# State of U.P v. Tarik

- **Citation:** (2022) 5 ILRA 1323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-09
- **Case number:** Government Appeal No. 464 of 2021
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-tarik-48493
- **Pages:** 13

## Headnote

A. Criminal Law - Indian Penal Code, 1860 -
Sections 90, 375 & 376 - 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.

B. Criminal Law - Indian Penal Code, 1860 -
Section 375 - Consent with respect to Section
375 IPC involves an active (14) 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.

C. The consent given by the prosecutrix to have
sexual intercourse with whom she is in love, on a
promise that he would marry her on a later date,
cannot
be
persumed
as
given
under
"misconception of fact". Whether consent given by
the prosecutrix 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 (15)
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 prosecutrix at all from inception
and that promise made was false to his
knowledge. The failure to keep the promise on a
future uncertain date may be on account of variety
of reasons and could not always amount to
"misconception of fact" right from the inception.

D. 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. A failed relationship between
two persons which did not culminate into a
marriage may not amount to an offence under
the Indian Penal Code.
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal dismissed. (E-12)

List of Cases cited:-

## Text

_Characters 0–39,860 of 43,886. This is a partial read: ask again with offset=39860 for what follows._

5 All. State of U.P. Vs. Tarik
1323
of judgment as well as printed paper book
be sent to State Government, as required
under Chapter XVIII Rule 45 of Allahabad
High Court Rules, 1952.

84. A copy of the judgment be also
sent to convict/appellant through Jail
Superintendent concerned for intimation.
Compliance report be also sent to this
Court.

85. Before we part with the case, we
must candidly express our unreserved and
uninhibited
appreciation
for
the
distinguished assistance rendered by Shri
Jyotindra
Mishra,
learned
Senior
Advocate/learned Amicus Curiae in the
above-captioned cases.
----------
(2022)05ILR A1323
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
HON'BLE VIKRAM D. CHAUHAN, J.

Government Appeal No. 464 of 2021

State of U.P. ...Appellant
Versus
Tarik ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Resondent:
Sri Ram Kumar Yadav

A. Criminal Law - Indian Penal Code, 1860 -
Sections 90, 375 & 376 - 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.

B. Criminal Law - Indian Penal Code, 1860 -
Section 375 - Consent with respect to Section
375 IPC involves an active (14) 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.

C. The consent given by the prosecutrix to have
sexual intercourse with whom she is in love, on a
promise that he would marry her on a later date,
cannot
be
persumed
as
given
under
"misconception of fact". Whether consent given by
the prosecutrix 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 (15)
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 prosecutrix at all from inception
and that promise made was false to his
knowledge. The failure to keep the promise on a
future uncertain date may be on account of variety
of reasons and could not always amount to
"misconception of fact" right from the inception.

D. 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. A failed relationship between
two persons which did not culminate into a
marriage may not amount to an offence under
the Indian Penal Code.
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal dismissed. (E-12)

List of Cases cited:-

1. Pramod Suryabhan Pawar Vs St. of Mah.,
(2019) 9 SCC 608

2. Dhruvaram Murlidhar Sonar Vs St. of Mah.,
(2019) 18 SCC 191

3. Kaini Rajan Vs St. of Kerala [Kaini Rajan Vs
St. of Ker., (2013) 9 SCC 113
(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. Heard Mrs. Alpana Singh, learned
Additional
Government
Advocate
appearing for the State and perused the
lower court record.

2. The instant appeal is directed
against the judgment and order dated
10.12.2019 passed by the Additional
Sessions Judge/F.T.C. Meerut, in S.T. No.
638 of 2014 (State vs. Tarik) arising from
Case Crime No. 829 of 2013, under Section
376, 323, 504, 506 I.P.C, Police Station -
Mawana, District - Meerut, whereby,
accused-Tarik is acquitted.

