DEEPAK GULATIversusSTATE OF HARYANA

                           [2013] 6 8.C.R. 544


A                           DEEPAK GULATI
                                      v.
                         STATE OF HARYANA
                  (Criminal Appeal No. 2322 of 2010)
                              MAY 20, 2013
B
          [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
                                                                B
and had sexual intercourse with her in lieu of his promise
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                D
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
                                                                E
     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          F
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             G
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
                                                                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 an accused on
  account of circumstances which he could not have
  foreseen, or which were beyond his control, was unable
0
  to marry her, despite having every intention to d-0 so.
  Such cai;es must be treated differently. An accused can
  be convicted for rape only if the court reaches a
  conclusion that the intention of the accused was mala
  fide, and that he had clandestine motives. [Para 18] [556-
E A-F]

       1.3. There must be adequate evidence to show that
  at the relevant time, i.e. at initial stage itself, the accused
  had no intention whatsoever, of keeping his promise to
F marry the victim. There may, of course, be circumstances,
  when a person having the best of intentions is unable to
  marry the victim owing to various unavoidable
  circumstances. The "failure to keep a promise made with
  respect to a future uncertain date, due to reasons that are
G not ve~y clear from the evidence available, does not
  always amount to misconception of fact. In order to come
  within the meaning of the term misconception of fact, the
  fact must have an immediate relevance." Section 90 IPC
  cannot be called into aid in such a situation, to pardon
H the act of a girl in entirety, and fasten criminal liability on
      DEEPAK GULATI v. STATE OF HARYANA                 547


the other, unless the court is assured of the fact that from   A
the very beginning, the accused had never really intended
to marry her. [Para 21] [558-A-D]
    Uday v. State of Kamataka AIR 2003 SC 1639: 2003 (2)
SCR 231; Deelip Singh @ Dilip Kumar v. State of Bihar AIR      B
2005 SC 203: 2004 (5) Suppl. SCR 909; Yedla Srinivasa
Rao v. State of A.P. (2006) 11 SCC 615: 2006 (6) Suppl.
SCR 760; Pradeep Kumar Verma v. State of Bihar & Anr. AIR
2007 SC 3059: 2007 (9) SCR 58 and N. Jaladu, Re /LR
(1913) 36 Mad 453 - referred to.
                                                               c
     2. In the instant case, 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           o
the appellant. According to the version of events
provided by her, the prosecutrix had called the appellant
on a number given to her by him, to ask him why he had
not met her at the place that had been pre-decided by
them. She also waited for him for a long time, and when        E
he finally arrived she went with him to the Karna lake
where they indulged in sexual intercourse. She did not
raise any objection at this stage and made no complaints
to any one. Thereafter, she also went to Kurukshetra with
the appellant, where she lived with his relatives. Here too,
                                                               F
the prosecutrix voluntarily became intimate with the
appellant. She then, for some reason, went to live in the
hostel at Kurukshetra University illegally, and once again
came into contact with the appellant at the Birla Mandir.
Thereafter, she even proceeded with the appellant to the
old bus-stand in Kurukshetra, to leave for Ambala so that      G
the two of them could get married in court at Ambala.
However, here they were apprehended by the police. If
the prosecutrix was in fact going to Ambala to marry the
appellant, as stands fully established from the evidence
on record, one fails to understand on what basis the           H
       548      $UPREME COURT REPORTS                  [2013] 6 S.C.R


  A    allegation of "false promise of marriage" has been raised
       by the prosecutrix. One also fails to ·comprehend the
       circumstances in which a charge of deceit/rape can be
       leveled against the appellant, in light of the afore-
       mentioned fact situation. [Paras 23, 24] [559-A-F]
  B
           3. The appellant, who has already served more than
       3 years sentence, is entitled to the benefit of doubt. His
       conviction and sentences awarded by the courts below
       are set aside. [Para 25] [559-G-H]

  c                          Case Law Reference:
             2003 (2) SCR 231            referred to      Para 16
             2004 (5) Suppl. SCR 909 referred to          Para 16, 19
             2006 (6) Suppl. SCR 760 referred to          Para 16
  D
             2007 (9) SCR 58             referred to      Para 16, 20
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
       No. 2322 of 201 O.
·. E
           From the Judgment and order dated 28.01.2010 of the
       High C.ourt of Punjab & Haryana at Chandigarh in CRA No.
       960-SS of 1998 (O&M).

