advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, May 21, 2013

Section 376(2) (f) of the Indian Penal Code= offences punishable under Sections 365 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as the `IPC’) = “We are of opinion that the expression “under a misconception of fact” is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married…….. “thus … if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person”. … Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence.”; there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.” Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.= If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of “false promise of marriage” has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore-mentioned fact situation. In view of the above, we are of the considered opinion that the appellant, who has already served more than 3 years sentence, is entitled to the benefit of doubt.


Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2322 of 2010
Deepak Gulati …Appellant
Versus
State of Haryana …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 28.1.2010, passed by the Punjab & Haryana High
Court at Chandigarh in CRA No. 960-SB of 1998 by way of which,
the High Court has affirmed the judgment and order of the Additional
Sessions Judge, Karnal dated 13.11.1998 passed in Sessions Case No.
7 of 1995, by way of which the appellant stood convicted for the
offences punishable under Sections 365 and 376 of the Indian Penal
Code, 1860 (hereinafter referred to as the `IPC’) and sentenced to
undergo rigorous imprisonment for a period of three years, alongwithPage 2
a fine of Rs.2,000/- under Section 365 IPC; and rigorous
imprisonment for a period of seven years, alongwith a fine of
Rs.5,000/- under Section 376 IPC. Both the sentences were ordered to
run concurrently.
2. Facts and circumstances giving rise to this appeal are that:
A. The appellant and Geeta, prosecutrix, 19 years of age, student
of 10+2 in Government Girls Senior Secondary School, Karnal, had
known each other for some time. Appellant had been meeting her in
front of her school in an attempt to develop intimate relations with
her. On 10.5.1995, the appellant induced her to go with him to
Kurukshetra, to get married and she agreed. En route Kurukshetra
from Karnal, the appellant took her to Karna lake (Karnal), and had
sexual intercourse with her against her wishes, behind bushes.
Thereafter, the appellant took her to Kurukshetra, stayed with his
relatives for 3-4 days and committed rape upon her.
B. The prosecutrix was thrown out after 4 days by the appellant.
She then went to one of the hostels in Kurukshetra University, and
stayed there for a few days. The warden of the hostel became
suspicious and thus, questioned the prosecutrix. The prosecutrix thus
2Page 3
narrated the incident to the warden, who informed her father.
Meanwhile, the prosecutrix left the hostel and went to a temple, where
she once again met the appellant. Here, the appellant convinced her to
accompany him to Ambala to get married. When they reached the bus
stand, they found her father present there alongwith the police. The
appellant was apprehended.
C. Baldev Raj Soni, father of the prosecutrix, had lodged a
complaint on 16.5.1995 under Sections 365 and 366 IPC, which was
later converted to one under Sections 365 and 376 IPC.
D. The prosecutrix was medically examined on 17.5.1995. Her
statement was recorded by the Magistrate under Section 164 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as the
`Cr.P.C.’) on 20.5.1995. After completing the investigation, a
chargesheet was filed against the appellant, and in view of the
material on record, charges under Sections 365 and 376 IPC were
framed against him by the Sessions Court, vide order dated 3.5.1996.
E. The prosecution examined 13 witnesses in support of its case
and in view thereof, the Sessions Court convicted the appellant under
Sections 365/376 IPC, vide judgment and order dated 13.11.1998 and
3Page 4
awarded him the sentence for the said charges as has been referred to
hereinabove.
F. Aggrieved, the appellant preferred Criminal Appeal No. 960-
SB of 1998 (D & M) in the High Court of Punjab and Haryana at
Chandigarh, which stood dismissed by the impugned judgment and
order dated 18.11.1998.
Hence, this appeal.
3. None present for the appellant. In view thereof, the Court has
examined the material on record and gone through both the impugned
judgments with the help of Shri Kamal Mohan Gupta, learned counsel
appearing on behalf of the State.
4. The statement of the prosecutrix (PW.7) was recorded under
Section 164 Cr.P.C. on 20.5.1995, wherein she has clearly stated that
she had gone alongwith the appellant to get married and for such
purpose, she had also obtained a certificate from her school as proof
of her age. On the said date i.e. 10.5.1995, as the appellant had been
unable to reach the pre-decided place, the prosecutrix had telephoned
him on the number provided by him. She has further deposed that the
appellant had asked her to have a physical relationship with him, but
4Page 5
that she had not agreed to do so before marriage. When they reached
Kurukshetra and stayed with his relatives there, the appellant had
sexual intercourse with her for 3 days. On the 4th day, she was thrown
out of the house by the appellant and thus, she had gone to the Girls
Hostel in Kurukshetra University, where she had stayed under the
pretext of getting admitted to the university. However, the university
personnel became suspicious, and after making enquiries from her,
they telephoned her house. She then left the university and had gone
to the Birla Mandir at Kurukshetra, where she had met appellant.
