Consent under misconception of fact has to be in proximity of time of occurrence: SC acquits man of rape on false promise of marriage

While noting that as per Section 90 of the Indian Penal Code, consent obtained under misrepresentation of facts is illegal, the Supreme Court has ruled that such misrepresentation has to be in proximity to the occurrence of the incident and not "stretched over a period of four years.".To put the facts simply, the case before the three-judge Bench of Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee was that a man from the Schedule Tribe community was in a relationship with a Christian girl. The couple were in a relationship for years, after which the boy was set to marry another woman. A week before the marriage, the woman had lodged a complaint alleging that she was raped by the appellant on the false promise of marriage. A trial court in Ranchi convicted the man, after which the order was appealed in the High Court. After the conviction was upheld by the High Court, the appellant approached the Supreme Court..The judgment notes that the woman had written letters to the man elucidating the "passion of love". The Court also noted the statements of her parents to conclude that the man indeed wanted to marry her, but could not due to societal reasons."They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant.".On going through the evidence, the Court noted that the prosecutrix in her deposition dithered with regard to her age by first stating she was sixteen years on the date of occurrence, and then corrected herself to state she was thirteen. The Court noted in this regard,"In absence of positive evidence being led by the prosecution with regard to the age of the prosecutrix on the date of occurrence, the possibility of her being above the age of eighteen years on the date cannot be ruled out. The benefit of doubt therefore has to be given to the appellant.".It was also noted that the examination of the accused under Section 313 of the Code of Criminal Procedure was extremely casual and perfunctory in nature..On the point of delay of four years in lodging the FIR, the Court held,."In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix."Supreme Court.The Bench then proceeded to deal with the main question, whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant..The judgment notes that the woman had acknowledged that they were set to marry, but could not due to "different religion."The prosecutrix had even accepted that she was treated well by the parents of the boy and was beaten up by her own parents for her affair. But in spite of all this, the romance continued without lodging of any FIR..Elucidating on the point of law, the Court noted that under Section 90 IPC, consent given under a misconception of fact is no consent in the eyes of law. However, it held,."But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest."Supreme Court.On the allegation that the prosecutrix's consent was obtained through fear of injury, the Court held,"It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.".The Court thus held that the appellant had not made any false promise of marriage as the woman herself knew of all the obstacles in the relationship but still continued to carry on. "We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberate choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.".The conviction of the appellant was found to be unsustainable, and was thus set aside..(Read the judgment)