# Rahul Tripathi v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 840
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-04
- **Case number:** Application U/S 482 No. 38158 of 2024
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-tripathi-v-state-of-u-p-anr-51361
- **Pages:** 15

## Headnote

(A) Criminal Law - Consent under false
promise of marriage amounts to rape -
The Code of criminal procedure, 1973 -
Section 482 - Inherent power - Indian
Penal Code, 1860 - Sections 493, 406,
384, 504, 506 & 376 - Code of Criminal
Procedure, 1973- Sections 161 & 164 -
False promise of marriage - Consent under
misconception
of
fact
-
Difference
between false promise to marry and
breach of promise to marry - Obtaining
consent for sexual relationship by false
promise of marriage should be termed as
consent given under misconception of fact
and must amount to rape - If a woman
consents to a physical relationship under a
false promise of marriage, such consent is
vitiated under Section 90 IPC - A false
promise to marry, given with no intention
to fulfill it, amounts to a misconception of
fact, making the act punishable as rape
under Section 376 IPC - A breach of
promise, made in good faith but later not
fulfilled, does not constitute rape - A
breach of a promise cannot be said to be a
false promise.(Para -16,18,22,23,27,30)
Physical relationship on a false promise of
marriage - recorded objectionable videos, and
later blackmailed - caused injury to opposite
party no.2 by way of harming her reputation -
Quashing of - charge-sheet, congnizance order
& entire proceedings.(Para - 2,17,32)

HELD: - Victim's consent was based on a
misconception of fact, making it involuntary and
immaterial. Applicant had established a physical
relationship with the victim by making a false
promise to marry her. False promise amounts to
commission of rape and the offence of rape was
made out against the applicant. (Para -35)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,959 of 46,989. This is a partial read: ask again with offset=39959 for what follows._

840 INDIAN LAW REPORTS ALLAHABAD SERIES
present case in the application under
Section 319 Cr.P.C. there is no sufficient
explanation of the delay though the
applicant was well aware that the cheque in
question was issued on behalf of the
company and he himself sent the demand
notice to the company. Therefore, the delay
in impleading the company was not
properly explained. Therefore on the date
of filing the application under Section 319
Cr.P.C. which could be termed as an
impleadment
application,
cognizance
against the company was time-barred.
Therefore, in the garb of an application
under Section 319 Cr.P.C. defect of nonimpleading the company cannot be cured
despite being time-barred. Even otherwise,
there is no separate application or prayer in
the application under Section 319 Cr.P.C. to
implead the company as a party, therefore,
an application under Section 319 Cr.P.C.
itself is not maintainable.

29. In view of the above fact, this
Court does not find any illegality in the
impugned order by which the application of
the applicant under Section 319 Cr.P.C. was
rejected. Accordingly, the application is
dismissed.
----------
(2024) 12 ILRA 840
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2024

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 38158 of 2024

Rahul Tripathi ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sanjay Kumar Mishra

Counsel for the Respondents:
G.A.

(A) Criminal Law - Consent under false
promise of marriage amounts to rape -
The Code of criminal procedure, 1973 -
Section 482 - Inherent power - Indian
Penal Code, 1860 - Sections 493, 406,
384, 504, 506 & 376 - Code of Criminal
Procedure, 1973- Sections 161 & 164 -
False promise of marriage - Consent under
misconception
of
fact
-
Difference
between false promise to marry and
breach of promise to marry - Obtaining
consent for sexual relationship by false
promise of marriage should be termed as
consent given under misconception of fact
and must amount to rape - If a woman
consents to a physical relationship under a
false promise of marriage, such consent is
vitiated under Section 90 IPC - A false
promise to marry, given with no intention
to fulfill it, amounts to a misconception of
fact, making the act punishable as rape
under Section 376 IPC - A breach of
promise, made in good faith but later not
fulfilled, does not constitute rape - A
breach of a promise cannot be said to be a
false promise.(Para -16,18,22,23,27,30)
Physical relationship on a false promise of
marriage - recorded objectionable videos, and
later blackmailed - caused injury to opposite
party no.2 by way of harming her reputation -
Quashing of - charge-sheet, congnizance order
& entire proceedings.(Para - 2,17,32)

