Maheshwar Tigga vs The State Of Jharkhand

CRIMINAL APPEAL NO. 635 OF 2020 (Arising out of SLP (Crl.) No.393 of 2020)

MAHESHWAR TIGGA ...APPELLANT(S) VERSUS THE STATE OF JHARKHAND ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

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.

Signature Not Verified

3. Digitally signed by R Natarajan The prosecutrix, PW9 lodged FIR No. 25 of 1999 on Date: 2020.09.28 16:28:48 IST Reason:

13.04.1999 alleging that four years ago the appellant had

1 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.

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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

3 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.

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7. We have considered the submissions on behalf of the

parties. 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 twenty­five 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 Additional

Judicial Commissioner 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

5 date cannot be ruled out. The benefit of doubt therefore has to be

given to the appellant.

8. A bare perusal of the examination of the accused under

Section 313 Cr.P.C. reveals it to be extremely casual and

perfunctory in nature. Three capsuled questions only were asked

to the appellant as follows which he denied:­

“Question1. There is a witness against you that when the informant V. Anshumala Tigga was going to school you were hiding near Tomra canal and after finding the informant in isolation you forced her to strip naked on knifepoint and raped her.

Question 2. After the rape when the informant ran to her home crying to inform her parents about the incident and when the parents of the informant came to you to inquire about the incident, you told them that “if I have committed rape then I will keep her as my wife”.

Question3. On your instruction, the informant’s parents performed the “Lota Paani” ceremony of the informant, in which the informant as well as your parents were present, also in the said ceremony your parents had gifted the informant a Saree and a blouse and the informant’s parents had also gifted you some clothes”

9. 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

6 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. This Court,

time and again, has emphasised the importance of putting all

relevant questions to an accused under Section 313 Cr.P.C. In

Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it

was held to an essential part of a fair trial observing as follows :­

“5……The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is 7 done in a slipshod manner, it may result in imperfect appreciation of evidence…”

10. 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, marked as Exhibits during the

trial, 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. The physical relations that followed was not isolated

or sporadic in nature, but regular over the years. The

prosecutrix had even gone and resided in the house of the

appellant. In our opinion, 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.

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11. The parents of the prosecutrix, P.Ws. 5 and 6 both

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. On the contrary, P.W. 5

acknowledges that the appellant insisted on marrying in the

Temple to which they were not agreeable and wanted the

marriage to be solemnised in the Church. They further

acknowledged that the appellant and the prosecutrix were in love

with each other. Contrary to the claim of the prosecutrix, P.W. 6

stated that the prosecutrix was sexually assaulted in her own

house.

12. The prosecutrix acknowledged that an engagement

ceremony had also been performed. She further deposed that 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. If the appellant had

married her, she would not have lodged the case. She denied

9 having written any letters to the appellant, contrary to the

evidence placed on record by the defence. 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.

13. The question for our consideration is whether the

prosecutrix consented to the physical relationship under any

misconception of fact with regard to the promise of marriage by

the 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. If

we reach the conclusion that he intentionally made a fraudulent

misrepresentation from the very inception and the prosecutrix

gave her consent on a misconception of fact, the offence of rape

under Section 375 IPC is clearly made out. It is not possible to

hold in the nature of evidence on record that the appellant

obtained her consent 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. In the facts of the present case 10 we are not persuaded to accept the solitary statement of the

prosecutrix that at the time of the first alleged offence her

consent was obtained under fear of injury.

14. 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.

15. In Uday (supra), the appellant and the prosecutrix resided

in the same neighbourhood. As they belonged to different castes,

a matrimonial relationship could not fructify even while physical

relations continued between them on the understanding and

assurance of marriage. This Court observed as follows:

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“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 straitjacket 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.”

16. The appellant, before the High Court, relied upon Kaini

Rajan (supra) in his defence. The facts were akin to the present

case. The physical relationship between the parties was

established on the foundation of a promise to marry. This Court

set aside the conviction under Section 376 IPC also noticing K.P.

Thimmappa Gowda vs. State of Karnataka, (2011)14 SCC

475. Unfortunately, the High Court did not even consider it

12 necessary to deal with the same much less distinguish it, if it was

possible. It is indeed unfortunate that despite a judicial

precedent of a superior court having been cited, the High Court

after mere recitation of the facts and the respective arguments,

cryptically in one paragraph opined that in the nature of the

evidence, the letters, the photograph of the appellant with the

prosecutrix and the statement of the appellant under Section 313

Cr.P.C., his conviction and sentence required no interference.

17. This court recently in Dhruvaram Murlidhar Sonar vs.

The State of Maharashtra and Others, AIR 2019 SC 327 and

in Pramod Suryabhan Pawar vs. State of Maharashtra and

another, (2019) 9 SCC 608 arising out of an application under

Section 482 Cr.P.C. in similar circumstances where the

relationship originated in a love affair, developed over a period of

time accompanied by physical relations, consensual in nature,

but the marriage could not fructify because the parties belonged

to different castes and communities, quashed the proceedings.

18. We have given our thoughtful consideration to the facts and

circumstances of the present case and are of the considered

opinion that the appellant did not make any false promise or

13 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. 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.

19. 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.

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20. We have no hesitation in concluding that 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. The

observations in this regard in Uday (supra) are considered

relevant:

“25…It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”

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21. In conclusion, we find the conviction of the appellant to be

unsustainable and set aside the same. The appellant is

acquitted. He is directed to be set at liberty forthwith unless

wanted in any other case. The appeal is allowed.

…………...................J. [R.F. NARIMAN]

…………...................J. [NAVIN SINHA]

…………...................J. [INDIRA BANERJEE] NEW DELHI SEPTEMBER 28, 2020

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