3. In brief, the prosecution version is
that on 26.12.2013, victim submitted a
typed report to the Senior Superintendent
of Police, Meerut that the victim's father
Abid had gone to foreign country in
connection with work; victim's mother
Afsana was looking after her studies and
she is a working woman; victim is student
of B.Sc. Ist year; Tarik s/o Mateen, r/o
Mohalla-Heeralal, Mawana, Near Naion
wali Gali, Makhdumpur Stand, Mawana,
District-Meerut has been continuously
committing rape upon her on false pretext
of marriage, and has made nude video
clipping of the victim; when victim asked
him for marriage, said accused used to
ignore her; victim again made an attempt,
on which the accused said that he would
talk to his parents; victim has been
continuously raped on pretext of marriage;
due to shock, victim's mother Smt. Afsana
expired on 28.7.2013; victim has been
rendered helpless due to death of her
mother; victim has young brother-sister;
accused took victim's signatures on plain
paper
for
preparation
of
marriage
documents but has been postponing the
marriage; on 25.12.2013 around 9:00 p.m.,
victim along with her younger sister
Zeenat, went to the house of Mateen s/o
Dost Mohammad, Shahbaaz s/o Mateen,
Smt. Shaheen w/o Mohd. Mateen and Tarik
s/o. Mateen, r/o. Mohalla - Heeralal, Naion
Wali Gali, Makhdumpur Stand, Mawana;
after reaching the house, victim disclosed
to said persons that Tarik had been
committing rape upon her for about last
two years on pretext of marriage and now
she wants to marry him; then Shaheen
hurled filthy abuses at the victim and
assaulted her; victim opposed the same, on
which Mateen armed with iron rod and
Shahbaaz armed with stick, beaten the
victim, as consequence whereof victim
sustained internal injuries, and Shaheen and
Tarik tied a noose around the neck of the
victim with dupatta/cloth with intention to
kill her; when the victim raised alarm, the
passers-by of the locality, viz. Mehtab,
Javed, Abad, victim's sister Zeenat and
many other persons came over there and
rescued victim from said persons; after
escaping from there, victim started for
police station, when Tarik threatned that if
you will lodge a report, then your nude
clippings will be circulated in the locality
and town, and you will neither remain
eligible for marriage nor virgin; victim has
requested the Police Station Incharge,
Mawana to lodge report and give direction
for providing life protection to her brother
and sister.
5 All. State of U.P. Vs. Tarik
1325

4. F.I.R. was lodged on 27 December,
2013 at 10:00 A.M. at Police Station -
Mawana against the accused-respondent
under Section 376, 323, 504, 506 IPC.
After
investigation,
police
report/chargesheet was filed under the
aforesaid sections. The charge under
Sections 376, 323, 504, 506 I.P.C. was
framed by the trial court. Accused denied
the charges and claimed trial. Trial Court
acquitted the accused - respondent as the
prosecution failed to prove the charge
beyond reasonable doubt.

5. The prosecution to prove the charge
examined victim (PW-1), Smt. Zeenat (PW2) younger sister of the victim, Aabad (PW3), Kesav Datt Sharma, Retd. S.I. (PW-4),
Head Constable Raj Singh (PW-5), Dr.
Smt. Saranju Baliyan (PW-6).

6. The prosecution in support of its
case produced the documentary evidence
being Written report (Exhibit Ka-1),
statement of the victim (Exhibit Ka-2), site
plan (Exhibit Ka-3), charge sheet (Exhibit
Ka-4), chik FIR (Exhibit Ka-5), carbon
copy of GD entry (Exhibit Ka-6), report of
weeding of original GD by SSP office
(Exhibit Ka-7), medical examination report
(Exhibit Ka-8), supplementary medical
report (Exhibit Ka-9).

7. The statement of the accused was
recorded by the trial court on 24 July, 2019
under Section 313 Cr.P.C. The accused in
his statement under Section 313 Cr.P.C. has
stated that he has been falsely implicated
and incident alleged is false. It is also stated
by the accused that the victim was having
one sided affair and she was creating
pressure on the accused for marriage and he
refused to marry, the present false case has
been lodged.

8. The investigation in the present
case was initiated on the basis of the first
information report dated 26 December,
2013 (Ex.Ka.1). On the aforesaid basis, the
Chik FIR was prepared and the same was
marked as Ex.Ka.5 and the entry was made
in the General Diary of the police Station
being Ex.Ka.6. The first information report
was registered as Case Crime No.829 of
2013 under Sections 376, 323, 504, 506
I.P.C. at Police Station Mawana, District
Meerut.