HELD: - Victim's consent was based on a
misconception of fact, making it involuntary and
immaterial. Applicant had established a physical
relationship with the victim by making a false
promise to marry her. False promise amounts to
commission of rape and the offence of rape was
made out against the applicant. (Para -35)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

1. Pramod Suryabhan Pawar Vs St. of Maha. &
anr., 2019 LawSuit (SC) 1504
12 All. Rahul Tripathi Vs. State of U.P. & Anr.
841
2. Sonu @ Subhash Kumar Vs St. of U.P. &
anr., 2021 LawSuit (SC) 163
3. Harshvardhan Yadav Vs St. of U.P. & anr.,
2021 SCC Online All 500
4. Anurag Soni Vs St. of Chhattisgarh, 2019 (13)
SCC 1
5. St. of Haryana & ors.Vs Bhajan Lal & ors.,
1992 Supp (1) SCC 335
6. R.P. Kapur Vs St. of Punj., A.I.R. 1960 S.C.
866
7. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maha., AIR 2021 SC 1918
8. Pramod Suryabahan Pawar, (2019) 9 SCC
608

9. Sonu Alias Subhash Kumar Vs St. of U.P.&
anr.. (2021) 18 SCC 517

10. Shambhu Kharwar Vs St. of U.P., AIR 2022
SC 3901

11. Naim Ahamed Vs St. (NCT of Delhi),
2023SCC OnLine SC89

12. Deepak Gulati Vs St. of Har., (2013) 7 SCC
675

13. Kaini Rajan Vs St. of Kerala, (2013) 9 SCC 113

14. Dr. Dhruvaram Murlidhar Sonar Vs The St.
of Maha., Criminal Appeal No. 1443 of 2018

15. Anurag Soni Vs St. of Chhattisgarh, AIR
2019 SC 1857

16. Mahesh Damu Khare Vs St. of Maha. &
anr., 2024 SCC OnLine 3471

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Sanjay Kumar Mishra,
learned counsel for the applicant, Mr. Amit
Singh Chauhan, learned A.G.A. for the
State and perused the record.

2. The present application has been
filed by the applicant to quash the chargesheet dated 02.08.2024, congnizance order
dated
11.09.2024
as
well
as
entire
proceedings of Sessions Trial No. 2224 of
2024 (State Vs. Rahul Tripathi), arising out
of Case No. 360 of 2024, under Sections
493, 406, 384, 504, 506 and 376 I.P.C.,
Police Station Tundla, District Firozabad,
pending in the court of Session Court,
Firozabad.

3. Brief facts of the case are that an
F.I.R. was lodged on 05.06.2024 at 18:10
hours by Priyanka Singh i.e. opposite party
no.2 against three named accused persons
including the applicant which came to be
registered as Case Crime No. 0436 of 2021,
under Sections 493, 406, 384, 504, 506 and
376 I.P.C. with the allegation that when
opposite party no.2/ informant in the year
2011 was pursuing her B.B.A. from G.L.A.
University, she came to know the applicant
Rahul Tripathi, who was also pursuing his
B.Tech course from the same University.
After passage of few years, the applicant
proposed the informant to marry with her.
On 10.06.2021, the applicant came to
Tundla and in absence of the parents of the
informant, on the pretext of promising to
marry with her, he established physical
relationship with her against her wishes.
The informant started crying, therefore,
applicant tendered his apology and stated
that he really loves her and wants to
perform marriage with her. The informant
believing the words given by the applicant,
had not disclosed the aforesaid incident to
any one and also due to fear of defamation
in the society. The applicant with intention
to cheat the informant, silently captured
objectionable
video
of
the
aforesaid
incident. After a few days, the applicant
called informant at his flat at Gaur City 11
Avenue 282, M Tower Noida UP 201301.
When the informant expressed her inability
to go there, the applicant threatened her to
842 INDIAN LAW REPORTS ALLAHABAD SERIES
make the video viral. Being afraid of
defamation, she conceded to the demands
as raised by the applicant. The applicant
also demanded money from her after
threatening to defame her by making her
objectional video viral. When the informant
came to know about applicant performing
marriage with some other girl, she went to
meet Rahul's mother namely Manju Lata
Tripathi as well as her sister namely Priya
on 19.05.2024 and shared the entire
incident. On hearing the incident as had
happened with the informant both mother
and sister of the applicant started abusing
her and they also demanded Rs.10,00,000/-
for deleting the video which was captured
by the applicant in his mobile phone. The
informant went to report about the incident
before the police station, but when nothing
was
done,
an
application
was
sent
requesting for registration of the F.I.R.
After investigation charge-sheet has been
submitted against the applicant.

