SUPREME COURT OF INDIA
Deelip Singh @ Dilip Kumar
Vs
State of Bihar
Criminal Appeal No. 44 of 2004
(P. Venkatarama Reddi and P.P.Naolekar)
03/11/2004
P. VENKATARAMA REDDI,J.
1. The appellant has been charged and convicted under Section 376
IPC for committing rape of a minor girl (figured as PW12 in this case) in the
month of February, 1988. The IIIrd Additional Sessions Judge of Katihar
sentenced him to rigorous imprisonment for a period of ten years. On appeal,
the High Court upheld the conviction but modified the sentence to seven years.
Aggrieved thereby, the present appeal is filed by the accused.
Facts:
2. The victim girl lodged a complaint to the police on 29.11.1988 i.e., long
after the alleged act of rape. By the date of the report, she was pregnant by
six months. Broadly, the version of the victim girl was that she and the
accused were neighbors and fell in love with each other and one day, the
accused forcibly raped her and later consoled her saying that he would marry
her, that she succumbed to the entreaties of the accused to have sexual
relations with him, on account of the promise made by him to marry her and
therefore continued to have sex on several occasions. After she became
pregnant, she revealed the matter to her parents. Even thereafter the intimacy
continued to the knowledge of the parents and other relations who were under
the impression that the accused would marry the girl but the accused avoided to
marry her and his father took him out of the village to thwart the bid to
marry. The efforts made by the father to establish the marital tie failed and
therefore she was constrained to file the complaint after waiting for sometime.
3. The prosecution adduced evidence in the form of school certificate and
medical expert's opinion to establish that by the date of the commission of
criminal act, the victim girl was aged less than 16 years in which case her
consent becomes immaterial. It is on this aspect the attention was focussed
more by the prosecution.
4. The trial Court accepted the prosecution case in this regard and found that
the girl was aged less than 16 years at the relevant point of time. The High
Court affirmed this finding. The trial Court also recorded an alternative
finding that she was forcibly raped on the first occasion and after that
incident the accused went on making false promises to marry her. It was
therefore held that either there was no consent or the consent was involuntary.
Thus, according to the trial Court, it was a case of having sexual intercourse
against the will of the victim girl or without her consent. If so, irrespective
of the age of the girl, the offence is deemed to be committed. As regards this
latter aspect, the High Court did not enter into any discussion.
5. Before proceeding to discuss the crucial points, it would be apposite to
refer to the contents of the report given by the victim girl to the
officer-in-charge of Manihari police station on the basis of which the FIR (Ext.1)
was registered on 25.10.1988. At this stage, we would like to observe that her
version as per the deposition given in the Court was somewhat different,
especially in regard to the manner in which the sexual relationship was
developed and the first sexual act was resorted to. To the extent necessary,
this aspect will be referred to at a later stage. The following is the
substance of the report (marked as Ext. 3/2) given to the police on 25.10.1988:
6. The informant and the accused were neighbors. The accused, by his gestures
and behavior, tried to seduce her. Whenever there was opportunity, he used to
come to her house and used to cut jokes and have fun with her in spite of her
protests. On one occasion, a watch was given to her as a gift. The accused went
on telling that he wanted to marry her but she expressed her disinclination.
However, one day, she yielded to the persuasion of the accused and had sexual
contact with the accused and the same has been going on from the month of
February, 1988. The accused allured her with promise of marriage and continued
to have intercourse with her on account of which she conceived. During the
second or third month of pregnancy, she informed her parents about it. Her
father talked to the accused and asked him to marry his daughter. The accused
accepted before the villagers that he was responsible for the pregnancy and he
was ready to marry her. However, the father of the accused did not agree and
proclaimed that the marriage will not take place under any circumstances. The
efforts made by her father by convening a panchayat etc., did not yield any
result. Later on, the informant came to know that the father of the accused
Gopi Singh with the help of other villagers took away the accused to an unknown
place. Thereafter, she was advised to file the case by her father and other
elders. On the registration of the case, the charge sheet was filed not only
against the present appellant but also his father and others who were alleged
to have abducted the accused to prevent the marriage. However, no charge was
framed against them. The appellant is the sole accused who faced the trial.
