P.G. Agarwal, J.@mdashCriminal Appeal No. 313/2001 is directed against, the Judgment and Order, dated 4.9.2001, passed by the Addl. Sessions Judeg, Kamrup, Guwahati, in Sessions Case No. 135(K)/1997 (GR Case No. 209/97), whereby the accused appellant Bipul Medhi was convicted u/s 417, IPC and sentenced to rigorous ''imprisonment for six months and to pay fine of Rs, 1,000 in default further imprisonment for two months.
2. The prosecution allegation, in brief, is that accused Bipul Medhi developed some intimacy and friendship with Sewali Kalita and the affair continued for two-and-half years. The accused, thereafter, promised to marry Sewali and believing on the said plea, Sewali allowed the accused to have cohabitation with her and as of such cohabitation, she became pregnant. The victim also alleged rape, whereupon the accused was tried for commission of offence u/s 493/376, IPC. On conclusion of the, trial, the learned trial court convicted the accused-appellant as aforesaid.
3. While hearing the appeal, the learned Single Judge noted that in the facts and circumstances of such cases on the question whether offence u/s 417, IPC is made out or not, there are three decisions of this court and two of these decisions are contrary to each other. All these cases have been decided by learned Single Judges, but with different views. On reference being made, the hon''ble Chief Justice has referred these matters to this Bench and that is how, we have heard matters.
4. Mr. J.M. Choudhury, learned senior advocate, and Mr. T.J. Mahanta, learned advocate, were appointed as amicus curiae. We have heard the learned P.P. and the learned Counsel in each case.
5. In this batch of cases, we are deciding the question of law referred to us and as such, the facts of individual cases are not considered or referred to.
6. Before proceeding further, we may briefly note the various decisions of this court on the subject.
7. In the case of
Section 415/417, IPC come under Chapter XVII - Offenses against property. Therefore, in order to bring the case even under the later part of the section, deception must be in relation to property. The expression ''to do'' or ''omit to do any thing in Section 415 apply to a person who is deceived in relation to property though the property may or may not be delivered. It does not apply to the case of the woman who is made to surrender her chastity to a man who deceived her.
8. The facts in
There is no evidence on record that at the time of making such promise/ assurance or at the time of cohabitation, petitioners made such promise to the complainant that he would marry her with knowledge that ultimately he would not marry to complainant. Had the petitioner made the promise honestly and bona fide during or before the alleged intercourse then the petitioner could be convicted under Section, 417 IPC for his failure to keep the promise. There may be hundreds of factors for which an accused may fail to keep his promise. He may even change his mind for various reasons, foul or honest. Failure of the petitioner to keep the promise to marry the opposite party may under the circumstances of the case amount to mere breach of promise/contract. In view of illustration (g) appended to Section 415, IPC it is evident that breach of promise/contract simpliciter without any proof of the fact that such promise/representation was made by the petitioner with knowledge that he would not marry the opposite party will bring the case within the meaning of Section 415, IPC and Section 417, IPC.
The prosecution has miserably foiled to adduce any evidence whatsoever to show that during or before the alleged intercourse the petitioner, in fact, had fraudulent or dishonest intention not to marry the complainant or that he deliberately made such false promise to the complainant. In absence of such circumstances in the evidence on record, the conviction and sentence imposed upon the petitioner cannot be maintained.
9. In Moran Chandra Paul v. State of Tripura (1996) 2 GLR 15 the allegation of Swaraswati Paul was that the accused forcibly cohabited with her by tempting her with his promise to marry her soon and, following such cohabitation, she became pregnant and gave birth to a child. The trial court convicted the accused u/s 376, IPC and this court, on consideration of the evidence on record, held that cohabitation was with the consent of the prosecutrix and as such, no offence of rape is made out. However, this court, while convicting the accused u/s 417, IPC, held as follows:
This is not to say that the appellant has not committed any offence at all. In fact the trial court has taken a view in the impugned judgment that the appellant was guilty of the offence of cheating u/s 417 of the IPC, but did not convict him for the said offence as no charge had been iramed against the appellant u/s 417 of the IPC. In my opinion if the trial court had doubts as to which of the two offences the appellant had committed, sufficient powers were available u/s 221(2) of the Criminal P.C., 1973 to convict the appellant of the offence of cheating u/s 417 read with Section 415 of the IPC if it appeared from the evidence that he had committed an offence different from that for which he had been charged. The evidence of Smti, Saraswati Paul (P.W.2) is clear that he was induced to sexual intercourse with the appellant on a word being given by the appellant that he will marry her and such evidence of a woman of society given at the cost of her reputation cannot be disbelieved by the court except for extraordinary reasons. Regarding the contention of Mr. Roy that Dr. Sukumar Poddar, P.W. 8, has stated, that the woman who delivered the child was identified to him as the wife of Nimai Paul and not Saraswati Paul, it was natural for the family of Saraswati Paul to suppress that fact of delivery of the child by Saraswati Paul at that stage. In fact P.W.8 has himself clarified in his absence that only the day after delivery of the child he came to learn that it was Saraswati Paul who has delivered the child. Similarly, the fact that P.W.6 has denied that any meeting was held in his house does not in any way affect the evidence of P.W. 2. The appellant, therefore, was guilty of the offence of cheating as defined in Section 415 of the IPC and was accordingly liable for punishment u/s 417 of the I.P.C.