             Amit Pawan for the Appellant.
  F
             Kamal Mohan Gupta for the Respondent.

             The Judgment of the Court was delivered by.

          D~. B.S. CHAUHAN, J. 1. This appeal has been preferred
  G against the impugned judgment and order dated 28.1.2010,
    passe<!I by the Punjab & Haryana High Court at Chandigarh in
    CRA No. 960-SB of 1998 by way of which, the High Court has
    affirmed the judgment and order of the Additional Sessions
    Judge, Kamal dated 13.11.1998 passed in Sessions Case No.
  H 7 of 1995, by way of which the appellant stood convicted for
           DEEPAK GULATI v. STATE OF HARYANA                  549
                 [DR. B.S. CHAUHAN, J.)
 the offences punishable under Sections 365 and 376 of the A
 Indian Penal Code, 1860 (hereinafter referred to as the 'IPC')
 and sentenced to undergo rigorous imprisonment for a period
 of three years, alongwith a fine of Rs.2,000/- under Section 365
 IPC; and rigorous imprisonment for a period of seven years, .
 alongwith a fine of Rs.5,000/- under Section 376 IPC. Both the B
 sentences were ordered to run concurrently.

         2. Facts and circumstances giving rise to this appeal are
 that:

         A. The appellant and Geeta, prosecutrix, 19 years of age,   C
  student of 10+2 in Government Girls Senior Secondary School,
  Kamal, had known each other for some time. Appellant had
. been meeting her in front of her school in an attempt to develop
  intimate relations with her. On 10.5.1995, the appellant induced
  her to go with him to Kurukshetra, to get married and she          D
  agreed. En route Kurukshetra from Kamal, the appellant took
  her to Karna lake (Kamal), and had sexual intercourse with her
  against her wishes, behind bushes. Thereafter, the appellant
  took her to Kurukshetra, stayed with his relatives for 3-4 days
  and committed rape upon her.                                       E

     B. The prosecutrix was thrown out after 4 days by the
appellant. She then went to one of the hostels in Kurukshetra
University, and stayed there for a few days. The warden of the
hostel became suspicious and thus, questioned the prosecutrix.
                                                                     F
The prosecutrix thus narrated the incident to the warden, who
informed her father. Meanwhile, the prosecutrix left the hostel
and went to a temple, where she once again met the appellant.
Here, the appellant convinced her to accompany him to Ambala
to get married. When they reached the bus stand, they found
her father present there alongwith the police. The appellant was     G
apprehended.

     C. Baldev Raj Soni, father of the prosecutrix, had lodged
 a complaint on 16.5.1995 under Sections 365 and 366 IPC,
                                                                     H
    550       SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A   which was later converted to one under Sections 365 and 376
    IPC.

        D. The prosecutrix was medically examined on 17.5.1995.
  Her statement was recorded by the Magistrate under Section
B 164 of the Code of Criminal Procedure, 1973 (hereinafter
  referred lb as the 'Cr.P.C.') on 20.5.1995. After completing the
  investigation, a chargesheet was filed against the appellant, and
  in view of the material on record, charges under Sections 365
  and 376 IPC were framed against him by the Sessions Court,
  vide ord~r dated 3.6.1996.
c
        E. The prosecution examined 13 witnesses in support of
  its case Cilnd in view thereof, the Sessions Court convicted the
  appellant under Sections 365/376 IPC, vide judgment and
  order dated 13.11.1998 and awarded him the sentence for the
D said charges as has been referred to hereinabove.

      F. Aggrieved, the appellant preferred Criminal Appeal No.
  960-SB of 1998 (D & M) in the High Court of Punjab and
  Haryana at Chandigarh, which stood dismissed by the
E impugned judgment and order dated 18.11.1998.

