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.)
No comments:
Post a Comment