In Naim Ahamed v. State

parties or before the FIR was lodged.

6. Perusal of the order discloses, according to the prosecution story, the prosecutrix had formed relationship with the accused person, 7-8 years ago. She clearly disclosed that the parties had formed physical intimacy. However, she described the same as exploitation. Thereafter, it was asserted that the accused person did not make firm commitment as to marriage but continued to take the prosecutrix to different places and formed intimate relationship on false promise of marriage. She also alleges that the accused person had captured obscene photographs of the prosecutrix. In that context, it was further alleged that the accused person lastly committed rape on the prosecutrix on

24.10.2019 at about 7:00 p.m. at her residence. Further, allegation was made of blackmail offered by the accused person by publishing the alleged photographs and recordings of intimate conversations.

7. Upon investigation, charge sheet was submitted and the accused person put on trial. The prosecution led oral evidence of PW-1 (prosecutrix), PW-2 (mother of the prosecutrix) and PW-3 (brother of the prosecutrix). Medical evidence was also sought to be proved through oral evidence of the doctor (PW-4).

8. At the trial, the prosecutrix did not waiver from her original stand contained in the FIR that the parties had formed consensual relationship about 7-8 years prior to the FIR being lodged. She stated that the parties were known from before i.e. 7-8 years and that physical intimacy had arisen between them. She was always willing to marry the accused person but he formed intimate relationship on false promise of marriage. In the same way she alleged that the accused person used to call her to different places and forcibly form intimate relationship with her. At the end, she asserted that the accused person lastly raped her on 24.10.2019 and threatened to make viral her audio and video recordings. Further, allegation of threat held out to the prosecutrix, was made. The mother of the prosecutrix namely PW-2 tried to support the prosecution allegation with respect to the occurrence that allegedly took place on

24.10.2019. Similarly, PW-3 also supported the prosecution case to that extent.

9. Though the prosecutrix was subjected to medical examination and her clothing etc. were submitted for forensic examination, the prosecution did not rely on any fact as a result of such examination/expert opinion.

10. In Naim Ahamed Vs. State (NCT of Delhi), (2023) 15 SCC 385, it was thus observed by the Supreme Court : "17. In Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660], this Court gave one more dimension of the word "consent" by distinguishing "rape" and "consensual sex" and observed as under: "21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."

21. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of the law and the case fell under Clause Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfil his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section

376. As stated earlier, each case would depend upon its proved facts before the court." (emphasis supplied)

11. Then, in Uday Vs. State of Karnataka, (2003) 4 SCC 46, the Supreme Court remarked that: "23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

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.

25. 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 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." (emphasis supplied)

12. Similar view was reiterated by the Supreme Court in a recent decision in Mahesh Damu Khare Versus State of Maharashtra and Another 2024 SCC OnLine SC 3471, There, it was observed: "27. Thus, from the above it appears that it is more of an extra- marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one. In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.

28. Moreover, even if it is assumed that a false promise of marriage was made to the complainant initially by the appellant, even though no such cogent evidence has been brought on record before us to that effect, the fact that the relationship continued for nine long years, would render the plea of the complainant that her consent for all these years was under misconception of fact that the Appellant would marry her implausible. Consequently, the criminal liability attached to such false promise would be diluted after such a long passage of time and in light of the fact that no protest was registered by the complainant during all those years. Such a prolonged continuation of physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralises it.

29. It will be very difficult to assume that the complainant who is otherwise a mature person with two grown up children, was unable to discover the deceitful behaviour of the appellant who continued to have sexual relationship with her for such a long period on the promise of marriage. Any such mendacious act of the appellant would have been exposed sooner without having to wait for nine years. The inference one can draw under the circumstances is that there was no such false promise made to the complainant by the appellant of marriage by continuing to have physical relationship so as to bring this act within the province of Section 376 IPC and therefore, there was no vitiation of consent under misconception of fact.

30. Further, it appears that discontinuance of financial support to the complainant, rather than the alleged resiling from the promise to marry by the appellant appears to be the triggering point for making the allegation by the complainant after a long consensual relationship for about nine years.

31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful." (emphasis supplied)

13. In view of the above, we find, no error has been committed by the learned court below in appraising the evidence led by the prosecution. On a holistic appraisal of evidence, the learned court below has found that the allegation of rape was not made out against the accused person. The parties were in a consensual relationship from before. Barring the occurrence dated

24.10.2019, date, place or time of no other occurrence was specified or proven. No corroborative material exists as may have led the learned Court below to reach a conclusion that there existed a prior false promise of marriage made by the accused person as may have lured the prosecutrix to form intimate physical relationship with the accused person. The fact that the prosecturix may have formed intimate relationship with the accused person over a long period of time without raising any objection and without lodging any earlier complaint itself reasonably demonstrates that the facts may have been otherwise.

14. To that extent, the learned court below is not shown to have erred in appraising any material and circumstance, we find no good ground exists with the prosecution to seek leave to appeal. That application is accordingly rejected.

15. Consequently, the present appeal fails in proceedings and hence dismissed. Order Date :- 9.1.2025 Abhilash . (Dr. Gautam Chowdhary, J.) (S. D. Singh, J.) ABHILASH SINGH High Court of Judicature at Allahabad

parties or before the FIR was lodged.