Here he lured her once again, and thus, she had agreed to accompany
him to Ambala to get married in court there. However, when they
reached the old bus stand Kurukshetra, she had found her father and
several police officials present there, and thereafter the appellant had
been arrested and the prosecutrix was taken to Karnal.
5. The prosecutrix was examined in court as PW.7 on 5.7.1996,
wherein she deposed that on 10.5.1995, as per the agreed plan, she
had left her house to go alongwith the appellant to Kurukshetra to get
married in court. However, she had not found the appellant at the
place decided upon by them, and had thus telephoned him at the
number provided to her by him. She was then informed that the
5Page 6
appellant had already left for Kurukshetra and hence, waited for him
from 12.00 noon till 1.30 p.m. When he arrived, she went alongwith
the appellant at 2.30 p.m. to Karna lake (Karnal) by bus. Here, she
was taken into some bushes behind the restaurant at Karna lake, and
thereafter raped by the appellant. At the said time, she neither raised
any objection, nor any hue and cry. The prosecutrix did not even
mention the said incident to any person, despite going to Kurukshetra
and staying there for 3-4 days. She raised no grievance in this regard
before any person or authority at the bus stand. She continued to stay
with the appellant in the house of his relatives and was raped there.
The appellant continued to postpone their marriage on one pretext or
the other. Thereafter, she was thrown out of the house. She thus went
and stayed in the University hostel and on being questioned, she
disclosed details regarding her treatment to the warden, who informed
her family.
After this, she went to the Birla Mandir at Kurukshetra,
and here she met the appellant once again. 
The appellant made another attempt to convince her to go to Ambala with him to get married in court there.
Upon reaching the old Bus Stand, she found
her brother Rajinder there alongwith a police party, who had been
accompanying them in a jeep to Karnal. 
6Page 7
6. In his statement, Baldev Raj Soni (PW.8), father of the
prosecutrix has deposed that on 10.5.1995, her daughter Geeta did not
come home. He thus lodged a complaint and contacted Rajni, a friend
of Geeta, who told him that the appellant Deepak had taken her to
Kurukshetra. On 17.5.1995, the police had gone alongwith him to
Kurukshetra to locate Geeta, where they had found the prosecutrix
and the appellant sitting at the old bus stand in Kurukshetra. Both of
them had been caught hold of by them, and were brought to Karnal.
7. Smt. P. Kant Vashisht (PW.10), Warden of Saraswati Bhawan
Kurukshetra University, though did not support the case of the
prosecution, and was declared hostile, has deposed in her examination
in chief that Geeta, prosecutrix, had been brought to her office by one
person, namely, Shri Ashwini, student of the engineering college, and
that he had left Geeta in her office, stating that he would inform her
parents. After sometime, her brother had come and taken her away.
She was cross-examined by the prosecution, and she has deposed that
the prosecutrix had in fact stayed in the hostel without any
authority/permission. One Nirmla, attendant therein had allowed her
to stay in the hostel without any such requisite permission.
7Page 8
8. Smt. Krishana Chawla (PW.3), Lecturer of Political Science in
Government Senior Secondary School, Karnal, has deposed before
court, and has proved the school register to show that the date of birth
of the prosecutrix was 26.6.1976.
9. Dr. (Mrs.) Amarjeet Wadhwa (PW.11), Medical Officer,
Government Hospital, Karnal, who examined the prosecutrix on
17.5.1995, has deposed that the prosecutrix had indulged in sexual
intercourse and was habitual to the same.
10. Shri Bhagwan Chand (PW.12), ASI, the Investigating Officer,
has deposed that after recording the statement of the father of the
prosecutrix on 17.5.1995, he had taken her father to Kurukshetra to
search for the prosecutrix alongwith one constable. At about 12.00
noon, when they reached the old bus stand at Kurukshetra, the father
of the prosecutrix noticed Geeta, sitting with the appellant Deepak in
one corner of the bus stand, and thereafter, they had apprehended
them. He has also disposed that he had recorded the statement of the
prosecutrix.
11. There exist in the statements of the witnesses material
contradictions, improvements and embellishments. In the cross-
8Page 9
examination, Baldev Raj Soni (PW.8) has deposed that he had gone
to Kurukshetra with his relatives i.e. Ashwini Kumar and Surinder,
and has stated that his son Rajinder was not with him at such time. He
has not deposed that he had received any telephone call from the
warden of any hostel, as has been suggested by the prosecutrix.
