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latest judgments on rape with consent for false promise to marry/marriage

Section 375 IPC defines the expression “rape”,

which indicates that the first clause operates, wherethe   woman   is   in   possession   of   her   senses,   andtherefore, 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. (See  State   of H.P. v. Mango Ram (2000) 7 SCC 224”

10.2 In the case of  Deepak  Gulati   v.  State  of  Haryana (2013) 7 SCC 675, The Hon’ble Supreme  Court observed and held in paragraphs 21 and 24 as under: “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 acase 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.

In the matter of Anurag Soni Versus State of Chhattisgarh( The Hon’ble Supreme Court recently held that.’

“The   prosecution   has   been successful   by   leading   cogent   evidence   that   from   the   very

inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust.  But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.   As   observed   hereinabove,   the   consent   given   by   the prosecutrix was on misconception of fact.  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.  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.  Therefore, merely because the accused had married   with   another   lady   and/or   even   the   prosecutrix   has subsequently married, is no ground not to convict the appellantaccused for the offence punishable under Section 376 of the IPC.The appellant­accused must face the consequences of the crimecommitted by him.

 In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant­accused under Section 376 of the IPC. We also maintain the conviction of the appellant­accused under Section 376 of the IPC.  However, in the facts and circumstances of   the   case   and   the   request   made   by   the   learned   counsel appearing on behalf of the appellant­accused, the sentence of 10 years’ RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of   commission   of   offence   under   Section   376   of   the   IPC. Consequently,   the   present   appeal   is   partly   allowed   to   the aforesaid modification in the sentence only.”

 

 

 

 

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