“Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have s*xual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is . why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.”
“The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of s*xual 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. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.”
“Sec. 90 of IPC. Consent known to be given under fear or misconception.—A consent is not such a consent as is 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;”
Jayanti Rani Panda v. State of West Bengal, 1984 Crl.L.J. 1535
Extracted from deelip singh vs. State of bihar 2005] ACR 22
SUPREME COURT OF INDIA
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Illustration A:
A takes P (A-Accused; P – Prosecutrix) to his saying that there is a party in the house that evening. While A informs to P about this in her Office, her colleague W (W-witness) witnesses it, she is P’s female colleague. A has no intention to rape P but when both of them reach house, when A was parking his car in the parking shed, he received an SMS from family members that all of them went to a place 70 km away from A’s house where in the house of a relative, a death of one relative occurred and that they all will return only two days later. Unforeseen opportunity of loneliness gave courage to A to propose for act of s*x with P and on her refusal A rapes P, her cries unheard to public on road which is about 20 yards away from big posh building of A. Defence set up by A was that she consented. Her house and Office were 50 km away from A’s house, if she did not consent why did she go to his place which is so far away from her office and house. P says, she was misconceived that A was taking her to party. She proves her fact of misconception through W. A says if I have mens rea I would not have told her about party in front of W. Here is the case where there was no mens rea since inception but it entered when circumstances threw up an opportunity.
Now the questions to be adjudicated are:
1. Under S.90 of IPC is it necessary to prove mens rea in the “person doing the act” along with the fact of misconception of fact suffered by the consenting person?
2. Is it sufficient if the consenting party testifies that he/she suffered misconception of fact irrespective of mens rea in the “person doing the act”?
Illustration B:
Under Contract Act, one of the essential elements of a valid contract is CONSENSUS AD IDEM. There should be meeting of minds about the object of agreement. A says to B “I will sell my property of house at Hyderabad to you” intending to sell his property at Nampalli and B thinks A is conveying about his house at Malakpet then the contract is not valid if B agrees on the misconception of the fact that it is house at Malakpet that A is going to sell to him. It is enough if B can show that he misconceived the fact, it is not necessary to prove that A had mens rea to mislead him. Even if A, without any mens rea honestly believing that he was referring to property at Nampalli, it is no defence to say that “there is no mens rea to mislead B” in order to make contract valid. It is enough if B can testify or prove that he was misconceived about the fact of which property A was intending to sell. Though, this is a civil matter, the principles related to burden of proof is more or less similar in criminal matters as well.
Illustration C:
In a case where Doctor X made Cataract surgery to right eye of Y obtaining written consent of Y about surgery to be performed, where Y can lead direct evidence that she had problem with left eye actually and the same was shown to him in the presence of witnesses who testified the same before court, the lack of mens rea or misconception of the “person acting” or obtaining written consent is no defence for Doctor X.
In fact it is requirement of law that where the Accused admits the fact of Act alleged by prosecution and sets up a plea of any General exception like Consent (S.90 IPC) the burden of proof is on him to prove that the Accuser consented for the Act alleged. Such burden cannot be shifted on to the Accuser to prove that the consent given was a result of mens rea on the part of Accused to force her to give such consent out of fear of injury or to deceive her to give such consent on a misconception of a fact. As shown from Illustration B (contract act), and Illustration A, misconception of fact of a consenting party may not necessarily flow from mens rea of the Accused. Such being the case, shifting the burden of proof on to the Accuser as to mens rea that led Accuser to misconception of fact is abuse of process of law which inevitably leads to miscarriage of justice.
The burden of proving misconception of fact which leads a prosecutrix to give consent, in a rape case is discharged effectively by showing that a fact was misconceived by presenting direct evidence (as in Illustration A), circumstantial evidence or even by mere personal testimony, because the Act of alleged offence was admitted by the Accused. If the Accused wants to ascribe any motive to gain from the personal testimony of Prosecutrix about false claim of misconception of fact he is free to lead evidence on that count, which would be consistent with his legal duty to discharge the burden of proof with regard to plea of consent set up by him, in his defence.
The fundamental rule of evidence is that if the party claims certain fact to be true, the burden to prove that such fact is true is upon such party that claims that it is true. Mens rea of the Accused with regard to misleading the Prosecutrix on a fact is a fact relating to Consent which is an issue of plea of defence set up by the Accused hence the Prosecutrix cannot be forced to prove either the fact of misconception of fact or the mens rea in Accused (which may or may not exist), even if the Prosecutrix admits that consent was given which is consistent with the plea of defence raised by the Accused. To impose a duty on Prosecutrix to prove mens rea which may not even exist in many cases is to impose an undischargeable burden on her. Merely because the Prosecutrix admits that the consent was given, it would not shift the burden of proof on to her to prove that fear of injury or misconception of fact was a result of mens rea in the Accused.
Mere personal testimony as to misconception of fact is also sufficient because if she is burdened to prove misconception of fact along with mensrea which resulted in such misconception she will be playing the role of Accused on a convenient and burden-free counter charge of Accused instead of playing the role of the prosecutrix. As long as fact alleged is not admitted by the Accused and he is defending by rebutting the evidence of prosecution, the role of prosecution is to prove the alleged act of offence beyond reasonable doubt. Any amount of burden can be imposed on prosecution to that effect. But when the Act alleged was admitted by the Accused and he sets up a plea of Consent which is a General exception under S.90 of IPC, the role of defence will not translate into the role of prosecutor on a counter charge. Nor it is part of prosecution’s general duty to prove the offence beyond reasonable doubt, as it happens otherwise when the Act of offence is not admitted by the defendant and he chooses to rebut the evidences lead by the prosecution. The duty of prosecution is to prove beyond reasonable doubt the facts relating to offence, not to prove the facts alleged in the plea of defence. If the prosecution is forced to do so, they will be doing a duty to prove the innocence of Accused persons, rather than doing a duty to prove their offence. When the defence sets up a plea of defence under Consent, all facts related and relevant to such plea or consistent with the claim of such consent must be proved by defence only. That is why mere admission by the Accused of the Act alleged gives the leverage to the Prosecutrix to get discharge from the burden of proving misconception of fact on mere personal testimony as to the fact of misconception of fact.
Hence, the answer for the first question is in the negative and the answer for the second question is in the affirmative.
Having said this, I feel it is time the country has an offence in its penal code (as under)which is short of rape but nevertheless has all the ingredients necessary to classify it as an offence.
Obtaining Sexual Consent of unmarried woman on false promise of marriage
Whoever, makes the promise of marriage and has s*xual intercourse with a woman, who is not a minor, and breaches the promise after having the s*xual intercourse for circumstances within his control or beyond his control, shall be punished with imprisonment of either descripttion which is not less than 4 years but may extend to 7 years.
Provided that the fact that marriage between the Accused and Accuser did not take place is sufficient to prove the breach of promise.
Provided that where the s*xual intercourse is proved or admitted by the Accused the Court shall presume that the promise of marriage was made with an intention to have s*xual intercourse.
Provided that if the Accuser is willing to marry the Accused on proposal made by the Accused before conviction the Court may release the Accused on bail and on being shown the proof of marriage certified by Registrar of Marriages under Special Marriage Act, 1954 the Accused may be conditionally acquitted.
Provided that the marriage is dissolved at the initiative of either parties within 7 years of marriage the Accused shall serve the sentence for period between Date of Application for Divorce by either of the parties till the date of completion of 7 years of marriage from the date of marriage.
