Section 375 IPC = whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. ?
If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case 10 we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.
Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.
We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deepseated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday (supra) are considered relevant: “25…It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 635 OF 2020
(Arising out of SLP (Crl.) No.393 of 2020)
MAHESHWAR TIGGA ...APPELLANT(S)
VERSUS
THE STATE OF JHARKHAND ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellant assails his conviction under sections 376, 323
and 341 of the Indian Penal Code (in short, “IPC”) sentencing him
to seven years, one year and one month respectively with fine and
a default stipulation.
3. The prosecutrix, PW9 lodged FIR No. 25 of 1999 on
13.04.1999 alleging that four years ago the appellant had
1
outraged her modesty at the point of a knife. He had since been
promising to marry her and on that pretext continued to
establish physical relations with her as husband and wife. She
had also stayed at his house for fifteen days during which also he
established physical relations with her. Five days prior to the
lodging of the F.I.R, the appellant had established physical
relations with her on 09.04.1999. The appellant had cheated her
as now he was going to solemnise his marriage with another girl
on 20.04.1999. All efforts at a compromise had failed.
4. The Additional Judicial Commissioner, Ranchi on
consideration of the evidence convicted the appellant holding that
the prosecutrix was 14 years of age when the appellant had first
committed rape upon her at the point of a knife. He did not
abide by his promise to marry her. The High Court dismissing
the appeal opined that the letters written by the appellant to the
prosecutrix, their photographs together, and the statement of the
appellant recorded under Section 313 Cr.P.C. were sufficient to
sustain the conviction.
2
5. Learned senior counsel, Mrs. V. Mohana on behalf of the
appellant, submits that the F.I.R lodged belatedly after four years
was clearly an afterthought. The entire genesis of the allegations
is highly doubtful and suspect as the prosecutrix in her crossexamination admitted that the appellant had not committed rape
with her on 09.04.1999. The letters written by the appellant to
the prosecutrix as also those written by her to the appellant
marked as Exhibits during trial, more than sufficiently
established a deep love affair between them over a period of time.
The prosecutrix was aged approximately 25 years as opined by
P.W.10, the Doctor who medically examined her on 14.04.1999.
The physical relations between the appellant and the prosecutrix
were consensual in nature occasioned by their love affair. No
offence under Section 375 IPC is therefore, made out. The
questions put to the appellant under Section 313 Cr.P.C. were
very casual and perfunctory, leading to denial of proper
opportunity of defence causing serious prejudice to him by denial
of the right to a fair trial. The marriage between them could not
materialise due to societal reasons as the appellant belonged to
the Scheduled Tribe, while the prosecutrix was a Christian.
Reliance was placed on Parkash Chand vs. State of Himachal
3
Pradesh, (2019) 5 SCC 628, Vijayan vs. State of Kerala,
(2008) 4 SCC 763, Kaini Rajan vs. State of Kerala, (2013) 9
SCC 113, Deepak Gulati vs. State of Haryana, (2013) 7 SCC
675 and Uday vs. State of Karnataka, (2003) 4 SCC 46.
6. Ms. Pragya Baghel, learned counsel for the State, submitted
that the prosecutrix stood by the allegations during trial. The
delay in lodging the FIR has been sufficiently explained by reason
of the compromise efforts which failed to materialise. P.W. 7,
the sister of the prosecutrix had also confirmed that the latter
was sexually assaulted by the appellant at the point of a knife
and had come home crying. The appellant had told the
prosecutrix to keep quiet in his absence, revealing that his
intentions were not bonafide. The defence of a consensual
relationship is irrelevant considering that the prosecutrix was
fourteen years of age. The appellant had held out a false promise
of marriage only to establish physical relations with the
prosecutrix. He never had any such intentions from the very
inception, and he obtained the consent of the appellant by a false
misrepresentation, which is no consent in the eyes of the law.
The evidence of the prosecutrix is reliable.
4
7. We have considered the submissions on behalf of the
parties. The prosecutrix in her deposition dithered with regard to
her age by first stating she was sixteen years on the date of
occurrence and then corrected herself to state she was thirteen.
