Legal presumption as to absence of consent, when can be raised-SC Explained Sec 114A of Evidence Act (30/01/2023)

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    Section 375 IPC-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 fulfill 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.

    [See the full post at: Legal presumption as to absence of consent, when can be raised-SC Explained Sec 114A of Evidence Act (30/01/2023)]


    Section 90 and Section 375 of INDIAN PENAL CODE

     90. Consent known to be given under fear or misconception

    A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

         375. Rape.- A man is said to commit “rape” if he-

         (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

         (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

         (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

         (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

         under the circumstances falling under any of the following seven descriptions:

         First- Against her will.

         Secondly- Without her consent.

         Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

         Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

         Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

         Sixthly- With or without her consent, when she is under eighteen years of age.

         Seventhly- when she is unable to communicate consent.

         Explanation 1- For the purposes of this section, “vagina” shall also include labia majora.

         Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

         Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

         Exception1. A medical procedure or intervention shall not constitute rape.

         Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.


    Rape Qua Marital Promise

    A misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it.

    Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda [1984 Cri LJ 1535 : 1983 (2) CHN 290 (Cal)] which was approvingly referred to in Uday case [JT 2003 (2) SC 243 : 2003 SCC (Cri) 775]. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1538, para 7) — “unless the court can be assured that from the very inception the accused never really intended to marry her”. 

    In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case [ILR (1913) 36 Mad 453 : 15 Cri LJ 24] (vide passage quoted supra). By making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important.

    The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case [JT 2003 (2) SC 243 : 2003 SCC (Cri) 775] as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused’s intention to marry cannot be ruled out.


    People v. Oyola, 6 N.Y.2d 259 (1959)

    July 8, 1959 · New York Court of Appeals
    6 N.Y.2d 259

    Whether this evidence against appellant was sufficient to prove him guilty beyond a reasonable doubt ?

    The question is whether this evidence against appellant was sufficient to prove him guilty beyond a reasonable doubt. In People v. Ledwon (153 N. Y. 10) it was held that the burden being upon the People of establishing the guilt of the accused beyond a reasonable doubt, a mere scintilla or even some proof is not enough to create an issue of fact. In the exercise of their judicial function, courts have often held that in certain situations as matter of law the evidence must be more than usually clear and convincing. The degree of proof required may be affected by whether the testimony is contradicted by other evidence, whether it is consistent, credible or contains elements of suspicion. Moreover all evidence is to be weighed according to the proof which it was in the power of the party to have produced, as Lord Mansfield observed (2 Wigmore, Evidence, § 285, p. 163). Upon the record in this case including the omission of any circumstantial evidence lending credibility to the testimony of this child, we have concluded that appellant has not been proved guilty beyond a reasonable doubt.

    Our attention has been directed to the circumstance that in the instance of this and certain other sexual offenses no statute specifically requires corroboration of the testimony of the complainant, like the statutes in the cases of abduction (Penal Law, § 71), adultery (id., § 103), compulsory prostitution (id., §§ 1091, 2460), compulsory marriage (id., § 1455), rape (id., §2013), and, until the crime was abolished, seduction under promise of marriage (id., § 2177). It is not altogether clear on what principle the Legislature adopted separate statutes in regard to these crimes. If appellant had been indicted under section 483-a of the Penal Law (carnal abuse of a child) he would have been charged with a felony punishable on conviction by imprisonment for not more than 10 years. That is exactly the same punishment prescribed for rape in the second degree (Penal Law, § 2010), yet in the latter instance there is a statute expressly requiring corroboration of the testimony of the complainant (§ 2013) whereas in case of the former there is no such statute. The absence of legislation requiring other evidence to support the testimony of the complainant extending to every material fact essential to constitute the crime, as in case of rape (People v. Downs, 236 N. Y. 306; People v. Page, 162 N. Y. 272, 274), does not signify that courts fail to scrutinize with special care the same type of testimony in view of the ease with which crimes of this nature are charged and the difficulty of disproving them, and in view of the instinctive horror with which they are regarded by mankind (People v. Friedman, 139 App. Div. 795; People v. Donohue, 114 App. Div. 830).

    Attention is called to the provision in section 392 of the Code of Criminal Procedure that when in criminal proceedings a child under 12 years of age does not in the opinion of the court or magistrate understand the nature of an oath, the unsworn statement of the child may be received “ But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence.” Corroboration would have been required of every material fact essential to constitute the crime if Nancy Oyóla had not been sworn (People v. Meeks, 283 N. Y. 694; People v. Dutton, 305 N. Y. 632). In a series of decisions, however, where the infant complainant was sworn, this court has reversed convictions on charges of this nature and dismissed the indictments or informations as not proved beyond a reasonable doubt on the records before the court, which depended upon the testimony of the complaining Avitness alone (People v. Churgin, 261 N. Y. 661 [9 years old]; People v. Slaughter, 278 N. Y. 479 [15 years old]; People v. Derner, 288 N. Y. 599 [10 years old and 12 years old]; People v. Rosen, 293 N. Y. 683 [8 years old]; People v. Meyers, 309 N. Y. 837 [9 years old]). A child under 12 years of age is presumed to be incompetent to be sworn as a -witness in a criminal trial, and this presumption must be overcome by proper preliminary examination (People v. Klein, 266 N. Y. 188). Olshansky v. Prensky (185 App. Div. 469) indicates the nature of such preliminary examination. The records of the preliminary examinations in the cases cited lead to the conclusion that the application of this test is necessarily superficial and inconclusive in most instances. Some children were sworn who were younger than in other cases where unsworn statements were taken. The difficulty in applying the test of the understanding of an oath is illustrated by the preliminary examination of the 10-year-old girl upon whose testimony appellant’s fate depends, in which she repeated five times to the Presiding Judge of Special Sessions that she had never told a lie, but added, on reconsideration, that she had lied about 20 times during the previous year. She stated that she believed that, although one may sin by lying, nobody can do anything to you if you do lie. Can it be, in cases of this nature, that the need to have some verification of the testimony of the child depends altogether upon such collateral factors as whether, for example, this child had said in her preliminary examination that she had told 30 lies instead of 20 lies during the year before, or to whom she told the lies, or when she stopped lying?

