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Om Prakash Mishra vs The State Of Bihar on 29 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.2509 of 2017
Arising Out of PS.Case No. -450 Year- 2005 Thana –
KHAZANIHAT District- PURNIA

Om Prakash Mishra son of Sri Saroj Kumar Mishra, @ Saroj Kumar
Mishra, Resident of Village- Court Station, P.S. K.Hat, District-
Purnea.

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

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
: Mr. Arun Kumar Pandey, Advocate
: Mr. Swati Sinha, Advocate
For the Informant : Mr. Vikramdeo Singh, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
CAV JUDGMENT
Date: 29-03-2018

The appellant/Om Prakash Mishra has been convicted

under Section 376 I.P.C by judgment dated 12.06.2017 passed

in Sessions Trial No. 1542 of 2010, arising out of K. Hat P.S.

Case No. 450 of 2005 dated 30.12.2005 by the learned 2nd

Additional District Sessions Judge, Purnea and by order dated

17.06.2017, he has been sentenced to undergo rigorous

imprisonment for seven years, to pay a fine of Rs. 25,000/- and

in default of payment of fine, to further suffer simple

imprisonment for one year. The amount of fine realized from the

appellant has been directed to be paid to the victim.

2. The appellant was made accused in this case on the
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basis of the F.I.R lodged by the victim (P.W. 3) which was

lodged on 30.12.2005. In the F.I.R, she has alleged that she was

being subjected to rape by the informant for about four years on

the false assurance of marriage. It was further stated by her that

about 2-3 days prior to lodging of the F.I.R, the appellant had

married another girl, despite the family members of the

appellant as well as of the girl knowing fully well that the

prosecutrix was having relationship with the appellant. She has

stated that in the four years of relationship with the appellant,

she became pregnant twice but was forcibly made to abort. She

has stated that she is desirous of getting into matrimonial

relationship with the appellant and in case he refuses to do so,

the family members of the appellant and the girl with whom he

has married, would be held responsible for the consequences.

On the basis of the aforesaid written report lodged by P.W. 3, K.

Hat P.S. Case No. 450 of 2005 dated 30.12.2005 was instituted

for investigation for the offence under Section 376 I.P.C.

3. The police, after investigation submitted charge-

sheet under Section 376 I.P.C. However, charges were framed

against the appellant under Sections 376 and 417 of the I.P.C.

4. The Trial Court, after examining six witnesses on

behalf of the prosecution and three on behalf of the defence,

acquitted the appellant under Section 417 I.P.C but convicted

him under Section 376 I.P.C. and sentenced him as aforesaid.
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5. At the trial, Amit Kumar and Banwari Mehta who

have been examined as P.Ws. 1 and 2 have not supported the

prosecution version and have been declared hostile.

6. The Investigating Officer of this case has also not

been examined because of his death.

7. One Pramila Ramani, who is maternal grand-mother

of Puja, with whom the appellant is said to have married, has

been examined as P.W. 5. She has only deposed that the father

of the victim worked as her Clerk and after the death of the

mother of the victim, she had been residing in her house and the

appellant as well as his sister always came to her house to meet

her. The prosecutrix, on being asked by her about the

relationship with the appellant, told her that she is going to

marry him. However, she has specifically deposed before the

Trial Court that during the period that the victim had been

residing in her house, she had never complained against the

appellant.

8. Dr. Tripti Sinha, Medical Officer (P.W. 4) who has

examined the victim on 30.12.2005 has deposed that the victim

had given her history of being in relationship with somebody for

the last five years and had sexual intercourse with him. The last

sexual encounter, as narrated by the victim, had taken place

about 10-12 days prior to lodging of the F.I.R. The victim had

also told her that the person with whom she was in sexual
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relationship, married another girl on 27.12.2005 whereafter she

had filed a police case on 30.12.2005. The last menstrual period

of the victim was stated to be on 11th December, 2005. The age

of the victim was assessed to be between 17-18 years by P.W. 4

but no sign of any sexual intercourse was found by her.

