The relationship was not of a man chasing a woman for satisfying his momentary lust and thereafter making a promise to marry and continue to have sex with her. This was a relationship between two co-workers who were intimately known to each other in the circumstances that they had spent time together for long period and that it is also possible that the desire to have sex was mutual and consensual. Hence, given the circumstances of the case it is possible to hold in favour of the appellant that there was consensual sex between the complainant and the appellant. It is only when the relationship soured and when the appellant refused to marry the complainant, a case of rape has been brought against him. As held by the Apex Court in Deelip Singh's case it is a breach of promise to marry if at all,
and would give rise to a claim for civil damages and could not be considered as an offence or a crime. In that view of the matter this Court is of the opinion that given the facts of the case it cannot be said that there was promise to marry and the appellant had consented to have sex in the belief that the promise would be kept and continued to do so till such time she became pregnant and it was only when she broached the subject with the appellant it was revealed that there was no intention to keep up the promise by the appellant. Accordingly, given the conduct of the complainant, it cannot be said that there was no valid consent. The relationship could be attributed to promiscuity notwithstanding that she comes from a humble background when the appellant is also from a humble background. It was a consensual sex as between co- workers and could not be considered as consent obtained by deception or fraud and therefore, not amounting to valid consent.1
Karnataka High Court
Anjinappa S/O Chowdappa vs State Of Karnataka on 6 March, 2013
This criminal appeal is filed under Section 374(2) Cr.P.C. against the judgment dated 27.2.2006 passed by the S.J., Davanagere, in S.C.No.85/05 convicting the appellant/accused for the offence punishable under Sections 376 and 417 of IPC and sentencing him to undergo R.I. for a period of seven years and to pay a fine of Rs.30,000/- and in default to pay fine amount to undergo rigorous imprisonment for a further period of 2
six months for the offence punishable under Section 376 IPC and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default to pay fine amount to undergo rigorous imprisonment for a further period of three months. This criminal appeal coming on for final hearing this day, the Court delivered the following:- JUDGMENT
Heard the learned counsel appearing for the appellant and the learned additional SPP for the respondent.
2. The appellant seeks to challenge the judgment of the trial Court whereby he has been convicted for the offences punishable under Sections 376 and 417 of Indian Penal Code, 1860 (hereinafter referred to as the, "IPC", for brevity) and has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.30,000/- for the offence punishable under Section 376 IPC and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- for the offence punishable under Section 417 IPC. Out of the fine 3
amount, Rs.35,000/- was ordered to be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure, 1973.
3. The facts of the case are as follows:- The complainant was a woman aged about 19. She was the second child of her parents and she belonged to the Bhovi community. She was a resident of Thumbigere village. It is her case that she knew the appellant-Anjinappa s/o.Chowdappa, who was aged
25. They were both employed in Shamanur Sugar factory in Davanagere and that they used to go and return from work, together. On 11.10.2004 while they were returning on foot, to their village the appellant who was familiar with the complainant had suggested that they have sex and had forcibly dragged her to a sugar cane field and against her will had sexual intercourse with her and further threatened that she would be harmed if she complained about it or protested as regards the incident and also promised to marry her. On such promise being made, he continued to have sex 4
with her on several occasions, while returning from work in a similar fashion. It was out of fear of repercussions and on the promise held out by the appellant, the complainant had allowed him to have sexual intercourse though it was against her will. But however, she soon became pregnant and when she broached the subject of marriage with the appellant, he had resiled from his promise and it is in this background she had to reveal the circumstances to her mother who in turn had broached the matter with the appellant and brought the matter before the village panchayath. The appellant had in turn promised to marry the complainant and thereafter absconded from the village. It is thereafter that the complainant with her mother's assistance visited a hospital where she was advised to abort the pregnancy and accordingly had aborted the pregnancy and it is subsequent to this that she had lodged a report with the police alleging the offence punishable under Sections 376 of IPC as also the offences punishable under Sections 417 and 506 of 5
IPC. The police having taken up investigation had arrested the appellant and after further investigation he was charge sheeted. The matter was committed to the Sessions Court. The Sessions Court in turn framed the charges and the appellant having pleaded not guilty and having claimed to be tried the prosecution tendered evidence and examined P.Ws.1 to 13 and got marked Exs.P1 to P12. The accused on his part produced Ex.D1. The statement of the accused under Section 313 Cr.P.C. was recorded. The Court after hearing the parties and on consideration of the material on record had framed the following points for consideration:- "1)Whether the prosecution has
proved that the accused has committed rape on the complainant?