10. It may be mentioned that although the decision in Jaleswar Kalita (supra) was given in the year 1988, it was not brought to the notice of the court in Moni Gogoi (supra) and Moran Chandra Paul (supra) and this court had no occasion to consider the same in the later two cases.
11. Section 90 of the IPC, which deals with consent, reads as follows:
Consent known to be given under fear or misconception. - A consent is not such a consent as is intended by section of this Code, if the consent is given by a person under fear of injury, or under a misconnection 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
Consent of insane person. - If the consent is given by a person, who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child. - Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
12. In Black''s Law Dictionary, the word ''consent'' has been defined as follows:
Consent. - Agreement, approval, or permission as to some act, or purpose, esp. given voluntarily by a competent person. Consent is an affirmative defence to assault, battery, and related torts, as well as such torts on defamation, invasion of privacy, conversion, and trespass-consent, vb.- consensual, adj.
13. In the case of Rao Harnarain Singh Sheoji Singh v. State AIR 1950 Punj. 123, explaining as to what the word ''consent'' in criminal law conveys, observed as follows:
A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ''consent'' as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, 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 freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a more act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one''s will, or pleasure.
14. In the case of
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she became pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never intended to marry her.
15. In the case of
The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. 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.
16. In the case of
It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must always weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90, IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The, question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o''clock in the night. It usually happens in such cases, when two young person are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment succumb to temptation of having sexual relationship. This is what appears to have happened in this case as well as, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to inpute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.
17. In case
The first two sentences in the above passage need some explanation. ''While we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Ram Panda, which was approvingly referred to in Uday case. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end 1530 Cri LJ 7 -"unless the court can be assured that from the very inception the accused never really intended to marry her", (emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an act of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be said that this court has laid down the laws differently. The observations following, the aforesaid sentence are also equally important. The court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case as a whole, we do not understand the court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused''s intention to marry cannot be ruled out.
Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing, fully the nature and consequences of the act she was asked to indulge in ? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her ? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this court in Uday case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides.
The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge.
18. In view of the aforesaid judicial interpretation of the word ''consent'', appearing in Section 90 of the IPC, the court is required to analyse the evidence on record to find out whether an offence of rape is made out or not. As regards the applicability of Sections 415 and 417, IPC, we may have a look at the provisions of Sections 415 and 417:
415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver, any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said, to "cheat".
417. Punishment for cheating. - Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.
19. In the case of
Section 415 defines "cheating". The said provision requires: (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or", The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which such a transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are : (i) cheating; (ii) dishonest inducement to deliver is property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable property; and (ii) the mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating u/s 420. (See Bashirbhai Mohamedbhai v. State of Bombay).
As was observed by this court in Shivanarayan Kabra v. State of Madras it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by a number of circumstances from which a reasonable inference can be drawn.
20. In Joleswar Kalita (supra), the learned Single Judge held that as the offence of cheating is included in Chapter under property, the cheating must be in respect of property only, does not appear to us to be a correct interpretation of law, Chapter 16 of the Penal Code is larger chapter in the IPC and all sorts of offence regarding property are included in this chapter and infringement of such property right were protected. From the period of enactment of the Indian Penal Code, chastity of woman was regarded as her greatest virtue and asset. Those were the days of chastity and even the monarchs in England were reluctant to marry a woman without chastity. Chastity may not have money value. In the hands of the person cheated, but it definitely has its reputation value. Moreover, under the definition of cheating u/s 415, IPC, any act or omission, which may arise or likely to cause damage or harm to the person so deceived, has also been included. The expression ''harm'' has not been defined in the IPC. In the case of
The expression "harm" has not been defined in the Indian Penal Code : in its dictionary meaning it connotes hurt; injury; damage, impairment; moral wrong or evil. There is no warrant for the contention raised that the expression "harm" in Section 95 does not include physical injury. The expression "harm" is used in many sections of the Indian Penal Code in Sections 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury. In Section 93 it means an injurious mental reaction. In Section 415 it means injury to a person in body, mind, reputation or property. In Sections 469 and 499 ''harm'', it is plain from the context, is to be reputation of the aggrieved party. There is nothing in Section 95 which warrants a restricted meaning which counsel for the appellant contends should be attributed to that word. Section 95 is a general exception, and if that expression has in many other sections dealing with general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression "harm" in Section B in a restricted sense.