9. What is evident from the deposition of the witnesses

aforesaid and particularly P.W. 4 is that no sign of earlier

pregnancy and abortion or any recent sexual intercourse was

found. The victim (P.W. 3) had stated before the doctor also that

the police case was lodged by her only after the appellant had

married another lady and that she was in relationship with the

appellant. What also becomes evident from the deposition of

P.W. 5 is that no complaint ever was made by the

victim/prosecutrix during the period of relationship.

10. Thus, the only/solitary evidence with respect to

rape for four years is through the mouth of the

victim/prosecutrix (P.W. 3) herself. It would only be apposite in

the aforesaid circumstances to examine and scrutinize, with all

circumspection, the deposition of P.W. 3 to ascertain whether

she was subjected to rape for the last four years against her will,

in the first instance and thereafter, with her consent but the

consent having been given only on the basis of the

misconception that the appellant would marry her later, which

he did not.

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11. P.W. 3 has deposed that the occurrence is of the

period between 2001 to 2005. On 25.01.2001, P.W. 3/victim had

gone to the house of her friend/Mamta Kumari, who is the sister

of the appellant. When she called out Mamta Kumari from the

gate of her residence, the appellant came out and told her that

Mamta Kumari was in the bathroom. He asked her to sit in the

room. After about five minutes, the appellant came again and

closed the door from inside. When P.W. 3 wanted to know the

reason for closing the door, she was gagged, thrown on the

ground and raped. She started crying, on which the appellant

told her that it would only bring bad name to her and promised

to marry her later. Hearing this, P.W. 3 kept quiet. After about

some time, she came out of the room to go to her house when

she met her friend/Mamta Kumari (sister of the appellant) and

the mother of the appellant, who were coming from outside.

Seeing them, P.W. 3 started crying. She was asked by Mamta

Kumari and her mother the reason for her being upset. She

narrated about the occurrence to them. Hearing the aforesaid

story, the mother of the appellant expressed that if the appellant

had done this to her, he would be forced to marry her. At that

time, the appellant also expressed his willingness to marry P.W.

3. The mother of the appellant made her understand that she

would also co-operate in getting her married to the appellant but

only after the marriage of her daughter/Mamta Kumari, who had
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become of marriageable age. She was also asked by the mother

of the appellant not to disclose about the occurrence to anybody

as it would bring bad name to her reputation as also to the

reputation of the family of the appellant. Thereafter, the

appellant, at an interval of about 15-20 days, always visited her

house and maintained physical relationship with her.

12. After about 6-7 months of this relationship having

been established, she met with an accident in which one of her

legs was fractured. She was in the hospital for about 6-7 months

and during that period the appellant took good care of her but

continued to have sexual relationship with her even during that

period. This made her believe that he would marry her. She

became pregnant after some time but was forcibly made to eat

medicines for abortion. The relationship but continued. The

appellant kept on visiting her in the night and started

blackmailing her as well. She became pregnant again but on the

second occasion also, she was convinced by the appellant for

abortion. She was taken to a temple where the appellant swore

that he would marry her. She has identified her photograph with

the appellant in a temple. The name of the medicines which she

consumed for abortion and the letters written by the appellant to

her which proved that she was subjected to rape on a

misconception of fact were also identified by her.

13. In her cross examination, P.W. 3 has admitted that
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these facts were not stated by her in the F.I.R. She has further

stated that till about 2005, her father was alive. She had two

other sisters but no brother. Prior to the occurrence, her mother

had died. In the house where P.W. 3 was first raped, the

appellant lived with his three sisters, three brothers and parents.

She had visited the house of the appellant to give new year

greetings to her friend/Mamta Kumari/sister of the appellant. At

the time when she was raped in the first instance, she was not

asked by the appellant to disrobe and was straightway subjected

to sexual intercourse. She could not raise alarm because she had

been gagged by the appellant.

14. During her cross examination, she was asked

whether she knew Dost Mohammad. She answered in the

negative but admitted that she knew one Chhotu, who was a

friend of her brother-in-law. A photograph of her with Chhotu

was shown to her to which she replied before the Court that the

photograph was not taken along with her and that it was a

framed/procured photograph. She has also admitted in her

cross-examination that she used to sleep in the night in the

house of Pramila Ramani (P.W. 5) along with her sister. There

were three rooms in the house of Pramila Ramani (P.W. 5) and

she along with her sister occupied one room.