Furthermore, the prosecutrix in her statement under Section 164
Cr.P.C., has not mentioned the incident involving her indulging in
sexual contact with the appellant at the Karna lake at Karnal.
Bhagwan Chand (PW.12) has not mentioned that any relatives of the
prosecutrix had accompanied them while they were traveling from
Kurukshetra to Karnal.
12. The FIR in the present case has been registered under Sections
365 and 366 IPC, by Baldev Raj Soni (PW.8), father of the
prosecutrix, naming several persons, including the appellant, accusing
them of enticing his daughter and wrongfully confining her at an
unknown place. Thus, he has expressed his apprehension with respect
to danger to the life of his daughter.
13. Admittedly, the prosecutrix has never raised any grievance
before any person at any stage. In fact, she seems to have submitted to
9Page 10
the will of the appellant, possibly in lieu of his promise to marry her. .
Thus, a question arises with respect to whether, in light of the facts
and circumstances of the present case, the appellant had an intention
to deceive her from the very beginning when he had asked the
prosecutrix to leave for Kurukshetra with him from Karnal.
14. The undisputed facts of the case are as under:
I. The prosecutrix was 19 years of age at the time of the said
incident.
II. She had inclination towards the appellant, and had willingly
gone with him to Kurukshetra to get married.
III. The appellant had been giving her assurance of the fact that he
would get married to her.
IV. The physical relationship between the parties had clearly
developed with the consent of the prosecutrix, as there was
neither a case of any resistance, nor had she raised any
complaint anywhere at any time despite the fact that she had
been living with the appellant for several days, and had
travelled with him from one place to another.
10Page 11
V. Even after leaving the hostel of Kurukshetra University, she
agreed and proceeded to go with the appellant to Ambala, to get
married to him there.
15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter
referred to as the ‘Act 1872’) provides, that if the prosecutrix deposes
that she did not give her consent, then the Court shall presume that
she did not in fact, give such consent. The facts of the instant case
do not warrant that the provisions of Section 114-A of the Act 1872
be pressed into service. Hence, the sole question involved herein is
whether her consent had been obtained on the false promise of
marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have
to be taken into consideration, alongwith the provisions of Section 90
of the Act 1872. Section 90 of the Act 1872 provides, that any consent
given under a misconception of fact, would not be considered as valid
consent, so far as the provisions of Section 375 IPC are concerned,
and thus, such a physical relationship would tantamount to
committing rape.
16. This Court considered the issue involved herein at length in the
case of Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip
11Page 12
Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla
Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep
Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, and
came to the conclusion that in the event that the accused’s promise is
not false and has not been made with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such an act(s) would not amount
to rape. Thus, the same would only hold that where the prosecutrix,
under a misconception of fact to the extent that the accused is likely
to marry her, submits to the lust of the accused, such a fraudulent act
cannot be said to be consensual, so far as the offence of the accused is
concerned.
17. Rape is the most morally and physically reprehensible crime in
a society, as it is an assault on the body, mind and privacy of the
victim. While a murderer destroys the physical frame of the victim, a
rapist degrades and defiles the soul of a helpless female. Rape
reduces a woman to an animal, as it shakes the very core of her life.
By no means can a rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim, and therefore a rape victim is
placed on a higher pedestal than an injured witness. Rape is a crime
against the entire society and violates the human rights of the victim.
12Page 13
Being the most hated crime, rape tantamounts to a serious blow to the
supreme honour of a woman, and offends both, her esteem and
dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction between rape
and consensual sex and in a case like this, the court must very
carefully examine whether the accused had actually wanted to marry
the victim, or had mala fide motives, and had made a false promise to
this effect only to satisfy his lust, as the latter falls within the ambit of
cheating or deception. There is a distinction between the mere breach
of a promise, and not fulfilling a false promise. Thus, the court must
examine whether there was made, at an early stage a false promise of
marriage by the accused; and whether the consent involved was given
after wholly, understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix agrees to have
sexual intercourse on account of her love and passion for the accused,
and not solely on account of mis-representation made to her by the
13Page 14
accused, or where an accused on account of circumstances which he
could not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do so. Such
cases must be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of the
accused was mala fide, and that he had clandestine motives.
19. In Deelip Singh (supra), it has been observed as under:
“20. The factors set out in the first part of Section 90 are
from the point of view of the victim.
