Bombay High Court Upholds Conviction In Rape Case; Says False Promise To Marry With Intent To Deceive Vitiates Consent, Constitutes Misconception Of Fact
The Bombay High Court dismissed an Appeal by the accused challenging his conviction by the Trial Court in a rape case.
The Bombay High Court has explained that when a promise to marry is false where the maker never intended to fulfil it but instead deceived the girl into engaging in sexual relations, it creates a 'misconception of fact' that vitiates her 'consent.'
The Court dismissed an Appeal filed by the accused challenging his conviction by the Trial Court under Section 376(2)(h) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Court has to determine whether the consent of a minor victim can be taken into consideration.
A Single Bench of Justice Urmila Joshi-Phalke held, “The accused completely misled her by promising her for marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded a girl to believe that he is going to marry and obtained her consent for the sexual intercourse under total misconception cannot be treated to be a consent. Where promise to marry is false and intention of maker at the time of making promise itself was not to abide by it but to deceive a girl to convince her to engage in sexual relations, there is a misconception of fact that vitiates girl’s consent.”
Advocate V.B. Gawali represented the Appellant, while Addition Public Prosecutor M.J. Khan appeared for the Respondent.
Brief Facts
The Prosecution alleged that the accused had developed an acquaintance with the victim while she was working at a ‘fruit centre’. The victim alleged that the accused forcibly took her to a house, subjected her to sexual assault, and later continued the sexual relationship under the false promise of marriage.
The victim later discovered she was pregnant and informed the accused, who allegedly provided pills to terminate the pregnancy. Despite consuming the pills, she remained pregnant and eventually gave birth to a child. Medical examination confirmed her pregnancy, and DNA evidence established the accused as the biological father of the child.
The Accused argued that it was the victim who had a “one sided love affair” with him, and out of that, a physical relationship developed between them. Thus, it was submitted that the relationship was consensual and at the insistence of the victim. He further submitted that a mere breach of promise to perform the marriage was not sufficient to attract offences under Sections 376(2)(h) of the IPC and 6 of the POCSO Act.
Court’s Reasoning
The High Court pointed out that since the victim was below sixteen years of age, her consent was not relevant as it is not consent at all.
“It is not merely a case of breach of promise but it is a case only to seduce the false promise was made and the victim was subjected for sexual assault on misconception of fact. Moreover, the victim who was below sixteen years of age and her consent is not relevant as it is not consent at all,” the Bench remarked.
The Court noted that there was no love affair between the accused and the victim. “They are having acquaintance as the accused used to visit the fruit shop wherein the victim was working. It is also not the case of the accused that the victim was having any love and affection for him. Though he stated that she has having one sided love affair and though his engagement with the victim to have physical relationship and the defence taken by him that the victim is having one sided love affair, the same itself is sufficient to show his intention,” the Nagpur Bench explained.
The Bench held that “it is evident that at the initial stage itself the accused had no intention to keep his promise to marry the victim. The accused has not brought on record a circumstance to show that he could not fulfill the promise due to unavoidable circumstances…the trial court has appreciated the entire evidence and also held that presumption under Section 29 of the POCSO Act is attracted. The said presumption is not rebutted though foundational facts are proved. Section 30 of the POCSO Act speaks of presumption of culpable mental state and it shall be the defence of the accused to prove the fact that he had no mental state.”
Consequently, the Court held, “In this view of the matter, the appeal being devoid of merits is liable to be dismissed.”
Accordingly, the High Court dismissed the Appeal.
Cause Title: Rupchand v. State of Maharashtra & Anr. (Neutral Citation: 2025:BHC-NAG:1762)
Appearance:
Appellant: Advocate V.B. Gawali
Respondent: Addition Public Prosecutor M.J. Khan; Advocate Mohini Sharma
