MAHESHWAR TIGGA versus THE STATE OF JHARKHAND

[2020] 9 S.C.R. 482

[2020] 9 S.C.R.

MAHESHWAR TIGGA

THE STATE OF JHARKHAND

(Criminal Appeal No. 635 of 2020)

BSEPTEMBER 28, 2020

[R. F. NARIMAN, NAVIN SINHA ANDINDIRA BANERJEE, JJ.]

Penal Code, 1860:

ss.376, 323 and 341 – Prosecution under – Alleging that theCaccused raped the prosecutrix at the point of knife 4 years agowhen she was 14 years old and had continued to establish physicalrelations with her under pretext of marriage – Conviction under –By courts below – Appeal to Supreme Court – Held: There is widevariation in the evidence with regard to the age of prosecutrix –Trial court had found the prosecutrix to be 14 years of age on theDdate of incident on the basis of her deposition – In the absence ofpositive evidence as regards her age, the possibility of her beingabove the age of 18 years cannot be ruled out – The benefit ofdoubt goes to the accused – The examination of the accused u/s.313 Cr.P.C. was casual and perfunctory – The delay of 4 years inElodging FIR raises serious doubt about the truth and veracity ofthe allegations – In the facts of the case it cannot be held that theaccused initially obtained her consent by putting her under fear orsubsequently had fraudulently misrepresented in order to establishphysical relations with the prosecutrix – The consent of theprosecutrix was conscious and deliberate choice – Conviction isFunsustainable.

s.90 – Consent given under fear of injury is not consent –Consent given under misconception of fact is no consent in theeye of law – But the misconception has to be in proximity of time tothe occurrence.G

Code of Criminal Procedure, 1973:

Importance of the questions put to an accused u/s. 313 arebasic to the principles of natural justice – Circumstances not put toan accused u/s.313 cannot be used against him.

Allowing the appeal, the Court

HELD: 1. The prosecutrix in her deposition dithered withregard to her age by first stating she was sixteen years on thedate of occurrence and then corrected herself to state she wasthirteen. Though she alleged that the appellant outraged hermodesty at the point of knife while she was on way to school, noname of the school has been disclosed either by the prosecutrixor her parents P.W.5 and 6. If the prosecutrix was studying in aschool there is no explanation why proof of age was not furnishedon basis of documentary evidence such as school register etc.P.W.10, in cross examination assessed the age of the prosecutrixto be approximately twenty-five years. P.W.2, the cousin (brother)of the prosecutrix aged about 30 years deposed that she was sixyears younger to him. There is thus wide variation in the evidencewith regard to the age of the prosecutrix. The trial court held theprosecutrix to be fourteen years of age applying the rule of thethumb on basis of the age disclosed by her in deposition on18.08.2001 as 20 years. In absence of positive evidence beingled by the prosecution with regard to the age of the prosecutrixon the date of occurrence, the possibility of her being above theage of eighteen years on the date cannot be ruled out. The benefitof doubt therefore has to be given to the appellant. [Para 7][487-H; 488-A-D]

2. The examination of the accused under Section 313 Cr.P.C.was extremely casual and perfunctory in nature. It stands wellsettled that circumstances not put to an accused under Section313 Cr.P.C. cannot be used against him, and must be excludedfrom consideration. In criminal trial, the importance of thequestions put to an accused are basic to the principles of naturaljustice as it provides him the opportunity not only to furnish hisdefence, but also to explain the incriminating circumstancesagainst him. probable defence raised by an accused is sufficientto rebut the accusation without the requirement of proof beyondreasonable doubt. [Para 8 and 9][488-E, H; 489-A-B]

Naval Kishore Singh v. State of Bihar (2004) 7 SCC502 : [2004] 3 Suppl. SCR 344 – relied on.

3. The delay of four years in lodgement of the FIR, at anopportune time of seven days prior to the appellant solemnisinghis marriage with another girl, on the pretext of promise to the

