Patna High Court CR. APP (SJ) No.379 of 2015 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.379 of 2015
Arising Out of PS.Case No. -25 Year- 2008 Thana -CHAKAM HESI District- SAMASTIPUR

Rajesh Kumar @ Mantu, Son of Late Ram Lalit Mahto, Resident of Village –
Gorain, Police Station – Chak Mehsi, District – Samastipur

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Choudhary Shyam Nandan-Advocate
For the Respondent/s : Mr. S. A. Ahmad-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 11-12-2017

Appellant, Rajesh Kumar @ Mantu has been found guilty

for an offence punishable under Section 417 of the I.P.C. and

sentenced to undergo S.I. for one year as well as slapped with fine

appertaining to Rs.20,000/-, in default thereof, to undergo S.I. for two

months, additionally vide judgment of conviction and sentence dated

29.04.2015 passed by the 5th Additional Sessions Judge, Samastipur in

Sessions Trial No.65 of 2009.

2. Bharti Kumari @ Munni filed Complaint Petition

No.412 of 2008 disclosing the date of occurrence dated 25.02.2008 at

about 2.00-3.00 p.m., P.O. village-Kushiari, P.S.-Chakmehsi, District-

Samastipur against Rajesh Kumar @ Mantun and his father Ram Lalit

Mahto with an allegation that she happens to be seven sisters. One of
Patna High Court CR. APP (SJ) No.379 of 2015 2

her sisters (5th) in number has been married with Anil Singh of

village-Gorai, P.S. Chakmehsi, Samastipur about five years ago. After

marriage, cousin of her brother in-law namely Rajesh Kumar @

Mantu began to visit her place and gradually, he trapped her on the

promise of marriage and then, under the guise of aforesaid promise,

he succeeded in establishing physical relationship which he continued.

On the other hand, whenever complainant reminded him of his

promise, he used to instruct to send her father for finalization of

negotiation. Accordingly, she disclosed the event to her father,

whereupon, on 25.02.2008, her father had gone to the place of Rajesh

Kumar and talked with his father Ram Lalit Mahto for settlement of

marriage and during course thereof, he also apprized the continuing

intimate relationship in between Rajesh and his daughter. They have

completely ignored the same and said that marriage will be finalized

only after payment of Rs.1,50,000/-, one colour television, one Hero

Honda Motorcycle in lieu of dowry. Because of the fact that her father

happens to be under financial constrain whereupon, accused persons

refused. Thereafter, her father had rushed to local Mukhiya, Sarpanch

as well as respectable persons of the locality, but shown fruitless

effort. From reliable sources, she has come to know that accused

Rajesh Kumar @ Mantun’s marriage has been fixed at different place,

whereupon instant complaint petition has been filed. So, it has been
Patna High Court CR. APP (SJ) No.379 of 2015 3

alleged that she has been subjected to continuous sexual exploitation

by Rajesh Kumar on the false pretext of marriage and further, they

have declined to marry unless there happens to be fulfillment of

demand of dowry.

3. After having the aforesaid complaint petition, the

learned Court below directed the same to be sent to the local police

station for registration and investigation of the case in accordance

with Section 156(3) of the Cr.P.C., whereupon Chakmehsi P. S. Case

No.25 of 2008 was registered and after concluding investigation,

chargesheet was submitted, whereupon the trial commenced and

concluded in a manner, the subject matter of instant appeal.

4. Defence case, as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is that of complete denial of the occurrence. However, neither

oral nor documentary evidence has been adduced on their behalf.

5. In order to substantiate its case, prosecution had

examined altogether eight PWs viz. PW-1 Naresh Rai, PW-2 Hirday

Mahto, PW-3 Sanjay Mahto, PW-4 Pradeep Rai, PW-5 Bharti Kumari

@ Munni, the victim, PW-6 Ram Sunder Mahto, father of the victim,

PW-7 Tej Narain @ Tejendra Mahto and PW-8 Koushalya Devi,

mother of the victim. As stated above, defence has not produced either
Patna High Court CR. APP (SJ) No.379 of 2015 4

oral or documentary evidence.

6. It has been submitted on behalf of appellant that

whatever finding has been recorded by the learned lower Court

appears to be impermissible in the facts and circumstances of the case,

and so, is fit to be annulled. In order to substantiate the same, it has

been submitted that there happens to be complete absence of the

material at the end of the prosecution that victim was minor. It is not

the case of the prosecution that appellant took control over victim and

committed rape or forced her to indulge in relationship against her

will or without her consent rather from the narration of the written

report as well as evidence of the prosecutrix, it is crystal clear that

they ab-loomed their commitment for years together and then,

developed their physical intimacy, which they carried on without any

hitch. There happens to be no disclosure even at the initial version that

appellant had refused or rejected the proposal and was not ready to

marry. Therefore, there happens to be no question of deception and in

likewise manner, allurement for the purpose of indulging in physical

relationship only. Consent was voluntarily and being major, sound

mind was fully competent.

7. It has further been submitted that aforesaid event is

visualizing from the prosecution version itself. So far evidences are

concerned, that it found completely contrary to the version,
Patna High Court CR. APP (SJ) No.379 of 2015 5

whereupon the dubious character of the prosecution is found duly

exposed, who on one pretext or the other provoked her to allege in

order to get the victim married with the appellant and on being

refused woven peculiar kind of story and got the appellant involved.