7. The victim girl was sent for medical examination to CAS, Sadar Hospital,
Katihar on 28.11.1988. PW14-the Doctor who along with other doctors examined
her, deposed that by the date of examination, she had pregnancy of six months
duration. The main purpose of sending her for medical examination appears to be
to assess her age. PW14 gave the opinion, on the basis of his own examination
and the examination of the Dental Surgeon and the X-rays taken by the
Radiologist that her age was between 16 and 17 years. The Investigating Officer
has not been examined in this case.Age of Victim:
8. The question of age of the victim girl is the first and foremost aspect that
needs to be considered in the present appeal. On this question we are unable to
concur with the finding of the trial Court as affirmed by the High Court. In
our view, the finding as reached by the trial court is based on no evidence or
evidence which is doubtful. The prosecution wanted to prove her age by filing
the school transfer certificate through PW13. The certificate is Ext. P4. It
was purportedly issued by the Headmaster of the Primary / Secondary School,
Nawabganj. Her date of birth, as recorded in the admission register, is stated
to be 4.2.1974. The date of admission is mentioned as 22.2.1980 and the date of
leaving the school as 31.12.1981. It is mentioned in column 5 that the
admission was given on the basis of the declaration of the father i.e. PW11. By
the time she left the school, she passed II Class. The date of issuance of the
certificate was 7.1.1991 i.e. after the trial commenced. No explanation is
forthcoming as to why the Investigation Officer did not obtain the certificate in
the course of investigation and why the certificate was not produced by the
father of the girl (PW11). Apparently, the age was given on the basis of the
declaration made by the father. If so, the father was the best witness to speak
about her age. However, he did not say a word about her age.
9. If this certificate had been filed beforehand or if PW11 had said
anything about her age, the defence counsel would have been in a position to
question the father about the correctness of his declaration. That is one
aspect. The other and more important aspect is that the certificate (Ext. P4)
has no evidentiary value inasmuch as it is not properly proved by a witness who
is competent to speak to the relevant facts connected with the issuance and
custody of the certificate. # The Headmaster or the staff of the school has
not been examined.
10. The two witnesses examined to prove this document are PWs 13 and 15, whose
evidence, in our view, is really worthless. The certificate was produced by
PW13, who is said to be a clerk in Court (Mujeeb). It was marked subject to
objection raised by the defence. Who applied for it and how he came in
possession of it has not been explained. Though he stated in the chief
examination that the certificate was issued by the Headmaster of Nawabganj
School, in cross-examination, he frankly stated that he could not say whose
signature was there on the certificate. He further stated that he had never
gone to the school.
11. PW-15 an Advocate's clerk, is another witness examined by prosecution to
prove Ext. 4. He stated in the chief-examination that the school leaving
certificate related to victim girl and it was in the handwriting of the
Headmaster Akhileshwar Thakur. In cross-examination, he admitted that he did
not see the certificate earlier and he met the Headmaster of the School 10 or
15 years back. He also stated that the signature was illegible. Thus the
evidence of PWs 13 & 15 does not throw any light on the authenticity or the
genuineness of the certificate. Obviously, they did not have any knowledge of
the issuance of the certificate. The original register was not before the
Court. The certificates have not come from proper custody. In the
circumstances, the certificate should have been eschewed from consideration.
However the trial Court and the High Court acted on it without demur and rested
their conclusions on this document. # If we exclude Ext. P4 from
consideration, the Court is left with the evidence of the Medical Officer,
PW14, according to whose assessment the age of the girl was 16-17 years. The
defence is entitled to rely on the higher side of the age given by the Doctor.
If so, the victim girl would be aged more than 16 years when the alleged
offence took place in February, 1988. At the time of examination in the Court, it
appears that the Court assessed the age as 17, without any further elaboration.
It is not safe to rely on such estimate.
12. For all these reasons we are of the view that the finding that the victim
girl was less than 16 years of age on the date of the first sexual intercourse
which the appellant had committed, cannot be sustained. If so, Clause sixthly
of Section 375 which says - 'with or without her consent, when she is under 16
years of age', is not attracted.
