu, Re (ILR (1913) 36 Madras 453) in which a Division Bench of that
Court considered the scope and amplitude of the expression misconception
of fact occurring in Section 90 in the context of the offence of
kidnapping under Section 361 IPC. The 2nd accused in that case obtained the consent
of the girls guardian by falsely representing that the object of taking
her was for participating in a festival. However, after the festival was over,
the 2nd accused took her to a temple in another village and married her to the
1st accused against her will. The question arose whether the guardian gave
consent under a misconception of fact. While holding that there was no consent,
Sundara Ayyar, J. speaking for the Bench observed thus:
We
are of opinion that the expression under a misconception of fact is
broad enough to include all cases where the consent is obtained by
misrepresentation; the misrepresentation should be regarded as leading to a
misconception of the facts with reference to which the consent is given. In
Section 3 of the Evidence Act Illustration (d) that a person has a certain
intention is treated as a fact. So, here the fact about which the second and
third prosecution witnesses were made to entertain a misconception was the fact
that the second accused intended to get the girl married. In considering a
similar statute, it was held in England in R. v. Hopkins (1842) Car & M 254) that a
consent obtained by fraud would not be sufficient to justify the taking of a
minor. See also Halsburys Laws of England, Vol. 9, p. 623. In Stephens
Digest of the Criminal Law of England (6th Edn.,p. 217) the learned author says
with reference to the law relating to abduction of girls under
sixteen thus ... if the consent of the person from whose possession
the girl is taken is obtained by fraud, the taking is deemed to be against the
will of such a person Although in cases of contracts a consent obtained by
coercion or fraud is only voidable by the party affected by it, the effect of
Section 90 IPC is that such consent cannot, under the criminal law, be availed
of to justify what would otherwise be an offence.
18.
This decision is an authority for the proposition that a misrepresentation as
regards the intention of the person seeking consent i.e. the accused, could
give rise to the misconception of fact. This view of the Madras High Court was
accepted by a Division Bench of the Bombay High Court in Parshottain Mahadev v.
State (AIR 1963 Bombay 74).
Applying
that principle to a case arising under Section 375, consent given pursuant to a
false representation that the accused intends to marry, could be regarded as
consent given under misconception of fact.
19. On
the specific question whether the consent obtained on the basis of promise to
marry which was not acted upon, could be regarded as consent for the purpose of
Section 375 IPC, was dealt with by a Division Bench of the Calcutta High Court
in Jayanti Rani Panda v. State of WB (1984 Cr.L.J. 1535). The relevant passage
in this case has been cited in several other decisions. This is one of the
cases referred to by this Court in Udays case (supra) approvingly. Without
going into the details of that case, the crux of the case can be discerned from
the following summary given at para 7:
Here
the allegation of the complainant is that the accused used to visit her house
and proposed to marry her. She consented to have sexual intercourse with the
accused on a belief that the accused would really marry her. But one thing that
strikes us is ... why should she keep it a secret from her parents if really
she had belief in that promise. Assuming that she had believed the accused when
he held out a promise, if he did at all, there is no evidence that at that time
the accused had no intention of keeping that promise. It may be that
subsequently when the girl conceived the accused might have felt otherwise. But
even then the case in the petition of complainant is that the accused did not
till then back out.
Therefore
it cannot be said that till then the accused had no intention of marrying the
complainant even if he had held out any promise at all as alleged. The
discussion that follows the above passage is important and is extracted
hereunder:
The
failure to keep the promise at a future uncertain date due to reasons not very
clear on the evidence does not always amount to a misconception of fact at the
inception of the act itself. In order to come within the meaning of
misconception of fact, the fact must have an immediate relevance. The matter
would have been different if the consent was obtained by creating a belief that
they were already married. In such a case the consent could be said to result
from a misconception of fact. But here the fact alleged is a promise to marry
we do not know when. If a full-grown girl consents to the act of sexual intercourse
on a promise of marriage and continues to indulge in such activity until she
becomes pregnant it is an act of promiscuity on her part and not an act induced
by misconception of fact. Section 90 IPC cannot be called in aid in such a case
to pardon the act of the girl and fasten criminal liability on the other,
unless the court can be assured that from the very inception the accused never
really intended to marry her. (emphasis supplied) The learned Judges
referred to the decision of the Chancery Court in Edgington v. Fitzmaurice
(1885 (29) Ch.D.459) and observed :
This
decision lays down that a misstatement of the intention of the defendant in
doing a particular act may be a misstatement of fact, and if the plaintiff was
misled by it, an action of deceit may be founded on it. The particular
observation at p. 483 runs to the following effect: There must be a
misstatement of an existing fact. Therefore, in order to amount to a
misstatement of fact the existing state of things and a misstatement as to that
becomes relevant. In the absence of such evidence Section 90 cannot be called
in aid in support of the contention that the consent of the complainant was
obtained on a misconception of fact. After referring to the case-law on
the subject, it was observed in Udays case (supra):
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 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.
20.
The first two sentences in the above passage need some explanation. 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 by the accused with a view
to elicit the assent of the victim without having the intention or inclination
to marry her, will vitiate the consent. If on the facts it is established that
at the very inception of the making of promise, the accused did not really
entertain the intention of marrying her and the promise to marry held out by
him was a mere hoax, the consent ostensibly given by the victim will be of no
avail to the accused to exculpate him from the ambit of Section 375 clause
second. This is what in fact was stressed by the Division Bench of the Calcutta
High Court in the case of Jayanti Rani Pandas case (supra) which was
approvingly referred to in Udays case (supra). The Calcutta High Court
rightly qualified the proposition which it stated earlier by adding the
qualification at the end - unless the court can be assured that from the
very inception the accused never really intended to marry her. (emphasis
supplied) In the next para, the High Court referred to the vintage decision of
the Chancery Court which laid down that a misstatement of the intention of the
defendant in doing a particular act would tantamount to a misstatement of fact
and an action of deceit can be founded on it. This is also the view taken by
the Division Bench of the Madras High Court in Jaladu case (vide passage quoted
supra). By making the solitary observation that a false promise is not a
fact within the meaning of the Code, it cannot be said that this Court has
laid down the law differently. The observations following the aforesaid
sentence are also equally important. The Court was cautious enough to add a
qualification that no straitjacket formula could be evolved for determining
whether the consent was given under a misconception of fact. Reading the judgment
in Uday case as a whole, we do not understand the Court laying down a broad
proposition that a promise to marry could never amount to a misconception of
fact. That is not, in our understanding, the ratio of the decision. In fact,
there was a specific finding in that case that initially the accuseds
intention to marry cannot be ruled out.
21.
These aspects have been elaborately dealt with in Deelip Singhs case
(supra). The stage of analyzing the factual materials was yet to be undertaken.
But as rightly contended by the appellant if on a bare reading of the FIR, it
shows that no offence had been made out for proceeding situation would be
different. It would have been proper for the High Court as noted above to deal
with the matter elaborately. That apparently has not been done. Therefore,
without expressing any opinion on the merits of the case, we set aside the
order of the High Court and remit the matter to it for fresh consideration.
22.
The appeal is disposed of accordingly.
Back
Pages: 1 2