15. From the deposition of P.W. 3, the following facts

emerge indisputably:

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16. Prior to her first meeting with the appellant, she did

not have any relationship with him. On the first day that she met

the appellant, she was raped in the house of the appellant but

she did not raise any alarm. The reason assigned for not raising

the alarm at the time of occurrence was that she was gagged by

the appellant. She did not try to come out of the room after the

act was over but stayed for some time in the house. She came

out of the house sometimes later, only to meet the mother and

sister of the appellant who were coming back home. She made

them know about the occurrence. On the assurance of the

appellant as well as his mother that the appellant would marry

her later, she agreed not to report about the occurrence to

anybody, much less her sister with whom she resided in the

house of P.W. 5. She permitted the appellant to establish

physical relationship with her at the interval of 15-20 days and

even during the period that she was treated for fracture of one

of her legs. The appellant had taken good care of her during the

period of treatment. Twice, she became pregnant but on the

asking/insistence of the appellant, she agreed for abortion and

finally, she filed a case only after 2-3 days of the appellant

having married another woman.

17. These admitted set of facts create a doubt whether

at all, the first act of rape as alleged by the victim is correct.

This is because there is no reference of any earlier relationship
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between the victim and the appellant. In that event, if the victim

was subjected to forceful rape, it is difficult to believe that after

the rape, a mere promise of marrying her later would satisfy her

and no complaint would be made by her at any quarter. If she

was subjected to rape without her will, she, as a part of natural

conduct of any person, would have tried to come out of the

room. It cannot be doubted that rape is one of the most

reprehensible crimes in the society, because it casts an impact

not only on the body of the victim but also on her mind. She is

rendered degraded and defiled, leaving a permanent scar on her

mind and body. She does not remain a mere injured witness or

an accomplice. The mindset of a person subjected to rape is

absolutely different. Before P.W. 3 was promised and assured of

help by the mother of the appellant, it was only a promise of the

appellant that he would marry her which made her keep quite.

She stayed back in the house for some time and thereafter came

out to go to her home. This causes a serious doubt about the

correctness of the version given by P.W. 3 about her first being

raped against her will and without her consent by the appellant.

18. What further flummoxes this Court is that the

appellant was permitted to establish sexual relationship with her

after the first encounter, at a interval of 15-20 days continuously

for about four years and also during the period when she was

under treatment in hospital. This also clearly gives an impression
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that there was no protest on the part of P.W. 3 or any attempt

on her part to prevent the appellant from being physically

intimate. This obviously is possible if the relationship is

consented.

19. What is to be seen in the present context is

whether the consent was on the misconception of the fact that

the appellant would later marry her. “Consent” is an act of

reason, accompanied by deliberation. The mind of the person

giving consent for sexual act weighs, as if, on a balance: the

good and evil on each side. A distinction therefore has clearly

been made between rape and consensual sex.

20. However, it need be examined with extreme

caution and circumspection whether in this case the consent was

given on a misconception of fact. In this context, it would be

only desirable to refer to Section 90 of the Indian Penal Code

which defines as to what would not be a consent. Section 90

reads as follows:-

“90. Consent known to be given under fear or

misconception.-A consent is not such a consent

as is intended by any section of this Code, if the

consent is given by a person under fear of injury,

or under a misconception of fact, and if the person

doing the act knows, or has reason to believe, that

the consent was given in consequence of such fear

or misconception; or
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Consent of insane person.-if the consent is given

by a person who, from unsoundness of mind, or

intoxication, is unable to understand the nature

and consequence of that to which he gives his

consent; or

Consent of child.-unless the contrary appears

from the context, if the consent is given by a

person who is under twelve years of age.”

21. On a plain reading of this Section, it becomes very

clear that though consent has not been defined but what is not a

consent has been explained. The victim as well as perpetrator of

the crime, both, are required to know that the consent was given

in consequence of any misconception.