Whether accused guilty under clause first of Section 375:
13. The next question is whether the appellant had sexual intercourse with the
victim girl against her will (vide first Clause of Section 375). The expression
'against the will' seems to connote that the offending act was done despite resistance
and opposition of the woman. On this aspect, the trial court did believe the
version of the informant - victim without much of discussion. In reaching this
factual finding, the trial Court failed to analyse and evaluate the evidence of
PW12 - the victim girl. The High Court merely affirmed the trial Court's
finding on this paint. We should, therefore, scrutinize her evidence and
examine whether it would, beyond reasonable doubt, lead to the conclusion of
the accused having had sexual contact against her will. Though in the FIR, the
version of forcible sexual intercourse has not been put forward, in the
deposition before the Court, PW12 tried to build up this plea. According to
PW12, the first act of rape took place in the wheat field of her father. This
is how she described the incident:
"In the field, once getting a chance, Dilip Singh forcibly raped me. Dilip
Singh told, 'you marry me', when I was weeping. He said weeping is useless and
we shall marry. He promised me of marriage and raped me several times." *
14. She then stated that after she became pregnant, she revealed to her mother
about the rape. Later on, the accused became ready to marry her but his father
and others took him away from the village. She also stated that the accused
time and again told her that they will have a 'court marriage' (means,
registered marriage). In substance what she deposed was that the first sexual
intercourse took place against her will, though she became a consenting party
later on. The first thing to be noticed is that in the report which she
admittedly gave to the police, this version was not given by her and she did
not complain of forcible rape. That apart, the version of rape in the wheat
field seems to be highly doubtful when tested in the light of her statements in
the cross-examination. She stated in paragraph 14 that 'one day, while talking,
he pulled me down and forcibly raped me. This incident occurred at 12.00 in the
night". That means, according to her version, the first incident of rape
took place on the wheat field at 12.00 in the midnight. It is highly doubtful
whether they would go to the wheat fields at that hour. Moreover, in
cross-examination, she makes a further improvement by stating that at the time
of first incident of rape at midnight, when she started shouting, the accused
gagged her mouth. One more thing which affects the credibility of her version
is her statement in the cross-examination that when the accused kept on making
gestures, she went to the house of the accused and lodged her protest with his
Bhabi. It is most unlikely that such unwilling person will go to a scheduled
place in the company of the accused at an odd time in the night and take the
risk of being sexually assaulted. In any case, if the rape was committed by
the accused much against her will, she would not have volunteered to submit to
his wish subsequent to the alleged first incident of rape. She admitted that
the accused used to talk to her for hours together and that was within the
knowledge of her parents and brother. This statement also casts an element of
doubt on her version that she was subjected to sexual intercourse in spite of
her resistance. Above all, the version given by her in the Court is at variance
with the version set out in the FIR. # As already noticed, she
categorically stated in the first information report that she 'surrendered
before him' in view of his repeated promises to marry. In short, her version
about the first incident of rape bristles with improbabilities, improvements
and exaggerations. It is a different matter that she became a consenting party
under the impact of his promise to marry her. That aspect, we will examine
later. But, what we would like to point out at this juncture is, it is not
safe to lend credence to the version of PW12 that she was subjected to rape
against her will in the first instance even before the appellant held out the
promise to marry. We cannot, therefore, uphold the finding of the trial Court
that the girl was raped forcibly on the first occasion and that the talk of
marriage emerged only later. The finding of the trial Court in this respect is
wholly unsustainable. #
Whether clause secondly (without consent) is attracted:
15. The last question which calls for consideration is whether the accused is
guilty of having sexual intercourse with PW12 'without her consent' (vide
Clause secondly of Section 375 IPC). Though will and consent often interlace
and an act done against the will of a person can be said to be an act done
without consent, the Indian Penal Code categorizes these two expressions under
separate heads in order to be a comprehensive as possible.
16. What then is the meaning and content of the expression 'without her
consent'? Whether the consent given by a woman believing the man's promise to
marry her is a consent which excludes the offence of rape? These are the
questions which have come up for debate directly or incidentally.
17. The concept and dimensions of 'consent' in the context of Section 375 IPC
has been viewed from different angles. The decided cases on the issue reveal
different approaches which may not necessarily be dichotomous. Of course, the
ultimate conclusion depends on the facts of each case.
18. Indian Penal Code does not define 'consent' in positive terms, but what
cannot be regarded as 'consent' under the Code is explained by Section 90.
Section 90 reads as follows:
"90. Consent known to be given under fear or misconception - A consent is
not such a consent as is intended by any section of this Code, if the consent
is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows or has reason to believe, that the
consent was given in consequence of such fear or misconception.." *
19. Consent given firstly under fear of injury and secondly under a
misconception of fact is not 'consent' at all. That is what is enjoined by the
first part of Section 90. These two grounds specified in Section 90 are
analogous to coercion and mistake of fact which are the familiar grounds that
can vitiate a transaction under the jurisprudence of our country as well as
other countries.
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 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.
21. Section 90 cannot, however be construed as an exhaustive definition of
consent for the purposes of the Indian Penal Code. The normal connotation and
concept of 'consent' is not intended to be excluded. Various decisions of the
High Court and of this Court have not merely gone by the language of Section
90, but travelled a wider field, guided by the etymology of the word 'consent'.
