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SUPREME COURT OF INDIA
R.F. NARIMAN, NAVIN SINHA, INDIRA BANERJEE, JJ.
MAHESHWAR TIGGA – APPELLANT(S)
VERSUS
THE STATE OF JHARKHAND – RESPONDENT(S)
CRIMINAL APPEAL NO. 635 OF 2020 (Arising out of SLP (Crl.) No.393 of 2020)
Decided on : 28-09-2020
(A) Indian Penal Code, 1860 – Sections 376, 323 and 341 – Rape, hurt and wrongful restraint – Conviction and sentence – Examination of accused under Section 313 Cr.P.C. was extremely casual and perfunctory in nature – Nature and manner of allegations, coupled with letters exchanged between them, 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 – Physical relations that followed was not isolated or sporadic in nature, but regular over years – Prosecutrix had even gone and resided in house of appellant – Delay of four years in lodgement of FIR, at an opportune time of seven days prior to appellant solemnising his marriage with another girl, on pretext of a promise to prosecutrix raises serious doubts about truth and veracity of allegations levelled by prosecutrix – Entire genesis of case is in serious doubt in view of admission of prosecutrix in cross examination that no incident had occurred on alleged date – Parents of prosecutrix acknowledged that appellant and prosecutrix were in love with each other – It is not possible to hold in nature of evidence on record that appellant obtained her consent at inception by putting her under any fear – Consent by 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 – Appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between parties – Prosecutrix was herself aware of obstacles in their relationship because of different religious beliefs – It is not possible to hold on evidence available that appellant right from inception did not intend to marry prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her – Prosecutrix in her letters acknowledged that appellant’s family was always very nice to her – There is no medical evidence on record to sustain conviction under Section 323 I.P.C. – No offence is made out against appellant under Section 341 I.P.C. considering statement of prosecutrix that she had gone to live with appellant for 15 days of her own volition – Consent of 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 deep-seated love for 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 – Appellant acquitted. (Paras 8, 10, 11, 14, 18, 19, 20 and 21)
(B) Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Circumstances not put to accused under Section 313 Cr.P.C. cannot be used against him and must be excluded from consideration – In a criminal trial, importance of questions put to accused are basic to principles of natural justice as it provides him opportunity not only to furnish his defence, but also to explain incriminating circumstances against him – A probable defence raised by an accused is sufficient to rebut accusation without requirement of proof beyond reasonable doubt. (Para 9)
(C) Indian Penal Code, 1860 – Section 90 – Misconception of fact – Under Section 90 IPC, consent given under misconception of fact is no consent in eyes of law – But misconception of fact has to be in proximity of time to occurrence and cannot be spread over a period of four years – Under Section 90 IPC consent given under fear of injury is not a consent in eyes of law. (Paras 13 and 14)
Facts of the case:
Appellant assails his conviction under sections 376, 323 and 341 of the Indian Penal Code sentencing him to seven years, one year and one month respectively with fine and a default stipulation. Question for consideration is whether prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by 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.
Findings of Court:
An engagement ceremony was also held in the solemn belief that societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from 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.
Result : Appeal allowed.
Key Points: - The court acquits the appellant of rape under Section 376 IPC, finding consent not proven to be under misconception of fact or fraud, given long-term relationship and absence of immediate fear-based consent (!) (!) (!) (!) (!) . - Important requirement that questions to the accused under Section 313 Cr.P.C. must be comprehensive and not casual; improper 313 proceedings prejudiced the defense (casual, perfunctory 313 questions) (!) (!) . - The delay in lodging FIR (four years) and timing before the appellant’s planned marriage raised doubt about the prosecutrix’s allegations; credibility and timing impacted the conviction (!) (!) (!) . - The evidence including letters and photos suggested a mutual love affair over years, undermining the claim of non-consensual rape; appellant acquitted on this basis (!) (!) (!) (!) . - The judgment discusses misperception of fact in consent, noting that misconception must be proximate in time to the occurrence and cannot be spread over years; consent in such long-standing relationships may be voluntary (!) (!) (!) . - The court cites Uday and Dhruvaram Murlidhar Sonar authorities on consent and promise to marry not automatically constituting rape; no false promise established in this case (!) (!) (!) .
JUDGMENT
NAVIN SINHA, J.
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 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.
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 cross-examination 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 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.
7. We have considered the submissions on beha
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