    Mention of this is not frivolous, since this is the kind of thing in preliminary examinations of children under section 392 of the Code of Criminal Procedure which would determine the guilt or innocence of defendants unless the courts required some objective earmarks of truth even in eases where the child Avitness has been sworn. Where the -witness has been sworn, it may not be necessary to have supporting evidence of every material fact essential to constitute the crime, but the courts are not automatons of the Legislature to such a degree as to make patchwork of the law by being obliged to require full corroboration in instances where the trial court has taken the unsworn state*264ment of the witness, but at the same time being compelled to dispense with all objective verification where an oath has been administered.

    To draw this sharp distinction would be as unreal today as the older law preventing atheists from testifying in court on the basis that they do not appreciate the nature of an oath (Jackson ex dem. Tuttle v. Gridley, 18 Johns. 98, 104). This can hardly have been intended by the Legislature. Whether a child eight years old is sworn as in People v. Rosen (supra) or a child of nine years has an unsworn statement taken as in People v. Dutton (supra) is largely fortuitous. Causing the criminal liability of a defendant to depend entirely upon this collateral and largely accidental circumstance would have almost as little to do with deliberative justice as trial by ordeal where, under a practice now happily extinct, the guilt or innocence of a defendant was determined by whether his hand was burned when he thrust it into boiling water or fire.

    It is said that the acts charged against this appellant are usually performed in secret, out of the view of corroborating witnesses. That does not signify that some circumstantial evidence cannot be obtained lending veracity to the complainant’s narrative where the charge is true. Moreover, the same criticism would be applicable to the other sexual offenses to which reference has been made where specific statutes require corroborative evidence. Our liberties are based upon the idea that it is better for some of the guilty to go free than for any who are innocent to be convicted. In the extensive discussion of this subject by Professor Wigmore, to which the dissenting opinion in People v. Porcaro (6 N Y 2d 248, 253) refers, it is recognized that the general rule is to require corroboration of charges of all offenses against the chastity of women (Vol. Ill, p. 467; Vol. VII, p. 342 et seq.). His recommendation of changes in the law relate to the extension of existing rules to require in addition the psychiatric examination of complaining witnesses. It is noteworthy that a recommendation of such examinations was contained in the 1937-1938 Report of the American Bar Association’s Committee on the Improvement of the Law of Evidence (3 Wigmore, Evidence, p. 466), and that out of the fullness of his experience Professor Wigmore distrusted testimony by complainants in these cases advising the retention of whatever rules of corroboration exist under statute or case law, and reminded the bench and bar that errant young girls and women are given to “ contriving false charges of sexual offenses by men” (p. 459) concerning which he observed (p. 460) that “It is time that the Courts awakened to the sinister possibilities of injustice that lurk in believing such a witness without careful psychiatric scrutiny.” Psychiatric scrutiny goes beyond anything at issue on this appeal. The subject is mentioned only on account of the attention which has been given to it in the dissenting opinion in People v. Porcaro (supra), decided herewith.

    The alleged admission against interest which appellant’s wife testified that he made to her consisted in a telephone call to her about two weeks after she had brought about his arrest, during which interval they had been separated. She testified that he said over the telephone “ that it was true what he done ” and that he was sorry for what he did to his daughter, and then I told him that I couldn’t forgive him for what he had done to her ” and “ that he violated his rights as a father, and then he told me about this other woman that he had. ’ ’ If this statement, which appellant denied having made, could amount to an admission of a sexual assault upon his daughter, which is not altogether clear, we consider that the objection to its introduction into evidence should have been sustained on the ground that it was a confidential communication between husband and wife induced by the marriage relation. It is true that they had been living separately for a short time after appellant’s arrest, but the circumstances indicate that (if spoken at all) this statement was part of an attempted reconciliation between husband and wife (People v. Daghita, 299 N. Y. 194,198-199; Warner v. Press Pub. Co., 132 N. Y. 181,185-186; Parkhurst v. Berdell, 110 N. Y. 386, 393). The presumption of confidentiality has not been rebutted as was held in Poppe v. Poppe (3 N Y 2d 312). The Appellate Division held that this conversation was erroneously admitted.

    The conviction appealed from should be reversed upon the ground that appellant has not been proved guilty of the offenses charged beyond a reasonable doubt.

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