Consensual sex is not rape: Supreme Court

BELOW IS THE COMPLETE JUDGEMENT.
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 CASE NO.:
Appeal (crl.) 1086 of 2007

PETITIONER:
 Pradeep Kumar @ Pradeep Kumar Verma

RESPONDENT:
State of Bihar and Anr

 DATE OF JUDGMENT: 17/08/2007

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 BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:
 J U D G M E N T
(Arising out of SLP (Crl.) No. 3072 of 2006)


Dr. ARIJIT PASAYAT, J. 


1. Leave granted.
 
2. Challenge in this appeal is to the order passed by a 
learned Single Judge of the Patna High Court calling in 
question correctness of the judgment of the Additional 
Sessions Judge, Fast Track Court No.III, Buxar, in Sessions 
Trial No.280 of 2004, whereby the application filed by the 
appellant for discharge was rejected. 

3. A brief reference to the factual aspects would suffice. 

Respondent No.2 lodged the First Information Report (in 
short the FIR ) alleging that with an assurance that the
accused-appellant would marry her, he had sexual
relationship with her. When this went on for some time, the 
informant had been taken to a temple where in the presence of
deity he accepted her to be his wife and there was an 
agreement of marriage entered into. Alleging that the accused
was likely to get married with some other lady, an FIR was 
lodged. Investigation was undertaken and statement of the 
informant was recorded under Section 164 of the Code of
Criminal Procedure, 1973 (in short the Code ) wherein it was
accepted that first with a promise of marriage, the accused
had physical relationship with the informant and then, had
married her. Since the accused disowned having ever married
the informant and much less having ever had any physical
relationship with her, she was forced to file the FIR. After
investigation, charge sheet was filed wherein it was indicated
an offence punishable under Sections 376 and 406 of IPC was
made out. An application was filed by the present appellant
before the trial Court for discharge in terms of Section 227 of
the Code. By order dated 21.7.2005 the same was rejected. It
was inter alia noted as follows:

.As a matter of fact the poor victim Binita
Kumari was put under misconception of fact
as promise to marry her by the accused and in
this light the accused has done sexual
intercourse with her. The accused had done
such act with other girls also and further the
accused has made a Akrarnama for marriage
with the victim. The love letters and
Akrarnama photocopy are also with the case
diary and the same are on the record. From
the case diary it is also clear that the accused
has taken consent of the victim girl on a false
promise of marriage and further a Akrarnama
is also made here. Hence the consent is not
with free will or voluntary act. Hence there are
sufficient grounds for framing charge against
the accused person.

4. Charges were framed for offences punishable under
Sections 376 and 406 of IPC. As noted above, the order was
challenged before the High Court which rejected the
application in summary manner holding as follows:

The learned Judge finding sufficient material
showing petitioner s complicity in the crime
rejected his prayer for discharge.

I do not find any error in the same. Application
stands dismissed.


5. Learned counsel for the appellant submitted that the trial
Court failed to notice that the lady accepted that whatever
physical relationships were there were with her consent.
According to her, she was married to the accused. That being
so, the question of any offence punishable under Section 376 
IPC does not arise.

6. Further, the ingredients of Section 406 IPC have
absolutely no application. Even a bare reading of the
statement recorded under Section 164 of the Code shows that 
Section 406 has no application. Section 406 IPC relates to 
punishment for criminal breach of trust. The expression
criminal breach of trust is defined in Section 405. The same
relates to only entrustment of property or dominion over the
property. There is no allegation of any entrustment of any
property in this case and therefore Section 406 does not apply
to this case. The High Court should not have rejected the
application summarily without even dealing with the 
submissions made by the appellant.

7. Learned counsel for the State submitted that though
prima facie Sections 376 and 406 do not appear to have any
application, yet the case is one which is covered by other
Sections like 415 and 493 IPC. Learned counsel for the
informant submitted that since on the pretext of marriage and
by cheating the victim the accused had physical relationship
with her, it cannot be said that there is element of consent and
Section 376 has rightly been applied. Both learned counsel for
the State and the informant stated that the charges can be
altered during the trial and there is no scope for interference.
It would not be appropriate to express any view with regard to
acceptability or otherwise of the submissions made by the
appellant.
8. As rightly submitted by learned counsel for the State,
Sections 376 and 406 prima facie do not appear to have any
application. It would have been appropriate for the High Court
to deal with various submissions and consider their
acceptability. That apparently has not been done. This is not
a case where the application should have been dismissed in a
summary manner. 

9. The crucial expression in Section 375 which defines
rape as against her will . It seems to connote that the 
offending act was despite resistance and opposition of the
woman. IPC does not define consent in positive terms. But
what cannot be regarded as consent is explained by Section
90 which reads as follows:

consent given firstly under fear of injury and
secondly under a misconception of fact is not
consent at all.


