Consent For Sexual Intercourse On Promise To Marry A Subject Matter Of Evidence, Can't Adjudicate In A 482 Plea: Allahabad HC [Read Judgment]

The Appellant, Kamal Pal had been alleged to have enticed the victim-complainant away and to have administered intoxicating substance to her, post which he raped her and gave assurance to marry her. Subsequently, when the victim asked him to marry her, he refused to do so and instead committed assault on her.

The Appellant approached the high court through Advocates Santosh Yadav and Vimal Chandra Pathak, seeking directions to quash the charge sheet filed against him under Sections 366, 376, 328, 323, 506, 406 of IPC and the consequent cognizance order passed by the CJM along with entire proceedings of the case.

He claimed that he had been falsely implicated in the case because the victim wanted to marry him. He denied the allegations of kidnapping, rape as well as assault and pointed out that no injury was found on the person of the victim.

The State resisted the application stating that the court did not have the power to appreciate evidence which had been collected by the Investigating Officer under an application under Section 482 of CrPC, as the same would require trial. Reliance was placed on Md. Allauddin Khan v. State of Bihar & Ors., CA No.675 of 2019.

The Apex Court had held therein,

"High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties."

The court further cited the verdict of the Supreme Court in Anurag Singh v. Chhatisgarh, 2019 SCC online SC 509, in view of the rape allegations, which had held,

"if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."

Based on the aforesaid, Justice Dinesh Kumar Singh-I concluded that "whether accused wanted to marry the victim right from very beginning or not and whether consent given by victim for sexual intercourse was a free-consent or not is a subject matter of evidence, which is only possible to be decided after trial"