Aprosecutrix raises serious doubts about the truth and veracity ofthe allegations levelled by the prosecutrix. The entire genesis ofthe case is in serious doubt in view of the admission of theprosecutrix in cross examination that no incident had occurredon 09.04.1999. [Para 10][490-A-B]B4.1. It is not possible to hold in the nature of evidence onrecord that the appellant obtained the consent of the prosecutrixat the inception by putting her under any fear. Under Section 90IPC consent given under fear of injury is not consent in theeyes of law. Under Section 90 IPC, consent given under amisconception of fact is no consent in the eyes of law. But theCmisconception of fact has to be in proximity of time to theoccurrence and cannot be spread over period of four years. Ithardly needs any elaboration that the consent by the appellantwas conscious and informed choice made by her after duedeliberation, it being spread over long period of time coupledDwith conscious positive action not to protest. The prosecutrixin her letters to the appellant also mentions that there wouldoften be quarrels at her home with her family members with regardto the relationship, and beatings given to her. In the facts of thepresent case, the solitary statement of the prosecutrix that atthe time of the first alleged offence her consent was obtainedEunder 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 showthat the appellant did not make any false promise or intentionalmisrepresentation of marriage leading to establishment ofFphysical relationship between the parties. The prosecutrix washerself aware of the obstacles in their relationship because ofdifferent religious beliefs. An engagement ceremony was alsoheld in the solemn belief that the societal obstacles would beovercome, but unfortunately differences also arose whether themarriage was to be solemnised in the Church or in Temple andGultimately failed. It is not possible to hold on the evidence availablethat the appellant, right from the inception did not intend to marrythe prosecutrix ever and had fraudulently misrepresented onlyin order to establish physical relation with her. The prosecutrixin her letters acknowledged that the appellant’s family was alwaysHvery nice to her. [Para 18][492-F-H]

4.3 Therefore, the consent of the prosecutrix was but aconscious and deliberated choice, as distinct from an involuntaryaction or denial and which opportunity was available to her,because of her deep-seated love for the appellant leading her towillingly permit him liberties with her body, which according tonormal human behaviour are permitted only to person with whomone 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 Gowdav. State of Karnataka (2011) 14 SCC 475 : [2011] 4SCR 200; Dhruvaram Murlidhar Sonar v. The State ofMaharashtra and Others AIR 2019 SC 327 : [2018]13 SCR 920; Pramod Suryabhan Pawar v. State ofMaharashtra and Another (2019) 9 SCC 608 : [2019]11 SCR 423 – relied on.

5. The appellant has been acquitted of the charge underSections 420 and 504 I.P.C. No appeal has been preferred againstthe acquittal. There is no medical evidence on record to sustainthe conviction under Section 323 I.P.C. No offence is made outagainst the appellant under Section 341 I.P.C. considering thestatement of prosecutrix that she had gone to live with theappellant for 15 days of her own volition. Therefore, the convictionof the appellant is unsustainable and the same is set aside. Theappellant is acquitted. [Paras 19 and 21][493-A-B, G]Parkash Chand v. State of Himachal Pradesh (2019) 5SCC 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.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.635 of 2020B

From the Judgment and Order dated 07.12.2018 of the High Courtof Jharkhand at Ranchi in Cr.Appeal (S.J) No. 300 of 2004.

Mrs. V. Mohana, Sr. Adv., Anup Kumar, Ms. Ankita Sharma,Ms. Nikita, Varun Narang, Ms. Pragya Baghel, Ms. Pallavi Langar, RiteshKhare, Advs. for the appearing parties.C

The Judgment of the Court was delivered by

NAVIN SINHA, J.

1. Leave granted.

2. The appellant assails his conviction under sections 376, 323Dand 341 of the Indian Penal Code (in short, “IPC”) sentencing him toseven years, one year and one month respectively with fine and defaultstipulation.

3. The prosecutrix, PW9 lodged FIR No. 25 of 1999 on 13.04.1999alleging that four years ago the appellant had outraged her modesty atEthe point of knife. He had since been promising to marry her and onthat pretext continued to establish physical relations with her as husbandand wife. She had also stayed at his house for fifteen days during whichalso he established physical relations with her. Five days prior to thelodging of the F.I.R, the appellant had established physical relations withher on 09.04.1999. The appellant had cheated her as now he was goingFto solemnise his marriage with another girl on 20.04.1999. All efforts ata compromise had failed.

4. The Additional Judicial Commissioner, Ranchi on considerationof the evidence convicted the appellant holding that the prosecutrix was14 years of age when the appellant had first committed rape upon her atGthe point of knife. He did not abide by his promise to marry her. TheHigh Court dismissing the appeal opined that the letters written by theappellant to the prosecutrix, their photographs together, and the statementof the appellant recorded under Section 313 Cr.P.C. were sufficient tosustain the conviction.