2)Whether the prosecution has
proved that the accused has committed cheating as contemplated under Section 415 I.P.C.
3)Whether the prosecution has
proved that the accused has threatened 6
to take away the life of the complainant?"
The Court held points 1 and 2 in the affirmative and point No.3 in the negative and imposed the punishment as aforesaid. It is that which is under challenge in the present appeal.
4. The learned counsel for the appellant while taking this Court through the record would submit that two aspects would arise for consideration namely, the definition of rape under Section 375 IPC and circumstances prescribed therein which would bring the offence within the scope of that definition would require that firstly the sexual act was against the will of the victim and secondly it was without the consent of the victim. In the present case on hand if the facts are taken into account, it cannot be said that the act was committed against the will of the complainant. According to her own statement sexual acts were committed on several occasions. Therefore, even if, for 7
the first time, it was committed against her will, which is again a disputed question of fact, on subsequent occasions when there was no compulsion on her part to participate or to have sex with the appellant she had willingly taken part. Therefore, to hold that it was against her will would not be possible, on the face of it. Secondly, the question as to whether there was consent, the learned counsel would submit that in the case of Uday .vs. State of Karnataka [2003 Supreme Court Cases (Cri) 775], the Apex Court had occasion to review the entire case law on the subject of consent and what amounts to consent in the context of Section 375 IPC and has laid down 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 8
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."
However, in a subsequent decision, namely, Deelip Singh alias Dilip Kumar .vs. State of Bihar [2005 Supreme Court Cases (Cri) 253] while drawing attention to the above paragraph wherein the Supreme Court has expressed its opinion as to the state of law it is further clarified thus:-
"The first two sentences in the above passage need some explanation. While we 9
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 secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda, which was approvingly referred to in Uday's case. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end(Cri LJ p.1538, para 7)- "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 10
be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu's 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's 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 accused's intention to marry cannot be ruled out."
Therefore, the learned counsel would submit that it would be necessary to view the facts of the case with reference to the settled legal position as laid down in the aforesaid decisions as to whether there was valid consent and it could be said that the consent was not valid on account of appellant having made a promise 11
which he had no intention to keep, from inception. The learned counsel would submit that apart from the claim of the complainant that there was promise to marry there is no possible evidence that is capable of being relied upon in the record. The conduct of the complainant and her admitted statements would indicate that she was a willing participant in the repeated acts of sexual intercourse between them and this would raise they had sex was attributable to promiscuity and it cannot be said that it was on account of false promises held out by the complainant. The further contention that when the mother was appraised of the circumstances, she had broached the circumstances with the appellant and the appellant was produced before the village panchayat where he had consented to marry her and thereafter absconded from the village, are all circumstances which are not established by producing necessary evidence in this regard. There is absolutely no evidence in support of any such promise being held repeatedly by the 12
appellant. In that view of the matter the law as laid down by the Apex Court in the aforesaid decisions would squarely apply to the facts of this case to hold that rape was not committed nor it could be said that there was no consensus. In that, the admitted circumstances would indicate that the sex was consensual between the appellant and the complainant and even if there was a promise to marry it would amount to a breach of promise which would give rise to a claim for civil damages and would not amount to a crime, as observed by the Apex Court in Dilip Singh's case at Paragraph 28.
5. Per contra, the learned Additional SPP would submit that the contention that there was valid consent is not tenable. First of all it should be kept in view the humble background from which the prosecutrix hails. She belongs to the Bhovi community and was downtrodden. She was a coolie by occupation and therefore susceptible to the designs of the appellant. As admittedly they were co-employees at a sugar factory 13
and the appellant having enticed her and having forced himself on her in having sex on the promise of marriage is a circumstance which requires to be accepted given the social and economic status of the victim. The facts of the case in Uday .vs. State of Karnataka and Deelip Singh's case would have to be kept in view in addressing whether the law laid down with reference to the facts of that case could be applied in the present case on hand, as well. The Apex Court has cautioned that the opinion expressed is only by way of guidelines in addressing the given facts and would depend on the facts involved therein and therefore, there is no general rule laid down in the matter on deciding there was valid consent or otherwise.