6. Perusal of the order discloses, according to the prosecution story, the prosecutrix had formed relationship with the accused person, 7-8 years ago. She clearly disclosed that the parties had formed physical intimacy. However, she described the same as exploitation. Thereafter, it was asserted that the accused person did not make firm commitment as to marriage but continued to take the prosecutrix to different places and formed intimate relationship on false promise of marriage. She also alleges that the accused person had captured obscene photographs of the prosecutrix. In that context, it was further alleged that the accused person lastly committed rape on the prosecutrix on

24.10.2019 at about 7:00 p.m. at her residence. Further, allegation was made of blackmail offered by the accused person by publishing the alleged photographs and recordings of intimate conversations.

7. Upon investigation, charge sheet was submitted and the accused person put on trial. The prosecution led oral evidence of PW-1 (prosecutrix), PW-2 (mother of the prosecutrix) and PW-3 (brother of the prosecutrix). Medical evidence was also sought to be proved through oral evidence of the doctor (PW-4).

8. At the trial, the prosecutrix did not waiver from her original stand contained in the FIR that the parties had formed consensual relationship about 7-8 years prior to the FIR being lodged. She stated that the parties were known from before i.e. 7-8 years and that physical intimacy had arisen between them. She was always willing to marry the accused person but he formed intimate relationship on false promise of marriage. In the same way she alleged that the accused person used to call her to different places and forcibly form intimate relationship with her. At the end, she asserted that the accused person lastly raped her on 24.10.2019 and threatened to make viral her audio and video recordings. Further, allegation of threat held out to the prosecutrix, was made. The mother of the prosecutrix namely PW-2 tried to support the prosecution allegation with respect to the occurrence that allegedly took place on

24.10.2019. Similarly, PW-3 also supported the prosecution case to that extent.

9. Though the prosecutrix was subjected to medical examination and her clothing etc. were submitted for forensic examination, the prosecution did not rely on any fact as a result of such examination/expert opinion.

10. In Naim Ahamed Vs. State (NCT of Delhi), (2023) 15 SCC 385, it was thus observed by the Supreme Court : "17. In Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660], this Court gave one more dimension of the word "consent" by distinguishing "rape" and "consensual sex" and observed as under: "21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."

21. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of the law and the case fell under Clause Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfil his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section

376. As stated earlier, each case would depend upon its proved facts before the court." (emphasis supplied)

11. Then, in Uday Vs. State of Karnataka, (2003) 4 SCC 46, the Supreme Court remarked that: "23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

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.

25. 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 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." (emphasis supplied)

12. Similar view was reiterated by the Supreme Court in a recent decision in Mahesh Damu Khare Versus State of Maharashtra and Another 2024 SCC OnLine SC 3471, There, it was observed: "27. Thus, from the above it appears that it is more of an extra- marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one. In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.

28. Moreover, even if it is assumed that a false promise of marriage was made to the complainant initially by the appellant, even though no such cogent evidence has been brought on record before us to that effect, the fact that the relationship continued for nine long years, would render the plea of the complainant that her consent for all these years was under misconception of fact that the Appellant would marry her implausible. Consequently, the criminal liability attached to such false promise would be diluted after such a long passage of time and in light of the fact that no protest was registered by the complainant during all those years. Such a prolonged continuation of physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralises it.

29. It will be very difficult to assume that the complainant who is otherwise a mature person with two grown up children, was unable to discover the deceitful behaviour of the appellant who continued to have sexual relationship with her for such a long period on the promise of marriage. Any such mendacious act of the appellant would have been exposed sooner without having to wait for nine years. The inference one can draw under the circumstances is that there was no such false promise made to the complainant by the appellant of marriage by continuing to have physical relationship so as to bring this act within the province of Section 376 IPC and therefore, there was no vitiation of consent under misconception of fact.

30. Further, it appears that discontinuance of financial support to the complainant, rather than the alleged resiling from the promise to marry by the appellant appears to be the triggering point for making the allegation by the complainant after a long consensual relationship for about nine years.

31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful." (emphasis supplied)

13. In view of the above, we find, no error has been committed by the learned court below in appraising the evidence led by the prosecution. On a holistic appraisal of evidence, the learned court below has found that the allegation of rape was not made out against the accused person. The parties were in a consensual relationship from before. Barring the occurrence dated

24.10.2019, date, place or time of no other occurrence was specified or proven. No corroborative material exists as may have led the learned Court below to reach a conclusion that there existed a prior false promise of marriage made by the accused person as may have lured the prosecutrix to form intimate physical relationship with the accused person. The fact that the prosecturix may have formed intimate relationship with the accused person over a long period of time without raising any objection and without lodging any earlier complaint itself reasonably demonstrates that the facts may have been otherwise.

14. To that extent, the learned court below is not shown to have erred in appraising any material and circumstance, we find no good ground exists with the prosecution to seek leave to appeal. That application is accordingly rejected.

15. Consequently, the present appeal fails in proceedings and hence dismissed. Order Date :- 9.1.2025 Abhilash . (Dr. Gautam Chowdhary, J.) (S. D. Singh, J.) ABHILASH SINGH High Court of Judicature at Allahabad