22. There is a distinction between making a false

promise for marriage which could come under the category of

misconception in the mind of the victim and a breach of promise

or non-fulfillment of the promise. If the promise made by the

perpetrator of the crime is false from the beginning, any consent

by the victim would be of no consequence. If the promise to

marry is not fulfilled for reasons other than the deliberate act of

the offender in not keeping up the promise after satisfying his

bodily lust, it would not fall within the definition of rape as

defined under Section 375 of the I.P.C. But the converse would

not be true. If a false promise is made for obtaining the consent,

it is rape simpliciter.

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23. Section 375 of the I.P.C. defines rape. A man is

said to commit rape if he subjects the victim to different acts as

defined in the Section, against her will or without her consent or

with her consent when the same has been obtained by putting

her or any person in whom she is interested in fear of death or

of hurt or with her consent when the offender knows that he is

not her husband and the consent is given because the victim

believes that the offender is lawfully married to her, or with her

consent when she is not capable of giving such consent because

of unsoundness of mind or intoxication or when she is under 18

years of age and unable to communicate consent.

24. The provision spells out conditions under which the

consent would not exclude the offence of rape. What is to be

noted is that if an act is committed against the will of a person,

it pre-supposes that it did not have the consent of the victim.

However, a separate category has been carved out where

“against the will” and “without her consent” have been

enumerated separately. This is only, to my mind, for being very

specific and comprehensive.

25. In the present case, the factual aspects have

already been enumerated. What is to be seen is whether it was a

case of abject submission of victim (P.W. 3) in face of an

allurement made by the appellant that he would marry her later.

Whether such an allurement was only for the purposes of
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beguiling the victim or was it a genuine promise of marriage by

convincing the victim to take a conscious decision for permitting

sexual act. Whether this tacit consent by the victim was a result

of misconception created in her mind about the intentions of the

appellant to marry her. These are questions which can only be

answered on the basis of an analysis of the deposition of the

victim and other materials brought before the Trial Court.

26. The main question to be seen is whether the

promise made by the appellant was a false one only to goad the

victim into subjecting herself to any sexual act.

27. From the evidence on record, what becomes very

clear is that the victim stayed in the house of P.W. 5 along with

her sister. The relationship with the appellant continued for a

long time i.e. for four years during which period, the appellant

visited the house of the prosecutrix and made her open the gate

in the night. It is not possible that this kind of relationship would

remain unnoticed. The victim has indicated about this

relationship to the land-lady who had pointly asked her about

her relationship with the appellant. P.W. 5 was informed by the

victim that the appellant would marry her.

28. Seeing these facts in the background of the

appellant having been taken good care of her during her post –

operative days in hospital, further gives an inkling that the

relationship was not superficial but there was every intention of
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the appellant to marry her. The appellant appears to be in love

with the victim.

29. This Court has also, out of the anxiety to discern

whether the promise made by the appellant was a false one or

genuine, gone through the letters, purportedly written by the

appellant to the victim. The letters reveal that the relationship

had become very serious and it was not possible for the

appellant to have lived his life without the victim. One of the

letters also indicate that a plan was hatched for eloping together.

The aforesaid letters (Ext No. 2) only indicate that the marriage

could not take place because of the opposition of the mother of

the appellant.

30. However, these letters would be of no avail if it is

found that first sexual intercourse between the appellant and the

victim had taken place when the victim was not of age i.e. below

the age of 18 years.

31. The records reveal that no attempt was made by

the prosecution to prove that in the first instance when the

victim was subjected to rape, she was less than 18 years of age.

The only evidence of age before the Trial Court or before this

Court is the assessment of the age of the victim as 17-18 years

on 30.12.2005 when she was examined by P.W. 4. This was

after four years of the relationship between the appellant and

the victim. If the outer limit of the age assessed by the P.W. 4
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(Doctor) is taken as the reference point, the victim would

definitely be much less than 18 years of age in the year 2001.

Since the allegation of rape in the first instance i.e. in the first

meeting of the appellant with the victim, is found to be doubtful,

it cannot be said with certainty that she was subjected to rape

against her will when the victim was not of the age of giving

consent.