9. During investigation, the statement
of the victim was recorded under Section
164 Cr.P.C. by the court concerned. The
statement of the victim recorded on 1
January, 2014 was marked as Ex. Ka.2
before the trial court. Victim in her
statement has stated that the incident is of
25 December, 2013; she knew Tarik earlier;
Tarik assured the victim to marry her and
she knew Tarik for last two years; accused
by assuring her for marriage had physical
relation for last two years; when the victim
asked the accused for marriage he would
assure that he will talk to his parents. On 25
December, 2013 at 6.00 pm when the
victim along with his sister went to the
house of the accused to talk about
marriage, then accused, his mother, his
father and brother have beaten them and
threatened for life and thrown them out of
their house; threatened that he has prepared
a video clip of the victim and in case victim
harass him he will upload the same on
social media. She has also stated that
accused threatened that the way he has
treated victim, he will also treat his sister.

10. The Investigating Officer also
prepared the site plan of the place of
incident on 30 December, 2013. The site
plan is marked as Ex.Ka.3. The site plan
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
was prepared by S.I. Keshave Datt Sharma
(PW4).

11. After investigation, the charge
sheet was submitted by the Investigating
Officer. S.I. Keshav Datt Sharma being
PW4. The charge sheet was submitted
against the accused under Section 376, 323,
504, 506. The charge sheet is marked as
Ex.Ka.4 before the trial court.

12. The victim was medically
examined by Dr. Smt. Swaranju Baliyan.
Victim was examined on 30th December,
2013. In the medical examination, no
external injury was found by the Doctor
examining the victim and the hymen was
old, torned and healed. The medical
examination report dated 30th December,
2013 was marked as Ex.Ka.8 and was
proved by PW6.

13. The supplementary medico legal
report was also prepared on the basis of the
pathology report. In the aforesaid report, no
spermatozoa
was
found.
The
supplementary report was marked as
Ex.Ka.9 was proved by PW6.

14. In support of the prosecution case,
victim (PW1) has been examined before
the trial court. She has stated that she knew
accused for last two years. The accused
after making false promise of marriage
raped her and also prepared nude video
clips; when victim asked the accused for
marriage he would assure the victim that he
would talk to his family members. On 25
December, 2013, victim along with her
younger sister, at about 6.00 pm went to the
house of accused; at the house of the
accused his father, mother and brother were
present and when the victim informed the
family members of the accused that the
accused was committing rape on the
promise of marriage, his family members
started abusing and beating the victim and
also beaten the victim with rod; thereafter,
the accused with the intention to kill the
victim
has
used
his
Dupatta
for
strangulation and as a result of the same,
the victim sustained injuries; on the alarm
by the victim, neighbours of the locality
came and saved the victim and her sister;
accused and his family members also
threatened that in case she report the
incident to any person, they will viral the
video clipping; she stated that she went to
the police station however, her report was
not lodged and thereafter, on 26 December,
2013 she had made complaint to the Senior
Superintendent of Police, Meerut. The
aforesaid witness has proved the first
information report Ex.Ka.1. The victim has
also stated that her statement was recorded
under Section 164 Cr.P.C. and the same
was marked as Ex.Ka.2. The victim has
also
stated
that
she
was
medically
examined at District Women Hospital,
Meerut.

15. The prosecution has further
examined Smt. Zeenat as Prosecution
witness no 2. The said witness has stated
that she knew the accused. She has stated
that the victim is her elder sister; she has
stated that accused promised the victim to
marry her and on the promise of marriage
he developed physical relation with the
victim. On 25 December, 2013, accused
called the victim to her house for talking
about marriage. She along with her
sister/victim went to the house of accused;
accused along with his mother, father and
brother were present. Accused and his
family members abused the victim and had
beaten her. The victim was also beaten by
rod as a result of the same, she sustained
injuries. On the alarm, the neighbours
came; accused threatened the victim that he
5 All. State of U.P. Vs. Tarik
1327
has video clip of the victim, which he will
show to all the persons or otherwise do not
make any report of the incident; victim
went to the police station however, her
report was not registered and thereafter, on
the next date the victim went to the Senior
Superintendent of Police, Meerut and gave
the application.