5. Learned senior counsel, Mrs. V. Mohana on behalf of theappellant, submits that the F.I.R lodged belatedly after four years wasclearly an afterthought. The entire genesis of the allegations is highlydoubtful and suspect as the prosecutrix in her cross-examination admittedthat the appellant had not committed rape with her on 09.04.1999. Theletters written by the appellant to the prosecutrix as also those writtenby her to the appellant marked as Exhibits during trial, more thansufficiently established deep love affair between them over period oftime. The prosecutrix was aged approximately 25 years as opined byP.W.10, the Doctor who medically examined her on 14.04.1999.Thephysical relations between the appellant and the prosecutrix wereconsensual in nature occasioned by their love affair. No offence underSection 375 IPC is therefore, made out. The questions put to the appellantunder Section 313 Cr.P.C. were very casual and perfunctory, leading todenial of proper opportunity of defence causing serious prejudice to himby denial of the right to fair trial. The marriage between them couldnot materialise due to societal reasons as the appellant belonged to theScheduled Tribe, while the prosecutrix was Christian. Reliance wasplaced on Parkash Chand vs. State of Himachal Pradesh, (2019) 5SCC 628, Vijayan vs. State of Kerala, (2008) 4 SCC 763, Kaini Rajanvs. State of Kerala, (2013) 9 SCC 113, Deepak Gulati vs. State ofHaryana, (2013) 7 SCC 675 and Uday vs. State of Karnataka,(2003)4 SCC 46.6. Ms. Pragya Baghel, learned counsel for the State, submittedthat the prosecutrix stood by the allegations during trial. The delay inlodging the FIR has been sufficiently explained by reason of thecompromise efforts which failed to materialise. P.W. 7, the sister of theprosecutrix had also confirmed that the latter was sexually assaulted bythe appellant at the point of knife and had come home crying. Theappellant had told the prosecutrix to keep quiet in his absence, revealingthat his intentions were not bonafide. The defence of consensualrelationship is irrelevant considering that the prosecutrix was fourteenyears of age. The appellant had held out false promise of marriageonly to establish physical relations with the prosecutrix. He never hadany such intentions from the very inception, and he obtained the consentof the appellant by false misrepresentation, which is no consent in theeyes of the law. The evidence of the prosecutrix is reliable.

7. We have considered the submissions on behalf of the parties.The prosecutrix in her deposition dithered with regard to her age by first

Astating she was sixteen years on the date of occurrence and thencorrected herself to state she was thirteen. Though she alleged that theappellant outraged her modesty at the point of knife while she was onway to school, no name of the school has been disclosed either by theprosecutrix or her parents P.W.5 and 6. If the prosecutrix was studyingin school there is no explanation why proof of age was not furnishedBon basis of documentary evidence such as school register etc. P.W.10,in cross examination assessed the age of the prosecutrix to beapproximately twenty-five years. P.W.2, the cousin (brother) of theprosecutrix aged about 30 years deposed that she was six years youngerto him. There is thus wide variation in the evidence with regard to theCage of the prosecutrix. The Additional Judicial Commissioner held theprosecutrix to be fourteen years of age applying the rule of the thumb onbasis 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 regardto 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 ruledDout. The benefit of doubt therefore has to be given to the appellant.8. bare perusal of the examination of the accused under Section313 Cr.P.C. reveals it to be extremely casual and perfunctory in nature.Three capsuled questions only were asked to the appellant as followswhich he denied:-E“Question1. There is witness against you that when theinformant V. Anshumala Tigga was going to school you were hidingnear Tomra canal and after finding the informant in isolation youforced her to strip naked on knifepoint and raped her.

Question 2. After the rape when the informant ran to her homeFcrying to inform her parents about the incident and when the parentsof the informant came to you to inquire about the incident, youtold them that “if I have committed rape then I will keep her asmy wife”.

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

9. It stands well settled that circumstances not put to an accusedHunder Section 313 Cr.P.C. cannot be used against him, and must be

excluded from consideration. In criminal trial, the importance of thequestions put to an accused are basic to the principles of natural justiceas it provides him the opportunity not only to furnish his defence, but alsoto explain the incriminating circumstances against him. probabledefence raised by an accused is sufficient to rebut the accusation withoutthe requirement of proof beyond reasonable doubt. This Court, time andagain, has emphasised the importance of putting all relevant questions toan accused under Section 313 Cr.P.C. In Naval Kishore Singh v. Stateof Bihar, (2004) 7 SCC 502, it was held to an essential part of fair trialobserving as follows :-

