LexYEDLA SRINIVASA RAO versus STATE OF A.P.
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A B YEDLA SRINIV ASA RAO ST ATE OF A.P. SEPTEMBER 29, 2006 [A.K. MATHUR AND AL TAMAS KABIR, JJ.] Penal Code, 1860-Sections 375, 376, 417 and 90--Rape-Accused forcibly comnu~ted sexual intercourse with a girl of tender age and thereafter C continued to do so by promising to marry her--Girl became pregnant and he refused to marry her-Held: He is guilty of offence punishable ulss.376 and 417 as his intention was never bona fide-Consent of girl was not obtained voluntarily but under misconception of fact that he intends to marry her- Such consent cannot condone the offence-Section 90 !PC can be invoked- Evidence Act, Section 114-A. D Prosecution's case was that the prosecutrix PW-I had been attending to cooking at her sister's house where accused was a frequent visitor. He persuaded her to indulge in sexual intercourse. She resisted to this for sometime but one day accused forcibly committed sexual intercourse with her against her will and consent. When she protested that he had spoiled her life, E he promised that he would marry her. Thereafter, he continued to have sexual intercourse with her. When she became pregnant, she insisted him to marry her but he refused. PW-I told her sister about her pregnancy. Matter was reported to F Panchayat. Accused accepted the guilt .md promised to marry but subsequently absconded from village. Police registered a case for offence punishable u/ss. 376 and 417 IPC. PW-I was sent for medical examination. Doctor confirmed about the pregnancy and further opined that the age of PW-I was not less than 15 years and not more than 17 years. G Sessions Judge acquitted the accused. On appeal, High Court held that the sexual intercourse by accused with PW-I by falsely promising to marry her, attracts the category of offence punishable u/ss. 376 and 417 IPC and sentenced him to undergo RI for 7 years. In these appeals, the questions for consideration are, that when the H 760 I' YEDLASRINIVASARAOv. STATEOFA.P. 761 accused committed sexual intercourse with PW-1 holding out a promise for A marriage whether this will amount to a consent or not and whether this conduct of accused falls under any of one six description of Section 375 IPC. Dismissing the appeals, the Court HELD: I. The conviction and sentence awarded to the appellant is correct B and no case is made out for interference. The intention of the accused was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by C the accused that he had committed sexual intercourse which is apparent from the testimony of PWs I, 2 and 3 and before Panchayat of elders of the vill&ge. The poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded D the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception cannot be treated to be a consent. Hence, Section 90 IPC can be invoked. [767-C-D; E-F; 768-AI Jayanti Rani Panda v. State of West Bengal and Anr., (1984) Crl.L.J.1535 - distinguished. E 2.1. It is always matter of evidence whether consent was obtained willingly, or consent has been obtained by holding a false promise which the accused never intended to fulfil. If the court of facts come to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that he would marry her then in that case it F can always be said that such consent was not obtained voluntarily but under , a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence. 1768-B-CI Emperor v. Mussammat Soma, (1917) Crl.L.J.R. 18 and Deelip Singh G Alias Dilip Kumar v. State of Bihar, (20051 I SCC 88, distinguished. 2.2. What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society a
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