16. The prosecution further examined
Abaad (PW3), who has stated that he
knows accused who lives near his house; he
has stated that the victim and accused were
having relation and talks of marriage was
going on between them; the victim and
accused were in relationship for past two
years from the date of incident; accused did
not marry the victim; on 25 December,
2013 at about 5-6 pm he was present in his
house; when he came out of his house he
heard noise coming out from the house of
Mateen and a huge crowd was assembled at
the door steps of accused; when the witness
went to the house of Tarik, father of
accused namely Mateen, his wife Shaheen,
his son Shahbaz, victim and her sister were
present. Zeenat was shouting and accused,
Shahbaz,
Mateen
and
Shaheen
were
beating her; victim was raising alarm and
was stating that for last two years, accused
was making false promise of marriage and
was having physical relationship with the
victim. Javed and other persons were also
present who saved the victim and her sister;
accused and his family members were
abusing the victim and her sister; the victim
and her sister went home crying.

17. The prosecution has further
examined Keshav Datt Sharma, retired
Sub-Inspector as Prosecution Witness No 4.
The said witness has stated that on 27
December, 2013 he was posted at Police
Station Station - Mawana as Sub-Inspector;
on 27 December, 2013 he has received
investigation of the present case and CD-1
was prepared in respect of the application
of the victim; on 30 December, 2013
statement of victim under Section 161
Cr.P.C. was recorded; on the identification
by victim, the place of incident was visited
and the site plan was prepared and the same
was marked as Ex. Ka.3; victim was
medically examined at District Women
Hospital, Meerut; on 1 January, 2014 the
statement of the victim under Section 164
Cr.P.C. was recorded and the statement of
witness Km. Zeenat was recorded. On 20
January, 2014, accused was taken on
remand.
On
9
February,
2014,
supplementary medical report was received
and the statement of Dr. Suranju Baliyan
was recorded under Section 161 Cr.P.C. On
22 February, 2014 statement of witness
Javed, Aabad, Mohd. Salim was recorded;
during investigation the name of Mateen,
Shahbaz and Smt. Shaheen was found to be
falsely implicated and as such was taken
out of investigation; chargesheet was
submitted against accused under Section
376, 323, 504, 506 I.P.C. and the charge
sheet was marked as Ex.Ka.4.

18. The prosecution has further
examined HC-366 Raj Singh as PW5; he
has stated that on 27 December, 2013 he
was posted as Constable/Clerk at Police
Station Mawana; on the said date he had
received by post typed application of the
victim and on the aforesaid Case Crime
No.829 of 2013 was registered under
Section 376, 323, 504, 506 I.P.C. against
accused and others and the Chik FIR was
marked as Ex.Ka.5. The GD entry was
made and the carbon copy was marked as
Ex.Ka.6. He has also stated that the original
General Diary has been weeded out and he
has received letter from the office of Senior
Superintendent of Police and the same was
marked as Ex.Ka.7.
1328 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The prosecution has further
examined Dr. Smt. Suranju Bailiyan as
PW6. She has stated that on 30 December,
2013 she was posted at District Women
Hospital, Meerut on the post of Senior
Consultant; on 30 December, 2013 at 1.45
pm she had examined the victim; victim
had given her date of birth as 7th July,
1993; victim had stated that since April,
2011 she had relationship with the accused
and the relationship was made on the
promise of marriage; the accused thereafter,
refused to marry her; 12 days prior to the
medical examination accused had made
physical relation with the victim. Witness
has further stated that on examination she
did not find any external injury, hymen was
old, torned and healed; she had send the
vagina slide for further examination. She
has proved the medical examination report
and the same was marked as Ex.Ka.8; on
9th February, 2014 on the basis of
pathology report she had prepared the
supplementary
report
in
which
no
spermatozoa was found and the report was
marked as Ex.Ka.9.

20. The prosecution case is that the
accused on the promise of marriage with
the victim entered into physical relation
with the victim and when the victim asked
the accused to marry her, he refused to
marry. Accused had physical relation with
the victim for two years prior to lodging of
the first information report. Victim being
PW1 has stated that she knew accused for
last two years. Accused after making false
promise of marriage raped her and also
prepared nude video clips; when victim
asked the accused for marriage he would
assure the victim that he would talk to his
family members.

21. Victim has not made any
statement before the trial court that the
accused ever went to the house of victim.
Victim further stated that she went to the
house of accused. Victim further in her
cross examination has admitted that she
was having love affair with the accused.
Further stated that she had gone to the
house of accused on several occasion in the
last two years prior to the lodging of the
first information report.

