Himachal Pradesh High Court
State Of Himachal Pradesh vs Rajeev Kumar & Others on 19 September, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 14 of 2011 Judgment reserved on: 07.07.2016 Date of Decision : 19.09.2016 .
State of Himachal Pradesh ....Appellant Versus Rajeev Kumar & others ...Respondents _______ of Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Vivek Singh, Thakur. Judge.
rt Whether approved for reporting?1 Yes.
For the appellant : Mr. M.A. Khan, Additional Advocate General.
For the respondents : Mr. Vinay Thakur, Advocate.
_____ Vivek Singh Thakur, Judge.
Assailing acquittal of respondents in case FIR No. 38 of 2006, dated 07.12.2006 under Sections 366, 376, 212, 109 and 417 of Indian Penal Code registered in Police Station Pooh District Kinnaur H.P., vide judgment dated 25.09.2010 passed in Sessions Trial No. 25 of 2007 by H.P., present appeal has been preferred by State of Himachal Pradesh.
Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:15:15 :::HCHP 2
2. On 07.12.2006 at about 4.40 PM, PW-7 Chhewang Lamo lodged FIR Ex. PW-7/A in Police Station, Pooh stating therein that her youngest daughter .
prosecutrix, aged 22 years was taken away by respondent Rajeev Kumar on 21.09.2006 from her village without their consent by alluring her under assurance of marriage.
Respondent Rajeev Kumar kept their daughter in same of village in the house of his maternal uncle PW-1 Thakursain for about 14 days thereafter he rt kept his daughter in village Rarang in the house of his Aunt (Bari Maa) (Mausi) PW-5 Hira Dassi. They asked Rajeev Kumar through the Vice President, Gram Panchayat, Labrang to complete ceremonies of marriage but Rajeev Kumar stated that his parents were yet in tension and he will send his parents to them after having their concurrence but till date of lodging complaint no one approached them and on approaching Rajeev Kumar he again said that he will send his parents to them very soon. Since the day Rajeev Kumar took their daughter, he did not allow her to talk with them.
Circumstances in which their daughter was living were not known to them and they did not visit the village Rarang ::: Downloaded on - 15/04/2017 21:15:15 :::HCHP 3 apprehending clash. They were waiting for performance of ceremonies of marriage on behalf of parents of the boy but neither parents of boy nor boy came to them nor was .
anything communicated to them. It was believed by them that Rajeev Kumar was misguiding her and was interested to keep her by giving false assurance of marriage.
3. On the same day i.e. 07.12.2006 prosecutrix of was admitted in PHC Skiba by PWs Hira Dassi and on her son suspecting that she had consumed poison where from rt she was referred to Reckong Peo. On that day, HC Bhoop Singh from Police Post Moorang visited PHC Skiba and approached Medical Officer vide application Ex. PW-11/A for issuance of MLC of prosecutrix. Perusal of Ex. PW-11/A reflected that at that time prosecutrix was identified as wife of respondent Rajeev Kumar.
4. On 8th December 2006, PW-10 SI Lekh Ram approached Medical Officer Reckong Peo with application Ex.PW-16/B for recording statement of prosecutrix for investigation of FIR lodged by her mother PW-7 Chewang Lamo. After seeking opinion of Medical Officer, statement ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 4 of prosecutrix Ex. PW-3/A was recorded by police which was attested by the Medical officer.
5. In this statement prosecutrix stated that she .
was resident of Village Labrang and studying in +2.
Respondent Rajeev Kumar of his village expressed love with her with the desire to marry her. Since 2004, he chased her where ever she used to go. She advised him that in case he of was in love with her and wanted to marry her then he should sent his parents rt to her parents so as to finalize marriage. He compelled her repeatedly and on 21.09.2016 when she was going to her home, he took her with him by enticing her and saying that from that day they will live like husband and wife and he will complete ceremonies of marriage by sending his parents. On that day Rajeev Kumar took her to the house of his relatives at Sangla. On 22.09.2006 (respondent No.2) Sanam Medup father of respondent, Rajeev Kumar, Thakur Sain, Ajay Kumar and Kamal Kishore etc. residents of Village Labrang reached Sangla and brought her and Rajeev Kumar alongwith them back to village Labrang and kept them in the house of PW-
1 Thakur Sain for 14 days. Rajeev Kumar lived with her in ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 5 that house. Thereafter Rajeev Kumar kept her for 2-3 nights in residences of Ward Member and other people in his acquaintance. On 7.10.2006, respondent took her to .