8. Furthermore, it has been submitted that neither sister

nor brother-in-law of the so alleged victim has come up in support of

her allegation nor any of her family members which cast serious doubt

over authenticity of prosecution version. Apart from this, it has also

been submitted that independent witnesses had gone adverse to their

interest whereupon were declared hostile and whoever remains,

happens to be the victim as well as her parents whose evidence in the

facts and circumstances of the case, could not be relied upon.

9. On the other hand, learned Additional Public

Prosecutor opposed the submission and submitted that the delicacy of

relationship amongst the informant as well as the appellant is a

circumstance, which was misused, exploited at the end of the

appellant whereunder, he assured to enter into nuptial knot with her

and further, the effort was being continued at the end of the appellant

in persisting the informant harried with sole moto to steal her virginity

wherein lastly, he succeeded and then thereafter, she had been shown

the door as a result of which, lastly she has no other option, than to

file instant case. It has also been submitted at the end of the learned
Patna High Court CR. APP (SJ) No.379 of 2015 6

Additional Public Prosecutor that intention of the party is to be

gathered from their conduct whether it happens to be is a genuine or it

happens to be dishonest, malicious only to avail the sexual pleasure

exploiting the victim in the background of inter se relationship. Once

the same is perceived from the angle of the victim, the appellant is

found to be the rapist and for that, he would have been convicted and

sentenced for attracting Section 376 of the I.P.C. Although the same

has not been challenged at the end of the prosecution.

10. Before going to scrutinize the evidence, it looks

desirable to peep into the matter. Consent as defined under Jowitt’s

Dictionary in English Law.

“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 Yedla Srinivasa Rao vs. State of A.P. reported in

(2006) 11 SCC 615, the Apex Court has held as follows :-

“But, here in the present case the age of the girl was very

tender between 15-16 years. Therefore, Jayanti Rani
Patna High Court CR. APP (SJ) No.379 of 2015 7

Panda‟s case is fully distinguishable on facts. It is always

matter of evidence whether the consent was obtained

willingly or consent has been obtained by holding a false

promise which the accused never intended to fulfil. If the

court of facts come to the conclusion that the consent has

been obtained under misconception and the accused

persuaded a girl of tender age that he would marry her

then in that case it can always be said that such consent

was not obtained voluntarily but under a misconception of

fact and the accused right from the beginning never

intended to fulfil the promise. Such consent cannot condone

the offence. Reliance can also be made in the case of

Emperor v. Mussammat Soma reported in (1917) Crl. Law

Journal Reports 18 (Vol.18). In that case the question of

consent arose in the context of an allegation of kidnapping

of a minor girl. It was held that the intention of the accused

was to marry the girl to one Dayaram and she obtained

Kujan‟s consent to take away the girl by misrepresenting

her intention. In that context it was held that at the time of

taking away the girl there was a positive misrepresentation

i.e. taking the girls to the temple at Jawala Mukhi and

thereafter they halted for the night in Kutiya (hut) some

three miles distance from Pragpur and met Daya Ram,

Bhag Mal and Musammat Mansa and Musammat Sarasti

was forced into marrying Daya Ram. This act was found to

be act of kidnapping without consent. But, in the instant
Patna High Court CR. APP (SJ) No.379 of 2015 8

case, a girl though aged 16 years was persuaded to sexual

intercourse with the assurance of marriage which the

accused never intended to fulfil and it was totally under

misconception on the part of the victim that the accused is

likely to marry her, therefore, she submitted to the lust of

the accused. Such fraudulent consent cannot be said to be a

consent so as to condone the offence of the accused. Our

attention was also invited to the decision of this Court in

the case of Deelip Singh Alias Dilip Kumar v. State of

Bihar, [2005] 1 SCC 88 wherein this Court took the view

that prosecturix had taken a conscious decision to

participate in the sexual act only on being impressed by the

accused who promised to marry her. But accused‟s promise

was not false from its inception with the intention to seduce

her to sexual act. Therefore, this case is fully distinguished

from the facts as this Court found that the accused promise

was not false from its inception. But in the present case we

found that first accused committed rape on victim against

her will and consent but subsequently, he held out a hope

of marrying her and continued to satisfy his lust. Therefore,

it is apparent in this case that the accused had no intention

to marry and it became further evident when Panchayat

was convened and he admitted that he had committed

sexual intercourse with the victim and also assured her to

marry within 2 days but did not turn up to fulfil his promise

before the Panchayat. This conduct of the accused stands
Patna High Court CR. APP (SJ) No.379 of 2015 9

out to hold him guilty. What is a voluntary consent and

what is not a voluntary consent depends on the facts of

each case. In order to appreciate the testimony, one has to

see the factors like the age of the girl, her education and

her status in the society and likewise the social status of the

boy. If the attending circumstances lead to the conclusion

that it was not only the accused but prosecutrix was also

equally keen, then in that case the offence is condoned. But

in case a poor girl placed in a peculiar circumstance where

her father has died and she does not understand what the

consequences may result for indulging into such acts and

when the accused promised to marry but he never intended

to marry right from the beginning then the consent of the

girl is of no consequence and falls in the second category

as enumerated in Section 375 -“without her consent”. A

consent obtained by misconception while playing a fraud is

not a consent.