22. The investigating officer has
further stated in his cross examination that
the victim has not given details of the date,
time and month when physical relation was
made between the victim and the accused.
Victim has not disclosed as to the place
where the physical relation with the
accused was made; Victim has not stated
that the accused person has made physical
relation with her without consent and
forcefully. Victim has further not stated as
to how many times accused had made
physical
relation
with
the
victim.
Investigating officer has further stated that
during investigation no evidence has
surfaced that the accused had committed
rape of victim. Investigating officer has
further testified that the victim wanted to
marry the accused and the accused did not
want to marry the victim.

23. Abaad (PW 3) has stated that he
has not seen the accused committing any
objectionable conduct with the victim and
the statement made before the trial court
was made on the basis of whatever he has
heard. Abaad (PW3) is not the eyewitness
of the alleged incident nor he has any
knowledge with regard to the prosecution
case and whatever is stated on the basis of
the hearsay.

24. Zeenat (PW 4) who is sister of the
victim specifically stated in her statement
before the trial court that victim had never
5 All. State of U.P. Vs. Tarik
1329
informed about her relationship with the
accused to any member of family. She has
stated that accused had called the victim for
talking about marriage.

25. Victim prior to the present First
Information Report had lodged on 22
December, 2013 a report at Police Station -
Mawana that accused and another were
harrasing the victim and when the victim
opposed such conduct, then accused
thereatened her for life. It is to be noted
that the present first information report was
lodged on 26 December, 2013, four-days
subsequent
to
the
report
dated
22
December, 2013 by the victim against the
accused person. The allegations in the
report dated 22 December, 2013 was of
harassment/objectionable conduct of the
accused with the victim, whereas in first
information report the allegation is that the
accused had physical relation with the
victim on the promise of marriage. Victim
never made any report with regard to
physical relation on the promise of
marriage in her report dated 22 December,
2013 however when the first information
report was lodged on 26 December, 2013,
the allegations of rape on false promise of
marriage surfaced and as such the conduct
of the victim creates doubt on the
prosecution story. The aforesaid further is
indicative of the fact that no rape was
conducted on the person of the victim by
the accused person.

26. The victim on earlier occasion
was residing with Aditya and father of
Aditya had submitted an application to the
District Magistrate which is paper number
29 Kha/2 to 29 Kha/3 and a compromise
was also entered being paper no 29 Kha /5
and from the aforesaid it is evident that 1 1⁄2
years prior Victim and Aditya had relation
on Facebook; they were having love affair;
paper number 29 Kha /7 which is written
by Aditya Sharma and wherein the
aforesaid person has promised that he will
marry the victim and he will not harass the
victim. He has also written that they will
live as husband and wife. On the aforesaid
document, victim has also signed.

27. Further, Aditya Sharma has
lodged a first information report dated 27
August, 2017 being Case Crime No. 517 of
2017, under section 384 IPC being paper
number 29 Kha/9 wherein it is alleged that
the victim and the informant entered into
friendship on Facebook and they had
differences and as such a compromise was
entered into in presence of villagers
between both the parties and had paid ₹ 1
lakh with the promise that both the parties
will not be in contact with each other and
the victim will not harass the family
members of Aditya. However, on 9th June,
2017
victim
with
the
intention
of
blackmailing Aditya started harassing him
and his family members that they will be
send to jail. He has also alleged that victim
is a characterless girl.

28. Further another document being
paper number 29 Kha/13 is NCR dated 1st
September, 2017, under section 323 IPC
lodged by victim against Aditya that on 4
September, 2017 at about 11:30 AM with
allegation that Aditya had beaten the
victim.

29. The victim in her statement before
the trial court has stated that she goes to the
house of the accused at any time of the day.
She also stated that the accused had taken her
to the house of a friend on one occasion; he
had also taken her to hotel at Delhi.

30. From the statement of the victim,
it is evident that she has not given any
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence that the accused had on false
pretext of marriage engaged in physical
relationship with the victim. Further she
has also not stated the time, place and date
when physical relationship/ rape was
committed by the accused. Victim further
stated that her date of birth is 9 July, 1993
and as such the victim was major on the
date of alleged incident.

31. It is to be noted that where the
physical relationship is made between two
persons on consensual basis then the
allegations of rape cannot be founded
unless consent is not voluntarily.