4. Learned counsel for the applicant
submits that F.I.R. has been lodged with false
and frivolous allegations. The applicant and
opposite party no.2 are major and were friendly
with each other. The relation between them, if
any, was consensual. The applicant had never
established any relationship forcefully with
opposite party no.2. The medical report does
not corroborate with the offence as made in the
F.I.R. He further submits that no false promise
of marriage has been given to opposite party
no.2 by applicant. They were just friends and
from the statements of the charge-sheet
witnesses it is clear that a business relationship
was between them. There is no allegation to the
fact that promise of marriage was given to
opposite party no.2 was false as is made in the
F.I.R.

5. In support of his submission he
has relied upon judgment of Pramod
Suryabhan
Pawar
Vs.
State
of
Maharashtra
&
another,
2019
LawSuit(SC) 1504 and Sonu @ Subhash
Kumar Vs. State of Uttar Pradesh & Anr.
2021 LawSuit(SC) 163. Several other
submission have been made on behalf of
the applicant to demonstrate the falsity of
the allegations made against him. The
circumstances which, as per counsel, led to
the false implication of the applicant has
also been touched upon at length.

6. Learned A.G.A. for the State on
the other hand submits that from the version
of the FIR as well as statements of opposite
party no.2 recorded under Section 161 and
164 Cr.P.C., the offence under the relevant
section is made out against the applicant. He
further submits that applicant had obtained
consent for sexual relationship by making
false promise of marriage, therefore, such
consent was given under some misconception
of fact, amounted to rape. The aforesaid has
been held in the case of Harshvardhan
Yadav Vs. State of U.P. and Another, 2021
SCC Online All 500. Relying upon another
case
of
Anurag
Soni
v.
State
of
Chhattisgarh, 2019 (13) SCC 1, learned
AGA submits that the consent of opposite
party no.2 was based on misconception, such
consent is immaterial as it is not voluntary
consent, therefore, offence under the relevant
section is made out. He further submits that
from the version of the FIR as well as
statements of witnesses it is clear that from
the very inception, the consent of opposite
party no.2 was result of false promise to
marry, which cannot be taken as consent
and hence, the act as done by applicant
amounts to rape. He further submits that all
the other contentions relate to disputed
questions of fact. From perusal of the
records, prima facie, it can not be said at
this stage that no offence has been
committed by the applicants.
12 All. Rahul Tripathi Vs. State of U.P. & Anr.
843
7. In order to appreciate the rival
contentions of learned counsel for the
parties, it would be necessary to revisit the
relevant laws.

As far as the scope of
Section 482 Cr.P.C. which has been
invoked by the applicant for
quashing of the charge-sheet is
concerned, it is saving clause which
deals with the inherent powers of
the High Court to pass any order as
may be necessary to give effect to
any order under the Cr.P.C., or to
prevent abuse of the process of any
court or otherwise to secure the
ends of justice.