In this connection our attention was also invited to the

decision of this Court in the case of Udav v. State of

Karnataka, [2003] 4 SCC 46. In this case also this Court

held that for determining whether consent given by the

prosecutrix was voluntary or under a misconception of fact,

no straitjacket formula can be laid down but following

factors stand out; (i) where a girl was of 19 years of age

and had sufficient intelligence to understand the

significance and moral quality of the act she was
Patna High Court CR. APP (SJ) No.379 of 2015 10

consenting to; (ii) she was conscious of the fact that her

marriage was difficult on account of caste considerations;

(iii) it was difficult to impute to the appellant knowledge

the prosecutrix had consented in consequence of a

misconception of fact arising from his promise, and (iv)

there was no evidence to prove conclusively that the

appellant never intended to marry the prosecutrix. On the

basis of the above factors this Court did not feel persuaded

to hold that consent was obtained by misconception of facts

on the part of the victim. But as already mentioned above,

in the present case we are satisfied that looking to the

antecedent and subsequent events that the accused never

intended to fulfil the promise of marriage, this was not a

case where the accused was deeply in love. In the present

case in our hand the accused persuaded her for couple of

months but she resisted it throughout. But, on one day he

came to the house of her sister and closed the doors and

committed forcible sexual intercourse against her will and

consent, holding out a promise for marriage and continued

to satisfy his lust. Therefore, this case stands entirely on

different footing. We may aid a word of caution that the

court of fact while appreciating evidence in such cases

should closely scrutinize evidence while taking into

consideration the factors like the age of the girl, her

education, her social status and likewise the social status of

the boy.

Patna High Court CR. APP (SJ) No.379 of 2015 11

In the case of Reg. v. William Case, (a) (1850) Crl. Law

Cases 220 (Vol. IV) if a girl does not resist intercourse in

consequence of misapprehension, this will not amount to a

consent on her part. It was held that where a medical man,

to whom a girl of fourteen years of age was sent for

professional advice, had criminal connection with her, she

making no resistance from a bona fide belief that he was

treating her medically, he could be convicted for rape.

Similarly, in the case of The Queen v. Flattery (1877) 2

QBD 410 where the accused professed to give medical

advice for money, and a girl of nineteen consulted him with

respect to illness from which she was suffering, and he

advised that a surgical operation should be performed and,

under pretence of performing it, had carnal intercourse

with her, it was held that he was guilty of rape.

Likewise, in the case of The King v. Williams (1923)1 KB

340 the accused was engaged to give lessons in singing and

voice production to the girl of sixteen years of age had

sexual intercourse with her under the pretence that her

breathing was not quite right and he had to perform an

operation to enable her to produce her voice properly. The

girl submitted to what was done under the belief, wilfully

and fraudulently induced by the accused that she was being

medically and surgically treated by the accused and not

with any intention that he should have sexual intercourse

with her. It was held that the accused was guilty of rape.
Patna High Court CR. APP (SJ) No.379 of 2015 12

In this connection reference may be made to the

amendment made in the Indian Evidence Act. Section 114 A

was introduced and the presumption has been raised as to

the absence of consent in certain prosecutions for rape.

Section 114-A reads as under:

„Section 114 A- Presumption as to the absence of consent

in certain prosecutions for rape.- In a prosecution for rape

under Cl. (a) or Cl.(b) or Cl.(c) or Cl. (d) or Cl. (e) or Cl.

(g) of sub-section (2) of Section 376 of the Indian Penal

Code (45 of 1860), where sexual intercourse by the

accused is proved and the question is whether it was

without the consent of the woman alleged to have been

raped and she states in her evidence before the court that

she did not consent, the Court shall presume that she did

not consent.”

If sexual intercourse has been committed by the accused

and if it is proved that it was without the consent of the

prosecutrix and she states in her evidence before the court

that she did not consent, the court shall presume that she

did not consent. Presumption has been introduced by the

legislature in the Evidence Act looking to atrocities

committed against women and in the instant case as per the

statement of PW, she resisted and she did not give consent

to the accused at the first instance and he committed the

rape on her. The accused gave her assurance that he would

marry her and continued to satisfy his lust till she became
Patna High Court CR. APP (SJ) No.379 of 2015 13

pregnant and it became clear that the accused did not wish

to marry her.”

12. In Kaini Rajan vs. State of Kerala reported in (2013)

9 SCC 113, it has been held:-

“12. Section 375 IPC defines the expression “rape”, which

indicates that the first clause operates, where the woman is in

possession of her senses, and therefore, capable of consenting

but the act is done against her will; and second, where it is

done without her consent; the third, fourth and fifth, when

there is consent, but it is not such a consent as excuses the

offender, because it is obtained by putting her on any person in

whom she is interested in fear of death or of hurt. The

expression “against her will” means that the act must have

been done in spite of the opposition of the woman. An inference

as to consent can be drawn if only based on evidence or

probabilities of the case. “Consent” is also stated to be an act

of reason coupled with deliberation. It denotes an active will in

the mind of a person to permit the doing of an act complained

of. Section 90 IPC refers to the expression “consent”. Section

90, though, does not define “consent”, but describes what is

not consent. “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
Patna High Court CR. APP (SJ) No.379 of 2015 14

consent or not, is to be ascertained only on a careful study of

all relevant circumstances. (See State of H.P. v. Mango Ram

(2000) 7 SCC 224.)