6. In the present case on hand it is the case of the prosecutrix that on several occasions there was sex between the appellant and the complainant. Though it was much against her will in the first instance she was compelled to go through it and was firm in the belief that since both the appellant and complainant belonged 14
to the Bhovi community there was possibility of a marriage. It is on such misconception of fact the complainant had succumbed to the designs of the appellant and continued to have sex with him on several occasions. It is only when the appellant resiled from his promise after she become pregnant that her apprehension grew into dismay and she has revealed the circumstances to her mother who in turn brought it to light before the Panchayath. Therefore, there is substance in the contention that there was false promise to marry and it was that false promise which lead the complainant to succumb to the lust of the appellant which would certainly bring it within the mischief of the Section as the appellant knew from inception that he had no intention to keep his promise. The learned additional SPP would also place reliance on the decision in Yedla Srinivasa Rao .vs. State of A.P. [2006(4) Crimes 281] and would point out that the Apex Court while also referring to the decision in Deelip Singh alias Dilip Kumar .vs. State of Bihar 15
[2005 Supreme Court Cases (Cri) 253] has distinguished the said decision to hold that in that case the prosecutrix had taken a conscious decision to have sex only on being impressed by the accused's promise to marry her and it was not a false promise from inception, whereas in the case of Yedla Srinivasa Rao there was such a misconception from the beginning, therefore, it was held that the law laid down therein may not apply to the case on hand and contends that the appeal be dismissed.
7. On these rival contentions, the question to be considered falls within a narrow compass, namely, whether there was valid consent of the prosecutrix in the appellant having had sex with her or whether it should be treated as rape, for the consent was given under a misconception of fact or proceeding on the false promise held out by the appellant, of marrying the prosecutrix. From the admitted facts of the case it is apparent that the appellant and complainant were known to each other and they were in fact co-workers 16
and they were regularly going to work together from their village and returning back. It is on one such occasion that the complainant has alleged that she was dragged to a sugarcane field and forced to have sex with the appellant and thereafter continued to do so on several occasions on the promise made by the appellant that he would marry her. This is the statement made by the complaint which forms the basis of the case against the appellant, namely that the sex between the complainant and the appellant was against her will and was not pursuant to a valid consent. Hence, the line is very thin between the circumstances as sought to be canvassed by the parties, namely, whether there was consensual sex or whether the sex permitted was on a misconception of fact or on the belief of false promise made by the appellant. To establish that there was a false promise made by the appellant, apart from the testimony of the complainant the mother of the complainant has tendered evidence as P.W.6 reiterating that after her daughter became pregnant she was 17
informed about the circumstances and in turn she had broached the subject with the appellant and had brought the matter before the panchayath and the appellant who had reiterated his promise to marry the complainant had resiled and absconded from the village. In support of these circumstances except the say of P.W.6 there is no evidence. It would be quite natural for the mother of the complainant to support the case of her daughter who was pregnant with the child of the appellant, as alleged, in ensuring that appellant marries her daughter if indeed there was a relationship between them. Therefore to place reliance on the said evidence to hold that a promise to marry had been made would be difficult. It is otherwise possible that there was consensual sex between the appellant and the complainant over a period of time and it was their carelessness which lead to the unwanted pregnancy, which forced the appellant to bring it to the notice of her mother to take up the matter on her behalf to persuade the appellant to marry the complainant. 18
This having failed the complaint has been brought. Therefore the claim that the consent was not valid and it was obtained by making a false promise to marry and thereafter the complainant having become pregnant to claim that it was a rape cannot be sustained. The relationship was not of a man chasing a woman for satisfying his momentary lust and thereafter making a promise to marry and continue to have sex with her. This was a relationship between two co-workers who were intimately known to each other in the circumstances that they had spent time together for long period and that it is also possible that the desire to have sex was mutual and consensual. Hence, given the circumstances of the case it is possible to hold in favour of the appellant that there was consensual sex between the complainant and the appellant. It is only when the relationship soured and when the appellant refused to marry the complainant, a case of rape has been brought against him. As held by the Apex Court in Deelip Singh's case it is a breach of promise to marry if at all, 19
and would give rise to a claim for civil damages and could not be considered as an offence or a crime. In that view of the matter this Court is of the opinion that given the facts of the case it cannot be said that there was promise to marry and the appellant had consented to have sex in the belief that the promise would be kept and continued to do so till such time she became pregnant and it was only when she broached the subject with the appellant it was revealed that there was no intention to keep up the promise by the appellant. Accordingly, given the conduct of the complainant, it cannot be said that there was no valid consent. The relationship could be attributed to promiscuity notwithstanding that she comes from a humble background when the appellant is also from a humble background. It was a consensual sex as between co- workers and could not be considered as consent obtained by deception or fraud and therefore, not amounting to valid consent.
20
8. Accordingly, the appeal is allowed. The appellant is acquitted. The fine amount paid, if any, shall be refunded to the appellant. The bail bond executed by him and surety shall stand cancelled. Sd/-
JUDGE
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