32. Rape is defined in section 375 of
the Indian Penal Code as sexual intercourse
with a woman, against her will, without her
consent or with her consent where the
consent has not been obtained voluntarily.
Where a woman enters into physical
relationship with a man voluntarily, the
aforesaid act may not come within the
purview of rape when the parties to the
aforesaid act are major. The law recognises
individual
freedom
to
have
physical
relation with person of opposite sex as a
legitimate right under Article 21 of the
Constitution.

33. The sexual intercourse between a
man and a woman without the consent of
women is rape. In the present case there is
no allegation with regard to the fact that the
victim
was
subjected
to
physical
relationship
without
her
consent
or
forcefully. The allegations against the
accused are that the accused entered into
physical relationship with the victim on the
false promise of marriage. Section 375 of
the Indian penal code postulates sexual
intercourse with a woman with her consent
as rape where such consent has not been
obtained voluntarily.

34. Section 114-A of the Evidence
Act, 1872 (hereinafter referred to as "the
1872 Act") provides, that if the prosecutrix
deposes that she did not give her consent,
then the court shall presume that she did
not in fact, give such consent. The facts of
the instant case do not warrant that the
provisions of Section 114-A of the 1872
Act be pressed into service. The sole
question involved herein is whether her
consent had been obtained on the false
promise of marriage. Thus, the provisions
of Sections 375 and 376 I.P.C have to be
taken into consideration, along with the
provisions of Section 90 IPC.

Section 90 I.P.C provides that any
consent given under a misconception of
fact, would not be considered valid consent
and in the context of Section 375 I.P.C,
such
physical
relationship
would
tantamount to committing rape.

35. Section 90 IPC defines "consent"
known
to
be given under
fear
or
misconception:

"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;"

36. Where a woman does not
"consent" to the sexual acts described in the
main body of Section 375, the offence of
rape has occurred. While Section 90 does
not define the term "consent". A "consent"
based on a "misconception of fact" is not
consent in the eye of the law.
5 All. State of U.P. Vs. Tarik
1331

37. Consent may be express or
implied, coerced or misguided, obtained
willingly or through deceit. 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.

38. The Apex Court in Pramod
Suryabhan
Pawar
v.
State
of
Maharashtra, (2019) 9 SCC 608 has
observed as under :

"12. This Court has repeatedly
held that consent with respect to Section
375 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.
In Dhruvaram Murlidhar Sonar v. State of
Maharashtra, (2019) 18 SCC 191 which
was a case involving the invoking of the
jurisdiction under Section 482, this Court
observed :-

"15. ... 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
mind of a person to permit the doing of the
act complained of."

39. This understanding was also
emphasised in the decision of this Court in
Kaini Rajan v. State of Kerala [Kaini
Rajan v. State of Kerala, (2013) 9 SCC 113
:-

"12. ... "Consent", for the purpose
of
Section
375,
requires
voluntary
participation not only after the exercise of
intelligence based on the knowledge of the
significance of the 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."

40. The consent given by the
prosecutrix to have sexual intercourse with
whom she is in love, on a promise that he
would marry her on a later date, cannot be
persumed as given under "misconception of
fact". Whether consent given by the
prosecutrix
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
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
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 prosecutrix at all from
inception and that promise made was false
to his knowledge. The failure to keep the
promise on a future uncertain date may be
on account of variety of reasons and could
not always amount to "misconception of
fact" right from the inception.

41. The Apex Court in Pramod
Suryabhan
Pawar
v.
State
of
Maharashtra, (2019) 9 SCC 608 observed
as under :

"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."

42. The Apex Court in Dhruvaram
Murlidhar Sonar v. State of Maharashtra,
(2019) 18 SCC 191 observed as under :

"23. 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 latter 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 between the parties
would not constitute an offence under
Section 376 IPC."

43. It is not the prosecution case that
physical relationship was entered into without
the consent of the victim or she was
forcefully raped by the accused. The victim
was major on the date of alleged occurrence.
There is no evidence to the fact that the
victim and the accused were seen together in
a room by family members or any other
person. There is no evidence to the fact that
there was any relationship between the victim
and the accused. No nude video of the victim
was recovered during investigation.