8. Law relating to quashing of
charge-sheet has already been well-settled
as reiterated by this Court in the State of
Haryana and Ors. Vs. Bhajan Lal and
Ors. reported in 1992 Supp (1) SCC 335 in
which this Court held as below:

"102.
(1)
Where
the
allegations made
in
the
first
information
report
or
the
complaint, even if they are taken at
their face value and accepted in
their entirety do not prima facie
constitute any offence or make out
a case against the accused.
(2) Where the allegations
in the first information report and
other
materials,
if
any,
accompanying the FIR do not
disclose
a
cognizable
offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of a
Magistrate within the purview of
Section 155(2).
xxxxxxxxxx
(7)
Where
a
criminal
proceeding is manifestly attended
with mala fide and/or where the
proceeding is maliciously Instituted
with
an
ulterior
motive
for
wreaking vengeance on the accused
and with a view to spite him due to
private and personal grudge.

9. It is to be noted that while
considering these aspects, the Court does
not have to go in detail by way of minute
examination about the correctness or
otherwise of the facts alleged and the Court
has to examine the same by taking a prima
facie view of the matter based on the
materials on record and if on consideration
of the factual matrix of the allegations, no
prima facie case is made out of commission
of any offence of which cognizance can be
taken, the High Court would be within its
power to intervene and quash any such
complaint or FIR in exercise of the inherent
power under Section 482 Cr.P.C.

In this regard one may also
refer to the decision of this Court in
R.P. Kapur Vs. State of Punjab
A.I.R. 1960 S.C. 866, wherein this
Court while dealing with Section
561-A, the counterpart provision of
Section 482 in the erstwhile Code,
observed that the High Courts
should be cautious in interfering
with a criminal proceeding at the
stage of investigation. However,
there are certain cases where the
court, to prevent the abuse of the
process of any court or otherwise to
secure the ends of justice can quash
the criminal proceedings. The said
cases of exceptions have been
reiterated in the case of Neeharika
Infrastructure Private Limited Vs.
844 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Maharashtra, AIR 2021
SC 1918, by stating as below:-
"(i) Where it manifestly
appears that there is a legal bar
against
the
institution
or
continuance
of
the
criminal
proceeding in respect of the offence
alleged. Absence of the requisite
sanction may, for instance, furnish
cases under this category.
(ii) Where the allegations
in the first information report or
the complaint, even if they are
taken at their face value and
accepted in their entirety, do not
constitute the offence alleged; in
such cases no question of the
complaint or the first information
report to decide whether the
offence is disclosed or not.
(iii) Where the allegations
made against the accused person
do constitute an offence alleged but
there is either no legal evidence
adduced in support of the case or
the evidence adduced clearly or
manifestly fails to prove the charge.
In dealing with this class of cases it
is important to bear in mind the
distinction between a case where
there is no legal evidence or where
there
is
evidence
which
is
manifestly and clearly inconsistent
with the accusation made and cases
where there is legal evidence which
on its appreciation may or may not
support the accusation in question.
In exercising its jurisdiction under
Section 561-A the High Court
would not embark upon an enquiry
as to whether the evidence in
question is reliable or not. That is
the function of the trial Magistrate,
and ordinarily it would not be open
to any party to invoke the High
Court's inherent jurisdiction and
contend that on a reasonable
appreciation of the evidence the
accusation
made
against
the
accused would not be sustained."
(emphasis supplied)

10. Having underscored the power
of the High Court to exercise inherent
power under Section 482 Cr.P.C. for
quashing
of
charge-sheet,
for
better
appreciation of merits of the case as well as
submissions made by learned counsel for
the applicant and learned A.G.A. for the
State this Court needs to understand the
scope of the offence under Section 375
I.P.C. which deals with various aspects of
rape, punishable under Section 376 I.P.C.
as well as other relevant sections in which
charge-sheet has been submitted in the
present case.

