Section 28: Consent Known to be Given Under Fear, Misconception or Intoxication

Bharatiya Nyaya Sanhita • Chapter III: General Exceptions • Official Statutory Text & Legal Guide

Chapter III: General Exceptions
Trial Court
Non-Applicable
Non-Applicable
Formerly Sec 90 IPC

Legal Commentary & Landmark Judgments: Section 28

Section 28 defines what does NOT constitute valid consent under the Sanhita, establishing that consent is vitiated if given under fear of injury, misconception of fact, or by reason of unsoundness of mind, intoxication, or by a child under twelve years of age.

  • Vitiated Consent Categories: Consent is invalid if given: (1) Under fear of injury, (2) Under misconception of fact, (3) By a person of unsound mind or intoxicated unable to understand nature and consequence, or (4) By a child under 12.
  • Accused's Knowledge Requirement: For fear or misconception to vitiate consent, the accused must know or have reason to believe that the consent was given in consequence of such fear or misconception.
  • Application in Sexual & Fraud Offences: Core battleground in prosecutions for rape under false promise of marriage (Section 69 BNS) and property delivery under deception.
Key Landmark Precedents:
  • Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608: The Supreme Court held that under Section 90 IPC (Section 28 BNS), a 'misconception of fact' requires a false promise made at the very inception with no intention of fulfilling it; a subsequent breach of promise to marry due to family opposition is not a misconception of fact.
  • Deepak Gulati v. State of Haryana (2013) 7 SCC 675: Affirmed that there is a clear distinction between rape and consensual sex; misconception of fact cannot be inferred merely because marriage did not materialize.
Courtroom Practice & Strategic Litigation Guidance:

In Section 69 BNS prosecutions, defense counsel must establish that the engagement was genuine when made: lead evidence of joint matrimonial shopping, meetings between elders, and subsequent unexpected disputes to prove absence of 'misconception of fact' under Section 28.