19. Behaviour of the parents of the prosecutrix viz. PW 3

and PW 4 also appears to be strange. In their evidence they

stated that they came to know about the relations between the

appellant and the prosecutrix when they found her pregnant.

The prosecutrix had told them that the appellant had agreed to

marry her. They knew the appellant and his family already.

However, there is not even a whisper that they approached the

appellant or his family members for marrying the prosecutrix.

They straightaway went to the police station to lodge the

report, that too after the birth of the child. All these factors

cast a doubt on the prosecution version. The version of the

victim, in rape commands great respect and acceptability, but,

if there are some circumstances which cast some doubt in the

mind of the court of the veracity of the victim‟s evidence, then,

it is not safe to rely on the uncorroborated version of the victim

of rape.”

13. In Deepak Gulati vs. State of Haryana reported in

A.I.R. 2013 SC 2071, it has been held:-

“15. Section 114-A of the Evidence Act, 1872 (hereinafter

referred to as “the 1872 Act”) provides, that if the prosecutrix

deposes that she did not give her consent, then the court shall

presume that she did not in fact, give such consent. The facts of the

instant case do not warrant that the provisions of Section 114-A of
Patna High Court CR. APP (SJ) No.379 of 2015 15

the 1872 Act be pressed into service. Hence, the sole question

involved herein is whether her consent had been obtained on the

false promise of marriage. Thus, the provisions of Sections 417,

375 and 376 IPC have to be taken into consideration, along with

the provisions of Section 90 IPC. Section 90 IPC provides that any

consent given under a misconception of fact, would not be

considered as valid consent, so far as the provisions of Section 375

IPC are concerned, and thus, such a physical relationship would

tantamount to committing rape.

16. This Court considered the issue involved herein at length in

Uday v. State of Karnataka, AIR 2003 SC 1639, Deelip Singh v.

State of Bihar AIR 2005 SC 203, Yedla Srinivasa Rao v. State of

A.P. (2006) 11 SCC 615 and Pradeep Kumar Verma v. State of

Bihar and another, AIR 2007 SC 3059 and came to the conclusion

that in the event that the accused‟s promise is not false and has not

been made with the sole intention to seduce the prosecutrix to

indulge in sexual acts, such an act(s) would not amount to rape.

Thus, the same would only hold that where the prosecutrix, under

a misconception of fact to the extent that the accused is likely to

marry her, submits to the lust of the accused, such a fraudulent act

cannot be said to be consensual, so far as the offence of the

accused is concerned.

17. Rape is the most morally and physically reprehensible

crime in a society, as it is an assault on the body, mind and privacy

of the victim. While a murderer destroys the physical frame of the

victim, a rapist degrades and defiles the soul of a helpless female.
Patna High Court CR. APP (SJ) No.379 of 2015 16

Rape reduces a woman to an animal, as it shakes the very core of

her life. By no means can a rape victim be called an accomplice.

Rape leaves a permanent scar on the life of the victim, and

therefore a rape victim is placed on a higher pedestal than an

injured witness. Rape is a crime against the entire society and

violates the human rights of the victim. Being the most hated

crime, rape tantamounts to a serious blow to the supreme honour

of a woman, and offends both, her esteem and dignity. It causes

psychological and physical harm to the victim, leaving upon her

indelible marks.

18. Consent may be express or implied, coerced or misguided,

obtained willingly or through deceit. Consent is an act of reason,

accompanied by deliberation, the mind weighing, as in a balance,

the good and evil on each side. There is a clear distinction between

rape and consensual sex and in a case like this, the court must very

carefully examine whether the accused had actually wanted to

marry the victim, or had mala fide motives, and had made a false

promise to this effect only to satisfy his lust, as the latter falls

within the ambit of cheating or deception. There is a distinction

between the mere breach of a promise, and not fulfilling a false

promise. Thus, the court must examine whether there was made, at

an early stage a false promise of marriage by the accused; and

whether the consent involved was given after wholly understanding

the nature and consequences of sexual indulgence. There may be a

case where the prosecutrix agrees to have sexual intercourse on

account of her love and passion for the accused, and not solely on
Patna High Court CR. APP (SJ) No.379 of 2015 17

account of misrepresentation made to her by the accused, or where

an accused on account of circumstances which he could not have

foreseen, or which were beyond his control, was unable to marry

her, despite having every intention to do so. Such cases must be

treated differently. An accused can be convicted for rape only if

the court reaches a conclusion that the intention of the accused

was mala fide, and that he had clandestine motives.

19. In Deelip Singh AIR 2005 SC 203, it has been observed as

under: (SCC p. 99, para 19)

“20. The factors set out in the first part of Section 90 are

from the point of view of the victim. The second part of Section

90 enacts the corresponding provision from the point of view of

the accused. It envisages that the accused too 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 had given it under fear

of injury 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.”