house of his Massi PW-5 Hira Dassi in village Rarang and since then till 07.12.2006 she remained there. Rajeev Kumar stayed there only for 5 days. On 07.12.2006, she consumed wrong medicine by mistake and she was brought of to hospital by PW-5 Hira Dassi and her son. Rajeev Kumar also reached there. Police from Moorang also came and rt recorded her statement. She was referred to District Hospital Reckong Peo and Rajeev Kumar accompanied her and admitted her in the Hospital. Because of taking wrong medicine, she lost her consciousness for short interval.
After reaching Hospital, she did not see Rajeev Kumar nor did he inquire about her condition. His whereabouts were not known. Late night her parents and father of Rajeev Kumar, Sanam Medup and Kamal Kishore also arrived at Hospital and at that time she was not completely conscious.
She was unconscious for short interval. Vomiting had started after some time of taking medicine. On inquiring reason for vomiting by Lata daughter of Hira Dassi and ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 6 Meson she had told them about consuming medicine from Almirah assuming that the same was cough syrup which was, perhaps, spray for apples. When she was being taken .
to Hospital she over heard some ladies talking that Rajeev Kumar had performed marriage with some one else which was not believed by her and she was stunned and was not able to inquire from them. She was repeatedly asking of Rajeev Kumar to complete ceremonies of marriage but every time he deferred it by saying that ceremony of rt marriage will be completed very soon by the consensus of his parents. Her parents had also asked parents of Rajeev Kumar to complete ceremonies of marriage by sending Pradhan and Up Pradhan and Ward members but every time they deferred it on one pretext or other. As and when Rajeev Kumar stayed with her, they lived as husband and wife and Rajeev Kumar developed physical relations without marrying her and without her desire by deceiving her with assurances to marry and as such Rajeev Kumar spoiled her life. As it was heard that he had solemnized another marriage definitely his parents were behind the same who were not agreeing for marriage of Rajeev Kumar with her.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 7Parents of respondent Rajeev Kumar would have performed ceremonies of marriage on that day only when they were brought back Labrang from Sangla. Parents of prosecutrix .
would have agreed but parents of Rajeev Kumar did not do so. When they were brought back to Labrang, Pradhan had asked Rajeev Kumar that what he had done. Respondent Rajeev Kumar had replied that he had married according to of his wish. On 21.09.2008, Rajeev Kumar was also accompanied by her God brother Funchok Chhopel rt who was also cousin of Rajesh Kumar and he was accompanying them at Sangla also.
6. After completion of investigation challan was put in the Court and respondent No. 1 Rajeev Kumar was charge sheeted under Sections 366 and 376 of Indian penal Code and respondent No. 3 Kamal Kishore was charge sheeted under Section 212 of the Indian Penal Code whereas respondent No.2 Sanam Medup was charge sheeted under Sections 366 read with Sections 109 and 376 read with Section 109 of Indian Penal Code.
7. On conclusion of trial, learned trial Court acquitted the respondents.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 88. We have heard learned counsel for parties and had have perused record.
9. Prosecutrix and respondents belong to tribal .
community residing in District Kinnaur of Himachal Pradesh.
Before evaluating evidence on record, peculiar customs of tribal community came on record in suggestions put by and on behalf of respondents to witnesses during cross of examination are necessary to be discussed.
10. During rt cross examination of witnesses, respondents highlighted customs of Tribal Community to which prosecutrix and respondent belong. PW-5 Hira Dassi, Aunt (Mausi) of respondent Rajeev Kumar, stated that in their area customary marriage was performed with consent of male and female and thereafter both of them inhabited in house of their relatives for some time after marriage on their own. It was recognized as customary marriage in Kinnaur District to which parties belong. Positive suggestion put to PW-7 Chhewang Lamo, mother of prosecutrix was admitted by her by stating that it was correct that in their area customary marriage was performed by boy and girl with mutual consent by leaving their houses. However, she ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 9 qualified that ritual of custom had to be performed in the same evening or night by offering bottle of liquor by the family of boy to the family of girl. Suggestion that when boy .