11. In the instant case, the
allegations in the F.I.R. are that the
applicant who was known to opposite party
no.2 as they were studying in the same
college, after so may years of completion
of studies, came to the house of opposite
party no.2 and forcefully established
physical relationship on false promise to
marry her. This act continued for number of
times as the applicant had made video of
the aforesaid incident and threatened to
make the same viral. After investigation
charge-sheet in the present matter has been
submitted under Sections 493, 406, 504,
506, 384 and 376 I.P.C. The allegations
made in the F.I.R. as well as charge-sheet
included offence under Section 376 I.P.C.
as well as 493, 406, 384, 504, 506 I.P.C.,
which are reproduced as under:-

"493. Cohabitation caused
by a man deceitfully inducing a
belief of lawful marriage:- Every
12 All. Rahul Tripathi Vs. State of U.P. & Anr.
845
man who by deceit causes any
woman who is not lawfully married
to him to believe that she is
lawfully married to him and to
cohabit or have sexual intercourse
with him in that belief, shall be
punished with imprisonment of
either description for a term which
may extend to ten years, and shall
also be liable to fine.
406.
Punishment
for
criminal
breach
of
trust.-
Whoever commits criminal breach
of trust shall be punished with
imprisonment of either description
for a term which may extend to
three years, or with fine, or with
both.
384.
Punishment
for
extortion.-Whoever
commits
extortion shall be punished with
imprisonment of either description
for a term which may extend to
three years, or with fine, or with
both.
504.
Intentional
insult
with intent to provoke breach of
the peace.-Whoever intentionally
insults,
and
thereby
gives
provocation
to
any
person,
intending or knowing it to be likely
that such provocation will cause
him to break the public peace, or to
commit any other offence, shall be
punished with imprisonment of
either description for a term which
may extend to two years, or with
fine, or with both."

12. An offence of rape if
established in terms of Section 375 is
punishable under Section 376 of the I.P.C.
In the present case, the second description
of Section 376 is relevant which is set out
below:
"376.
Punishment
for
rape.-
1. Whoever, except in the
cases provided for in subsection
(2), commits rap, shall be punished
with rigorous imprisonment of
either description for a term which
shall not be less than ten years, but
which may extend to imprisonment
for life, and shall also be liable to
fine.
2. Whoever, -
xxx
n. commits rape repeatedly
on the same woman, shall be
punished
with
rigorous
imprisonment for a term which
shall not be less than ten years, but
which may extend to imprisonment
for
life,
which
shall
mean
imprisonment for the remainder of
that person's natural life, and shall
also be liable to fine."
14. Further, Section 506
IPC speaks of criminal intimidation
which is defines in Section 503
IPC. The said provisions read as
under:-
"503.
Criminal
intimidation.-

Whoever threatens another
with any injury to his person,
reputation or property, or to the
person or reputation of any one in
whom that person is interested,
with intent to cause alarm to that
person, or to cause that person to
do any act which he is not legally
bound to do, or to omit to do any
act which that person is legally
entitled to do, as the means of
avoiding the execution of such
threat,
commits
criminal
intimidation.
846 INDIAN LAW REPORTS ALLAHABAD SERIES
Explanation.- A threat to
injure
the
reputation
of
any
deceased person in whom the
person threatened is interested, is
within this section.
506.
Punishment
for
criminal intimidation.- Whoever
commits, the offence of criminal
intimidation shall be punished with
imprisonment of either description
for a term which may extend to two
years, or with fine, or with both;
If threat be to cause death
or grievous hurt, etc.- And if the
threat be to cause death or
grievous hurt, or to cause the
destruction of any property by fire,
or to cause an offence punishable
with death or imprisonment for life,
or with imprisonment for a term
which may extend to seven years,
or to impute, unchastity to a
woman, shall be punished with
imprisonment of either description
for a term which may extend to
seven years, or with fine, or with
both."

13. Sub-section 2 of Section 376 is
an exception to sub-section 1 of the said
provision. Sub-section 2, inter alia, states
that whosoever commits rape repeatedly on
the same woman, shall be punished with
rigorous imprisonment for a term which
shall not be less than ten years, but which
may extend to imprisonment for life, which
shall mean imprisonment for the remainder
of that person's natural life, and shall also
be liable to fine.

