LexPRADEEP KUMAR@ PRADEEP KUMAR VERMA versus STATE OF BIHAR AND ANR.
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A B PRADEEP KUMAR@ PRADEEP KUMAR VERMA v. STA TE OF BIHAR AND ANR. AUGUST 17, 2007 [DR. ARIJIT PASA YAT AND D.K. JAIN, JJ.] Penal Code, 1860-ss. 90, 375, 376 and 406-Allegation of physical relations by accused with the victim on promise to marry her-Charges ul C ss. 376 and 406-Application against framing of charges dismissed summarily by High Court-On appeal, held: Promise to marry without anything more will not give rise to "misconception of fact" within the meaning of s. 90- But a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention to marry her, will vitiate the consent and the accused will come within the ambit of s. 375-Such D intention is to be elicited from the/acts of the case-ss. 376 and 406 prima facie do not appear to have any application in the present case-Matter remitted to High Court for ji-esh consideration. Words and Phrases-'Consent'-Meaning of in the context of s. 90 JPC. E Respondent No. 2 lodged an FIR alleging that appellant-accused had sexual relations with her on an assurance that he would marry her. Later he also accepted her before Deity and entered into an agreement of marriage. Thereafter he had intentions to marry another lady. Charge-sheet was filed against the accused u/ss 376 and 406 IPC. He filed application for discharge, but the same was rejected and charges were framed. The application F challenging framing of charges, was dismissed summarily by High Court. Hence the present appeal. Appellant-accused contended thats. 376 IPC was not applicable because the physical relations were on the consent of the respondent, and thats. 406 Q was not applicable as there was no allegation of any entrustment of any property. Respondent-State contended that though primafacie ss. 376 and 406 were not applicable, but the case is covered u/ss. 415 and 493 IPC; but there was no scope for interference, as the charges can be altered during trial. H 58 PRADEEP KUMAR@ PRADEEP KUMAR VERMA v. STA TE OF BIHAR 59 Disposing of the appeal and remitting the matter to High Court, the A Court HELD: 1. There are two grounds specified in Section 90 IPC, which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in first part of Section 90 are from B the point of view of the victim and second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact Thus the second part lays emphasis on the knowledge or reasonable belief of C the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. The Court has to see whether the person giving the consent has given it under fear or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender is conscious of the fact or should have reason to think that but for the fear ot misconception, the consent would not have been given. This is the D scheme of Section 90 which is couched in negative terminology. [Para 9) (62-H; 63-A-CJ Deelip Singh@ Dilip Kumar v. State of Bihar, (2005) l SCC 88; Uday v. State of Karnataka, (2003[ 4 SCC 46; Rao Harnarain Singh Sheoji Singh v. State, AIR (1958) Punj 123; In Re AIR 1960 Madras 308, GopiShankerv. E State of Rajasthan, AIR (1967) Rajasthan 159; Bhimrao v. State of Maharashtra, (1975) Mah.LJ 660; Vijayan Pillai v. State of Kera/a, (1989) 2 KLJ 234; State of H.P. v. Mango Ram, (2000) 7 SCC 224; N. Jaladu, Re ILR (1913) 36 Madras 453 and Parshottain Mahadev v. State, AIR (1963) Bombay ~~~~ F R. v. Day, 173 E.R. 1026 in 1841, referred to. Stroud's Judicial Dictionary; Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. Vol.; 8-A, referred to. 2. Though a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90 IPC, but a representation deliberately made by the accused 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 G the making of promise,
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