and girl performed their marriage against wishes of parents, there was no ritual of customs for offering bottle of liquor, was denied by her. She admitted that in customary marriage parents of boy offered a liquor bottle as per rituals of through Mediator to the parents of girl. Another positive suggestion was admitted by her stating that it was correct rt that there were many couples in Kinnaur and in their area where the marriage was celebrated without consent of parents but she qualified that rituals were performed after celebration of such marriage which was customary. Similar suggestions put to PW-8 prosecutrix were also admitted by her. PW-8 prosecutrix also admitted that there was custom in Kinnaur that male and female could marry against wishes of parents and there were many couples in Kinnaur who had married without consent of their parents. Another positive suggestion put to her was admitted by her stating that it was correct that there were couples who had married against wishes of their parents and thereby living ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 10 separately from their parents as the parents had turned them out.
11. PW-9 Rajinder Singh was Pradhan of Gram .
Panchayat Labrang who deposed that on 22.09.2006 respondent No.3, Kamal Kishore and Yaswant Singh called him to house of PW-1 Thakur Sain where respondent Rajeev Kumar and prosecutrix were present and on of inquiring respondent Rajeev Kumar disclosed that he liked prosecutrix and had married her. Thereafter he advised rt respondent No.2 to perform rituals of customs of Kinnaur for marriage of prosecutrix and respondent Rajeev Kumar but respondent No.2 proclaimed that he will not agree for the marriage.
12. PW-9 further stated that there was custom in Kinnaur that a male and female could marry against wishes of parents and there could be such couples in Kinnaur. He admitted that when male and female married on their own against wishes of their parents and lived separately, no rituals of custom to perform prayer with a liquor bottle was conducted.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 1113. PW-10 Varinder Singh was Up Pradhan of Gram Panchayat. He deposed that on information of father of prosecutrix that his daughter was not in village, he .
inquired from Rajeev on telephone who in turn disclosed that prosecutrix was kept by him in Village Rarang i.e. Village of PW-5 Hira Dassi and he assured that he will prevail upon his parents for his marriage after his arrival to of village from Maharashtra. This witness further deposed that rituals of customary marriage of respondent Rajeev Kumar rt were not performed with prosecutrix and Rajeev Kumar had married another girl of village Chagaon after the quarrel taken place after his intervention.
14. PW-10 also admitted positive suggestion of defence counsel by stating that it was correct that there were many married couples living separately from their parents who had married against their wishes.
15. It has also come in evidence of PW-7 Chhewang Lamo, mother of prosecutrix and PW-8 prosecutrix that visiting and contacting by parents with their daughter during her stay with boy in the house of relatives was not permissible till rituals of customary marriage were ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 12 performed. Therefore conduct of parents of prosecutrix not to meet her during her stay in the house of PW-1 maternal uncle of boy despite having his house adjacent to the house .
of parents of prosecutrix, was not only natural but in accordance with customs of their Tribal community.
16. From scrutiny of statements of maternal uncle and aunt of respondent Rajeev Pw-1 and PW-5 mother of of prosecutrix and prosecutrix PW-7 and PW-8, Pradhan and Up Pradhan of Gram Panchayat PW-9 rt and PW-10, it emerges that as per tribal custom of area, marriageable boy and girl intending to marry with their consent used to live together in families of their relatives as part performance of marriage ceremony. Both of them are considered husband and wife and during that period parents of girl wait for formal offer from side of boy generally through parents by sending a sealed bottle of liquor and acceptance of offer expressed by parents of girl by opening seal of the said bottle, completes marriage. In case of disagreement, sealed bottle is returned to parents of boy.
Starting to live together in relations is a part of marriage ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 13 ceremony and marriage is declared to be complete after ceremony of offering and accepting sealed bottle of liquor.
17. In case parents disagree and do not perform .
ceremony of offering and accepting, boy and girl used to live together as husband and wife but as a separate independent family and such couples are also accepted by society in tribal community. In this background conduct of of prosecutrix and respondents is to be assessed.
18. Tribe of Kinnaur is not a primitive Tribe but a rt well cultured and socially awakened Tribe having due regards for dignity of a woman and such society of tribe do not permit a person to develop physical relations with young girl under the garb of custom and thereafter leaving her on the road without completing the process of marriage. Such an act will definitely attract provision of Section 366 and 376 of the Indian Penal Code.