“5……The questioning of the accused under Section 313 CrPCwas done in the most unsatisfactory manner. Under Section 313CrPC the accused should have been given opportunity to explainany of the circumstances appearing in the evidence against him.At least, the various items of evidence, which had been producedby the prosecution, should have been put to the accused in theform of questions and he should have been given opportunity togive his explanation. No such opportunity was given to the accusedin the instant case. We deprecate the practice of putting the entireevidence against the accused put together in single question andgiving an opportunity to explain the same, as the accused may notbe in position to give rational and intelligent explanation. Thetrial Judge should have kept in mind the importance of giving anopportunity to the accused to explain the adverse circumstancesin the evidence and the Section 313 examination shall not be carriedout as an empty formality. It is only after the entire evidence isunfurled the accused would be in position to articulate his defenceand to give explanation to the circumstances appearing in evidenceagainst him. Such an opportunity being given to the accused ispart of fair trial and if it is done in slipshod manner, it mayresult in imperfect appreciation of evidence…”

10. The appellant belonged to the Scheduled Tribe while theprosecutrix belonged to the Christian community. They professed differentreligious beliefs in traditional society. They both resided in the samevillage Basjadi and were known to each other. The nature and mannerof allegations, coupled with the letters exchanged between them, markedas Exhibits during the trial, make it apparent that their love for eachother grew and matured over sufficient period of time. They wereboth smitten by each other and passions of youth ruled over their minds

Aand emotions. The physical relations that followed was not isolated orsporadic in nature, but regular over the years. The prosecutrix had evengone and resided in the house of the appellant. In our opinion, the delayof four years in lodgement of the FIR, at an opportune time of sevendays prior to the appellant solemnising his marriage with another girl, onthe pretext of promise to the prosecutrix raises serious doubts aboutBthe truth and veracity of the allegations levelled by the prosecutrix. Theentire genesis of the case is in serious doubt in view of the admission ofthe prosecutrix in cross examination that no incident had occurred on09.04.1999.11. The parents of the prosecutrix, P.Ws. 5 and 6 bothCacknowledged awareness of the relationship between appellant and theprosecutrix and that they were informed after the first occurrence itselfbut offer no explanation why they did not report the matter to the policeimmediately. On the contrary, P.W. 5 acknowledges that the appellantinsisted on marrying in the Temple to which they were not agreeableDand wanted the marriage to be solemnised in the Church. They furtheracknowledged that the appellant and the prosecutrix were in love witheach other. Contrary to the claim of the prosecutrix, P.W. 6 stated thatthe prosecutrix was sexually assaulted in her own house.

12. The prosecutrix acknowledged that an engagement ceremonyhad also been performed. She further deposed that the marriage betweenEthem could not be solemnised because they belonged to different religions.She was therefore conscious of this obstacle all along, even while shecontinued to establish physical relations with the appellant. If the appellanthad married her, she would not have lodged the case. She denied havingwritten any letters to the appellant, contrary to the evidence placed onFrecord by the defence. The amorous language used by both in the lettersexchanged reflect that the appellant was serious about the relationshipdesiring to culminate the same into marriage. But unfortunately for societalreasons, the marriage could not materialise as they belonged to differentcommunities.G13. The question for our consideration is whether the prosecutrixconsented to the physical relationship under any misconception of factwith regard to the promise of marriage by the appellant or was herconsent based on fraudulent misrepresentation of marriage which theappellant never intended to keep since the very inception of therelationship. If we reach the conclusion that he intentionally made aHfraudulent misrepresentation from the very inception and the prosecutrix

gave her consent on misconception of fact, the offence of rape underSection 375 IPC is clearly made out. It is not possible to hold in thenature of evidence on record that the appellant obtained her consent atthe inception by putting her under any fear. Under Section 90 IPC aconsent given under fear of injury is not consent in the eyes of law. Inthe facts of the present case we are not persuaded to accept the solitarystatement of the prosecutrix that at the time of the first alleged offenceher consent was obtained under fear of injury.

14. Under Section 90 IPC, consent given under misconceptionof fact is no consent in the eyes of law. But the misconception of facthas to be in proximity of time to the occurrence and cannot be spreadover period of four years. It hardly needs any elaboration that theconsent by the appellant was conscious and informed choice made byher after due deliberation, it being spread over long period of timecoupled with conscious positive action not to protest. The prosecutrixin her letters to the appellant also mentions that there would often bequarrels at her home with her family members with regard to therelationship, and beatings given to her.

