Saturday, 25 December 2021

Whether the court can convict the accused for an offence of cheating if there is no prosecution evidence that the lady maintained sexual relations under a false promise of marriage?

 In Maheshwar Tigga Vs. State of Jharkhand, (2020) 10

SCC 108 the question before the Hon’ble Supreme Court was

whether the prosecutrix had consented to the physical relationship

under any misconception of fact with regard to promise of marriage

or whether her consent was based on fraudulent misrepresentation of

marriage. The Apex Court has held that under Section 90 of IPC a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. The Apex Court has observed as under :-

“15. In Uday vs. State of Karnataka, (2003 4 SCC 46,

the Appellant and the prosecutrix resided in the same

neighbourhood. As they belonged to different castes,

a matrimonial relationship could not fructify even

while physical relations continued between them on

the understanding and assurance of marriage. This

Court observed as follows:

“21. 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. We have no hesitation in concluding that the

consent of the prosecutrix was but a conscious and

deliberated choice, as distinct from an involuntary

action or denial and which opportunity was available

to her, because of her deep-seated love for the

appellant leading her to willingly permit him liberties

with her body, which according to normal human

behaviour are permitted only to a person with whom

one is deeply in love. The observations in this regard

in Uday are considered relevant :-

“25…It usually happens in such cases, when two

young persons are madly in love, that they

promise to each other several times that come

what may, they will get married. As stated by

the prosecutrix the appellant also made such a

promise on more than one occasion. In such

circumstances the promise loses all significance,

particularly when they are overcome with

emotions and passion and find themselves in

situations and circumstances where they, in a

weak moment, succumb to the temptation of

having sexual relationship. This is what appears

to have happened in this case as well, and the

prosecutrix willingly consented to having sexual

intercourse with the appellant with whom she

was deeply in love, not because he promised to

marry her, but because she also desired it. In

these circumstances it would be very difficult to

impute to the appellant knowledge that the

prosecutrix had consented in consequence of a

misconception of fact arising from his promise.

In any event, it was not possible for the

appellant to know what was in the mind of the

prosecutrix when she consented, because there

were more reasons than one for her to

consent.”” {Para 8}

9. In the instant case, the evidence on record indicates that

the prosecutrix and the accused were known to each other. They had

indulged in sexual relationship for a period of over three years. The

evidence of PW1-prosecutrix does not indicate that she had sexual relationship with the accused under misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage. There is no evidence on record to indicate that since the inception accused did not intend to marry her. In the absence of evidence to prove that the prosecutrix had consented for physical relationship on a misconception of fact, as stipulated under Section 90 of IPC, the mere refusal to marry would not constitute offence under Section 417 of the IPC.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.119 OF 1999

Kashinath Narayan Gharat  Vs The State of Maharashtra 

CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 9th DECEMBER, 2021.


1. This appeal under Section 374 of the Code of Criminal

Procedure, 1973, is directed against the judgment and order dated

19/02/1999 passed by the learned Additional Sessions Judge,

Palghar, in Sessions Case No.334 of 1996.

2. By the impugned judgment, learned Judge held the

Appellant (hereinafter referred to as ‘accused’) guilty of offences

punishable under Section 417 of the IPC. He has been sentenced to

undergo rigorous imprisonment for one year and to pay fine of

Rs.5000/- i/d. to undergo rigorous imprisonment for six months.

3. The case of the prosecution in brief is as under:-

The prosecutrix(PW1) had lodged the FIR alleging that the accused

had sexual relationship with her with promise of marriage. He

subsequently declined to marry her. Based on the FIR at Exhibit-6

lodged by the prosecutrix crime came to be registered against the

accused for offences punishable under Sections 376 and 417 of the

IPC.

4. The crime was investigated by PW8-P.H.C.,Vishwas

Bhosale. He recorded the statements of the witnesses, referred the

prosecutrix for medical examination and after completion of the

investigation filed the charge sheet against the accused for above

stated offence. The accused pleaded not guilty to the charge and

claimed to be tried. The prosecution in support of its case examined

8 witnesses. The statement of the accused came to be recorded

under Section 313 of Cr.P.C. The defence of the accused was of total

denial. The learned Judge upon appreciating and analysing the

evidence on recorded acquitted the accused of offence under Section

376 of the IPC and held him guilty of the offence under Section 417

of the IPC. Being aggrieved by the conviction and sentence, the

accused has preferred this appeal.

5. Heard Ms Vrishali Raje, learned counsel for the accused

and Mr. S.V. Gavand, learned counsel for the Respondent-State. I

have perused the records and considered the submissions advanced

by the learned counsel for the respective parties.