14. In the present case it has to be
seen whether the aforesaid offences are
committed by the applicant within the
meaning of the aforesaid provisions or not?
A bare perusal of the F.I.R. reveals that the
applicant and opposite party no.2 came in
contact in the year 2011 when they were
pursuing
their
studies
from
G.L.A.
University. Thereafter after passage of
nearly 10 years on 10.06.2021 the applicant
came to Tundla and in absence of parents
of opposite party no.2, on false promise to
marry her, forcefully established physical
relationship with her. Thus, it cannot be
said that the relationship between the two
was
consensual.
The
applicant
had
forcefully established physical relationship,
consent for which was given under some
misconception of false promise to marry,
therefore, the same cannot be considered to
be consent in view of the provisions of law.

15. While Section 375 deals with
various aspect of rape, in the present case,
the allegations against the applicant is that
he forcefully established physical relations
with opposite party no.2 without her
consent, which amounts to rape without a
consent has been mentioned under Section
375 I.P.C. as follows:-

375. Rape.-- A man is said
to commit "rape" if he-
(a) penetrates his penis, to
any extent, into the vagina, mouth,
urethra or anus of a woman or
makes her to do so with him or any
other person; or
(b) inserts, to any extent,
any object or a part of the body, not
being the penis, into the vagina, the
urethra or anus of a woman or
makes her to do so with him or any
other person; or
(c) manipulates any part of
the body of a woman so as to cause
penetration
into
the
vagina,
urethra, anus or any part of body of
such woman or makes her to do so
with him or any other person; or
12 All. Rahul Tripathi Vs. State of U.P. & Anr.
847
(d) applies his mouth to the
vagina, anus, urethra of a woman
or makes her to do so with him or
any
other
person,
under
the
circumstances falling under any of
the following seven descriptions:
First.Against her will.
Secondly.Without
her
consent.
Thirdly.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.
Fourthly.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.
Fifthly.With
her
consent
when, at the time of giving such
consent, by reason 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.
Sixthly.With or without her
consent, when she is under eighteen
years of age.
Seventhly.When
she
is
unable to communicate consent.

16. In this regard relevant
provisions are contained in Section 90 of
the I.P.C. which deals with consent given
under false misconception. Section 90
provides that a consent is not a consent
under the I.P.C. if such consent is given by
a person under fear or 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
consequences
of
such
fear
or
misconception. Section 90 I.P.C. reads as
follows:-

"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 reason to believe,
that the consent was given in
consequence
of
such
fear or
misconception; or"

17. It is the case of the informant
that the applicant had established physical
relationship with her without her consent.
She has stated that the applicant came to
her house and gave a promise that he will
marry her and established physical relations
despite her not consenting to the aforesaid.
Thus,
the
physical
relationship
as
established by opposite party no.2 with the
applicant was on the misconception of fact
that he would marry her because of the
promise made by applicant that he would
ultimately marry her. It has never been a
case of the victim that they were having
prolonged relationship. It is only when the
opposite party no.2 went for her studies in
the G.L.A. University in which applicant
was also studying, they came to know each
other in the year 2011 and after passage of
nearly 10 years the applicant once came to
her house where such false promise was
made by the applicant that he will marry
her and forcefully established physical
relationship with her.
848 INDIAN LAW REPORTS ALLAHABAD SERIES
18. While dealing with a similar
situation, the principles of law which must
govern a situation like the present were
enunciated in the following observations as
made by Apex Court in the case of Pramod
Suryabahan Pawar (2019) 9 SCC 608,
which reads as follows:-

"16. Where the promise to
marry is false and the intention of
the maker at the time of making the
promise itself was not to abide by it
but to deceive the woman to
convince her to engage in sexual
relations, there is a "misconception
of fact" that vitiates the woman's
"consent". On the other hand, a
breach of a promise cannot be said
to be a false promise. To establish a
false promise, the maker of the
promise should have had no
intention of upholding his word at
the time of giving it."