22. In most of the decisions in which the meaning of the expression 'consent' under the Indian Penal Code was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words & Phrases - Permanent Edition and other legal Dictionaries. Stroud defines consent as 'an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side." Jowitt, while employing the same language added the following:
"Consent supposes three things - a physical power, a mental power and a
free and serious use of them. Hence it is that if consent be obtained by
intimidation, force, mediated imposition, circumvention, surprise or undue
influence, it is to be treated as a delusion, and not as a deliberate and free
act of the mind." *
23. In Words & Phrases - Permanent Edition, Volume 8A, the following
passages culled out from certain old decisions of the American Courts are
found:
"... adult female understands of nature and consequences of sexual act
must be intelligent understanding to constitute 'consent'. *
Consent within penal law, defining rape, requires exercise of intelligence
based on knowledge of its significance and moral quality and there must be a
choice between resistance and assent."
24. It was observed by B.P. Singh, J. speaking for the Court in Uday vs. State
of Karnataka ( 2003 (2) Scale 329 ), "the Courts in India have, by and
large, adopted these tests to discover whether the consent was voluntary or whether
it was vitiated so as not to be legal consent."
25. There is a good analysis of the expression 'consent' in the context of
Section 375 IPC by Tekchand, J., in Rao Harnarain Singh vs. State 1958
AIR(P&H) 123 ). The learned Judge had evidently drawn inspiration from the
above passages in the law dictionaries. The observation of the learned Judge
that 'there is a difference between consent and submission and every consent
involves a submission but the converse does not follow and a mere act of submission
does not involve consent', is quite apposite. The said proposition is virtually
a repetition of what was said by Coleridge, J. in Regina vs. Day in 1841 as
quoted in Words and Phrases (Permanent Edition) at page 205. The following
remarks in Harnarain's case are also pertinent:
"Consent is an act of reason accompanied by deliberation, a mere act of
helpless resignation in the face of inevitable compulsion, non resistance and
passive giving in cannot be deemed to be Consent." *
26. The passages occurring in the above decision were either verbatim quoted
with approval or in condensed form in the subsequent decisions : Vide In Re:
Anthony 1973 Indlaw GOA 2 ), Gopi Shankar vs.
State 1967 AIR(Raj) 159 ), Bhimrao vs. State of Maharashtra 1975
MahLJ 660 ), Vijayan Pillai vs. State of Kerala 1989 (2) KLJ 234 ). All
these decisions have been considered in a recent pronouncement of this Court in
Uday vs. State of Karnataka. The enunciation of law on the meaning and consent
of the expression 'consent' in the context of penal law as elucidated by
Tekchand, J. in Harnarain's case (which in turn was based on the above extracts
from law Dictionaries) has found its echo in the three Judge Bench decision of
this Court in State of H.P. vs. Mango Ram ), K.G. Balakrishnan, J.
speaking for the Court stated thus:
"Submission of the body under the fear or terror cannot be construed as a
consented sexual act. Consent for the purpose of Section 375 requires voluntary
participation not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act but after having
fully exercised the choice between resistance and assent. Whether there was
consent or not, is to be ascertained only on a carefully study of all relevant
circumstances." *
On the facts, it was held that there was resistance by the prosecutrix and
there was no voluntary participation in the sexual act. That case would
therefore fall more appropriately within Clause first of Section 375.
27. We shall turn our attention to the cases which dealt with the specific
phraseology of Section 90, IPC. We have an illuminating decision of the Madras
High Court rendered in 1913 in Re: N. Jaladu 36 ILR(Mad) 453 ) in which a
Division Bench of that Court considered the scope and amplitude of the
expression 'misconception of fact' occurring in Section 90 in the context of
the offence of kidnapping under Section 361 IPC. The 2nd accused in that case
obtained the consent of the girl's guardian by falsely representing that the
object of taking her was for participating in a festival. However, after the
festival was over, the 2nd accused took her to a temple in another village and
married her to the 1st accused against her will. The question arose whether the
guardian gave consent under a misconception of fact. While holding that there
was no consent, Sundara Ayyar J. speaking for the Bench observed thus:
"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) 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. In considering a
similar statute, it was held in England R. v. Hopkins 1842, Car & M 17, 254
that a consent obtained by fraud would not be sufficient to justify the taking
of a minor. See also Halsbury's Laws of England, Volume 9, page 623. In
Stephen's Digest of the Criminal Law of England (sixth edition, page 217), the
learned author says with reference to the law relating to 'abduction of girls
under sixteen' 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." *
This decision is an authority for the proposition that a misrepresentation as
regards the intention of the person seeking consent, i.e. the accused, could
give rise to the misconception of fact. This view of the Madras High Court was
accepted by a Division Bench of Bombay High Court in Purshottam Mahadev vs.