Patna High Court CR. APP (SJ) No.379 of 2015 18

20. This Court, while deciding Pradeep Kumar Verma, AIR

2007 SC 3059, placed reliance upon the judgment of the Madras

High Court in N. Jaladu, Re ILR (1913) 36 Mad 453,, wherein it

has been observed: (Pradeep Kumar case AIR 2007 SC 3059, SCC

pp. 418-19, para 11)

“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)

[states] 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. … „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.”

21. Hence, it is evident that there must be adequate evidence to

show that at the relevant time i.e. at the initial stage itself, the

accused had no intention whatsoever, of keeping his promise to

marry the victim. There may, of course, be circumstances, when a
Patna High Court CR. APP (SJ) No.379 of 2015 19

person having the best of intentions is unable to marry the victim

owing to various unavoidable circumstances. The “failure to keep

a promise made with respect to a future uncertain date, due to

reasons that are not very clear from the evidence available, does

not always amount to misconception of fact. In order to come

within the meaning of the term “misconception of fact”, the fact

must have an immediate relevance”. Section 90 IPC cannot be

called into aid in such a situation, to pardon the act of a girl in

entirety, and fasten criminal liability on the other, unless the court

is assured of the fact that from the very beginning, the accused had

never really intended to marry her.”

14. In Uday vs. State of Karnataka reported in A.I.R.

2003 SC 1639, it has been held:-

“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,
Patna High Court CR. APP (SJ) No.379 of 2015 20

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.

22. The approach to the subject of consent as indicated by the

Punjab High Court in Rao Harnarain Singh and by the Kerala

High Court in Vijayan Pillai has found approval by this Court in

State of H.P. v. Mango Ram. Balakrishnan, J. speaking for the

Court observed: (SCC pp. 230-31, para 13)

“The evidence as a whole indicates that there was

resistance by the prosecutrix and there was no voluntary

participation by her for the sexual act. 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.”

15. In Karthi alias Karthick v. State Rep. by Inspector of

Police, Tamil Nadu reported in A.I.R. 2013 SC 2645, it has been
Patna High Court CR. APP (SJ) No.379 of 2015 21

held:-

“15. The second contention advanced at the hands of the

learned counsel for the appellant was, that the appellant-

accused Karthick had not given any promise to the prosecutrix

Poomari (PW 1), that he would marry her. From all the

reasons referred to by us, while dealing with the first

contention advanced by the learned counsel for the appellant,

it is not possible for us to accept the instant contention as well.

However, in addition to the factual position referred to while

dealing with the first contention, there is something further that

needs to be recorded. It is necessary to notice that in the first

instance when the prosecutrix Poomari (PW 1) disclosed the

matter of deception and sexual intercourse to her family the

matter was taken to the village elders. Four village elders have

appeared before the trial court and recorded their statements.

Each one of them affirmed, that they had required the

appellant-accused Karthick to agree to marry the prosecutrix

Poomari (PW 1) on account of his physical relationship with

her. Only on denial to accede to their request, on their

suggestion, the matter was reported to the police. The instant

aspect of the matter fully demolishes the projection made by

the appellant-accused Karthick, while recording of his

statement under Section 313 of the Code of Criminal

Procedure. During his aforesaid statement, he had expressly

alleged, that it was for the purpose of forcing the appellant-
Patna High Court CR. APP (SJ) No.379 of 2015 22

accused to shell out an exorbitant sum of money to the

prosecutrix Poomari (PW 1) and her family members, that the

instant accusation had been levelled against him. Actually from

the statements of Veerachamy (PW 5), Ramasamy (PW 6),

Ayyavoo (PW 7) and Nagesh (PW 8), it clearly emerges that

the intention of the prosecutrix Poomari (PW 1) and her

brother Manikannan (PW 2), as also her father, Muthukaruppa

Thevar (PW 4) was, that he should marry her. The desire of the

family, that the appellant-accused should marry the

prosecutrix was based on the undisputed factual position, that

Karthick had had sexual intercourse with Poomari repeatedly.

No such suggestion was shown to have been made to the

prosecution witnesses concerned. This was only an

afterthought. It is, therefore, not possible for us to accept the

plea canvassed at the hands of the learned counsel for the

appellant, that the appellant-accused had not made any

promise to the prosecutrix Poomari (PW 1), that he would

marry her.

16. The last contention advanced at the hands of the

learned counsel for the appellant was that the first occurrence

of sexual intercourse commenced six months prior to the date

when the complaint was made to the police (on 10-10-2003). It

was, therefore, the contention of the learned counsel for the

appellant, that same should be treated as an afterthought. It

was pointed out, that the registration of a case by the

prosecutrix Poomari (PW 1) was no more than a scheme to
Patna High Court CR. APP (SJ) No.379 of 2015 23

falsely accuse and harm the appellant-accused. It was

submitted, that even a day‟s delay in registering a complaint

has vital repercussions. It was also pointed out, that delay in

the instant case, had obviated any positive finding on the basis

of a medical examination of the prosecutrix Poomari (PW 1). It

is, therefore, the vehement contention of the learned counsel

for the appellant, that delay in registering the complaint with

the police in the facts and circumstances of this case, should be

accepted as sufficient to infuse a sense of doubt in the

prosecution story.

