abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4128 OF 2007 Kamlesh Sahadeo Raut .. Applicant V/s The State of Maharashtra .. Respondent Mr.Sanjeev P. Kadam for the applicant. Mr.D.P. Adsule, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 21ST JANUARY 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the applicant and the learned A.P.P. for the State. 2. The applicant is arrested and is in custody since 22nd November 2007 in connection with the offence registered with Navaghar Police Station, Mulund, Mumbai under C.R. No. 213/2007 punishable under sections 417, 376 and 506 of the Indian Penal Code. 3. The prosecution case is that the applicant had - 2 - sexual intercourse with the prosecutrix, who is aged 17 years, on several occasions on the false promise of marriage. According to the prosecution, the consent obtained under a false promise of marriage is no consent and therefore the applicant is guilty of the offence punishable under section 376 of the I.P.C. 4. In Uday v. State of Karnataka, reported in (2003) 4 SCC 46, the Supreme Court has held that the consent for sexual intercourse said to be obtained by false promise of marriage would be no consent but whether the consent was so obtained is a question of fact and the burden of proof of all aspects was on the prosecution. In para 21 of the judgment, the Supreme Court observed as follows:- "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket - 3 - formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." 5. Thus, it is clear that the question whether the consent was obtained under a false promise of marriage or was voluntary is a question of fact to be decided on the surrounding circumstances in each case. The burden of proving each and every ingredient of the offence is on the prosecution. Once the consent is proved to have been obtained, the burden of proving absence of consent - 4 - - it having been obtained by misconception of fact, is on the prosecution. 6. At this stage, it is would not be appropriate to consider all the evidence on record. It may however be noted that after the first intercourse, the prosecutrix became pregnant in August 2007. The applicant gave her pills for abortion which she took resulting in the abortion. It is also alleged that even after the abortion, the applicant had intercourse with the prosecutrix on few more occasions. These facts would be required to be taken into consideration while considering the question whether consent was obtained under a false promise of marriage. 7. Taking an overall view of the matter and also taking into consideration the fact that each of the intercourse was with consent though it is alleged to have been obtained by a false promise of marriage, in my view, the applicant is entitled to bail. Hence, I pass the following order: ORDER ORDER ORDER The applicant be released on bail in connection with the offence mentioned above on executing personal bond of - 5 - Rs.30,000/- with 2 sureties of Rs.15,000/- each subject to the condition that the applicant shall not make any inducement or threats to the prosecutrix or any of the prosecution witnesses and shall not tamper with the prosecution evidence. The applicant shall also report to the concerned police station once a month between 1st and 5th of every British calendar month. (D.G. KARNIK, J.)