This Case Commentary is written by Mohini Pandey, a Law Graduate of Deen Dayal Upadhayay University Gorakhpur

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO .629 OF 2019

(ARISING OUT OF SLP (CRIMINAL) NO .618/2019

ANURAG SONI (APPELLANT)

VERSUS

STATE OF CHATTISGARH (RESPONDENT)

JUDGEMENT

MR SHAH J

· INTRODUCTION

In this case, we are going to talk about the most common crime or offence of current days and it has become a bigger issue for the girls that how to be safe in their own space. Yes, we are talking about rape.

In IPC (INDIAN PENAL CODE 1860) rape is mentioned in section 375 and now it is mentioned in sec 63 of BNS 2023 (BHARTIYA NYAY SAHITA). In simple words, the rape is forcibly establishing sexual intercourse or any kind of sexual relationship with a female against her will.

The definition of rape is not covered in these few words it has a wider definition because the circumstances change daily and the judge and the judicial committee work according to it.

Now coming to the case Anurag Soni vs State of Chhattisgarh (2019) in this case the court gave a new definition to the word consent the honourable judge MR SHAH and L. NAGESHWAR RAO said that consent which is taken by making false promises or any kind of fraud then it must not be considered as valid consent of the girl.

It is a criminal appeal in the Supreme Court and the judgement is made by these above-mentioned judges. This case laid a new perspective that a boy and a girl can be in a love affair but that doesn’t mean the girl has consented to be in sexual intercourse. Same as in marriage also if the wife is not allowed or is not ready to be in a physical relationship with her husband and disagrees with him and forcefully has sexual intercourse with her then it will also be considered rape because there is no consent or the consent which taken by force is not valid consent.

· FACTS OF THE CASE

In this case, the appellant and the prosecutrix have been in a love affair since 2009 and they have known each other for that long period when this incident happened the prosecutrix was a resident of Koni, district Bilaspur, and doing her pharmacy studies from Bhilai.

The appellant was the junior doctor of a government hospital in Malkharoda.

From the prosecutrix's point of view, the fact was the prosecutrix said that the appellant showed interest in meeting the prosecutrix, and on 29.04.13 the prosecutrix came to the appellant's home and she stayed there from 2 pm,29.04.19 to 3 pm,30.04.19 when she was in the appellant house the appellant showed the willingness to have sexual intercourse with her but the prosecutrix not wanted to do that and refused it many times but after the repeated request of the appellant the prosecutrix gave the consent to appellant for having the sexual intercourse based on the fact that they two will get married soon.

The appellant ensured to prosecutrix that he would talk to his parents about the marriage on the 1st or 2nd of May 2013. The appellant also asked her to not tell anybody about the incident that happened between the two on that day.

Now the prosecutrix repeatedly asked the appellant about the marriage between 2.05.19 to 05.05.19 but there was no response from the appellant side so after getting rid of the fact she told her parents about the incident. Then her parents went to the appellant's parents and asked them about the fact. So, after that both the families decided that they should get married since no other option is left.

But later the appellant refused to get married because he was already married to someone else two months back and lying to prosecutrix and his family members.

Subsequently, a prosecutrix filed a case against the appellant putting an allegation of rape under sec 376 of IPC and sec63 under BNS in Malkharoda that session court the appellant got arrested because the court after observing the facts concluded that the consent was taken by misrepresentation and he was punished with 10 years of rigorous imprisonment.

Now the accused (appellant at present ) dissatisfied with the judgment appealed in the high court but the high court dismissed the appeal and upheld the decision of the session court.

The aggrieved appellant then filed a case in the Supreme Court by saying that he had been convicted for false allegations.

· ARGUMENTS BY PARTIES

APPELLANT

The appellant argued in the Supreme Court that the allegation which was made by the prosecution on him was false and he had not committed the offense for which he was convicted.

And the counsel of the appellant submitted the fact that the session and high court have errored in making decision for this case.

He presented that both the courts ignored sec 90 of the IPC and 114-A of the Indian evidence act 1872 and now 120 of Bhartiya sakshya abhinaya 2023 while categorizing the incident as rape under sec 376 of the IPC.

Then the counsel of the appellant also showed the fact by saying that the prosecutrix was in love with the appellant and wanted to marry him whereas the accused had mentioned sec313 of CRPC and now sec 351of BHARTIYA NAGRIK SURAKHSA SAHITA statement that the prosecutrix and her family member already known about the fact that his marriage was fixed with another girl Priyanka soni still they have pressurized the appellant to get married to the prosecutrix.

The counsel of the appellant further said even if we consider that the appellant had promised to get married and didn’t do that then also it is a breach of promise and hence, he should not be punished under sec 376 of IPC.

And finally, the counsel said that both parties are married now and have moved on with their lives so the conviction of the accused should be set aside.

RESPONDENT

The state of Chhattisgarh is the respondent in this case there were two counsels one representing the state and one representing the prosecutrix and both the counsels stuck to the fact that the accused was convicted for the offense he committed and there was no wrong allegation.

As the respondent's counsel showed to the court that it is not a breach of promise it is a rape of the prosecutrix because the appellant never had the intention to get married to the prosecutrix and still he called the prosecutrix to his house and repeatedly asked the prosecutrix to have sexual intercourse even after a lot of refusals from the prosecutrix. The consent was based on the promise of marriage made by the accused so it is not free consent from the prosecutrix because it is under the misrepresentation it was not valid consent.

It is even not considered in sec 90 of IPC.

Further, the counsel tried to show the intention of the accused they said the accused never had the intention of marrying the prosecutrix because when both families tried to fix the marriage, he was not present there in fact he ran away and got married to another girl. He didn’t inform the prosecutrix and her family before his marriage. So, it shows he made a false promise to the prosecutrix. Therefore, he is rightly convicted under sec 376 of IPC.

· ISSUES OF THE CASE

In this case, the issue that arose in front of the court was that is there any error of the lower court in holding the accused guilty for the offense under sec 376 of the IPC.

The question to the Supreme Court was whether the consent was given by her own will or it was taken from fraud or misrepresentation.

· COURT’S DECISION

The court concluded that the accused was convicted rightly or is guilty of the offense under sec 376 of IPC. However, the court reduced his punishment from 10 years to 7 years at the request learned counsel of the accused.

Consent of the prosecutrix was taken from a misconception of the fact that the accused shall marry and the prosecutrix became the victim of the accused lust because the intention of the accused is not right from the beginning. So, consent is not real it is taken from false promises that’s why it is a clear case of cheating and deception and committing rape.

· CONCLUSION

In this case, the fact made very clear that if the consent is not made by anyone’s own will it will not be considered as valid consent.

This is not a new case for the courts because before this many cases also came in the courts who had the same concepts and same circumstances but the case Anurag Soni vs state of Chhattisgarh (2019) gave a widened concept of these circumstances that consent should be free and it should not be given in any of undue influence.

The court explicitly used sec 114 A of the Indian Evidence Act 1872 the section directs the court to presume that the statement prosecutrix is true.

As we all know it is a very known crime these days and judicial committees and courts face new cases daily and with new circumstances and they have to deal with every case differently with sensitivity therefore the role of the judiciary became very important in this regard.

Here the court did not give the benefit of the doubt to the accused by seeing the insufficient evidence of traditional defences and false cases and giving bail to the accused the court realized the potential harm of the rape not only to the body of the woman but to her dignity mind and psychology.