17. Having examined the contention advanced at the hands

of the learned counsel for the appellant, we are of the view that

there has been no delay whatsoever at the hands of the

prosecutrix Poomari (PW 1). As long as commitment of

marriage subsisted, the relationship between the parties could

not be described as constituting the offence of rape under

Section 376 of the Penal Code. It is only after the appellant-

accused Karthick declined to marry the prosecutrix Poomari

(PW 1), that a different dimension came to be attached to the

physical relationship, which had legitimately continued over

the past six months. Things changed when the appellant-

accused declined to marry the prosecutrix. After the promised

alliance was declined, the prosecutrix without any delay

disclosed the entire episode to her immediate family. Without

any further delay, the brother and father of Poomari (PW 1)

approached the village elders. The village elders immediately
Patna High Court CR. APP (SJ) No.379 of 2015 24

summoned the appellant-accused Karthick by holding a

panchayat. The village elders made all efforts to settled the

issue amicably. The family, as is usual in such matters, wished

to settle the matter amicably by persuading the appellant-

accused to view the matter realistically. It is only on the refusal

of the appellant-accused Karthick, to marry the prosecutrix

Poomari (PW 1), that the question of making a criminal

complaint arose. After the meetings of the panchayat, wherein

the appellant-accused declined to marry the prosecutrix

Poomari (PW 1), without any further delay, the prosecutrix

Poomari (PW 1) reported the matter to the police on 10 -10-

2003. In the above view of the matter, in the peculiar facts of

this case, it is not possible for us to hold, that any doubt can be

said to have been created in the version of the prosecution,

merely on account of delay in the registration of the first

information report.”

16. Section 415 of the I.P.C. defines cheating as

follows:-

“415. Cheating.–Whoever, by deceiving any person, fraudulently

or dishonestly induces the person so deceived to deliver any

property to any person, or to consent that any person shall retain

any property, or intentionally induces the person so deceived to do

or omit to do anything which he would not do or omit if he were

not so deceived, and which act or omission causes or is likely to

cause damage or harm to that person in body, mind, reputation or
Patna High Court CR. APP (SJ) No.379 of 2015 25

property, is said to “cheat”. Explanation.–A dishonest

concealment of facts is a deception within the meaning of this

section. Illustrations

(a) A, by falsely pretending to be in the Civil Service, intentionally

deceives Z, and thus dishonestly induces Z to let him have on credit

goods for which he does not mean to pay. A cheats.

(b) A, by putting a counterfeit mark on an article, intentionally

deceives Z into a belief that this article was made by a certain

celebrated manufacturer, and thus dishonestly induces Z to buy

and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, intentionally

deceives Z into believing that the article corresponds with the

sample, and thereby, dishonestly induces Z to buy and pay for the

article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with

which A keeps no money, and by which A expects that the bill will

be dishonored, intentionally deceives Z, and thereby dishonestly

induces Z to deliver the article, intending not to pay for it. A

cheats.

(e) A, by pledging as diamonds article which he knows are not

diamonds, intentionally deceives Z, and thereby dishonestly

induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay

any money that Z may lend to him and thereby dishonestly induces

Z to lend him money. A not intending to repay it. A cheats.

(g) A intentionally deceives Z into a belief that A means to deliver
Patna High Court CR. APP (SJ) No.379 of 2015 26

to Z a certain quantity of indigo plant which he does not intend to

deliver, and thereby dishonestly induces Z to advance money upon

the faith of such delivery. A cheats; but if A, at the time of

obtaining the money, intends to deliver the indigo plant, and

afterwards breaks his contract and does not deliver it, he does not

cheat, but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed

A‟s part of a contract made with Z, which he has not performed,

and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in conse-

quence of such sale he has no right to the property, sells or

mortgages the same to Z, without disclosing the fact of the

previous sale and conveyance to B, and receives the purchase or

mortgage money from Z. A cheats.”

17. As explained in Ram Jas vs. State of A.P. reported

in (1970) 2 SCC 740, the following ingredients have to be satisfied in

order to attract conviction under Section 417 I.P.C.

A) There should be fraudulent or dishonest inducement of a person

by deceiving him.

B) (I) The person so deceived should be induced to deliver any

property to any person, or to consent that any person shall retain

any property.

(II) The person so deceived should be intentionally induced to

do or omit to do anything which he would not do or omit if he
Patna High Court CR. APP (SJ) No.379 of 2015 27

were not so deceived, and

C) In cases covered by (B) (II), the act or omission should be one

which causes or is likely to cause damage or harm to the person

induced in body, mind, reputation or property.

18. Now, the evidences is to be seen in the

background of the aforesaid principle in order to search out whether

the finding recorded by the learned lower Court happens to be in

accordance with law or not?

19. PW-5 is the victim. She had deposed that accused

Rajesh Kumar is the dewar of her sister Kiran Devi, who is married

with Anil Singh of village-Gorayan, Chakmehsi about 10 years ago.

After marriage of her sister, Rajesh Kumar used to visit her place and

during course thereof, they indulged into interaction, whereunder he,

after promise to marry, done sin with her. On her insistence to marry,

he instructed to send her father for negotiation. Accordingly, she

disclosed to her father, who had gone to place of Rajesh Kumar on

25.02.2008, where they have abused her father as well as chased him

away. Her father convened Panchayati which did not materialize as

Ram Lalit Mahto, father of Rajesh Kumar had not gone there. Then

thereafter, they have gone to police station for registering case which,

the police declined, whereupon complaint petition was filed before the

Court. During cross-examination at Para-2, she had shown topography
Patna High Court CR. APP (SJ) No.379 of 2015 28

of her house having six rooms. It has also been disclosed by her that

some of the guests according to their status are allowed to stay at the

inner portion of the house. In Para-3, she had stated that Rajesh

Kumar happens to be cousin brother of her brother-in-law Anil Singh.