19. Further the Court has observed
that:

18. To summarise the legal
position that emerges from the
above cases, the "consent" of a
woman with respect to Section 375
must
involve
an
active
and
reasoned deliberation towards the
proposed act. To establish whether
the "consent" was vitiated by a
"misconception of fact" arising out
of a promise to marry, two
propositions must be established.
The promise of marriage must have
been a false promise, given in bad
faith and with no intention of being
adhered to at the time it was given.
The false promise itself must be of
immediate relevance, or bear a
direct
nexus
to
the
woman's
decision to engage in the sexual
act.
(emphasis supplied)

20. Considering the aforesaid case as
well as the case of Sonu Alias Subhash
Kumar Vs. State of Uttar Pradesh and
another (2021) 18 Supreme Court Cases
517 Hon'ble Supreme Court in the case of
Shambhu Kharwar Vs. State of Uttar
Pradesh; AIR 2022 SC 3901 observed as
follows:-

"12.
This
Court
has
repeatedly held that consent with
respect to Section 375 of the IPC
involves an active understanding of
the circumstances, actions and
consequences of the proposed act.
An
individual
who
makes
a
reasoned
choice
to
act
after
evaluating
various
alternative
actions (or inaction) as well as the
various
possible
consequences
flowing
from
such
action
or
inaction, consents to such action...
[...]
14. [...] Specifically in the
context of a promise to marry, this
Court has observed that there is a
distinction between a false promise
given on the understanding by the
maker that it will be broken, and
the breach of a promise which is
made
in
good
faith
but
subsequently not fulfilled...
[...]

21. Thus, from the aforesaid it is clear
that there is difference between false
promise to marry and breach of promise to
marry. The aforesaid issue has been
considered in the case of Naim Ahamed
Vs. State (NCT of Delhi) 2023 SCC
OnLine SC89, which reads as follows:-
12 All. Rahul Tripathi Vs. State of U.P. & Anr.
849
"It is pertinent to note that
there is a difference between giving
a false promise and committing
breach of promise by the accused.
In case of false promise, the
accused right from the beginning
would not have any intention to
marry the prosecutrix and would
have cheated or deceited the
prosecutrix by giving a false
promise to marry her only with a
view to satisfy his lust, whereas in
case of breach of promise, one
cannot deny a possibility that the
accused
might
have
given
a
promise with all seriousness to
marry her, and subsequently might
have
encountered
certain
circumstances unforeseen by him or
the
circumstances
beyond
his
control, which prevented him to
fulfill his promise. So, it would be a
folly to treat each breach of
promise to marry as a false promise
and to prosecute a person for the
offence under Section 376."

22. It must also be clear that for a
promise to be a false promise to amount to
misconception of fact within the meaning
of Section 90 of IPC, it must have been
made from the very beginning with an
intention to deceive the woman to persuade
her to have a physical relationship.
Therefore, if it is established that such
consent was given under a misconception
of fact, the said consent is vitiated and not a
valid consent. In this regard we may refer
to the case of Deepak Gulati Vs. State of
Haryana (2013) 7 SCC 675 in which it was
held as follows:

"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
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
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."
"24. Hence, it is evident
that
there
must
be
adequate
850 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

23. Thus, the law has been settled
that if the consent is given by the victim
under a misconception of fact, it is vitiated.
In Kaini Rajan Vs. State of Kerala, (2013)
9 SCC 113, explaining the essentials and
parameters of the offence of rape, Hon'ble
Supreme Court observed as follows:-

"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 consent
or not, is to be ascertained only on
a careful study of all relevant
circumstances."

24. Even in the case of Dr.
Dhruvaram Murlidhar Sonar v. The State
of Maharashtra in Criminal Appeal No.
1443 of 2018 Hon'ble Supreme Court has
observed that it is clear distinction between
rape and consensual sex and, in such cases,
it must be very carefully examined whether
the complainant had actually wanted to
marry the victim or had mala fide motives
and had made a false promise to this effect
12 All. Rahul Tripathi Vs. State of U.P. & Anr.
851
only to satisfy his lust, as the later falls
within the ambit of cheating or deception.
The Supreme Court after referring to
various decisions has observed as follows:

"Thus, there is a clear
distinction
between
rape
and
consensual sex. The court, in such
cases, must very carefully examine
whether
the
complainant
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 later
falls within the ambit of cheating or
deception.
There
is
also
a
distinction between mere breach of
a promise and not fulfilling a false
promise. If the accused has not
made the promise with the sole
intention to seduce the prosecutrix
to indulge in sexual acts, such an
act would not amount to rape.
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 account of the misconception
created by 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. Such cases must
be
treated
differently.
If
the
complainant had any mala fide
intention and if he had clandestine
motives, it is a clear case of rape. The
acknowledged consensual physical
relationship be- tween the parties
would not constitute an offence under
section 376 of the IPC."

