Penal Code, 1860:
ss.376, 323 and 341 – Prosecution under – Alleging that the accused raped the prosecutrix at the point of knife 4 years ago when she was 14 years old and had continued to establish physical relations with her under pretext of marriage – Conviction under – By courts below – Appeal to Supreme Court – Held: There is wide variation in the evidence with regard to the age of prosecutrix – Trial court had found the prosecutrix to be 14 years of age on the date of incident on the basis of her deposition – In the absence of positive evidence as regards her age, the possibility of her being above the age of 18 years cannot be ruled out – The benefit of doubt goes to the accused – The examination of the accused u/s.
313 Cr.P.C. was casual and perfunctory – The delay of 4 years in lodging FIR raises serious doubt about the truth and veracity of the allegations – In the facts of the case it cannot be held that the accused initially obtained her consent by putting her under fear or subsequently had fraudulently misrepresented in order to establish physical relations with the prosecutrix – The consent of the prosecutrix was conscious and deliberate choice – Conviction is unsustainable.
s.90 – Consent given under fear of injury is not a consent – Consent given under a misconception of fact is no consent in the eye of law – But the misconception has to be in proximity of time to the occurrence.
Code of Criminal Procedure, 1973:
Importance of the questions put to an accused u/s. 313 are basic to the principles of natural justice – Circumstances not put to an accused u/s.313 cannot be used against him. Allowing the appeal, the Court
HELD: 1. 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 twenty-five 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 trial court 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 date cannot be ruled out. The benefit of doubt therefore has to be given to the appellant. [Para 7][487H; 488-A-D]
2. The examination of the accused under Section 313 Cr.P.C. was extremely casual and perfunctory in nature. 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 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. [Para 8 and 9][488-E, H; 489-A-B] Naval Kishore Singh v. State of Bihar (2004) 7 SCC
502 : [2004] 3 Suppl. SCR 344 – relied on.
3. 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. [Para 10][490-A-B]
4.1. It is not possible to hold in the nature of evidence on record that the appellant obtained the consent of the prosecutrix 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. 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. In the facts of the present case, the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury, is not acceptable. [Paras 13, 14][490-G-H; 491-A-D]
4.2 The facts and circumstances of the present case show that the appellant did not make any false promise or 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 be 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. [Para 18][492-F-H]
4.3 Therefore, 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 deep-seated 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. [Para 20][493-B-C]
Kaini Rajan v. State of Kerala (2013) 9 SCC 113 : [2013] 10 SCR 196; Uday v. State of Karnataka (2003)
4 SCC 46 : [2003] 2 SCR 231; K. P. Thimmappa Gowda v. State of Karnataka (2011) 14 SCC 475 : [2011] 4 SCR 200; Dhruvaram Murlidhar Sonar v. The State of Maharashtra and Others AIR 2019 SC 327 : [2018]
13 SCR 920; Pramod Suryabhan Pawar v. State of Maharashtra and Another (2019) 9 SCC 608 : [2019]
11 SCR 423 – relied on.
5. 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. Therefore, the conviction of the appellant is unsustainable and the same is set aside. The appellant is acquitted. [Paras 19 and 21][493-A-B, G] Parkash Chand v. State of Himachal Pradesh (2019) 5 SCC 628 : [2019] 3 SCR 953; Vijayan v. State of Kerala (2008) 4 SCC 763; Deepak Gulati v. State of Haryana (2013) 7 SCC 675 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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