State of Bombay 1963 AIR(Bom) 74 ). Applying that principle to a case
arising under Section 375, consent given pursuant to a false representation
that the accused intends to marry, could be regarded as consent given under
misconception of fact.
28. On the specific question whether the consent obtained on the basis of
promise to marry which was not acted upon, could be regarded as consent for the
purpose of Section 375 IPC, we have the decision of Division Bench of Calcutta
High Court in Jayanti Rani Panda vs. State of West Bengal 1984 CrLJ 1535
. The relevant passage in this case has been cited in several other decisions.
This is one of the cases referred to by this Court in Uday (supra) approvingly.
Without going into the details of that case, the crux of the case can be
discerned from the following summary given at para 7:
"Here the allegation of the complainant is that the accused used to visit
her house and proposed to marry her. She consented to have sexual intercourse
with the accused on a belief that the accused would really marry her. But one
thing that strikes us is... why should she keep it a secret from her parents if
really she had belief in that promise. Assuming that she had believed the
accused when he held out a promise, if he did at all, there is no evidence that
at that time the accused had no intention of keeping that promise. It may be
that subsequently when the girl conceived the accused might have felt
otherwise. But even then the case in the petition of complainant is that the
accused did not till then back out. Therefore it cannot be said that till then
the accused had no intention of marrying the complainant even if he had held
out any promise at all as alleged." *
The discussion that follows the above passage is important and is extracted
hereunder:
"The failure to keep the promise at a future uncertain date due to reasons
not very clear on the evidence does not always amount to a misconception of
fact at the inception of the act itself. In other to come within the meaning of
misconception of fact, the fact must have an immediate relevance. The matter
would have been different if the consent was obtained by creating a belief that
they were already married. In such a case the consent could be said to result
from a misconception of fact. But here the fact alleged is a promise to marry
we do not know when. If a full grown girl consents to the act of sexual
intercourse on a promise of marriage and continues to indulge in such activity
until she becomes pregnant it is an act of promiscuity on her part and not an
act induced by misconception of fact. S. 90 IPC cannot be called in aid in such
a case to pardon the act of the girl and fasten criminal liability on the other,
unless the Court can be assured that from the very inception the accused
never really intended to marry her." $ *
(Emphasis supplied)
The learned Judges referred to the decision of Chancery Court in Edgomgtom vs.
Fotz, airoce 1885 (29) ChD 459 and observed thus:
"This decision lays down that a misstatement of the intention of the
defendant in doing a particular act may be a misstatement of fact and if the
plaintiff was misled by it, an action of deceit may be founded on it. The
particular observation at p.483 runs to the following effect: "There must
be a misstatement of an existing fact." Therefore, in order to amount to a
misstatement of fact the existing state of things and a misstatement as to that
becomes relevant. In the absence of such evidence Sec. 90 cannot be called in
aid in support of the contention that the consent of the complainant was
obtained on a misconception of fact." *
After referring to the case law on the subject, it was observed in Uday, supra
at paragraph 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 strait jacket 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." *
29. The first two sentences in the above passage need some explanation. 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. # This is what in fact was stressed by the Division Bench of the
Calcutta High Court in the case of Jayanti Rani Panda, supra which was
approvingly referred to in Uday's case, (supra). The Calcutta High Court
rightly qualified the proposition which it stated earlier by adding the
qualification at the end - 'unless the Court can be assured that from the very
inception, the accused never really intended to marry her". In the next
para, the High Court referred to the vintage decision of the Chancery Court which
laid down that a misstatement of the intention of the defendant in doing a
particular act would tantamount to a misstatement of fact and an action of
deceit can be founded on it. This is also the view taken by the Division Bench
of the Madras High Court in Jaladu's case, supra (vide passage quoted supra).
By making the solitary observation that 'a false promise is not a fact within
the meaning of the Code', it cannot be said that this Court has laid down the
law differently. The observations following the aforesaid sentence are also
equally importance. The Court was cautious enough to add a qualification that
no strait jacket formula could be evolved for determining whether the consent
was given under a misconception of fact. Reading the judgment in Uday's case as
a whole, we do not understand the Court laying down a broad proposition that a
promise to marry could never amount to a misconception of fact. That is not, in
our understanding the ratio of the decision. In fact, there was a specific
finding in that case that initially the accused's intention to marry cannot be
ruled out.
