UDAY versus STATE OF KARNATAKA

Citation: [2003] 2 S.C.R. 231 · Decided: 19-02-2003 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

UDAY 
v. 
STATE OF KARNATAKA 
FEBRUARY 19, 2003 
[N. SANTOSH HEGDE AND B.P. SINGH, JJ.] 
Penal Code, 1860-Sections 376 and 90-Rape-Prosecutrix aged 19 
years alleging that accused was .having sexual intercourse with her, inducing 
A 
B 
to consent on the promise that he would marry her-Accused failing in his C 
promise and prosecutrix becoming pregnant-Complaint under Section 376-
Conviction-High Court upholding the same-Justification of-Held: Evidence 
on record leads to the conclusion that prosecutrix freely, voluntarily and 
consciously consented to having sexual intercourse with the accused and her 
consent was not in consequence of any misconception of fact-Also there is 
no evidence to prove that accused never intended to marry her thus conviction D 
set aside. 
Section 90-Consent known to be given in fear or misconception--
Application of-Discussed 
According to the prosecutrix-aged 19 years, appellant had sexual E 
intercourse with her. Appellant induced her to consent on the promise that 
he shall marry her. Under such misconception for several months 
prosecutrix, who claimed to be deeply in love with the appellant, continued 
to have sexual intercourse with him. Consequently she became pregnant 
and then also the appellant did not marry the prosecutrix though he had 
promised on many occasions. Prosecutrix then filed a complaint against F 
the appellant under Section 376 IPC. Sessions Judge convicted and 
sentenced the appellant for the offence of rape. High Court upheld the 
conviction. Hence the present appeal. 
Appellant contended that one has to look to Section 375 alone for G 
finding out whether the offence of rape had been committed; that even 
under Sectio'n 90 the consent is vitiated· only if it is given under a 
misconception of fact; that a belief that the promise of marriage was meant 
to be fulfilled is not a misconception of fact; that the question of 
misconception of fact will arise only if the act consented to, is believed by 
231 
H 
232 
SUPREME COURT REPORTS 
[2003] 2 S.C.R. 
A the person consenting to be something else, and on that pretext sexual 
intercourse is committed; and that in such cases it cannot be said that 
victim consented to sexual intercourse. 
Allowing the appeal, the Court 
B 
HELD: 1.1. 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 and a false promise is not a misconception of fact 
within the meaning of the Penal Code. Further there is no strait jacket 
formula for determining whether consent given by the prosecutrix to 
C 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 th~ evidence 
before it and the surrounding circumstances, before reaching a conclusion, 
D 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 also 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. [234-E-G] 
E 
1.2. In the instant case, the prosecutrix was a grown up girl studying 
in a college. She was deeply in love with the appellant. She was, however, 
aware of the fact that since they belonged to different castes, marriage 
was not possible. In any event, the proposal for their marriage was bound 
to be seriously opposed by their family members. She admits having told 
so to the appellant when he proposed to her the first time. She had 
F sufficient intelligence to understand the significance and moral quality of 
the act she was consenting to. That is why she kept it a secret as long as 
she could. Despite this, she did not resist the overtures of the appellant, 
and in fact succumbed to it. She thus freely exercised a choice between 
resistance and assent. She must have known the consequences of the act, 
G particularly when she was conscious of the fact that their marriage may 
not take place at all on account of caste considerations. All these 
circumstances lead to the conclusion that she freely, voluntarily, and 
consciously consented to having sexu

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