32. In this background, the reference point would only

be the statement of the victim that the last sexual encounter

was about 10-12 days prior to lodging of the case. In that event,

the victim would not be of a minor age and would be capable of

giving consent. The evidence, part of which has already been

dealt with, viz. that the victim became pregnant twice, also

appears to be doubtful and not worthy of reliance for the reason

that (a) no document has been provided to show that the victim

was administered medicines for abortion (b) no oral or

documentary evidence regarding her treatment at Diwakar

hospital has been brought on record and (c) the victim had not

intimated two abortions to the Medical Officer (P.W. 4) and (d)

the report of P.W. 4 does not indicate any sign of sexual

intercourse or previous abortions.

33. These facts coupled with the fact situation that the

present case has been lodged only after the appellant performed

marriage with another women, further establishes that the case
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has been lodged because of the appellant not having married the

victim. Even in the F.I.R, P.W. 3 has disclosed her mindset that

she wants to enter into matrimonial relationship with the

appellant and should it not happen, the consequences and the

responsibility shall fall on the family members of the appellant

and the woman with whom he has married. This clearly means

that she is ready to settle the case if she is married to the

appellant.

34. Section 114 of the Evidence Act, 1872 reads as

follows:-

“114. Court may presume existence of certain

facts.-The Court may presume the existence of any

fact which it thinks likely to have happened, regard

being had to the common course of natural events,

human conduct and public and private business, in

their relation to the facts of the particular case.”

35. This Section provides that if the prosecutrix

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

that she did not in fact give such consent.

36. No discussion over this issue is necessary in the

present set of facts.

37. Hence, the sole question now remains whether the

consent had been obtained on the false promise of marriage.

38. In the case of Deepak Gulati Vs. State of

Haryana (2013) 7 SCC 675, it is held as follows :-
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“19. This Court considered the issue involved herein

at length in Uday v. State of Karnataka, Deelip

Singh v. State of Bihar, Yedla Srinivasa Rao v. State

of A.P. and Pradeep Kumar v. State of Bihar 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.

20. 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. 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
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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.

21. 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 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
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not solely on 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.

22. In Deelip Singh it has been observed as under:

(SCC p. 99, para 19)

“19. 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 or 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
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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.”

23. This Court, while deciding Pradeep Kumar,

placed reliance upon the judgment of the Madras

High Court in N. Jaladu, In re, wherein it has been

observed: (Pradeep Kumar case, SCC pp. 418-19,

para 11)

“11. ‟26… “……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 causes of contracts a

consent obtained by coercion or fraud is only
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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.” (N. Jaladu, In re case, ILR

pp. 456-57)‟ (Deelip Singh case, SCC pp. 101-02,

para 26)”

24. 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 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.”

39. In the case of Kaini Rajan Vs. State of Kerala
Patna High Court CR. APP (SJ) No.2509 o f 2017 dt.29-03-2018

22/ 26

(2013) 9 SCC 113, the Hon’ble Supreme Court again held as

follows:-

“14. This Court examined the scope of Section 375

IPC in a case where the facts have some

resemblance with the one in hand. Reference may

be made to the judgment of this Court in Deelip

Singh v. State of Bihar. In that case, this Court

examined the meaning and content of the

expression “without her consent” in Section 375 IPC

as well as whether the consent given by a woman

believing the man‟s promise to marry her, is a

consent which excludes the offence of rape. This

Court endorsed the principle that a

misrepresentation as regards the intention of the

person seeking consent i.e. the accused, could give

rise to the misconception of fact. While applying this

principle to a case arising under Section 375 IPC,

this Court held that the consent given pursuant to a

false representation that the accused intends to

marry could be regarded as consent given under

misconception of fact. But a promise to marry

without anything more will not give rise to

„misconception of fact‟ within the meaning of Section

90 IPC. This Court further held that: (SCC p. 104,

para 28)

“28………If on facts it is established that at the very
Patna High Court CR. APP (SJ) No.2509 o f 2017 dt.29-03-2018

23/ 26

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 [the second clause of Section

375 IPC]

In the facts of that case, this Court held, that the

predominant reason which weighed with her in

agreeing for sexual intimacy with the accused was

the hope generated in her of the prospect of

marriage with the accused. The Court held that she

came to the decision to have a sexual affair only

after being convinced that the accused would marry

her and it is quite clear from her evidence, which is

in tune with her earlier version given in the first

information report. The Court noticed that she was

fully aware of the moral quality of the act and the

inherent risk involved and that she considered the

pros and cons of the act.