Anil Singh is alone, and his cousin brothers are members of joint

family. For the first time, when Rajesh Kumar met with her, she was

aged about 15-16 years. Rajesh was of her age. On Court question,

she replied that when Rajesh Kumar offered to marry, she accepted. In

Para-4, she had stated that whenever Rajesh Kumar used to visit her

place, she looked after his affair. All the arrangements were being

taken by her. She did not sleep along with him, but one day while

none of her family members were present and was a rainy day, Rajesh

committed rape on her. She was not inclined, whereupon he forcibly

committed the same. In Para-5, she had stated that aforesaid

occurrence took place 2-3 years ago. Rajesh visited her place so many

times even thereafter to the date of institution of the case. When

Rajesh committed sexual intercourse with her, she disclosed that she

will acknowledge the event to her family members, whereupon Rajesh

Kumar had said that he solemnly affirms that he will marry with her,

whereupon she put belief and under the garb of aforesaid event,

whenever Rajesh came, he continued with the aforesaid activity.

Rajesh indulged in sexual activity at so many times. During aforesaid
Patna High Court CR. APP (SJ) No.379 of 2015 29

period, her parents were present. He indulged after sleeping of her

parents. Rajesh used to visit her room. As there was no latch affixed

in the door so, there was no obstruction. In 2008, for the first time, she

had disclosed to her sister. For the first time, the accused had sexually

exploited her in the Year 2006. When she came to know about fixing

of marriage of Rajesh at somewhere else then she had disclosed to her

sister. She had also disclosed regarding rape having been committed

by Rajesh Kumar. In Para-7, she had stated that as at the time of first

incident, accused had pressed her mouth on account thereof, she had

not raised alarm. Subsequently thereof, also she had not raised alarm.

On Court question at Para-8, she had kept mum, when she was

confronted with the question that what kind of protest, she had made

over the first incident. Then there happens to be disclosure with

regard to first incident. Again she was recalled and during course

thereof, again she has been cross-examined on that very score,

wherein she also reiterated the same version as is evident from Paras-

14, 15, 16. She had also shown presence of Kiran Devi and further,

having fully acknowledged with the affair.

20. PW-6 is Ram Sunder Mahto, father of PW-5, who

had deposed that Kiran Devi is his 5th daughter, who has been married

with Anil Singh about 10 years ago. Rajesh happens to be cousin

brother of his son-in-law, who used to visit his place. His daughter
Patna High Court CR. APP (SJ) No.379 of 2015 30

Bharti Kumari became very much affectionate with him. Then had

said that in the Year 2006, he had gone to his sasural along with his

wife. Bharti Kumari was alone at that very time. Rajesh came to his

place and committed rape over Bharti Kumari. When Bharti made

protest, he gagged her mouth. When his daughter said to Rajesh, she

is going to disclose the event to her parents, whereupon Rajesh

offered to marry her. He knew the fact through his wife in the month

of February, 2008, whereupon, he inquired from his daughter. Then

had stated that as Rajesh had instructed his daughter to send him for

finalization of negotiation, whereupon he had gone on 25th. He met

with father of Rajesh and disclosed the event and further, said that as

his son has developed relationship with his daughter and wants to

marry, so let marriage be finalized, whereupon Ram Lalit Mahto

demanded Rs.1,50,000/- in cash, colour television, one motorcycle as

dowry for which, he was not prepared. Then thereafter, Panchayati

was convened. They have not participated as a result of which, instant

case has been filed. During cross-examination at Para-8, he had stated

that accused was adolescent at an earlier occasion. He was on visiting

term for the last five years as he was close relative, on account

thereof, was allowed to sleep inside the room. In Para-10, he had

stated that he came to know regarding the event from his wife and

then from his daughter. Then there happens to be suggestion “It is not
Patna High Court CR. APP (SJ) No.379 of 2015 31

a fact that he permitted accused inside his house on the pretext that he

will marry with his daughter.” He further denied the suggestion that

he had taken the step for getting the marriage of his daughter with

Rajesh. In Para-11, he had stated that when accused did not become

ready to marry, then this case has been registered. If accused has

committed sin, so this case has been lodged. In Para-13, he had stated

that he had made statement before the police that after deceiving his

daughter, accused had developed physical relationship with her. Then

had denied the suggestion that he had not made statement before the

police that accused after pressing her mouth had committed rape. On

recall, he had stated that when he had gone to the place of Rajesh for

negotiation, at that very time, only Rajesh and his father were present.

