The High Court denied bail to the applicant accused of deceiving the prosecutrix by giving false promise of marriage who submitted herself for sexual intercourse based on the misconception of facts.

The present application was filed for grant of anticipatory bail for offences registered under Sections 376, 417, 323, 504, 506 of the Penal Code, 1860.

Informant aged 20 years used to go for labour work at a poultry farm, where she got acquainted with the applicant and promised to marry her.

Applicant had sexual intercourse with the informant twice under the promise of marriage.

About 2 months before the filing of the FIR, the applicant called her and demanded sexual favour from the informant, but she denied on the pretext getting married. Applicant got enraged and beat her.

Later, the informant learnt that the applicant was already married.

Counsel for the applicant, R.S. Shinde and V.S. Badakh, APP for the State.

From the FIR filed, it is apparent that the prosecutrix gave consent for the sexual intercourse as the applicant promised to marry her.

Question to be determined:

Whether the consent of the prosecutrix was a voluntary consent or it was a consent-based on the misconception of facts?

In case of rape under Section 376 of the Penal Code, more particularly, in cases where consent is obtained by giving false promise of marriage, it has to be ascertained whether the accused did not have the intention to marry the prosecutirx right from the inception.

For the above-stated aspect on the matter, the law was settled.

Section 90 of the Penal Code, 1860 talks about “Consent known to be given under fear or misconception” and the essential requirement for that is, the same must have been obtained under the misconception of fact and the accused must be aware that the consent was given in consequence of such fear or misconception.

Court observes that, investigation papers do not reveal that the prosecutrix had the knowledge that the accused was a married man before submitting herself for sexual intercourse. If she had submitted herself for sexual intercourse with full knowledge that the applicant was a married man, the consent would not be vitiated.

In view of Section 5(i) of the Hindu Marriage Act, a person cannot contract second marriage if his or her spouse is living.

In view of the above-stated provision, the applicant could not have legally married the prosecutrix during the subsistence of his marriage.

Further, the Court stated that the accused had knowledge that he would not be able to marry the prosecutrix as long as his marriage is subsisting. This fact clearly shows that the applicant had the intention to deceive the prosecutrix by giving false promise of marriage. Therefore, the consent given by the prosecutrix is vitiated because of the concealment of material fact by the accused from her.

Hence, in view of the above-stated facts, the applicant is not entitled to be released.