30. Having discussed the legal aspects bearing on the interpretation of the
term 'consent' with special reference to Section 90 IPC, we must now turn our
attention to the factual aspects of the case related to consent.
31. Is it a case of a 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.
32. 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.
33. 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.
34. Coming to the first question, it is not easy to find a dividing line
between submission and consent - a distinction which was pointed out by
Coleridge J., reiterated by Tekchand J., in the Punjab decision and further
reiterated by this Court in the two decisions referred to supra, except in the
situation contemplated by clause fifthly of Section 375. Yet, the evidence has
to be carefully scanned. It is fairly clear from the evidence of the victim -
PW12 that the predominant reason which weighed with her in agreeing for sexual
intimacy with the accused was the hope generated in her about the prospect of
marriage with the accused. That she came to the decision to have a sexual
affair only after being convinced that the accused would marry her, is quite
clear from her evidence which is in tune with her earliest version in the first
information report. There is nothing in her evidence to demonstrate that
without any scope for deliberation, she succumbed to the psychological pressure
exerted or allurements made by the accused in a weak moment. Nor does her
evidence indicate that she was incapable of understanding the nature and
implications of the act which she consented to. On the other hand, the scrutiny
of evidence of PW12 gives a contra indication.
35. According to PW12, she did not like accused making passionate gestures and
therefore, she went to the house of the accused and made a complaint to his
'Bhabhi'. Though she promised to restrain him, the accused continued to do so.
Her further version is that she was not willing to marry the accused; even then
the accused used to come to the courtyard of her house many a time and it was
within the knowledge of her parents and brother that the accused used to talk
to her for hours. She used to accompany him whenever he wanted. Another
statement of significance is that she tried to resist the talk of marriage by
telling the accused that marriage was not possible because they belonged to
different castes. However, she agreed to marry him after she was raped and
under the impression that he would marry, she did not complain to anybody.
These statements do indicate that she was fully aware of the moral quality of
the act and the inherent risk involved and that she considered the pros and
cons of the act. The prospect of the marriage proposal not materializing had
also entered her mind. Thus, her own evidence reveals that she took a conscious
decision after active application of mind to the things that where happening.
Incidentally, we may point out that the awareness of the prosecutrix that
the marriage may not take place at all in view of the caste barrier was an
important factor that weighed with the learned Judges in Uday's case in holding
that her participation in the sexual act was voluntary and deliberate. #
36. The remaining question is 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.
37. 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.
38. In the result, the conviction and sentence is set aside and the appeal is
allowed.
39. 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 the 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.
40. The appellant's counsel has brought a Demand Draft for Rs. 50,000/- drawn
in favour of the Chief Judicial Magistrate, Sahibganj. The Draft is handed over
just now to the Court Officer. The concerned, Register of this Court shall send
the Draft to the C.J.M., Sahibganj for being credited to his account in the
first instance. The C.J.M. shall take immediate steps to summon the prosecutrix
whose name and address shall be furnished by the counsel for the appellant in
the course of the day to the Register of this Court. Out of the amount of Rs.
50,000, a sum of Rs. 10,000 shall be paid over to the prosecutrix in cash if
she makes a request and the remaining amount of Rs. 40,000/- shall be kept in a
fixed deposit in a Bank in the name of the minor girl namely Miss Sangeeta
Kumari with the prosecutrix as her guardian. The accrued interest shall be paid
to the prosecutrix once in two years. The amount of Rs. 40,000/- with remaining
interest thereon shall be disbursed to the girl after she attains the majority
by getting an account opened in a Bank in her name. However, for the purpose of
meeting the imminent needs of the minor girl, the C.J.M. can permit the amount
to be paid over to the guardian (prosecutrix) either partly or in whole
depending on the genuine and reasonable requirements concerning the maintenance
of the child. The C.J.M. shall submit a report to the Registrar of this Court
on the action taken in this regard within two months. A translated copy of the
part of the judgment starting from page 37 shall be furnished to the
prosecutrix by the CJM. The CJM may appoint a counsel under the legal aid
scheme to assist the prosecutor and the girl whenever necessary in connection
with the implementation of this order.
41. Accordingly, the order is passed in the interests of justice in exercise of
powers vested in this Court under Article 142 of the Constitution.