          Henice, this appeal.

         3. None present for the appellant. In view thereof, the Court
    has exa1111ined the material on record and gone through both
F   the impugned judgments with the help of Shri Kamal Mohan
    Gupta, learned counsel appearing on behalf of the State.

        4. The statement of the prosecutrix (PW.7) was recorded
  under Section 164 Cr.P.C. on 20.5.1995, wherein she has
  clearly stated that she had gone alongwith the appellant to get
G married and for such purpose, she had also obtained a
  certificate from her school as proof of her age. On the said date
  i.e. 10.5.1995, as the appellant had been unable to reach the
  pre-decided place, the prosecutrix had telephoned him on the
  number provided by him. She has further deposed that the
H appellant had asked her to have a physical relationship with him,
       DEEPAK GULATI v. STATE OF HARYANA                      551
             [DR. B.S. CHAUHAN, J.]
 but that she had not agreed to do so before marriage. When          A
 they reached Kurukshetra and stayed with his relatives there,
 the appellant had sexual intercourse with her for 3 days. On the
 4th day, she was thrown out of the house by the appellant and
 thus, she had gone to the Girls Hostel in Kurukshetra University,
where she had stayed under the pretext of getting admitted to        B
"the university. However, the university personnel became
 suspicious, and after making enquiries from her, they telephoned
 her house. She then left the university and had gone to the Birla
 Mandir at Kurukshetra, where she had met appellant. Here he
 lured her once again, and thus, she had agreed to accompany         c
 him to Ambala to get married in court there. However, when
 they reached the old bus stand Kurukshetra, she had found her
 father and several police officials present there, and thereafter
 the appellant had been arrested and the prosecutrix was taken
 to Kamal.
                                                                     D
     5. The prosecutrix was examined in court as PW.7 on
5.7.1996, wherein she deposed that on 10.5.1995, as per the
agreed plan, she had left her house to go alongwith the
appellant to Kurukshetra to get married in court. However, she
had not found the appellant at the place decided upon by them,       E
and had thus telephoned him at the number provided to her by
him. She was then informed that the appellant had already left
for Kurukshetra and hence, waited for him from 12.00 noon till
1.30 p.m. When he arrived, she went alongwith the appellant
at 2.30 p.m. to Karna lake (Kamal) by bus. Here, she was taken       F
into some bushes behind the restaurant at Karna lake, and
thereafter raped by the appellant. At the said time, she neither
raised any objection, nor any hue and cry. The prosecutrix did
not even mention the said incident to any person, despite going
to Kurukshetra and staying there for 3-4 days. She raised no         G
grievance in this regard before any person or authority at the
bus stand. She continued to stay with the appellant in the house
of his relatives and was raped there. The appellant continued
to postpone their marriage on one pretext or the other.
Thereafter, she was thrown out of the house. She thus went and       H
    552      SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A stayed in the University hostel and on being questioned, she
  disclosed Clletails regarding her treatment to the warden, who
  informed h~r family. After this, she went to the Birla Mandir at
  Kurukshet~a. and here she met the appellant once again. The
  appellant made another attempt to convince her to go to
B Ambala with him to get married in court there. Upon reaching
  the old B11s Stand, she found her brother Rajinder there
  aiongwith a police party, who had been accompanying them in
  a jeep to Kamal.

          6. In his statement, Baldev Raj Soni (PW.8), father of the
c prosecutrix has deposed that on 10.5.1995, her daughter Geeta
  did not come home. He thus lodged a complaint and contacted
  Rajni, a friend of Geeta, who told him that the appellant Deepak
  had taken her to Kurukshetra. On 17 .5.1995, the police had
  gone alongwith him to Kurukshetra to locate Geeta, where they
D had found the prosecutrix and the appellant sitting at the old
  bus stand in Kurukshetra. Both of them had been caught hold
  of by them, and were brought to Kamal.