6. The evidence of PW1- Prosecutrix reveals that the accused

was known to her. She had sexual relationship with the accused for

over about 3 years. Evidence of PW2- sister of the prosecutrix also

reveals that there was love affair between the accused and the

prosecutrix. The evidence on record thus indicates that sexual

relationship between the prosecutrix and the accused was

consensual. The accused has been held guilty of offence under

Section 417 of the IPC solely for the reason that he refused to marry

the prosecutrix. The question is whether in such circumstances

refusal to marry constitutes an offence of cheating.

7. While considering a similar issue, in Sonu @ Subhash

Kumar vs. State of Uttar Pradesh and Anr., 2021 SCC Online SC 181

the Hon’ble Supreme Court has observed as under :

“9. In Pramod Suryabhan Pawar vs. State of Maharashtra,

(2019) 9 SCC 608, while dealing with a similar situation,

the principles of law which must govern a situation like

the present were enunciated in the following

observations:-

“Where the promise to marry is false and the

intention of the maker at the time of making the

promise itself was not to abide by it but to deceive

the woman to convince her to engage in sexual

relations, there is a “misconception of fact” that

vitiates the woman’s “consent”. On the other hand, a

breach of a promise cannot be said to be a false

promise. To establish a false promise, the maker of

the promise should have had no intention of

upholding his word at the time of giving it…”

10 Further, the Court has observed:

“To summarise the legal position that emerges

from the above cases, the “consent” of a woman

with respect to Section 375 must involve an active

and reasoned deliberation towards the proposed

act. 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 false promise, given in bad faith and with

no intention of being adhered to at the time it was

given. 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.”

8. In Maheshwar Tigga Vs. State of Jharkhand, (2020) 10

SCC 108 the question before the Hon’ble Supreme Court was

whether the prosecutrix had consented to the physical relationship

under any misconception of fact with regard to promise of marriage

or whether her consent was based on fraudulent misrepresentation of

marriage. The Apex Court has held that under Section 90 of IPC a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. The Apex Court has observed as under :-

“15. In Uday vs. State of Karnataka, (2003 4 SCC 46,

the Appellant and the prosecutrix resided in the same

neighbourhood. As they belonged to different castes,

a matrimonial relationship could not fructify even

while physical relations continued between them on

the understanding and assurance of marriage. This

Court observed as follows:

“21. 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. We have no hesitation in concluding that the

consent of the prosecutrix was but a conscious and

deliberated choice, as distinct from an involuntary

action or denial and which opportunity was available

to her, because of her deep-seated love for the

appellant leading her to willingly permit him liberties

with her body, which according to normal human

behaviour are permitted only to a person with whom

one is deeply in love. The observations in this regard

in Uday are considered relevant :-

“25…It usually happens in such cases, when two

young persons are madly in love, that they

promise to each other several times that come

what may, they will get married. As stated by

the prosecutrix the appellant also made such a

promise on more than one occasion. In such

circumstances the promise loses all significance,

particularly when they are overcome with

emotions and passion and find themselves in

situations and circumstances where they, in a

weak moment, succumb to the temptation of

having sexual relationship. This is what appears

to have happened in this case as well, and the

prosecutrix willingly consented to having sexual

intercourse with the appellant with whom she

was deeply in love, not because he promised to

marry her, but because she also desired it. In

these circumstances it would be very difficult to

impute to the appellant knowledge that the

prosecutrix had consented in consequence of a

misconception of fact arising from his promise.

In any event, it was not possible for the

appellant to know what was in the mind of the

prosecutrix when she consented, because there

were more reasons than one for her to

consent.””

9. In the instant case, the evidence on record indicates that

the prosecutrix and the accused were known to each other. They had

indulged in sexual relationship for a period of over three years. The

evidence of PW1-prosecutrix does not indicate that she had sexual

relationship with the accused under misconception of fact, with

regard to the promise of marriage or that her consent was based on

fraudulent misrepresentation of marriage. There is no evidence on

record to indicate that since the inception accused did not intend to

marry her. In the absence of evidence to prove that the prosecutrix

had consented for physical relationship on a misconception of fact, as stipulated under Section 90 of IPC, the mere refusal to marry would not constitute offence under Section 417 of the IPC.

10. Under the circumstances, the impugned judgment cannot

be sustained. Hence, the appeal is allowed. The impugned judgment

and order is quashed and set aside. Bail bonds of the accused stand

discharged.

(SMT. ANUJA PRABHUDESSAI, J.)


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