Though she alleged that the appellant outraged her modesty at
the point of a knife while she was on way to school, no name of
the school has been disclosed either by the prosecutrix or her
parents P.W.5 and 6. If the prosecutrix was studying in a school
there is no explanation why proof of age was not furnished on
basis of documentary evidence such as school register etc.
P.W.10, in cross examination assessed the age of the prosecutrix
to be approximately twentyfive years. P.W.2, the cousin (brother)
of the prosecutrix aged about 30 years deposed that she was six
years younger to him. There is thus wide variation in the
evidence with regard to the age of the prosecutrix. The Additional
Judicial Commissioner held the prosecutrix to be fourteen years
of age applying the rule of the thumb on basis of the age
disclosed by her in deposition on 18.08.2001 as 20 years. In
absence of positive evidence being led by the prosecution with
regard to the age of the prosecutrix on the date of occurrence, the
possibility of her being above the age of eighteen years on the
5
date cannot be ruled out. The benefit of doubt therefore has to be
given to the appellant.
8. A bare perusal of the examination of the accused under
Section 313 Cr.P.C. reveals it to be extremely casual and
perfunctory in nature. Three capsuled questions only were asked
to the appellant as follows which he denied:
“Question1. There is a witness against you that when the
informant V. Anshumala Tigga was going to school you
were hiding near Tomra canal and after finding the
informant in isolation you forced her to strip naked on
knifepoint and raped her.
Question 2. After the rape when the informant ran to her
home crying to inform her parents about the incident and
when the parents of the informant came to you to inquire
about the incident, you told them that “if I have
committed rape then I will keep her as my wife”.
Question3. On your instruction, the informant’s parents
performed the “Lota Paani” ceremony of the informant, in
which the informant as well as your parents were
present, also in the said ceremony your parents had
gifted the informant a Saree and a blouse and the
informant’s parents had also gifted you some clothes”
9. It stands well settled that circumstances not put to an
accused under Section 313 Cr.P.C. cannot be used against him,
and must be excluded from consideration. In a criminal trial, the
importance of the questions put to an accused are basic to the
6
principles of natural justice as it provides him the opportunity
not only to furnish his defence, but also to explain the
incriminating circumstances against him. A probable defence
raised by an accused is sufficient to rebut the accusation without
the requirement of proof beyond reasonable doubt. This Court,
time and again, has emphasised the importance of putting all
relevant questions to an accused under Section 313 Cr.P.C. In
Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it
was held to an essential part of a fair trial observing as follows :
“5……The questioning of the accused under Section 313
CrPC was done in the most unsatisfactory manner.
Under Section 313 CrPC the accused should have been
given opportunity to explain any of the circumstances
appearing in the evidence against him. At least, the
various items of evidence, which had been produced by
the prosecution, should have been put to the accused in
the form of questions and he should have been given
opportunity to give his explanation. No such opportunity
was given to the accused in the instant case. We
deprecate the practice of putting the entire evidence
against the accused put together in a single question and
giving an opportunity to explain the same, as the accused
may not be in a position to give a rational and intelligent
explanation. The trial Judge should have kept in mind
the importance of giving an opportunity to the accused to
explain the adverse circumstances in the evidence and
the Section 313 examination shall not be carried out as
an empty formality. It is only after the entire evidence is
unfurled the accused would be in a position to articulate
his defence and to give explanation to the circumstances
appearing in evidence against him. Such an opportunity
being given to the accused is part of a fair trial and if it is
7
done in a slipshod manner, it may result in imperfect
appreciation of evidence…”
10. The appellant belonged to the Scheduled Tribe while the
prosecutrix belonged to the Christian community. They professed
different religious beliefs in a traditional society. They both
resided in the same village Basjadi and were known to each
other. The nature and manner of allegations, coupled with the
letters exchanged between them, marked as Exhibits during the
trial, make it apparent that their love for each other grew and
matured over a sufficient period of time. They were both smitten
by each other and passions of youth ruled over their minds and
emotions. The physical relations that followed was not isolated
or sporadic in nature, but regular over the years. The
prosecutrix had even gone and resided in the house of the
appellant. In our opinion, the delay of four years in lodgement of
the FIR, at an opportune time of seven days prior to the appellant
solemnising his marriage with another girl, on the pretext of a
promise to the prosecutrix raises serious doubts about the truth
and veracity of the allegations levelled by the prosecutrix. The
entire genesis of the case is in serious doubt in view of the
admission of the prosecutrix in cross examination that no
incident had occurred on 09.04.1999.