19. As per prevailing custom prosecutrix and respondent Rajesh accompanied each other left their village on 21.09.2006, reached Sangla alongwith PW-6 Funchok Chhopel cousin of respondent Rajeev Kumar who also ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 14 happened to be God-Brother of prosecutrix. At Sangla they stayed in house of a person related to PW-6.
20. Father (respondent No.2) and maternal uncle .
(PW-1) of respondent Rajeev with other villagers reached Sangla in search of prosecutrix and Rajeev Kumar.
Respondent Rajeev Kumar informed them that he had married prosecutrix. Both of them were taken to village of Labrang in house of PW-1, where also in presence of PW-1, respondent No.2 and others.
rt Rajeev Kumar replied to Panchayat Pradhan PW-9 Rajinder that he had married prosecutrix. Thereupon father of Rajeev left both of them in house of PW-1(maternal uncle of boy) who considered them married and allowed them to live as per custom of their tribal community. Parents of prosecutrix and respondent Rajeev as well as maternal uncle are residents of village Labrang. But parents of girl did not contact their daughter following custom and waiting for reply/offer from parent of boy. Prosecutrix and respondent Rajeev Kumar lived as couple in house of PW-1 for 14 days but respondent No.2 did not object or intervened nor sent prosecutrix back expressing unwillingness for marriage of prosecutrix and ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 15 respondent Rajeev Kumar. Pradhan and Up Pradhan advised parents of Rajeev Kumar to complete marriage by performing ceremonies.
.
21. On 07.10.2006 respondent Rajeev took prosecutrix to house of his maternal aunt PW-5 Hari Dassi and introduced her as his wife. PW-5 Hari Dassi informed parents of respondent Rajeev Kumar and advised to of complete marriage. Respondent Rajeev stayed in her house for five days and left prosecutrix there on the rt pretext to visit Maharastra to bring his testimonials but he never came back till 07.12.2006 when prosecutrix, suspecting to had consumed poison, was admitted in PHC Skiba as wife of respondent Rajeev Kumar by his maternal aunt PW-5 Hari Dasi and her son. During cohabiting with Rajeev Kumar, prosecutrix submitted herself for developing physical relation as husband and wife.
22. In aforesaid circumstances FIR initiating present case, was lodged by mother of prosecutrix on 07.12.2016.
Respondent Rajeev Kumar married another girl to whom he was already engaged before taking prosecutrix to his relatives as a wife.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 1623. PW-8 prosecutrix reiterated her statement in the Court and her statement was corroborated by maternal uncle and aunt of respondent Rajeev Kumar PW-1 Thakur .
Sain and PW-5 Hira Dassi and also by mother of prosecutrix PW-7 Chhewang Lamo.
24. PW-11 Dr. Soma Negi conducted medical Examination of prosecutrix and opined that possibility of of sexual intercourse could not be ruled out. PW-2 Dr. Rajinder Bisht rt conducted medical examination of respondent Rajeev Kumar and observed that he was physically fit for sexual intercourse.
25. PW-4 Laxmi Devi Panchayat Sahyak has proved date of birth certificate of prosecutrix as Ex. PW-4/B and that of respondent Rajeev Kumar PW-4/C. These certificates were not disputed. According to these certificates date of birth of prosecutrix and respondent was 03.12.1985 and 01.12.1980. Therefore, on 21.09.2006 prosecutrix and Rajeev Kumar were 20 and 25 years old.
PW-3 had also issued letter Ex. PW-4/D to SHO, Police Station, Pooh disclosing that in Panchayat record Rajeev Kumar was not recorded as married.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 1726. In her deposition in court PW-8 prosecutrix stated that respondent Rajeev Kumar had married with Champa resident of Village Chagaon and was residing with .
her in his house and also having children from her. This fact was not disputed by respondents in cross examination rather suggestion was put to prosecution witnesses that a male was entitled to keep more than one wife as per of custom of Kinnaur.
27. God rt brother of prosecutrix and cousin of respondent Rajeev Kumar Funchok Chhopel was examined as PW-6. He resiled from his earlier statement recorded under Section 161 Cr.PC. and was declared hostile. He was subjected to cross examination by learned Public Prosecutor as well as defence counsel. In examination -in-Chief he deposed that about 3 years back, prosecutrix met him in his village on the way and disclosed that she had married with Rajeev Kumar.