25. It has been settled view that the
question whether consent given by the
victim to sexual intercourse is voluntary or
whether it is given under "misconception of
fact" depends on the facts of each case.
While considering the question of consent,
the Court must consider the evidence
before it and the surrounding circumstances
before reaching a conclusion. Evidence
adduced by the prosecution has to be
weighed keeping in mind that the burden is
on the prosecution to prove each and every
ingredient of the offence. Prosecution must
lead positive evidence to give rise to
inference beyond reasonable doubt that
accused had no intention to marry victim at
all from inception and that promise made
was false to his knowledge.

26. In Anurag Soni v State of
Chhattisgarh, AIR 2019 SC 1857, the
accused never intended to marry the victim;
he gave false promise to the victim to
marry her and on such false promise he had
physical relationship with the victim; the
victim initially resisted, however, gave the
consent relying upon the false promise of
the accused that he will marry her and,
therefore, her consent can be said to be a
consent on misconception of fact. The
victim, in the aforestated case, was an
educated girl studying in B. Pharmacy.
Therefore, it is not believable that despite
having knowledge that that appellant's
marriage is fixed with another lady, she and
her family members would continue to
pressurize the accused to marry and the
victim will give the consent for physical
relation. Even considering Section 114A of
the Evidence Act which has been inserted
subsequently, there is a presumption and
the court shall presume that she gave the
consent for the physical relationship with
the accused relying upon the promise by
the accused that he will marry her. From
the very inception, the promise given by
the accused to marry the victim was a false
852 INDIAN LAW REPORTS ALLAHABAD SERIES
promise and from the very beginning there
was no intention of the accused to marry
the victim as his marriage with Priyanka
Soni was already fixed long back and,
despite the same, he continued to give
promise/false promise and alluded the
victim to give her consent for the physical
relationship.

27. Thus, the sum and substance of
the aforesaid decisions would be that if it is
established and proved that from the
inception the accused who gave the
promise to the victim to marry, did not have
any intention to marry and the victim gave
the consent for sexual intercourse on such
an assurance by the accused that he would
marry her, such a consent can be said to be
a consent obtained on a misconception of
fact as per Section 90 of the IPC and, in
such a case, such a consent would not
excuse the offender and such an offender
can be said to have committed the rape as
defined under Section 375 of the IPC and
can be convicted for the offence under
Section 376 of the IPC. Similarly, the legal
definition of rape, once governed by
Section 376, has been redefined under
Section 64 BNS.

28. In Anurag Soni (supra), the
Supreme Court, has also expressed its
concern on such tendency increasing in the
society in following words:

"Such incidents are on
increase nowadays. Such offences
are against the society. Rape is the
most
morally
and
physically
reprehensible crime in a society, an
assault on the body, mind and
privacy of the victim. As observed
by this Court in a catena of
decisions,
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. Rape is a crime against the
entire society and violates the
human rights of the victim. Being
the most hated crime, the rape
tantamounts to a serious blow to
the supreme honour of a woman,
and offends both her esteem and
dignity."

29. Rape is considered as the most
physically and morally reprehensible crime
in a society and has a long life effect on the
mind of victims. The victim has to go
through a serious emotional trauma and
physical suffering. Sexual intercourse with
the victim on the pretext of false promise to
marry is, and ought to be a an offence of
rape under the penal provisions. It is
becoming a phenomenon that the accused
makes a false promise of marriage with the
mala fide intention to deceive the victim.
For the major women population in our
society, promise of marriage is a great
allurement and they are trapped in a
situation which results in their sexual abuse
and exploitation. These cases are increasing
day by day as the accused person believes
that they will escape from the criminal
liability and punishment taking advantage
of law.

30.