44. The medical evidence and the
statement
of
Doctor
who
conducted
5 All. State of U.P. Vs. Tarik
1333
medical examination of victim indicates
that there was no external injury found on
the body of the victim and the hymen was
old, torned and healed. No spermatozoa
was found in the viginal seamer of victim
nor any internal injury in the private part
was found. Medical evidence does not
support the prosecution story. Prosecution
witness no 6 has stated in a cross
examination that she did not find any
evidence of sexual assault or physical
relationship.

45. On the basis of the aforesaid, the
trial court came to the conclusion that there
is material contradiction in the statement of
victim and the physical relationship was
established with the consent of the victim,
who is major. The prosecution case is
surrounded by suspicious circumstances
and is doubtful and no case under section
376 IPC is made out against the accused.

46. It is further to be noted that as per
the prosecution case the victim was
subjected to rape for two years on the
promise of marriage. 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. There is no evidence or circumstance in
the present case that there was false
promise of marriage which was given in
bad faith. Further, the allegation of physical
relationship with the victim in the facts and
circumstances of the present case does not
bear any direct nexus to the promise of
marriage. The prosecution case rests upon
the fact that the accused had physical
relationship on the promise of marriage
with the victim however when the victim
asked the accused to marry her he resiled
from his promise to marry. There is no
evidence as to the date, time and place
when the accused promised to marry the
victim. No evidence has been led that the
initial promise of marriage was in bad faith.
A failed relationship between two persons
which did not culminate into a marriage
may not amount to an offence under the
Indian penal code. The prosecution has not
proved the date, time and place when the
alleged rape was made by the accused on
the victim.

47. The prosecution case further alleges
that on 25 December, 2013 at about 6.00 pm
accused and his family members had abused
and beaten the victim. As per the first
information report, victim on 25th December,
2013 along with her younger sister - Zeenat
went to the house of the accused, where
Mateen, Shahbaz, Smt. Shaheen and accused
Tarik were present. Victim informed the
family members of the accused that accused
on the false pretext of the marriage was
having sexual relationship with the victim
and she wanted to marry accused Tarik.
Accused Tarik and his family members
abused the victim and thereafter, have beaten
the victim. When the victim objected to the
aforesaid act of the accused person and his
family members, then Mateen with iron rod,
Shahbaaz with danda, beaten the victim and,
as a result of the same, victim sustained
injuries. It is also alleged that Shaheen and
Tarik have entangled dupatta in her neck.
When the victim made distress call, the
neighbours and other persons came and she
was saved.

48. The victim was medically
examined by Dr Suranju Kumar Baliyan
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
(PW6). The medical examination report
was exhibited as Ex.Ka.8. As per the
medical examination report, no external
injury was found on the person of the
victim. The doctor who conducted the
medical examination of the victim testified
before the trial court as PW6. The aforesaid
witness has stated before the trial court that
no external injuries were found on the body
of the victim. The medical examination of
the victim was conducted on 30 December,
2013 at District Woman Hospital, Meerut at
about 1:45 PM.

49. It is also alleged in the first
information report that on 25th December,
2013 victim went to the house of the accused
along with younger sister-Zeenat and she was
examined before the trial court as PW2. The
aforesaid witness has testified before the
court that the accused person and his family
members have beaten victim and she
sustained injuries on account of the aforesaid
beating by the accused and his family
members. The aforesaid account of the
witness does not corroborate with the medical
evidence. Further, aforesaid witness has not
stated that the accused Tarik and Shaheen had
strangled the victim with Dupatta.

50. Abaad (P.W.-3) has stated that he
knows accused who lives near his house; he
has stated that victim and accused were
having relationship and talk of marriage
was going on between them; victim and
accused were in relationship for past two
years from the date of incident; accused did
not marry the victim and as such on 25
December, 2013 at about 5-6 pm he was
present in his house; when he came out of
his house he heard noise coming out from
the house of Mateen and a huge crowd had
assembled at the door steps of accused;
when the witness went to the house of
Tarik, father of accused Mateen, his wife
Shaheen, his son Shahbaz, victim and her
sister were present. At that place Zeenat
was shouting and accused, Shahbaz,
Mateen and Shaheen were beating her;
victim was raising alarm and was stating
that for last two years the accused was
making false promise of marriage and was
having physical relationship with the
victim. Javed and other persons were also
present who saved the victim.