21. This court, in the case, Ramautar Choukhany v. Hari Ram Jodi and Ors. (1902) Crl. L.J. 2266 held that mere failure to fulfil the promise may not constitute the offence of cheating. However, there may be cases, where there was dishonest intention at the very inception, which can be inferred under the facts and circumstances of the case. There may be cases, where a person, already married, dishonestly induces another woman to have sexual intercourse with him on the assurance that he is going to marry her, although at the time of making the above promise, the person knows fully well that he is not going to honour his words and the promise has been made solely for the purpose of enjoying the body of the prosecutrix.
22. In view of the aforesaid discussion, we hold that the decision in Joleswar Kalita (supra) is not a good law. The case of Moni Gogoi (supra) was decided mainly on facts. However, we concur with the decision of learned Single Judge in Moran Chandra Paul and hold that where the prosecution can establish the essential ingredients of cheating u/s 415, IPC, and where the accused dishonestly induces the woman to have sexual intercourse with him on the basis of false promise to marry her, case of simple cheating u/s 417, IPC can be hold to have been made out.
23. The Reference is answered accordingly. All the cases be sent back for placing before appropriate Bench.
I.A. Ansari, J.
24. While agreeing completely with the conclusions reached above by my esteemed brother, hon''ble P.G. Agarwal, J, I may, before parting with the records, place my views in support of the conclusions reached hereinabove.
25. The Indian Penal Code does not define "consent" in positive terms. There is, however, a negative definition of the word "consent" in Section 90 of the Indian Penal Code, which lays down as to what cannot be regarded as "consent" under the Indian Penal Code. The relevant provisions of Section 90, IPC reads as follows:
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....
26. From a minute reading of Section 90, IPC, which explains as to what cannot be regarded as consent for the purpose of the Indian Penal Code, it becomes clear that consent given under fear of injury, or under a misconception of fact is not a consent at all. It is, however, worth noticing that giving of consent under fear of injury or misconception of fact is not sufficient to hold that no consent existed unless it is further established that the wrongdoer knew, or had reason to believe, that the consent given was in consequence of such fear or misconception. The factors, set out in the first part of Section 90, namely, that the consent given by a person under fear of injury or under misconception of fact is not consent are from the point of view of the victim whereas the factors set out in the second part of Section 90, namely, that the person doing the act knows, or has reason to believe, that consent was given in consequence of such fear or misconception are corresponding provisions from the point of view of the accused. Thus, the second part of Section 90 lays emphasis on the knowledge or reasonable belief of the, person, who obtains consent, that the consent given by the victim is in consequence of fear of injury or misconception of fact. What is, however, of paramount importance to note is that the existence of the twin requirements of Section 90 must be cumulatively satisfied in order to enable a court to hold that no consent in law existed at the relevant time. In other words, when these two conditions precedent are coexistent in a case, it can be safely held that no consent, as envisaged under the Indian Penal Code, existed. Such a finding can be reached by examining as to whether the person, giving consent, had given the same under fear of injury or misconception of fact and, further, whether the offender knew, or had reason to believe, that but for fear or misconception consent would not have been given. These aspects of the word "consent", as envisaged under the Indian Penal Code, have been succinctly described in Dilip Singh (supra).
27. In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear cannot be construed as consented sexual act for the purpose of Section 375, IPC for, Section 375, IPC requires voluntary participation by the victim 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 consent existed or not has to be ascertained on the basis of the facts of a given case (see Mangoram (supra)].
28. However, subtle may be, there is, indeed, a firm and fine distinction between consent and submission. Every consent involves a submission, but every submission is not consent and the mere fact that a woman had submitted to the promise of the accused does not necessarily indicate that her consent existed unless the evidence on record establishes that the sexual act, which the prosecutrix had allowed, was accompanied with deliberation after the mind had weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent according to one''s will or pleasure.
29. It is also of immense importance to note that though a cursory reading or hurried look into the decision of Uday (supra) reflects as if the Supreme Court has held that consent given by a prosecutrix to sexual intercourse with a person with whom she is deeply in love, on the basis of a promise made by such a person that he would marry her on a letter day, can never be said to have been given under a conception of fact, a careful and cautious reading of the Supreme Court''s latter decision. In Dilip Singh (supra), which, if I may point out, has considered and explained the decision rendered in Uday (supra), shows that while a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, a representation deliberately made by the accused with a view to obtaining assent of the victim without having intended to marry her will vitiate the consent. If the facts of a given case reveal that at the very inception of making of the promise to marry, the accused did not really entertain the intention to marry the victim and the promise to marry held out by him was a mere hoax, consent ostensibly given by the victim will not exculpate the accused from the ambit of Section 375 IPC.