       7. Smt. P. Kant Vashisht (PW.10), Warden of Saraswati
E Bhawan Kurukshetra University, though did not support the case
  of the prosecution, and was declared hostile, has deposed in
  her examination in chief that Geeta, prosecutrix, had been
  brought to her office by one person, namely, Shri Ashwini,
  student of the engineering college, and that he had left Geeta
F in her office, stating that he would inform her parents. After
  sometime, her brother had come and taken her away. She was
  cross-examined by the prosecution, and she has deposed that
  the prosecutrix had in fact stayed in the hostel without any
  authority/permission. One Nirmla, attendant therein had allowed
G her to stay in the hostel without any such requisite permission.

        8. Smt. Krishana Chawla (PW.3), Lecturer of Political
    Science in Government Senior Secondary School, Kamal, has
    deposed before court, and has proved the school register to
    show that the date of birth of the prosecutrix was 26.6.1976.
H
      DEEPAK GULATI v. STATE OF HARYANA                     553
            [DR. B.S. CHAUHAN, J.]
    9. Dr. (Mrs.) Amarjeet Wadhwa (PW.11 ), Medical Officer,       A
Government Hospital, Kamal, Who examined the prosecutrix on
17.5.1995, has deposed that the prosecutrix had indulged in
sexual intercourse and was habitual to the same.

     10. Shri Bhagwan Chand (PW.12), ASI, the Investigating
                                                                   B
Officer, has deposed that after recording the statement of the
father of the prosecutrix on 17 .5.1995, he had taken her father
to Kurukshetra to search for the prosecutrix alongwith one
constable. At about 12.00 noon, when they reached the old bus
stand at Kurukshetra, the father of the prosecutrix noticed
Geeta, sitting with the appellant Deepak in one corner of the      C
bus stand, and thereafter, they had apprehended them. He has
also disposed that he had recorded the statement of the
prosecutrix.

     11. There exist in the statements of the witnesses material D
contradictions, improvements and embellishments. In the cross-
examination, Baldev Raj Soni (PW.8) has deposed that he had
gone to Kurukshetra with his relatives i.e. Ashwini Kumar and
Surinder, and has stated that his son Rajinder was not with him
at such time. He has not deposed that he had received any E
telephone call from the warden of any hostel, as has been
suggested by the prosecutrix. Furthermore, the prosecutrix in
her statement under Section 164 Cr.P.C., has not mentioned '
the incident involving her indulging in sexual contact with tl'le
appellant at the Kama lake at Kamal. Bhagwan Chand (PW.12)
                                                                  F
has not mentioned that any relatives of the prosecutrix had
accompanied them while they were traveling from Kurukshetra
to Kamal.

     12. The FIR in the present case has been registered under
Sections 365 and 366 IPC, by Baldev Raj Soni (PW.8), father        G
of the prosecutrix, naming several persons, including the
appellant, accusing them of enticing his daughter and wrongfully
confining her at an unknown place. Thus, he has expressed his
apprehension with respect to danger to the life of his daughter.
                                                                   H
    554           SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A        13. Admittedly, the prosecutrix has never raised any
    grievance before any person at any stage. In fact, she seems
    to have submitted to the will of the appellant, possibly in lieu of
    his promise to marry her.. Thus, a question arises with respect
    to whether, in light of the facts and circumstances of the present
8   case, the appellant had an intention to deceive her from the very
    beginning when he had asked the prosecutrix to leave for
    Kurukshetra with him from Kamal.

          14. The undisputed facts of the case are as under:

c          I.       ·,-he prosecutrix was 19 years of age at the time of
                    the said incident.

           II.      She had inclination towards the appellant, and had
                    willingly gone with him to Kurukshetra to get
                    married.
D
           Ill.     The appellant had been giving her assurance of the
                    fact that he would get married to her.

           IV.      The physical relationship between the parties had
E                   clearly developed with the consent of the
                    prosecutrix, as there was neither a case of any
                    resistance, nor had she raised any complaint
                    anywhere at any time despite the fact that she had
                    been living with the appellant for several days, and
                    had travelled with him from one place to another.
F
           V,       Even after leaving the hostel of Kurukshetra
                    University, she agreed and proceeded to go with
                    the appellant to Ambala, to get married to him -there.

