Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has acquitted a man in a rape case dating back to 1999 after it as proved that the prosecutrix had consensually established physical relations with him out of love.
“… 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.”
BACKGROUND
The appellant had challenged his conviction under sections 376, 323 and 341 IPC sentencing him to seven years, one year and one month respectively with fine and a default stipulation. The prosecutrix had filed and FIR in 1999 against the appellant alleging that four years ago the appellant had outraged her modesty at the point of a knife and 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. She further claimed that the appellant had cheated her as now he was going to solemnise his marriage with another girl in a few days.
CONSIDERATIONS BY THE COURT
Age of the prosecutrix
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. She had alleged that the appellant outraged her modesty at the point of a knife while she was on way to school but no name of the school has been disclosed either by the prosecutrix or her parents.
“If she was studying in a school then why proof of age was not furnished on basis of documentary evidence such as school register etc.?”
Also, prosecutrix’s cousin aged about 30 years deposed that she was six years younger to him. Hence, a wide variation in the evidence with regard to the age of the prosecutrix could be seen. The Court, hence, noticed,
“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.”
Examination under Section 313 CrPC
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.
However, a bare perusal of the examination of the accused under Section 313 Cr.P.C. in the present case revealed it to be extremely casual and perfunctory in nature.
Factum of love affair between the accused and the prosecutrix
- 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, make it apparent that their love for each other grew and matured over a sufficient period of time.
- The physical relations that followed was not isolated or sporadic in nature, but regular over the years.
- The prosecutrix had gone and resided in the house of the appellant.
- The parents of the prosecutrix 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.
- The prosecutrix acknowledged that an engagement ceremony had also been performed but 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.
- Prosecutrix denied having written any letters to the appellant, contrary to the evidence placed on record by the defence. She 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.
“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.”
The Court noticed that 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.
Consent under Section 90 IPC
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.”
CONCLUSION
The Court held 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 solemnised in the Church or in a Temple and ultimately failed. The Court said that “If the appellant had married her, she would not have lodged the case.”
The Court, hence, found the conviction of the appellant to be unsustainable and acquitted him.
[Maheshwar Tigga v. State of Jharkhand, CRIMINAL APPEAL NO. 635 OF 2020, decided on 28.09.2020]
