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HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 12TH^ DAY OF JULY 2024 / 21ST ASHADHA, 1946 CRL.MC NO. 9538 OF 2023 CRIME NO.453/2017 OF North Paravur Police Station, Ernakulam SC NO.956 OF 2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM PETITIONER/ACCUSED: SUJITH AGED 40 YEARS S/O. SIVADASAN, SUJITH BHAVAN, PATTANAKKAD, CHERTHALA, ALAPPUZHA, PIN – 688531. BY ADVS. C.P.UDAYABHANU NAVANEETH.N.NATH RESPONDENTS/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 XXX XXXX SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2024 ALONG WITH CRL.MC.NOS.9546/ & 9561/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 2024/KER/
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 12TH^ DAY OF JULY 2024 / 21ST ASHADHA, 1946 CRL.MC NO. 9546 OF 2023 CRIME NO.453/2017 OF North Paravur Police Station, Ernakulam SC NO.955 OF 2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM PETITIONER/ACCUSED: SUJITH AGED 40 YEARS S/O. SIVADASAN, SUJITH BHAVAN, PATTANAKKAD, CHERTHALA, ALAPPUZHA, PIN – 688531. BY ADVS. C.P.UDAYABHANU NAVANEETH.N.NATH RESPONDENTS/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 XXX XXXX SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2024 ALONG WITH CRL.MC.9538/2023 & CRL.MC.9561/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 2024/KER/
“C.R”
A. BADHARUDEEN, J.
Crl.M.C.Nos.9538, 9546 and 9561 of 2023
Dated this the 12
th
day of July, 2024
C O M M O N O R D E R
Crl.M.C.No.9538/2023, is one filed under Section 482 of the Code of
Criminal Procedure (`Cr.P.C’ for short hereafter), by the petitioner/sole
accused, to quash S.C.No.956/2018 on the files of the Special Court for trial of
offence against women and children (Protection of Children from Sexual
Offences Act (PoCSO Act), Ernakulam, arising out of Crime No.453/2017 of
North Paravur Police Station, Ernakulam. Crl.M.C.No.9546/2024 also is at the
instance of the same petitioner, where quashment of S.C.No.955/2018, arising
out of Crime No.453/2017 of North Paravur Police Station, Ernakulam, sought
for. Prayer in Crl.M.C.No.9561/2023 also is for quashment of
C.P.No.37/2023 pending before the Judicial First Class Magistrate Court-I,
North Paravur, arising out of the above same crime.
2. Heard the learned counsel for the petitioner and the learned
Public Prosecutor in detail. Perused the prosecution records.
3. The prosecution case in S.C.No.955/2018 is that the accused,
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who was the driver of a Tempo Van used by the defacto complainant along
with family for a tour programme to Kodaikanal, during the month of April,
2005, made intimacy with her through mobile phone and other means and
thereafter with intention to commit rape on her at about 3 p.m on 17.07.
taken her to the tempo van bearing Registration No.KL 7A 6037 and subjected
her to rape on the back seat of the tempo van. In the meanwhile, he also
photographed the visuals and thereby her modesty was outraged. Accordingly,
the prosecution alleged commission of offences punishable under Sections 376
and 342 of the Indian Penal Code (`IPC’ for short hereafter) as well as 66E of
the I.T Act.
4. Coming to S.C.No.956/2018, the same defacto complainant
would allege commission of rape by the same accused on 16.11.2011, who
took the defacto complainant in a car bearing Registration No.KL32C 1986 to
room No.109 of IV Cottage Lodge, Munnar. Repeated rape thereafter also
alleged. The same also was recorded by the accused.
5. In C.P.No.37/2023 also the defacto complainant and the
accused are one and the same and the allegation is that on 17.10.2015, the
accused herein brought her in a car bearing Registration No.KL32C 1986 and
subjected her to sexual intercourse by threat at a home stay lodge near Munnar.
On 30.09.2016 also the accused took her to a home stay lodge near Marayoor
Gramapanchayat and repeated forceful sexual intercourse.
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Therefore, quashment of the proceedings, denying opportunity to the
prosecution to adduce evidence in support of the prosecution case, cannot be
considered.
8. In this connection it is relevant to refer the relevant decisions
in paragraphs (I) to (X) dealing with the consensual sex and vitiation of
consent on the ground of misconception of fact:
(I) A two Judge Bench of the Apex Court reported in [(2003) 4
SCC 46], Uday v. State of Karnataka is relevant in this connection, where the
Apex Court dealt with a case in which was alleged by the prosecution that the
prosecutrix was subjected to rape by the accused on repeated promise of
marriage with assurance of marriage, wherein the Apex Court held in
paragraphs 24, 25 and 26 as under :
“24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her.
