SRI SUPRATIM SADHANIDAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) NONE has appeared on behalf of the petitioner, who is accused in Gaurisagor Police Station Case No. 54 of 2009 (Corresponding to GR Case No. 965 of 2009), wherein charge -sheet has been submitted against the petitioner for his prosecution under Sections 493/420, IPC. However, heard Mr. D. Das, learned Additional Public Prosecutor, Assam.I may pause here to point out that though a cursory reading or hurried look into the decision of Uday v. State of Karnataka, reported in, 2003 4 SCC 48, 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 later day, can never be said to have been given under a misconception of fact, a careful and cautious reading of the Supreme Court's latter decision, in Dilip Singh @ Dilip Kumar v. State of Bihar, reported in : 2005 1 SCC 88, 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, IPC, a representation deliberately made by the accused with a view to obtaining consent of the victim without having intended to marry her will, indeed, 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 376, IPC.

(2.) ELABORATELY explaining as to what the decision in Uday (supra) conveys, or should be read as, the Supreme 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 evolved for determining whether the consent was given under a misconception of fact or not 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.

(3.) 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, it 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.