30. Explaining as to what the decision in Uday (supra) conveys, or should be read as, the Apex Court, in Dilip Singh (supra), has pointed out that in Uday (supra), the court was cautious enough to add that no straight jacket formula can be devolved for determining whether the consent was given under a misconception of fact and, in the ultimate analysis, it is on the basis of the facts of each case, as may be discernible from the evidence on record and the surrounding circumstances, that the court has to decide the question as to whether the consent given was voluntary or was under a misconception of fact.
31. The Apex Court has also emphasized, in Dilip Singh (supra), that for the purpose of determining as to whether consent existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether consent existed or not, the court has to take into account not only the previous or contemporaneous act of the accused, but also his subsequent conduct. To put it differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the court determine as to whether the offer of marriage made by the accused was a mere hoax to obtain consent or was it an honestly made promise of marriage. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, in the absence of anything more, that the promise made by the accused was never intended to be acted upon by him.
32. Referring to its observations, made in the case of Uday (supra), that it is the prosecution''s burden to prove presence of a valid consent in order to attract the ingredients of the offence of rape, the Apex Court, in Dilip Singh (supra), has clarified that while reading its said observations made in Uday (supra), the courts must remember that this proportion would not apply if a case is covered by the provision of Section 114A of the Evidence Act, which we may notice, lays down that in a prosecution for rape under Sub-section (2) of Section 376, IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
33. What transpires from the above observations made in Dilip Singh (supra) is that in a prosecution u/s 376(2), IPC, when sexual intercourse by the accused with the prosecutrix is proved to have taken place and the prosecutrix, in such a case, claims, in her evidence before the court, that she had not consented to the sexual act, the court shall draw a presumption that she had not consented to the sexual act and the burden would, then, shift to the accused to prove that his sexual act with the prosecutrix was with her consent. The burden on the accused to discharge such presumption would, however, not be as heavy as on the prosecution if the prosecution, in a given case, is required to prove that the consent did not exist.
34. It may, however, be borne in mind that even if a prosecutrix had consented believing in the words of the accused that the promise for marriage made to her by the accused is honest and genuine, this will not be sufficient to hold that no consent existed for the purpose of Section 90, IPC unless it is further established that the accused, at the time, when he had made the, promise, did not have the intention of keeping to his promise. In a given case, thus, even a strong probability, if revealed from the materials on record, that the accused intended to marry the prosecutrix at the time, when he had made the promise for marriage, may absolve the accused, for, in such a case, cannot be said that the consent was given under a misconception of fact and that the accused knew, or had reason to believe, that the consent given was under such misconception of fact.
35. Conversely, if a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain consent of the woman, for, such a consent given by the woman would not, in the light of the provisions of Section 90, IPC, amount to consent in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. What is imperative to bear in mind, in such cases, is that killing of a man is ordinarily, conceived as murder by a common man; but in law, every killing does not amount to murder. Similarly, the word ''consent'', as is understood in common parlance, may not be, for the purpose of the Indian Penal Code at all.
36. Turning to Section 417, IPC, it needs to be noted that Section 417, IPC makes punishable offence of cheating. Cheating has been defined in Section 415, IPC. The ingredients of the offence of cheating require (i) deception of a person, (ii) whereby, fraudulently or dishonestly, inducing the person, so deceived, to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of a person is common to the second and third requirements of the provisions of Section 415. The ingredients, as pointed out under (i) and (ii) hereinbefore, are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". The definition of the offence of cheating embraces cases in which no transfer of property is occasioned by the deception and also cases in which such a transfer occurs. Deception is the quintessence of the offence. [See
37. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment u/s 417, IPC if the victim''s having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would, not have permitted sexual act by the accused. To put it differently, had such a victim not been deceived, she would not have permitted sexual act or would have refrained from allowing such sexual act and, clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation.
38. Since the definition of the offence of cheating indicates, as already pointed out above, that even when no parting of property is occasioned by deception, the deception may still amount to cheating if, as a result of the deception, a woman does anything or omits to do anything, which she would not have, but for such deception, done or omitted to do, it logically follows that when an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to offence of cheating if the act of the woman in letting such a man have sexual intercourse with her or the act of the woman in omitting to resist the act of sexual intercourse by such a man with her causes or is likely to cause damage of harm to the person of such a woman, her mind or reputation.