- There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to 2024/KER/
meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o’clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.
- In view of our findings aforesaid, we do not consider it necessary to consider the question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under Section 375 fourthly and fifthly, or whether consent given under a misconception of fact contemplated by Section 90 has a wider application so as to include circumstances not enumerated in Section 375 IPC.”
(II) In another 2 Judge Bench decision of the Apex Court Deelip
Singh v. State of Bihar , [2005 LJC 189 : 2005 (1) KLT SN 20 : 2005 (1) SCC
88 : AIR 2005 SC 203], the Apex Court dealt with a case where the victim girl
lodged a complaint to the police on 29-11-1988 i.e. long after the alleged act of
rape. By the date of the report, she was pregnant by six months. Broadly, the
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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 consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays 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 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 S.90 which is couched in negative terminology.
- S.90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of "consent" is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of S.90, but travelled a wider field, guided by the etymology of the word "consent".
(iii) It was held in paragraph 28 as under:
“28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of S.90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of S.375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda (1984 CriLJ 1535 : 1983 (2) CHN 290 (Cal)) which was approvingly referred to in Uday case (2003 (4) SCC 46 : 2003 SCC (Cri) 775 : 2003 (2) Scale 329). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p.1538, para 7) -- "unless the court can be assured that from the very inception the accused never really intended to marry her". (emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (ILR 1913 (36) Mad. 453 : 15 CriLJ 24) (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be said that this Court has 2024/KER/
laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case (2003 (4) SCC 46 : 2003 SCC (Cri) 775 : 2003 (2) Scale 329) as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out.”
(III) In the decision reported in [2006 KHC 1927 : 2006 (11) SCC
615 : AIROnLine 2006 SC 40], Yedla Srinivasa Rao v. State of A.P , the Apex
Court dealt with a case where the prosecution allegation was that prosecutrix
(PW1) used to attend cooking in her sister's (PW 2) house in day time, as her
sister was attending to agricultural operations. The accused used to visit the
house of PW 2 during day time between 11.00 a.m. and 12.00 noon regularly
while PW 1 was alone and persuaded her to have sexual intercourse by telling
her that he would marry her. PW1 resisted for this for sometime but later on
one day, the accused came to the house of PW 2 in her absence, closed the
doors and committed forcible sexual intercourse with PW 1 against her will
and consent. When she protested as to why he spoiled her life, accused
promised that he would marry her. Subsequently, the process continued for
some time. Accused used to come in the noon and had sexual intercourse with
PW 1. When she became pregnant she informed the accused and he gave
tablets for abortion in order to get rid of pregnancy which did not work.
Subsequently, PW 1 insisted the accused to marry her. The accused informed
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intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, whether this amounts to a consent or the accused obtained a consent by playing fraud on her. S.90 of the Indian Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be construed to be valid consent. S.90 reads as under: “S.90 - Consent known to be given under fear or misconception. - A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person
- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
- It appears that the intention of the accused as per the testimony of PW 1 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 the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and 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 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. In this connection, reference may be made to a decision of the Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal and Another 1984 CriLJ 1535. In that case it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. It was also observed that if a fully grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact and it was held that S.90 IPC cannot be invoked unless the court can be assured that from the inception accused never intended to marry her. Therefore, it depends on case to case that what is the evidence led in the 2024/KER/
matter. If it is fully grown up girl who gave the consent then it is different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused, in our opinion, S. can be invoked. Therefore, so far as Jayanti Rani Panda (supra) is concerned, the porseuctirx was aged 21-22 years old. But, here in the present case the age of the girl was very tender between 15-16 years. Therefore, Jayanti Rani Panda 's case is fully distinguishable on facts. It is always matter of evidence whether the 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 the he would marry her then in that case it 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. Reliance can also be made in the case of Emperor v. Mussammat Soma reported in (1917) CriLJR 18 (Vol.18). In that case the question of consent arose in the context of an allegation of kidnapping of a minor girl. It was held that the intention of the accused was to marry the girl to one Dayaram and she obtained Kujan's consent to take away the girl by misrepresenting her intention. In that context it was held that at the time of taking away the girl there was a positive misrepresentation