G        15. Section 114-A of the Indian Evidence Act, 1872
    (hereinafter referred to as the 'Act 1872') provides, that if the
    prosec1i1trix deposes that she did not give her cons~mt, 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
H provisi<Dns of Section 114-A of the Act 1872 be pressed into
       DEEPAK GULATI v. STATE OF HARYANA                      555
             [DR. B.S. CHAUHAN, J.]
service. Hence, the sole question involved herein is whether her     A
consent had been obtained on the false promise of marriage.
Thus, the provisions of Sections 417, 375 and 376 IPC have
to be taken into consideration, alongwith the provisions of
Section 90 of the Act 1872. Section 90 of the Act 1872
provides, that any consent given under a misconception of fact,      B
would not be considered as valid consent, so far as the
provisions of Section 375 IPC are concerned, and thus, such
a physical relationship would tantamount to committing rape.

      16. This Court considered the issue involved herein at         C
length in the case of Uday v. State of Karnataka, AIR 2003 SC
1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005
SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC
615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR
2007 SC 3059, and came to the conclusion that in the event
that the accused's promise is not false and has not been made        D
with the sole intention to seduce the prosecutrix to indulge in
sexual acts, such an act(s) would not amount to rape. Thus, the
same would only hold that where the prosecutrix, under a
misconception of fact to the extent that the accused is likely to
marry her, submits to the lust of the accused, such a fraudulent     E
act cannot be said to be consensual, so far as the offence of
the accused· is concerned.

      17. Rape is the most morally and physically reprehensible
crime in a society, as it is an assault on the body, mind and        F
privacy of the victim. While a murderer destroys the physical
frame of the victim, a rapist degrades and defiles the soul of a
helpless female. Rape reduces a woman to an animal, as it
shakes the very core of her life. By no means can a rape victim
be called an accomplice. Rape leaves a permanent scar on             G
the life of the victim, and therefore a rape victim is placed on a
higher pedestal than an injured witness. Rape is a crime against
the entire society and violates the human rights of the victim.
Being the most hated crime, rape tantamounts to a serious
blow to the supreme honour of a woman, and offends both, her
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    556       SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A esteem and dignity. It causes psychological and physical harm
  to the victim, leaving upon her indelible marks.

          18. 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,
8
    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 actually wanted to marry the victim, or had mala
C   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 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
D   consent i'nvolved was given after wholly, understanding the
    nature and consequences of sexual indulgence. There may be
    a case wl:lere 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
E   accused, or where an accused on account of circumstances
    which he could not have foreseen, or which were beyond his
    control, was unable to marry her, despite having every intention
    to do so. Such cases must be treated differently. An accused
    can be convicted for rape only if the court reaches a conclusion
F   that the intention of the accused was mala fide, and that he had
    clandestine moiives.

        19. In Dee/ip Singh (supra), it has been observed as
    under:
G         ·20. The factors set out in the first part of Section 90 are
          from the point of view of the victim. The second part of
          Section 90 enacts the corresponding provision from the
          point of view of the accused. It envisages that the accused
          too has knowledge or has reason to believe that the
H         consent was given by the victim in consequence of fear of
      DEEPAK GULATI v. STATE OF HARYANA                       557
            [DR. B.S. CHAUHAN, J.)
    injury or misconception of fact. Thus, the second part lays      A
    emphasis on the knowledge or reasonable belief of the
    person who obtains the tainted consent. The requirements
    of both the parts should be cumulatively satisfied. In other
    words, the court has to see whether the person giving the
    consent had given it under fear of injury or misconception       8
    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 or misconception, the consent would not have been
    given. This is the scheme of Section 90 which is couched         C
    in negative terminology."

