[POCSO] Sec 90 IPC Invalidates Consent Given Under Misconception Of Fact Thereby Making Physical Relationship Equivalent To Rape U/s. 375 IPC: Orissa HC

Finding that the appellant was acquitted of charges under sections 376(2)(n)/506 of the Indian Penal Code (I.P.C.), the High Court held that the prosecution had failed to establish the victim's age as less than eighteen years during the alleged rape incident and that she was deemed to be a consenting party in her sexual relationship with the appellant.

Noticing that her consent was not under the misconception of fact, the High Court ruled that the charges imposed on the appellant could not be sustained.

A Single Judge Bench of Justice S.K. Sahoo observed that “the victim was a major girl as on the date of occurrence, because of her evidence that even though other persons were grazing the goats and cattle nearby, she did not raise any hue and cry nor offered any resistance to the act of the appellant and her evidence that she was having sexual intercourse with the appellant going deeper into the jungle almost every day would substantiate that she was a consenting party and being fully aware”.

The Bench further observed that section 90 of the IPC invalidates consent given under a misconception of fact, making such a physical relationship tantamount to rape under section 375 I.P.C.

"Section 90 of the Indian Penal Code provides any consent given under a misconception of fact, would not be considered as valid consent so far as the provision under section 375 I.P.C. is concerned and thus, such a physical relationship would tantamount to committing rape," the Court held.

However, in the present case, the victim's consent was not based on any misconception of fact, and she willingly engaged in the act, demonstrating an active and reasoned deliberation, added the Bench.

Advocate Akhaya Kumar Beura appeared for the Appellant, whereas Advocate Priyabrata Tripathy appeared for the State of Odisha

The brief facts of the case were that the father of the victim lodged an F.I.R. with the police stating that the victim, a seventeen-year-old girl, used to go to the jungle daily for grazing goats. During these visits, the appellant, a co-villager, also frequented the jungle for the same purpose. The appellant allegedly coerced and enticed the victim into a physical relationship, which resulted in her becoming pregnant for seven months at the time of filing the F.I.R. The victim refrained from disclosing the incident to her family members due to the appellant's threats of severe consequences. However, she confided in the Asha Karmi, who discovered her pregnancy and learned the appellant's name as the one responsible for it.

After considering the submission, the Bench found that the trial Court has held that the prosecution failed to prove the victim's age as being less than eighteen years at the time of the incident, as the school admission register, which could have been crucial evidence, was not produced.

Also, the ossification test had an error margin and X-ray evidence was not presented, making the victim's age uncertain, noted the Bench.

Accordingly, after careful examination, the High Court upheld the trial court's decision to acquit the appellant of the offence under the POCSO, finding that the victim had willingly accompanied the appellant for sexual intercourse in the jungle, even after being aware that marriage was not possible due to his marital status.

The High Court further noted that the presumption of absence of consent under section 114-A of the Indian Evidence Act was rebuttable and not conclusive.

Cause Title: Santanu Kaudi v State of Odisha

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