i.e. taking the girls to the temple at Jawala Mukhi and thereafter they halted for the night in Kutiya (hut) some three miles distance from Pragpur and met Daya Ram, Bhag Mai and Musammat Mansa and Musammat Sarasti was forced into marrying Daya Ram. This act was found to be act of kidnapping without consent. But, in the instant case, a girl though aged 16 years was persuaded to sexual intercourse with the assurance of marriage which the accused never intended to fulfil and it was totally under misconception on the part of the victim that the accused is likely to marry her, therefore, she submitted to the lust of the accused. Such fraudulent consent cannot be said to be a consent so as to condone the offence of the accused. Our attention was also invited to the decision of this Court in the case of Deelip Singh Alias Dilip Kumar v. State of Bihar AIR 2005 SC 203 : 2004 (3) BLJR 2373 : 2005 (2) MhLj 147 : 2005 (I) OLR (SC) 181 RLW : 2005 (2) SC 165 2004 (9) SCALE 278 : 2005 (1) SCC 88 : 2005 (1) UJ 179 (SC) wherein this Court took the view that prosecturix had taken a conscious decision to participate in the sexual act only on being impressed by the accused who promised to marry her. But accused's promise was not false from its inception with the intention to seduce her to sexual act. Therefore, this case is fully distinguished from the facts as this Court found that the accused promise was not false from its inception. But in the present case we found that first accused committed rape on victim against her will and consent but subsequently, he held out 2024/KER/
started misbehaving with her and also touched her breasts. She then got the car
stopped, and hired an auto-rickshaw to return to her residence. The police then
took her to hospital for her medical examination, but as per medical report,
there was no evidence of poisoning. Based on the statement of the
complainant/prosecutrix, FIR was registered under Section 328 and 354 IPC
and the appellant was arrested on the same day. After a lapse of five days, the
complainant/prosecutrix made a supplementary statement to the police alleging
that the appellant had been having physical relations with her in his house on
the assurance that he would marry her but he subsequently refused to marry
her. She was again taken to hospital for medical examination. In the medical
report it was recorded, that she had no external injuries, and that her hymen
was not intact. It was pointed out that a vaginal smear was not taken, because
more than a month had elapsed from the date of the alleged intercourse(s).
Likewise, it was pointed out that her clothes were not sent for forensic
examination because she had changed the clothes worn by her at the time of
the alleged occurrence(s). Based on the supplementary statement the offence
under Section 376 IPC was added to the case.
(ii) In paragraph 22, the Apex Court held as under:
“22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the CrPC.”) has been dealt with by this Court in Rajiv Thapar & Ors. v. Madan Lal Kapoor reported in 2013 (3) SCC 2024/KER/
330, wherein this Court inter alia held as under: “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to herein above, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution / complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
- Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 2024/KER/
Irshad and his wife offered Rs.10,000/- to Rs.20,000/- to them and said that
they will not allow to marry their son with the victim. The informant alleged
that Irshad and his wife even threatened to kill him if any action is taken. On
the basis of this information given by Irshad, crime no. 115 of 2003 was
registered at P.S. Kotwali Nagar in Muzaffar Nagar. After investigation, the
Investigating Officer arrested Irshad and Naushad. Victim was sent for medical
examination and the report was submitted by Dr. Abha. After the charge sheet
was submitted, the case was committed to the Sessions Court. The Sessions
Judge framed charge under Section 376, IPC against Irshad and Section 376
read with Section 109, IPC against Naushad and both were further charged
under Section 506, IPC. The Sessions Judge held the accused Naushad guilty
of the charge under Section 376 and convicted him, sentencing him to
imprisonment for life. Being aggrieved by this, the accused filed an appeal
before the High Court. The High Court allowed the appeal and held that the
prosecution had failed to prove its case beyond reasonable doubt and the order
of conviction and sentence of the accused respondent was set aside and he was
directed to be released forthwith. Against the reversal of conviction and
sentence of the accused by the High Court, the appellant - State has filed the
present appeal. In the said judgment the Apex Court held in paragraph 10 as
under:
“10. We will answer point nos. 1 and 2 together as they are 2024/KER/
related to each other. Section 376 of IPC prescribes the punishment for the offence of rape. Section 375 of the IPC defines the offence of rape, and enumerates six descriptions of the offence. The description “secondly” speaks of rape “without her consent”. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix ‘against her consent’. The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of ‘bad character’. How is ‘consent’ defined? Section 90 of the IPC defines consent known to be given under ‘fear or misconception’ which reads as under: “90. Consent known to be given under fear or misconception.-- A consent is not such consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; xxxx” Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of Yedla Srinivas Rao v. State of A.P. , 2006 KHC 1927 : 2006 (11) SCC 615, with reference to similar facts, this Court in para 10 held as under: “10. It appears that the intention of the accused as per the testimony of PW 1 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 the accused that he had committed sexual intercourse which is apparent from the testimony 2024/KER/