8
11. The parents of the prosecutrix, P.Ws. 5 and 6 both
acknowledged awareness of the relationship between appellant
and the prosecutrix and that they were informed after the first
occurrence itself but offer no explanation why they did not report
the matter to the police immediately. On the contrary, P.W. 5
acknowledges that the appellant insisted on marrying in the
Temple to which they were not agreeable and wanted the
marriage to be solemnised in the Church. They further
acknowledged that the appellant and the prosecutrix were in love
with each other. Contrary to the claim of the prosecutrix, P.W. 6
stated that the prosecutrix was sexually assaulted in her own
house.
12. The prosecutrix acknowledged that an engagement
ceremony had also been performed. She further deposed that the
marriage between them could not be solemnised because they
belonged to different religions. She was therefore conscious of
this obstacle all along, even while she continued to establish
physical relations with the appellant. If the appellant had
married her, she would not have lodged the case. She denied
9
having written any letters to the appellant, contrary to the
evidence placed on record by the defence. The amorous language
used by both in the letters exchanged reflect that the appellant
was serious about the relationship desiring to culminate the
same into marriage. But unfortunately for societal reasons, the
marriage could not materialise as they belonged to different
communities.
13. The question for our consideration is whether the
prosecutrix consented to the physical relationship under any
misconception of fact with regard to the promise of marriage by
the appellant or was her consent based on a fraudulent
misrepresentation of marriage which the appellant never
intended to keep since the very inception of the relationship. If
we reach the conclusion that he intentionally made a fraudulent
misrepresentation from the very inception and the prosecutrix
gave her consent on a misconception of fact, the offence of rape
under Section 375 IPC is clearly made out. It is not possible to
hold in the nature of evidence on record that the appellant
obtained her consent at the inception by putting her under any
fear. Under Section 90 IPC a consent given under fear of injury is
not a consent in the eyes of law. In the facts of the present case
10
we are not persuaded to accept the solitary statement of the
prosecutrix that at the time of the first alleged offence her
consent was obtained under fear of injury.
14. Under Section 90 IPC, a consent given under a
misconception of fact is no consent in the eyes of law. But the
misconception of fact has to be in proximity of time to the
occurrence and cannot be spread over a period of four years. It
hardly needs any elaboration that the consent by the appellant
was a conscious and informed choice made by her after due
deliberation, it being spread over a long period of time coupled
with a conscious positive action not to protest. The prosecutrix in
her letters to the appellant also mentions that there would often
be quarrels at her home with her family members with regard to
the relationship, and beatings given to her.
15. In Uday (supra), the appellant and the prosecutrix resided
in the same neighbourhood. As they belonged to different castes,
a matrimonial relationship could not fructify even while physical
relations continued between them on the understanding and
assurance of marriage. This Court observed as follows:
11
“21. It therefore appears that the consensus of
judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply
in love on a promise that he would marry her on a
later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact
within the meaning of the Code. We are inclined to
agree with this view, but we must add that there is
no straitjacket formula for determining whether
consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given
under a misconception of fact. In the ultimate
analysis, the tests laid down by the courts provide
at best guidance to the judicial mind while
considering a question of consent, but the court
must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching
a conclusion, because each case has its own
peculiar facts which may have a bearing on the
question whether the consent was voluntary, or was
given under a misconception of fact. It must also
weigh the evidence keeping in view the fact that the
burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent
being one of them.”