That is what is explained in first part of Section 90. There are
two grounds specified in Section 90 which are analogous to
coercion and mistake of fact which are the familiar grounds
that can vitiate a transaction under the jurisprudence of our
country as well as other countries. The factors set out in first
part of Section 90 are from the point of view of the victim and
second part of Section 90 enacts the corresponding provision
from the point of view of the accused. It envisages that the
accused 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 has 
given it under fear 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. As observed by this
Court in Deelip Singh @ Dilip Kumar v. State of Bihar (2005
(1) SCC 88), Section 90 cannot be considered as an exhaustive 
definition of consent for the purposes of IPC. The normal 
connotation and concept of consent is not intended to be
excluded. 

10. In most of the decisions in which the meaning of the
expression consent under the IPC was discussed, reference
was made to the passages occurring in Stroud s Judicial 
Dictionary, Jowitt s Dictionary on English Law, Words and
Phrases, Permanent Edn. and other legal dictionaries. Stroud 
defines consent as an act of reason, accompanied with
deliberation, the mind weighing, as in a balance, the good and 
evil on each side . Jowitt, while employing the same language 
added the following:

 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 Words and Phrases, Permanent Edn., Vol. 8-A, the 
following passages culled out from certain old decisions of the
American courts are found:
 
.adult female s understanding of nature and 
consequences of sexual act must be intelligent 
understanding to constitute consent .

 Consent within penal law, defining rape, 
requires exercise of intelligence based on 
knowledge of its significance and moral quality 
and there must be a choice between resistance
and assent

12. It was observed in Uday v. State of Karnataka (2003 (4)
SCC 46) as under:

12. The courts in India have by and large 
adopted these tests to discover whether the 
consent was voluntary or whether it was 
vitiated so as not to be legal consent. 

13. There is a good analysis of the expression consent in
the context of Section 375 IPC in Rao Harnarain Singh Sheoji
Singh v. State. (AIR 1958 Punj 123). The learned Judge had 
evidently drawn inspiration from the above passages in the law 
dictionaries. The observation of the learned Judge is as 
follows: 

there is a difference between consent and
submission and every consent involves a 
submission but the converse does not follow
and a mere act of submission does not involve 
consent ,

 14. The said proposition is virtually a repetition of what was
said by Coleridge, J. in R. v. Day (173 E.R. 1026) in 1841 as 
quoted in Words and Phrases (Permanent Edn.) at p. 205. The 
following remarks in Harnarain s case (supra) are also
pertinent: 

Consent is an act of reason accompanied by 
deliberation, a mere act of helpless resignation
in the face of inevitable compulsion, non-
 resistance and passive giving in cannot be 
deemed to be consent. 

15. The passages occurring in the above decision were either 
verbatim quoted with approval or in condensed form in the 
subsequent decisions: vide Anthony, In Re (AIR 1960 Madras 
308), Gopi Shanker v. State of Rajasthan (AIR 1967 Rajasthan 
159), Bhimrao v. State of Maharashtra (1975 Mah.LJ 660) 
and Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234). All 
these decisions have been considered in Uday s case (supra). 
The enunciation of law on the meaning and content of the 
expression consent in the context of penal law as elucidated 
by Tekchand, J. in Harnarain s case (supra) (which in turn 
was based on the above extracts from law dictionaries) has  
found its echo in the three-Judge Bench decision of this Court 
in State of H.P. v. Mango Ram (2000 (7) SCC 224). It was 
observed as follows: 

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.

16. On the facts, it was held that there was resistance by the 
prosecutrix and there was no voluntary participation in the 
sexual act. That case would, therefore, fall more appropriately
within clause first of Section 375.

 17. It would be appropriate to deal with the specific 
phraseology of Section 90 IPC. We have an illuminating 
decision of the Madras High Court rendered in 1913 in N.
Jaladu, Re (ILR (1913) 36 Madras 453) in which a Division 
Bench of that Court considered the scope and amplitude of the 
expression misconception of fact occurring in Section 90 in
the context of the offence of kidnapping under Section 361
IPC. The 2nd accused in that case obtained the consent of the 
girl s guardian by falsely representing that the object of taking 
her was for participating in a festival. However, after the
festival was over, the 2nd accused took her to a temple in
another village and married her to the 1st accused against her
will. The question arose whether the guardian gave consent
under a misconception of fact. While holding that there was no
consent, Sundara Ayyar, J. speaking for the Bench observed
thus:
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) 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. In
considering a similar statute, it was held in
England in R. v. Hopkins (1842) Car & M 254)
that a consent obtained by fraud would not be
sufficient to justify the taking of a minor. See
also Halsbury s Laws of England, Vol. 9, p.
623. In Stephen s Digest of the Criminal Law of 
England (6th Edn.,p. 217) the learned author
says with reference to the law relating to
abduction of girls under sixteen 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.

18. This decision is an authority for the proposition that a 
misrepresentation as regards the intention of the person 
seeking consent i.e. the accused, could give rise to the 
misconception of fact. This view of the Madras High Court was
accepted by a Division Bench of the Bombay High Court in
Parshottain Mahadev v. State (AIR 1963 Bombay 74).
Applying that principle to a case arising under Section 375,
consent given pursuant to a false representation that the
accused intends to marry, could be regarded as consent given 
under misconception of fact.