Thereafter, he, Raj Kumar, Prosecutrix and Rajeev Kumar boarded one pick up van to Rickong Peo and then went to Sangla to house of his friend namely Chander Parkash.
During night father of Rajeev alongwith other villagers ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 18 reached there and all of them were brought back by father of Rajeev Kumar to Labrang where they had reached on the next morning. He further stated that at Labrang .
Rajeev Kumar and prosecutrix went to the house of PW-1 Thakur Sain and he went to his house. During his cross-
examination by learned Public Prosecutor he denied suggestion put to him stating that he was not present of there. He admitted that respondent No.2 Sanam Medup father of respondent Rajeev Kumar was his maternal uncle.
rt In cross examination, by defence counsel he stated that prosecutrix being his god sister was herself interested to marry respondent Rajeev Kumar and therefore approached him to take her to Rajeev Kumar so as to marry him. He further admitted prosecutrix was aware about engagement of Rajeev Kumar with some other girl and was apprehending refusal of father of Rajeev Kumar to allow her in his house and for that reasons she sought his assistance for taking her alongwith Rajeev Kumar to some other place and he brought them to Sangla. He stated that Rajeev Kumar was not having any acquaintance at Sangla and he was brought to Sangla by him but before staying there, all ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 19 of them were taken back by respondent No.2 father of Rajeev Kumar and he admitted that prosecutrix had planned that after her marriage with Rajeev Kumar, his .
father would agree for their marriage by breaking up engagement with another girl. He admitted that prosecutrix left her house in absence of her parents by concealing herself so as to marry with Rajeev Kumar.
of
28. Immediately after bringing respondent Rajeev Kumar and prosecutrix in the house of PW-1 maternal uncle rt of respondent Rajeev Kumar, PW-9 Rajinder Singh Pradhan Gram Panchayat was called and on his inquiry respondent Rajeev Kumar had declared that he had married prosecutrix and thereafter respondent Rajeev Kumar and prosecutrix were kept in the house of PW-1 for 14 days in consonance with customs of their community.
29. Suggestions put by defence counsel indicated that keeping prosecutrix by respondent Rajeev Kumar in house of his maternal uncle and maternal Aunt (Mausi) was justified by referring custom of marriage by consent of male and female. These customs were also referred to show that ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 20 prosecutrix was also consenting party in all acts of respondent Rajeev Kumar.
30. With the help of deposition of PW-6 Funchok .
Chhopel it had been brought on record by respondents that prosecutrix was aware about engagement of Rajeev Kumar already taken place with some other girl and that despite such knowledge prosecutrix had accompanied respondent of Rajeev Kumar at her own with her consent. PW-8 prosecutrix admitted rt that she had knowledge that engagement of Rajeev Kumar had already taken place. But knowledge of the fact cannot be basis to hold that prosecutrix had consented for sexual intercourse to a person who was going to marry someone else. Because in present case despite having engaged with another girl, respondent Rajeev Kumar was proclaiming that he had married prosecutrix and had taken her to relatives stepping further to complete rituals of marriage so as to create an ambiance to assure prosecutrix that he was definitely going to marry her and thus creating a belief in her mind that she would be his wife and he was going to be her husband despite all hurdles. Prosecutrix was not wandering with ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 21 respondent Rajeev Kumar but was accompanying him in consonance with prevailing permissible custom in their society which was recognized by all including PW-1, PW-5, .
PW-7, PW-9, PW-10 and all other villagers. In these circumstances consent of prosecutrix was not for free sex but was submission to her husband or would be husband rather to a person who was proclaiming that marriage had of taken place and he was her husband which later on proved to be misconception.
rt
31. Hon'ble Supreme Court in case Deepak Gulati Versus State of Haryana reported in (2013) 7 Supreme Court Cases 675 has held as under:-
'18. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 22 consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as .
the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
19. This Court considered the issue involved of herein at length in the case of Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla rt Srinivasa Rao v. State of A.P., (2006) 11 SCC 615;
and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 23 rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a .
permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a of serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes rt psychological and physical harm to the victim, leaving upon her indelible marks.