The second part of
Section 90 enacts the corresponding provision from the
point of view of the accused. It envisages that the
accused too has knowledge or has reason to believe that
the consent was given by the victim in consequence of
fear of injury or misconception of fact.
Thus, the second
part lays emphasis on the knowledge or reasonable
belief of the person who obtains the tainted consent. The
requirements of both the parts should be cumulatively
satisfied. In other words, the court has to see whether the
person giving the consent had given it under fear of
injury or misconception of fact and the court should also
be satisfied that the person doing the act i.e. the alleged
offender, is conscious of the fact or should have reason
to think that but for the fear or misconception, the
consent would not have been given. This is the scheme of
Section 90 which is couched in negative terminology.”
20. This Court, while deciding Pradeep Kumar Verma (Supra),
placed reliance upon the judgment of the Madras High Court
14Page 15
delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has
been observed:
“We are of opinion that the expression “under a
misconception of fact” is broad enough to include all
cases where the consent is obtained by
misrepresentation; the misrepresentation should be
regarded as leading to a misconception of the facts with
reference to which the consent is given. In Section 3 of
the Evidence Act Illustration (d) states that a person has
a certain intention is treated as a fact. So, here the fact
about which the second and third prosecution witnesses
were made to entertain a misconception was the fact that
the second accused intended to get the girl married……..
“thus … if the consent of the person from whose
possession the girl is taken is obtained by fraud, the
taking is deemed to be against the will of such a person”.
… Although in cases of contracts a consent obtained by
coercion or fraud is only voidable by the party affected
by it, the effect of Section 90 IPC is that such consent
cannot, under the criminal law, be availed of to justify
what would otherwise be an offence.”
21. Hence, it is evident that there must be adequate evidence to
show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the
victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear
15Page 16
from the evidence available, does not always amount to
misconception of fact. In order to come within the meaning of the
term misconception of fact, the fact must have an immediate
relevance.” Section 90 IPC cannot be called into aid in such a
situation, to pardon the act of a girl in entirety, and fasten criminal
liability on the other, unless the court is assured of the fact that
from the very beginning, the accused had never really intended to
marry her.
22. The instant case is factually very similar to the case of Uday
(Supra), wherein the following facts were found to exist:
I. The prosecutrix was 19 years of age and had adequate
intelligence and maturity to understand the significance and
morality associated with the act she was consenting to.
II. She was conscious of the fact that her marriage may not take
place owing to various considerations, including the caste
factor.
III. It was difficult to impute to the accused, knowledge of the fact
that the prosecutrix had consented as a consequence of a
misconception of fact, that had arisen from his promise to
marry her.
16Page 17
IV. There was no evidence to prove conclusively, 
that the appellant
had never intended to marry the prosecutrix. 
23. To conclude, 
the prosecutrix had left her home voluntarily, of
her own free will to get married to the appellant.
 She was 19 years of
age at the relevant time and was, hence, capable of understanding the
complications and issues surrounding her marriage to the appellant.

According to the version of events provided by her, 
the prosecutrix
had called the appellant on a number given to her by him, to ask him
why he had not met her at the place that had been pre-decided by
them. 
She also waited for him for a long time, and when he finally
arrived she went with him to the Karna lake where they indulged in
sexual intercourse. 
She did not raise any objection at this stage and
made no complaints to any one. 
Thereafter, she also went to
Kurukshetra with the appellant, where she lived with his relatives.

Here to, the prosecutrix voluntarily became intimate with the
appellant. She then, for some reason, went to live in the hostel at
Kurukshetra University illegally, and once again came into contact
with the appellant at the Birla Mandir. 
Thereafter, she even
proceeded with the appellant to the old bus-stand in Kurukshetra, to
17Page 18
leave for Ambala so that the two of them could get married in court at
Ambala. However, here they were apprehended by the police. 
24. If the prosecutrix was in fact going to Ambala to marry the
appellant, as stands fully established from the evidence on record, we
fail to understand on what basis the allegation of “false promise of
marriage” has been raised by the prosecutrix. 
We also fail to
comprehend the circumstances in which a charge of deceit/rape can be
leveled against the appellant, in light of the afore-mentioned fact
situation. 
25. In view of the above, we are of the considered opinion that the
appellant, who has already served more than 3 years sentence, is
entitled to the benefit of doubt. Therefore, the appeal succeeds and is
allowed. His conviction and sentences awarded by the courts below
are set aside. The appellant is on bail. His bail bonds stand discharged.
………………………J.
(Dr. B.S. CHAUHAN)
………………………J.
(DIPAK MISRA)
New Delhi,
May 20, 2013
18

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.