19. On the specific question whether the consent obtained on 
the basis of promise to marry which was not acted upon, could
be regarded as consent for the purpose of Section 375 IPC,
was dealt with by a Division Bench of the Calcutta High Court 
in Jayanti Rani Panda v. State of WB (1984 Cr.L.J. 1535). The
relevant passage in this case has been cited in several other
decisions. This is one of the cases referred to by this Court in
Uday s case (supra) approvingly. Without going into the details
of that case, the crux of the case can be discerned from the
following summary given at para 7: 
 

Here the allegation of the complainant is that
the accused used to visit her house and
proposed to marry her. She consented to have
sexual intercourse with the accused on a belief
that the accused would really marry her. But
one thing that strikes us is ... why should she
keep it a secret from her parents if really she
had belief in that promise. Assuming that she
had believed the accused when he held out a
promise, if he did at all, there is no evidence
that at that time the accused had no intention
of keeping that promise. It may be that 
subsequently when the girl conceived the
accused might have felt otherwise. But even 
then the case in the petition of complainant is
that the accused did not till then back out. 
Therefore it cannot be said that till then the
accused had no intention of marrying the
complainant even if he had held out any
promise at all as alleged.

The discussion that follows the above passage is important
and is extracted hereunder: 

The failure to keep the promise at a future
uncertain date due to reasons not very clear
on the evidence does not always amount to a
misconception of fact at the inception of the
act itself. In order to come within the meaning
of misconception of fact, the fact must have an
immediate relevance. The matter would have
been different if the consent was obtained by
creating a belief that they were already
married. In such a case the consent could be
said to result from a misconception of fact. But
here the fact alleged is a promise to marry we
do not know when. If a full-grown girl consents
to the act of sexual intercourse on a promise of 
marriage and continues to indulge in such
activity until she becomes pregnant it is an act
of promiscuity on her part and not an act
induced by misconception of fact. Section 90
IPC cannot be called in aid in such a case to
pardon the act of the girl and fasten criminal
liability on the other, unless the court can be
assured that from the very inception the
accused never really intended to marry her.

(emphasis supplied)

The learned Judges referred to the decision of the Chancery
Court in Edgington v. Fitzmaurice (1885 (29) Ch.D.459) and
observed :

This decision lays down that a misstatement
of the intention of the defendant in doing a
particular act may be a misstatement of fact,
and if the plaintiff was misled by it, an action
of deceit may be founded on it. The particular
observation at p. 483 runs to the following
effect: There must be a misstatement of an
existing fact. Therefore, in order to amount to
a misstatement of fact the existing state of
things and a misstatement as to that becomes
relevant. In the absence of such evidence
Section 90 cannot be called in aid in support
of the contention that the consent of the
complainant was obtained on a misconception
of fact.

After referring to the case-law on the subject, it was observed
in Uday s case (supra):

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. The first two sentences in the above passage need some
explanation. While we reiterate that a promise to marry
without anything more will not give rise to misconception of
fact within the meaning of Section 90, it needs to be clarified 
that a representation deliberately made by the accused with a
view to elicit the assent of the victim without having the
intention or inclination to marry her, will vitiate the consent.
If 
on the facts it is established that at the very inception of the
making of promise, the accused did not really entertain the
intention of marrying her and the promise to marry held out 
by him was a mere hoax, the consent ostensibly given by the
victim will be of no avail to the accused to exculpate him from
the ambit of Section 375 clause second. This is what in fact
was stressed by the Division Bench of the Calcutta High Court 
in the case of Jayanti Rani Panda s case (supra) which was
approvingly referred to in Uday s case (supra). The Calcutta
High Court rightly qualified the proposition which it stated 
earlier by adding the qualification at the end - unless the 
court can be assured that from the very inception the accused 
never really intended to marry her . (emphasis supplied) In the
next para, the High Court referred to the vintage decision of
the Chancery Court which laid down that a misstatement of
the intention of the defendant in doing a particular act would
tantamount to a misstatement of fact and an action of deceit 
can be founded on it. This is also the view taken by the
Division Bench of the Madras High Court in Jaladu case (vide
passage quoted supra). By making the solitary observation 
that a false promise is not a fact within the meaning of the
Code , it cannot be said that this Court has laid down the law  
differently. The observations following the aforesaid sentence 
are also equally important. The Court was cautious enough to
add a qualification that no straitjacket formula could be 
evolved for determining whether the consent was given under 
a misconception of fact. Reading the judgment in Uday case as 
a whole, we do not understand the Court laying down a broad 
proposition that a promise to marry could never amount to a 
misconception of fact. That is not, in our understanding, the 
ratio of the decision. In fact, there was a specific finding in 
that case that initially the accused s intention to marry cannot 
be ruled out.

21. These aspects have been elaborately dealt with in Deelip 
Singh s case (supra). The stage of analyzing the factual
materials was yet to be undertaken. But as rightly contended
by the appellant if on a bare reading of the FIR, it shows that
no offence had been made out for proceeding situation would
be different. It would have been proper for the High Court as
noted above to deal with the matter elaborately. That
apparently has not been done. Therefore, without expressing
any opinion on the merits of the case, we set aside the order of
the High Court and remit the matter to it for fresh 
consideration. 
 
22. The appeal is disposed of accordingly.