15. In Ramdas v. State of Maharashtra this Court

held that: (SCC p. 179, para 23)

“23…….the conviction in a case of rape can be based

solely on the testimony of the prosecutrix, but that

can be done in a case where the court is convinced

about the truthfulness of the prosecutrix and there

exist no circumstances which cast a shadow of doubt
Patna High Court CR. APP (SJ) No.2509 o f 2017 dt.29-03-2018

24/ 26

over her veracity.”

16. Vijayan v. State of Kerala was a case where the

complaint was made by the prosecutrix after the

alleged commission of rape on her by the accused.

At the time of making the case, the prosecutrix was

pregnant for about seven months. This Court did not

press reliance on the sole testimony of the

prosecutrix. The Court noticed that flow that no DNA

test was conducted to find out whether the child was

born out of the said incident and the accused was

responsible for the said child.

17. K.P. Thimmappa Gowda v. State of Karnataka

was a case where the accused had assured the

prosecutrix that he would marry her and had sexual

affair, which was repeated on several occasions as

well. But he did not marry and she became

pregnant. That was a case where there was delay of

eight months in filing the complaint. The accused

was given the benefit of doubt holding that it would

not be possible to conclude that the alleged sexual

act was committed without the consent of the

prosecutrix.”

40. Thus, this Court is of the view that the allegation of

rape in the year 2001 could not be established because of the

doubtful circumstances, specially the conduct of the victim. The

fact that the relationship was established thereafter continuously
Patna High Court CR. APP (SJ) No.2509 o f 2017 dt.29-03-2018

25/ 26

for four years is an evidence of fact that the later sexual acts

were with the consent of the victim. The evidence about the

appellant having served the victim during her troubled days and

continuing with the relationship demonstrates that there was a

real intention of the appellant to marry the victim. Epistolary

messages, brought on record at the instance of the victim

reaffirm the aforesaid fact viz. that the appellant and the victim

were in absolute love; one of such letters even depicting a plan

to elope. Thus, it cannot be said that the intention of the

appellant was to satisfy his body lust by giving a false hope of

marriage to the victim. The marriage may or may not have

taken place because of other circumstances which are not clearly

known. In that event, if according to the victim, the relationship

continued for four years, it would be difficult to presume that it

was without the consent and against her will.

41. Under such circumstances stated above, it is also

difficult for this Court to presume that the appellant had made a

false promise to the victim that he would marry her and that the

consent was obtained on such misconception. For not keeping

his promise to marry the victim, the appellant can certainly not

be convicted and sentenced for rape.

42. In view of the above mentioned discussion, I am of

the considered opinion that the appellant, who has already

remained in custody for quite some time, is entitled to the
Patna High Court CR. APP (SJ) No.2509 o f 2017 dt.29-03-2018

26/ 26

benefit of doubt.

43. Accordingly, the judgment of conviction dated

12.06.2017 and order of sentence dated 17.06.2017 passed by

the learned 2nd Additional District Sessions Judge, Purnea in

Sessions Trial No. 1542 of 2010, arising out of K. Hat P.S. Case

No. 450 of 2005 are set aside.

44. The appeal succeeds.

45. The appellant is in jail. He is directed to be released

forthwith from Jail, if not wanted in any other case.

46. A copy of the judgment be transmitted to the

Superintendent of Jail for information, compliance and needful

action.

(Ashutosh Kumar, J)

Shageer/-

AFR/NAFR AFR
CAV DATE 22/03/2018
Uploading Date 29/03/2018
Transmission 29/03/2018
Date

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