2004 Supreme(SC) 1395

2004(8) Supreme 266
SUPREME COURT OF INDIA
(From Patna High Court)
P. Venkatarama Reddi & P.P. Naolekar, JJ.
Deelip Singh @ Dilip Kumar -Appellant
versus
State of Bihar -Respondent
Criminal Appeal No. 44 of 2004
Decided on 3-11-2004
Counsel for the Parties :
For the Appellant : D.K. Thakur, Ravi Shankar Kumar and Debasis Misra, Advocates.
For the Respondent : H.L. Aggarwal, Sr. Advocate, Kumar Rajesh Singh, Advocate for B.B. Singh, Advocate.

IMPORTANT POINT
In an offence of rape a promise to marry without anything more will not give rise to "misconception of fact" but a misrepresentation deliberately made by accused with a view to elicit the assent of victim without having intention or inclination to marry will vitiate the consent.

Headnote:(i) Indian Penal Code, 1860-Section 376-Appellant convicted for committing rape on minor girl-Appeal-To establish that victim girl was aged less than 16 years prosecution had adduced evidence of school certificate and medical expert s opinion-School certificate was got issued by I.O. only after trial commenced-Date of birth recorded in certificate was on basis of declaration made by father-Father was the best witness to speak about her age, he did not speak about age-Certificate was not properly proved and did not come from proper custody-Medical Officer had assessed the age 16-17 years and defence was entitled to rely on higher side of age given by Doctor-Victim girl was more than sixteen years of age on date of occurrence-Conviction on a finding that victim was minor could not be sustained. (Paras 8 to 14)

       (ii) Indian Penal Code, 1860-Section 376-Appellant convicted for having committed rape on girl against her "will"-Expression "against the will"-Victim s evidence that first sexual intercourse took place against her will though she became consenting party later on matter was reported to police only after victim had become six months pregnant and accused had refused to marry her against his earlier promises-In the report victim had not complained of forcible rape-It was not safe to lend credence to her version that she was subjected to rape against her will in first instance-Question whether consent given by a woman believing the man s promise to marry her was a consent to exclude offence of rape-Promise to marry without anything-More will not give rise to misconception of fact-A representation deliberately made with a view to elicit assent of victim without having intention or inclination to marry her will vitiate consent-Burden was on prosecution to prove that there was absence of consent-Evidence revealed that victim took conscious decision after active application of mind to things that were happening-Conviction recorded by trial Court and affirmed by High Court was liable to be set aside.

       Held : While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly. (Para 26)

       Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday s case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer the lack of consent on the part of the prosecutrix is the ultimate point to be decided. A close scrutiny of evidence of the prosecutrix-PW12 is what is called for, there being no other evidence in the case which could throw light on the point at issue. First, we must exclude from consideration that part of her version which accuses the appellant of forcible sexual indulgence on the first occasion. We have already discussed this aspect and rejected her version as unreliable. Therefore, we have to address ourselves to the twin questions (1) whether there was voluntary participation in the sexual act quite mindful and conscious of what she was doing and its possible consequences and (2) whether the victim girl was misled by the false promise of the accused to marry her and therefore agreed to have sexual contact with him. In a way, these two aspects overlap and are interconnected. (Paras 28 to 30)

       Whether on the basis of the evidence on record, is it reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry? We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW-12 that later on , the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialize on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday s case at paragraph 24 comes to the aid of the appellant. We reach the ultimate conclusion that the findings of the trial court as affirmed by the High Court are either perverse or vitiated by non-consideration of material evidence and relevant factors emerging from the prosecution evidence. We cannot, therefore, sustain the conviction. (Paras 33 and 34)

       (iii) Indian Penal Code, 1860-Section 376-Appellant committed sexual intercourse on a promise to marry prosecutrix and she became pregnant and delivered a female child-Acquittal on ground that consent could not be said to be in misconception of facts-Appellant did commit breach of promise to marry for which accused was prima facie accountable for damages under civil law-Fit case for exercise of power under Article 142 of the Constitution-Appellant to pay Rs. 50,000/- to victim and girl child.

       Held : With this verdict, the appellant, no doubt extricates himself from the clutches of the penal law by getting the benefit of doubt on charge levelled against him. But, we cannot ignore the reprehensible conduct of the appellant, who by promising to marry the victim woman, persuaded her to have sexual relations and caused pregnancy. The act of the accused left behind her a trail of misery, ignominy and trauma. The only solace is that she married subsequently. We are informed that the female child born out of the illicit relationship is now living with her married mother and she is about 14 year old now. Though there is no evidence to establish beyond reasonable doubt that the appellant made a false or fraudulent promise to marry, there can be no denial of the fact that the appellant did commit breach of the promise to marry, for which the accused is prima facie accountable for damages under civil law. When we apprised the appellant s counsel of our prima facie view point on this aspect and elicited his response on passing a suitable order in exercise of power vested in this Court under Article 142 of the Constitution, the learned counsel took time to get instructions. We are now informed that the appellant is prepared to pay a sum of Rs. 50,000 by way of monetary compensation irrespective of acquittal. Though the said amount is not an adequate compensation, we are not inclined to call upon the appellant to pay more for more than one reason: firstly, the appellant has been in jail for about two years by now; secondly, we are informed that the accused belongs to a backward class and his family is not affluent though they have some agricultural lands; lastly, the incident took place about 15 years back and in the supervening period, the prosecutrix as well as the appellant married and we are told that he has two children. In these circumstances, we accept the offer of the appellant. (Para 36)