    20. This Court, while deciding Pradeep Kumar Venna
(Supra), placed reliance upon the judgment of the Madras High
Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453,
wherein it has been observed:                                        D

    "We are of opinion that the expression "under a
    misconception of fact" is broad enough to include all cases
    where the consent is obtained by misrepresentation; the
    misrepresentation should be regarded as leading to a             E
    misconception of the facts with reference to which the
    consent is given. In Section 3 of the Evidence Act
    Illustration (d) states that a person has a certain intention
    is treated as a fact. So, here the fact about which the
    second and third prosecution witnesses were made to
    entertain a misconception was the fact that the second
                                                                     F
    accused intended to get the girl married ........ "thus ... if
    the consent of the person from whose possession the girl
    is taken is obtained by fraud, the taking is deemed to be
    against the will of such a person" .... Although in cases of     G
    contracts a consent obtained by coercion or fraud is only
    voidable by the party affected by it, the effect of Section
    90 IPC is that such consent cannot, under the criminal law,
    be availed of to justify what would otherwise be an offence."

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    558           SUPREME COURT REPORTS                [2013] 6 S. C.R.


A         21. Hence, it is evident that there must be adequate
  evidence to show that at the relevant time, i.e. at initial stage
  itself, the accused had no intention whatsoever, of keeping his
  promise to marry the victim. There may, of course, be
  circumstances, when a person having the best of intentions is
8 unable to marry the victim owing to various unavoidable
  circumstances. The "failure to keep a promise made with
  respect to a future uncertain date, due to reasons that are not
  very clear f~om the evidence available, does not always amount
  to misconc~ption of fact. .In order to come within the meaning
  of the term misconception of fact, the fact must have an
C immediate relevance." Section 90 IPC cannot be called into aid
  in such a situation, to pardon the act of a girl in entirety, and
  fasten criminal liability on the other, unless the court is assured
  of the fact that from the very beginning, the accused had never
  really intended to marry her.
D
        22. The instant case is factually very similar to the case of
  Uday (Supra), wherein the following facts were found to exist:

           I.      The prosecutrix was 19 years of age and had
E                  adequate intelligence and maturity to understand
                   the significance and morality associated with the act
                   she was consenting to.

           II.     She was conscious of the fact that her marriage
                   may not take place owing to various
F                  considerations, including the caste factor.

           Ill.    It was difficult to impute to the accused, knowledge
                   of the fact that the prosecutrix had consented as a
                   consequence of a misconception of fact, that had
G                  arisen from his promise to marry her.

          IV.      There was no evidence to prove conclusively, that
                   the appellant had never intended to marry the
                   prosecutrix.

H
         DEEPAK GULATI v. STATE OF HARYANA                     559
               [DR. B.S. CHAUHAN, J.]

      23. To conclude, the prosecutrix had left her home              A
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. According to the
version of events provided by her, the prosecutrix had called         B
the appellant on a number given to her by him, to ask him why
he had not met her at the place that had been pre-decided by
them. She also waited for him for a long time, and when he
finally arrived she went with him to the Karna lake where they
indulged in sexual intercourse. She did not raise any objection       c
at this stage and made no complaints to any one. Thereafter,
she also went to Kurukshetra with the appellant, where she lived
with his relatives. Here to, the prosecutrix voluntarily became
intimate with the appellant. She then, for some reason, went to
live in the hostel at Kurukshetra University illegally, and once      D
again came into contact with the appellant at the Birla Mandir.
Thereafter, she even proceeded with the appellant to the old
bus-stand in Kurukshetra, to leave for Ambala so that the two
of them could get married in court at Ambala. However, here
they were apprehended by the police.
                                                                      E
     24. If the prosecutrix was in fact going to Ambala to marry
the appellant, as stands fully established from the evidence on
record, we fail to understand on what basis the allegation of
"false promise of marriage" has been raised by the prosecutrix.
We also fail to comprehend the circumstances in which a               F
charge of deceit/rape can be leveled against the appellant, in
light of the afore-mentioned fact situation.

     25. In view of the above, we are of the considered opinion
that the appellant, who has already served more than 3 years          G
sentence, is entitled to the benefit of doubt. Therefore, the
appeal succeeds and is allowed. His conviction and sentences
awarded by the courts below are set aside. The appellant is
on bail. His bail bonds stand discharged.

B.B.B.                                          Appeal allowed.       H