16. The appellant, before the High Court, relied upon Kaini
Rajan (supra) in his defence. The facts were akin to the present
case. The physical relationship between the parties was
established on the foundation of a promise to marry. This Court
set aside the conviction under Section 376 IPC also noticing K.P.
Thimmappa Gowda vs. State of Karnataka, (2011)14 SCC
475. Unfortunately, the High Court did not even consider it
12
necessary to deal with the same much less distinguish it, if it was
possible. It is indeed unfortunate that despite a judicial
precedent of a superior court having been cited, the High Court
after mere recitation of the facts and the respective arguments,
cryptically in one paragraph opined that in the nature of the
evidence, the letters, the photograph of the appellant with the
prosecutrix and the statement of the appellant under Section 313
Cr.P.C., his conviction and sentence required no interference.
17. This court recently in Dhruvaram Murlidhar Sonar vs.
The State of Maharashtra and Others, AIR 2019 SC 327 and
in Pramod Suryabhan Pawar vs. State of Maharashtra and
another, (2019) 9 SCC 608 arising out of an application under
Section 482 Cr.P.C. in similar circumstances where the
relationship originated in a love affair, developed over a period of
time accompanied by physical relations, consensual in nature,
but the marriage could not fructify because the parties belonged
to different castes and communities, quashed the proceedings.
18. We have given our thoughtful consideration to the facts and
circumstances of the present case and are of the considered
opinion that the appellant did not make any false promise or
13
intentional misrepresentation of marriage leading to
establishment of physical relationship between the parties. The
prosecutrix was herself aware of the obstacles in their
relationship because of different religious beliefs. An
engagement ceremony was also held in the solemn belief that the
societal obstacles would be overcome, but unfortunately
differences also arose whether the marriage was to solemnised in
the Church or in a Temple and ultimately failed. It is not possible
to hold on the evidence available that the appellant right from the
inception did not intend to marry the prosecutrix ever and had
fraudulently misrepresented only in order to establish physical
relation with her. The prosecutrix in her letters acknowledged
that the appellant’s family was always very nice to her.
19. The appellant has been acquitted of the charge under
Sections 420 and 504 I.P.C. No appeal has been preferred
against the acquittal. There is no medical evidence on record to
sustain the conviction under Section 323 I.P.C. No offence is
made out against the appellant under Section 341 I.P.C.
considering the statement of prosecutrix that she had gone to live
with the appellant for 15 days of her own volition.
14
20. We have no hesitation in concluding that the consent of the
prosecutrix was but a conscious and deliberated choice, as
distinct from an involuntary action or denial and which
opportunity was available to her, because of her deepseated love
for the appellant leading her to willingly permit him liberties with
her body, which according to normal human behaviour are
permitted only to a person with whom one is deeply in love. The
observations in this regard in Uday (supra) are considered
relevant:
“25…It usually happens in such cases, when two young
persons are madly in love, that they promise to each
other several times that come what may, they will get
married. As stated by the prosecutrix the appellant also
made such a promise on more than one occasion. In such
circumstances the promise loses all significance,
particularly when they are overcome with emotions and
passion and find themselves in situations and
circumstances where they, in a weak moment, succumb
to the temptation of having sexual relationship. This is
what appears to have happened in this case as well, and
the prosecutrix willingly consented to having sexual
intercourse with the appellant with whom she was deeply
in love, not because he promised to marry her, but
because she also desired it. In these circumstances it
would be very difficult to impute to the appellant
knowledge that the prosecutrix had consented in
consequence of a misconception of fact arising from his
promise. In any event, it was not possible for the
appellant to know what was in the mind of the
prosecutrix when she consented, because there were
more reasons than one for her to consent.”
15
21. In conclusion, we find the conviction of the appellant to be
unsustainable and set aside the same. The appellant is
acquitted. He is directed to be set at liberty forthwith unless
wanted in any other case. The appeal is allowed.
…………...................J.
[R.F. NARIMAN]
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
SEPTEMBER 28, 2020
16