21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 24 early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a .
case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis- representation made to her by the accused, or where an accused on account of circumstances which he of could not have foreseen, or which were beyond his control, was unable to marry her, despite having rt every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
22. In Deelip Singh (supra), it has been observed as under:
The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 25 the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear .
of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not of have been given. This is the scheme of Section 90 which is couched in negative terminology." rt
23. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed:
"11. '26..............."We are of opinion that the expression "under a misconception of fact" is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 26 misconception was the fact that the second accused intended to get the girl married........ "thus ... if the consent of the person from whose possession the girl is taken is obtained by fraud, .
the taking is deemed to be against the will of such a person". ... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, of under the criminal law, be availed of to justify what would otherwise be an offence." (N. rt Jaladu, In re case, ILR 456-57)(Deelip Singh case, SCC 101-02 para 26)
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." Section 90 IPC cannot be ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 27 called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the .
accused had never really intended to marry her".
32. Consent has been defined under Section 90 of the Indian Penal Code which reads as under:-
90. Consent known to be given under fear or of misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a rt misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;
Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
33. Consent under misconception of fact by prosecutrix on the basis of act and conduct of offender is not a free consent as is intended in any section of Indian Penal Code.
The consent must be voluntary and whether consent was ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 28 voluntary or involuntary depends upon the facts of case which are to be appreciated on the basis of peculiar factors of each case. Keeping in view social and cultural .
environment, customs of the Society and other attending circumstances of the case. Further requirement of Section 90 IPC is that offender must know or has reason to believe that consent was given in consequence of such of misconception.
34. In instant case, in peculiar facts, circumstances rt and customs, there is sufficient evidence to infer that consent of prosecutrix was under misconception of fact that respondent Rajeev Kumar was her husband or atleast would be husband in all eventualities to come. Prosecutrix was accompanying respondent Rajeev Kumar to houses of his relations as his spouse or would be spouse. There was no instance of her involvement in sexual activity prior to that.
Declaration of respondent Rajeev Kumar that he had married prosecutrix was followed by physical relations.
Respondent Rajeev Kumar was also knowing that prosecutrix was submitting herself to his desires as her spouse particularly when such relations were developed in ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 29 house of relations i.e. maternal uncle and aunt of respondent Rajeev Kumar.
35. In instant case maternal uncle and aunt of .
respondent Rajeev Kumar PW-1 Thakur Sain and PW-5 Hira Dassi, in their examination-in-Chief specifically stated that that respondent Rajeev Kumar had claimed that he had married prosecutrix. Believing respondent Rajeev Kumar of PW-1 had asked respondent No.2 to celebrate marriage as per custom at rt home and perform ritual customary ceremonies. PW-5 had also informed parents of respondent Rajeev Kumar by visiting their house whereupon his parents had sought some time for settlement. Prosecutrix and respondent Rajeev Kumar were brought from Sangla by respondent No.2 father of respondent Rajeev Kumar and after declaration by respondent Rajeev Kumar in present of PW-9 Rajinder Singh, Panchayat Pradhan that he had married prosecutrix, respondent No.2 had allowed respondent Rajeev Kumar and prosecutrix to live in house of PW-1 Thakur Sain for 14 days giving an impression to prosecutrix as well as her parents that both of them were residing in process of completing rituals of customary ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 30 marriage. Respondent Rajeev Kumar and prosecutrix were again permitted to live in house of PW-5 Hira Dassi despite being informed by PW-5 Hira Dassi further fortifying belief .
of prosecutrix that marriage was under process and respondent Rajeev Kumar had chosen her as life partner.
Prosecutrix was knowing about engagement of respondent Rajeev Kumar, but the respondent Rajeev Kumar was of also well aware of this fact. However by his expressed conduct respondent rt Rajeev Kumar had made the prosecutrix to believe that it was she to whom he was going to marry and her belief was strengthened by his declarations before his parents and relations and also by his cohabitation with her as per customs of their community.
