Maheshwar Tigga v. State of Jharkhand, Criminal Appeal No. 635 OF 2020 (Arising out of SLP (Crl.) No.393 of 2020), September 28, 2020
Counsel for Appellants: Senior Counsel, Mrs. V. Mohana
Counsel for the State: Ms. Pragya Baghel,
The Hon’ble Supreme Court Comprising of Justice R.F.Nariman, Justice Navin Sinha and Justice Indira Banerjee held in a case that misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years.
The facts of the case are that the prosecutrix, PW9 lodged FIR No. 25 of 1999 on 13.04.1999 alleging that four years ago the appellant had 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 solemnize his marriage with another girl on 20.04.1999.
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. The present appeal is against the order of dismissal of the High Court.
The question of law in the case was 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.
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 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.
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. 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.
The prosecutrix stated that she was sixteen years on the date of occurrence. Bt no documents or school records were furnished to support the same. . P.W.2, the cousin (brother) of the prosecutrix aged about 30 years deposed that she was six years younger to him. 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. The court noted that there were wide variation in evidence with regard to the age of the prosecutrix and observed the following:
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)
The court while bringing out the significance of section 313 of the Code of Criminal Procedure, referred to its judgment in Naval Kishore Singh v. State of Bihar, observed the following:
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. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. (Para 9)
While explaining consent under section 90 of the Indian Penal Code and misconception of facts, the court refereed to its judgment in Uday v. state of Karnataka and held the following:
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. (Para 14)
Subsequently, the appeal was allowed and the appellant was acquitted.
Kalidharun K M
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