15. In Uday (supra), the appellant and the prosecutrix resided inthe same neighbourhood. As they belonged to different castes, amatrimonial relationship could not fructify even while physical relationscontinued between them on the understanding and assurance of marriage.This Court observed as follows:

“21. It therefore appears that the consensus of judicial opinion isin favour of the view that the consent given by the prosecutrix tosexual intercourse with person with whom she is deeply in loveon promise that he would marry her on later date, cannot besaid to be given under misconception of fact. false promise isnot fact within the meaning of the Code. We are inclined toagree with this view, but we must add that there is no straitjacketformula for determining whether consent given by the prosecutrixto sexual intercourse is voluntary, or whether it is given under amisconception of fact. In the ultimate analysis, the tests laid downby the courts provide at best guidance to the judicial mind whileconsidering question of consent, but the court must, in eachcase, consider the evidence before it and the surroundingcircumstances, before reaching conclusion, because each casehas its own peculiar facts which may have bearing on the questionwhether the consent was voluntary, or was given under

Amisconception of fact. It must also weigh the evidence keeping inview the fact that the burden is on the prosecution to prove eachand every ingredient of the offence, absence of consent beingone of them.”

16. The appellant, before the High Court, relied upon Kaini RajanB(supra)in his defence. The facts were akin to the present case. Thephysical relationship between the parties was established on the foundationof promise to marry. This Court set aside the conviction under Section376 IPC also noticing K.P. Thimmappa Gowda vs. State of Karnataka,(2011)14 SCC 475. Unfortunately, the High Court did not even considerit necessary to deal with the same much less distinguish it, if it wasCpossible. It is indeed unfortunate that despite judicial precedent of asuperior court having been cited, the High Court after mere recitation ofthe facts and the respective arguments, cryptically in one paragraphopined that in the nature of the evidence, the letters, the photograph ofthe appellant with the prosecutrix and the statement of the appellantunder Section 313 Cr.P.C., his conviction and sentence required noDinterference.

17. This court recently in Dhruvaram Murlidhar Sonar vs. TheState of Maharashtra and Others, AIR 2019 SC 327 and in PramodSuryabhan Pawar vs. State of Maharashtra and another, (2019) 9SCC 608 arising out of an application under Section 482 Cr.P.C. in similarEcircumstances where the relationship originated in love affair, developedover period of time accompanied by physical relations, consensual innature, but the marriage could not fructify because the parties belongedto different castes and communities, quashed the proceedings.

18. We have given our thoughtful consideration to the facts andcircumstances of the present case and are of the considered opinionFthat the appellant did not make any false promise or intentionalmisrepresentation of marriage leading to establishment of physicalrelationship between the parties. The prosecutrix was herself aware ofthe obstacles in their relationship because of different religious beliefs.An engagement ceremony was also held in the solemn belief that theGsocietal obstacles would be overcome, but unfortunately differences alsoarose whether the marriage was to solemnised in the Church or in aTemple and ultimately failed. It is not possible to hold on the evidenceavailable that the appellant right from the inception did not intend tomarry the prosecutrix ever and had fraudulently misrepresented only inorder to establish physical relation with her. The prosecutrix in her lettersHacknowledged that the appellant’s family was always very nice to her.19. The appellant has been acquitted of the charge under Sections420 and 504 I.P.C. No appeal has been preferred against the acquittal.There is no medical evidence on record to sustain the conviction underSection 323 I.P.C. No offence is made out against the appellant underSection 341 I.P.C. considering the statement of prosecutrix that she hadgone to live with the appellant for 15 days of her own volition.

20. We have no hesitation in concluding that the consent of theprosecutrix was but conscious and deliberated choice, as distinct froman involuntary action or denial and which opportunity was available toher, because of her deep-seated love for the appellant leading her towillingly permit him liberties with her body, which according to normalhuman behaviour are permitted only to person with whom one is deeplyin love. The observations in this regard in Uday (supra) are consideredrelevant:

“25…It usually happens in such cases, when two young personsare madly in love, that they promise to each other several timesthat come what may, they will get married. As stated by theprosecutrix the appellant also made such promise on more thanone occasion. In such circumstances the promise loses allsignificance, particularly when they are overcome with emotionsand passion and find themselves in situations and circumstanceswhere they, in weak moment, succumb to the temptation ofhaving sexual relationship. This is what appears to have happenedin this case as well, and the prosecutrix willingly consented tohaving sexual intercourse with the appellant with whom she wasdeeply in love, not because he promised to marry her, but becauseshe also desired it. In these circumstances it would be very difficultto impute to the appellant knowledge that the prosecutrix hadconsented in consequence of misconception of fact arising fromhis promise. In any event, it was not possible for the appellant toknow what was in the mind of the prosecutrix when she consented,because there were more reasons than one for her to consent.”

21. In conclusion, we find the conviction of the appellant to beunsustainable and set aside the same. The appellant is acquitted. He isdirected to be set at liberty forthwith unless wanted in any other case.The appeal is allowed.

Kalpana K. Tripathy

Appeal allowed.