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The failure to keep the promise on a future uncertain date does not always amount to misconception of fact under section 90 of IPC : Madhya Pradesh High Court

The Madhya Pradesh High Court in the case of Gopal Oyan vs The State Of Madhya Pradesh (M.Cr.C. No.37322 of 2021) upheld that  the failure to keep the promise on a future uncertain date does not always amount to misconception of fact under section 90 of IPC.

Facts of the case: On 20.10.2020, the prosecutrix lodged an FIR against the present petitioner stating therein that on the false pretext of marriage, the petitioner developed physical relations with the prosecutrix against her wish. As per the prosecutrix while studying, she developed friendship with the present petitioner through face-book and thereafter in May, 2020, the parents of the petitioner and the prosecutrix met and they agreed to get their marriage solemnized and finally the marriage was settled. Thereafter, on 16.09.2020, the petitioner came to the house of the prosecutrix at Khanpura and remained there for a few days. In between the petitioner asked prosecutrix to develop physical relations and on 17.09.2020, on the assurance of marriage, he developed physical relation with the prosecutrix which was continued so many times but on 20.10.2020, the petitioner refused to marry the prosecutrix and therefore, she went to the police station with her father and lodged the FIR.

On the basis of the report lodged by the prosecutrix, an offense had been registered against the present petitioner. Although when prosecutrix was asked to get herself medically examined, she refused to do so. The report is available on record indicating that the prosecutor refused to get herself medically examined and thereafter, her statement under Section 164 of Cr.P.C. was recorded on the same date, in which she has very categorically admitted this fact that the present petitioner did not develop any physical relation with her though he asked her for developing physical relation but she refused and, therefore, nothing happened. She has further admitted that from the date of developing friendship on face-book till the submission of FIR, no physical relation has been developed between them.

Counsel for the petitioner submitted that no case of Section 376 of IPC is made out against the petitioner and as such, the proceedings initiated against him are liable to be set aside.

Judgment: The court held that  the consensus of judicial opinion is in favour of the view that 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. In the present case she must have known the consequences of the act, 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 the court to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

Under Section 90 of the Penal Code the consent is vitiated only if it is given under a misconception of fact. In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, the Court observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled.

On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act.

In view of the aforesaid enunciation of law, it was clear that no case of Section 376 of IPC is made out against the present petitioner for the reason that the prosecutrix in her statement recorded under Section 164 Cr.P.C. has very categorically admitted that petitioner has not developed any physical relation with her and further it was clear from the documents available on record that she refused to get herself medically examined and no medical opinion is also available so as to ascertain that any physical relation has been developed between the petitioner and the prosecutrix. In absence of any such material indicating that petitioner has developed physical relation forcefully without the consent of the prosecutrix, he cannot be put to trial for an offense of Section 376 of IPC. Accordingly, the petition was  allowed and the FIR under Section 376(2)of IPC was quashed. 

JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY

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