At that very time, Kiran Devi, another daughter and son-in-law were

not present. Subsequently, he had informed Kiran Devi with regard

thereto. In Para-17, he had stated that he along with Pradeep, Tej

Narayan had gone to the place of Rajesh. Ram Lal Mahto had said in

presence of Rajesh that dowry has to be paid then and then only,

marriage will be solemnized. Then had denied the suggestion that it is

not the fact that at that very time, Rajesh was not present. As they

have declined to marry without dowry on account thereof, Panchayti

was convened. In Para-22, he had stated that Rajesh had deceived his

daughter. His daughter has not yet married. He denied the suggestion
Patna High Court CR. APP (SJ) No.379 of 2015 32

that it is not the fact that Rajesh has not deceived his daughter. On

Court question, he had stated that Rajesh stealthily got married.

21. PW-7 is Tej Narain @ Tejendra Mahto, who had

stated that Rajesh is the Dewar of daughter of Ram Sunder, who used

to visit at the place of Ram Sunder. He had further stated that his

uncle had disclosed that on the pretext of marriage, Rajesh had

developed physical relationship with his daughter. He had also

disclosed that when he had gone to negotiate, Rajesh and his father

had declined. During cross-examination, he had stated that he has got

no personal information.

22. PW-8 is the mother of the victim, who had

deposed that her 5th daughter has been married with Anil Singh about

15 years ago. Rajesh happens to be cousin brother of her son-in-law

and on that pretext, he used to visit her place and during course

thereof, developed physical relationship with another daughter Bharti

Kumari on the pretext of marriage. About 4 years ago, her daughter

had disclosed the same, whereupon she informed her husband. Her

daughter disclosed to her father, whereupon her husband had gone to

the place of Rajesh for negotiation, Ram Lalit Singh directed him to

pay Rs.1,50,000/- cash, one colour televsion, one motorcycle as

dowry. As her husband was not inclined, therefore, they declined. In

Para-4 of her cross-examination, she had stated that sometimes, both
Patna High Court CR. APP (SJ) No.379 of 2015 33

the brothers, sometimes alone her son-in-law, sometimes Rajesh used

to visit her place. In Para-5, she had disclosed that her daughter

disclosed six months prior to the institution of case. In Para-7, there

happens to be contradiction. On recall, at Para-9, she had stated that

earlier Rajesh frequently visited her place, but for the last 4-5 years,

he is not coming as he had married at somewhere else. In Para-10, she

had stated that when her daughter had disclosed then she came to

know. In Para-12, she had stated that her husband had gone to the

place of Rajesh for negotiation. In Para-14, she had stated that father

of Rajesh had demanded Rs.1,50,000/- in cash, one colour television,

one motorcycle. At that very time, Rajesh was there, who had not

protested. In Para-15, she had further stated that her husband did not

visit the place subsequently. In Para-20, she had further stated with

regard to subsequent activity of her daughter, who has now become

completely depressed.

23. PW-1, PW-2 and PW-3 have not supported the

case of the prosecution being co-villagers of appellant while PW-4

Pradeep Rai had deposed that he along with Ram Sunder had gone to

the place of Ram Lalit where Ram Sunder had disclosed that Rajesh

has developed physical intimacy with his daughter on an assurance of

marriage, so marriage be finalized over which Ram Lalit declined.

Thereafter, he returned back. On the following day, there was
Patna High Court CR. APP (SJ) No.379 of 2015 34

Panchayati, which did not materialize. During cross-examination, he

had stated that whatever been deposed by him with regard to

relationship, is based upon hearsay. On recall at Para-3, he had stated

that he talked with Bharti Kumari after institution of the case. He had

also talked with Ram Sunder, who had disclosed the event. In Para-4,

he had stated that demand having been made by Ram Lalit, father was

not resisted by Rajesh.

24. From the evidence available on the record, it is

apparent that there happens to be no denial at the end of appellant,

Rajesh Kumar regarding his status being cousin brother of brother-in-

law of informant of the victim (PW-5 Bharti Kumari). There happens

to be also no denial at his end that he was not on visiting term. There

happens to be no denial at his end that he had not developed physical

relationship with PW-5. From evidence, it is apparent that they

developed affection towards each other right from the stage of

adolescence, which continued and further, the suggestion having

given at the end of appellant to the victim under Para-13, it is evident

that he had accepted the whole event, but over the consent, it has been

suggested as “It is not a fact that she was in love with Rajesh. It is not

a fact that all the incident had occurred after having her consent.” It is

further evident that during course of cross-examination of PW-5, she

was not at all cross-examined nor suggested that no promise of
Patna High Court CR. APP (SJ) No.379 of 2015 35

marriage was made by the appellant, nor under garb of such promise,

he indulged in physical relationship. During whole cross-examination

of PW-5, it is evident that she was not specifically suggested that at

the first instance when the occurrence took place, she was minor or

major though subsequently her status happens to be that of major.

Furthermore, there also happens to be consistency in her evidence

over her indulgence on the pretext of assurance having at the end of

appellant that he will marry with her. Furthermore, victim a rustic,

illiterate, simple on fallen pray at the hand of appellant. That being so,

it happens to be a clear case of fraudulent, dvishonest inducement,

which could have attracted offence of rape, but as the same has not

been challenged, even though, the finding recorded by the learned

lower Court is found in accordance with law. That being so, instant

appeal sans merit and is accordingly, dismissed. Appellant is on bail,

hence bail bond is hereby cancelled directing him to surrender before

the learned lower Court to serve out the remaining part of sentence.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE 10.11.2017
Uploading Date 11.12.2017
Transmission 11.12.2017
Date