LexDEEPAK GULATI versus STATE OF HARYANA
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A B [2013] 6 8.C.R. 544 DEEPAK GULATI v. STATE OF HARYANA (Criminal Appeal No. 2322 of 2010) MAY 20, 2013 [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.] Penal Code, 1860 - ss. 376, 365 and 90 - Rape and consem;ua/ sex - Distinction between - Allegation that C appellant enticed the prosecutrix, wrongfully confined her and had sexual intercourse with her in lieu of his promise to marry her - Conviction of appellant by Courts below ulss. 365 & 376 - Challenge to - Held: In a case like this, the court must very carefully examine whether the accused had actually wanted D to marry the victim, or had ma/a 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 - Distinction between mere breach of a promise, and not fulfilling a false promise - An accused can be convicted for rape only if his E intention was ma/a fide, and he had clandestine motives -s.90 /PC cannot be called into aid to pardon the act of the girl in entirety; and fasten criminal liability on the accused, unless the court is assured that from the very beginning, the accused had never really intended to marry her - In the instant case, F the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant - She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant - Prosecutrix voluntarily became intimate with the appellant on a number of occasions and made no complaints G to anyone - In fact, while she was proceeding with the appellant so that the two of them could get married in the court, they were apprehended by the police - Allegation of ''false promise of marriage" raised by the prosecutrix, thus, has no basis - H 544 DEEPAK GULATI v. STATE OF HARYANA 545 Charge of deceit/rape cannot be leveled against the appellant A - Appellant entitled to benefit of doubt - His conviction set aside - Evidence Act, 1872 - s. 114-A. The prosecution case was that the appellant enticed the 19 year old daughter of PW8, wrongfully confined her and had sexual intercourse with her in lieu of his promise B to marry her. The trial court convicted the appellant under Sections 365 and 376 IPC and sentenced him to undergo rigorous imprisonment for three years under Section 365 IPC; and rigorous imprisonment for seven years under C Section 376 IPC. Both the sentences were ordered to run concurrently. The conviction and sentence was affirmed by the High Court, and therefore the instant appeal. The question which arose for consideration in the present appeal was whether the appellant had -an intention to deceive the prosecutrix from the very beginning and the consent of the prosecutrix had been obtained on the false promise of marriage. Allowing the appeal, the Court HELD: 1.1. Section 114-A of the Indian Evidence Act, 1872 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 Act 1872 be pressed into service. [Para 15] [554-G-H; 555-A] 1.2. However, 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 a case like this, the court must very carefully examine whether the accused had D E F G H 546 SUPREME COURT REPORTS [2013] 6 S.C.R. A 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 B 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 arter wholly, understanding the nature and conseq4ences of sexual indulgence. There may be a c 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 mis-representation made to her by the accused, or where a
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