Citation: AIR 2005 SC 203.
Bench: Division Bench (Supreme Court)
1. P. Venkatarama Reddi, J
2. P.P. Naolekar, J
FACTS OF THE CASE
The victim decided to lodge a police complaint on 29.11.1988, after a long period after the crime of rape was committed against her by the appellant. When she filed the police complaint, she was already pregnant for six months. The victim alleged that she and the accused were neighbors and both of them fell in love with each other.
One fine day, the accused forcibly raped her and later consoled her saying that he will marry her. Both of them continued to have sex with each other on several occasions on account of the promise made by the accused to marry her. When she became pregnant, she revealed this to her parents.
Even after coming to the knowledge of intimacy with the parents and other relations they continued to have sexual relations and the victim’s family was under the impression that the accused would marry the girl but the accused didn’t marry the girl as the accused father took him out of the village to get married with another girl. So the victim decided to file a complaint.
The evidence adduced in the form of a school certificate and ma edical expert’s opinion regarding the age of the victim established that on the date of commission of the crime the victim was aged less than 16 years under which the consent of the girl becomes immaterial.
ISSUES
1. Was the victim girl less than 16 years of age on the date of the first sexual intercourse which the appellant had committed?
2. Whether the appellant had sexual intercourse with the victim girl against her will, and is guilty under clause first of section 375?
3. Whether the appellant had sexual intercourse with the victim girl without her consent, and is guilty under the clause secondly of section 375?
4. Can sexual intercourse consent to which has been obtained by making a false promise of marriage, be rape within the meaning of Section 375 of the Indian Penal Code, 1860?
JUDGEMENT
DECISION OF TRIAL AND HIGH COURT
The trial Court accepted the arguments of the prosecution and found that the girl was aged less than 16 years on the date of the crime after considering the evidence produced before it. The trial court further held it was a case of having sexual intercourse against the will of the victim. So offense of rape is deemed to be committed. Trial Court convicted the appellant
under Section 376 IPC for committing rape of a minor girl and the accused was sent under rigorous imprisonment for ten years. `The High Court upheld the conviction of the Trial Court but reduced the sentence to seven years.
DECISION OF SUPREME COURT
In the instant case, the Supreme Court rightly held that the accused is not guilty of rape under Section 375 of IPC. The court held that no evidence gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise which he made to marry the victim girl at the beginning was false to his knowledge.
All the facts and circumstances show that the intention of the accused was genuine which only and only did not materialize due to the family pressure on the accused. Regarding the various issues court rightly held that this case was a breach of promise to marry rather than a case of false promise to marry.
The first issue before the court was to find out whether the victim girl was less than 16 years of age on the date when the rape was committed. The prosecution provided pieces of evidence in the court in the form of a school certificate and the medical expert’s opinion to establish that the victim girl was aged less than 16 years.
The Supreme Court found that the certificate had no evidentiary value as a competent witness did not prove it, and the medical report was concerned it was stated that the age of the victim was between 16 to 17 years. Supreme Court said that all this evidence cannot be sustained so it cannot be established that the girl was aged less than 16 at the time of the commission of the rape. So, the accused cannot be held guilty under Section 375(6).
Another issue before the court was whether the accused had sexual intercourse with the victim against her will and if guilty can be held guilty section 375(1). The victim contended in the court that the first sexual intercourse took place between them and which was against her will and thereafter she became a consenting party to it. Their court found that the version of the victim in the court and the FIR were different. The Court was unable to conclude and finally held that there was nothing to show that the sexual intercourse took place against the will of the victim or was done forcibly.
When the charge of rape was sought to be levied against the appellant, he had obtained consent to sexual intercourse by making a false promise of marriage as per the court such consent is covered under the expression “misconception of fact” stated under Section 90.
The Court ruled that “A promise to marry within the meaning of Section 90, needs to be clarified that representation is deliberately made by the accused to elicit the consent of the victim without having the intention to marry her, then it will vitiate the consent. If on the facts, it is established that at the inception of the making the promise, the accused did not have any intention of marrying her and the promise to marry made by him was merely a hoax, the consent ostensibly given by the victim will not be sufficient to save accused within the ambit of Section 375(2)”. However, in the present case, the Supreme Court found it to be a case of breach of promise and not false promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C.
by the Supreme Court based on given facts and circumstances decided that because no evidence gave rise to inference beyond reasonable doubt that the accused had no intention to marry the victim and he made a false promise to his knowledge.
The Supreme Court found that neither was the victim girl a minor at the relevant time nor the appellant has sexual intercourse with the prosecutrix against her will. No charge of rape was could be pressed against the appellant on the ground that he had obtained consent to sexual intercourse by making a false promise of marriage and such consent was cered under “misconception of fact”, under Section 90. The Supreme Court found the case to be a case of breach of promise and not false promise and acquitted the appellant.
PRINCIPLE OF LAW INVOLVED
Section 90:- Consent known to be given under fear or misconception:- A consent is not such a consent as it 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 a reason to believe, that the consent was given in consequence of such fear or misconception;
or Consent of an 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.
Section 375 of the Indian Penal Code
Section 375 of the Indian Penal Code defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.”
It is rape if it falls under the following categories:
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary for the offense of rape.
Consent under Section 375
Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. Marital rape is an exception to giving consent as it is not a crime under the Indian Penal Code, as long as the woman is above 18 years of age.
Exceptions to Section 375
Sexual intercourse by a man with his wife who is above the age of 18, is not sexual assault.