During their stay in the house of PW-5 Hira Dassi, respondent Rajeev Kumar left company of prosecutrix after 5 days and never came back till 07.12.2006 when prosecutrix was admitted in PHC Skiba suspecting that she had consumed poison. Later on respondent Rajeev Kumar solemnized marriage with Champa with whom his engagement had already taken place.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 3136. In aforesaid circumstances consent of prosecutrix cannot be construed to be a free consent. She had submitted herself under a misconception of fact that .
she was consenting for physical relation with her husband as respondent Rajeev Kumar had made her to believe that despite his engagement with another girl he was proclaiming his marriage with prosecutrix and intended to of adopt her as a life partner and respondent Rajeev Kumar had also took her to his relations according to custom in rt such a manner that everybody contacting him had to believe that he had selected prosecutrix as a life partner but his subsequent act of leaving respondent in house of his Aunt (Mausi) PW-5 Hira Dassi and marry another girl transpired that he was deceiving respondent knowingly that at last he was going to marry according to wish of his parents. Prosecutrix stayed with him according to customary rituals treating respondent Rajeev Kumar her husband and considering herself to be wife of respondent Rajeev Kumar. Respondent Rajeev Kumar also belonged to same Tribal Community, therefore, he was also having knowledge that prosecutrix was submitting herself under ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 32 mis-conception of the fact that respondent Rajeev Kumar was going to be her life partner. Therefore consent given by prosecutrix was no consent as was required under .
Section 375 of the Indian Penal Code. Conduct of respondent Rajeev Kumar had rendered consent of prosecutrix illegal and invalid.
37. It is apparent from conduct of Rajeev Kumar of that from very beginning he was not going to marry prosecutrix without concurrence of his parents despite the rt fact that it was permissible in his society and he adventured to take risk at the cost of life of prosecutrix by pretending to had married prosecutrix but ultimately married as per wish of his parents.
38. Respondent Rajeev Kumar was knowing that he was seducing prosecutrix to have a intercourse with him which became illicit intercourse as respondent Rajeev Kumar, despite his declaration had not accepted prosecutrix his wife and left her waiting in house of his Aunt with belief that he was going to bring his certificates from Maharashtra whereas later on he married some one else.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 3339. In view of above discussion, respondent Rajeev Kumar is guilty of offence under Sections 366 and 376 of Indian Penal Code.
.
40. His parents particularly respondent No.2 also allowed respondent Rajeev Kumar to continue with drama and abetted him in committing crime. Respondent No.2 had brought back respondent Rajeev Kumar and prosecutrix of from Sangla and after declaration of respondent Rajeev Kumar that he had married prosecutrix allowed both of rt them to stay in house of PW-1 maternal uncle of respondent Rajeev Kumar. Lateron, he had married with some one else. In case he was not intending to allow marriage of respondent Rajeev Kumar and prosecutrix he would have not allowed them to stay in the house of PW-1 as well as PW-5 according to customs of their Tribal community. Firstly he allowed both of them to live as married couple resulting into submission of prosecutrix to respondent Rajeev Kumar as wife and later on he married with some one else. Therefore for his active and passive conduct he is also guilty for abetting the offence committed by respondent Rajeev Kumar.
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 3441. Respondent No.3 was charged sheeted under .
Section 212 of Indian penal Code for concealing respondent Rajeev Kumar with intention to screen him from legal punishment but there is no evidence except statement of PW-7 Chhewang Lamo that he helped respondent Rajeev of Kumar to flee from Hospital. There is no cogent and reliable evidence against him for holding that he committed rt an offence as alleged. Therefore, he was rightly acquitted by trial Court. The trial Court has committed a mistake in acquitting respondent No.1 and respondent No.2.
Prosecution has established the guilt of respondent No. 1 and respondent No.2, beyond reasonable doubt by leading clear, cogent, convincing and reliable evidence. Findings returned by the trial Court qua respondents No. 1 and 2 cannot be said to be based on correct and complete appreciation of material on record, as such, the same are reversed. Hence, the appeal is partly allowed and respondent No.1 is held guilty for offences committed under Sections 366 and 376 IPC and respondent No.2 is held ::: Downloaded on - 15/04/2017 21:15:16 :::HCHP 35 guilty for committing offences under Sections 366 and 376 IPC read with Section 109 IPC.
42. Bail bonds furnished by the respondent-convict .
stand cancelled.
43. The respondents No. 1 and 2 be produced for hearing on quantum of sentence on 22.09.2016.List on 22.09.2016 Registry is directed to prepare production of warrant.
rt (Rajiv Sharma),
Judge.
(Vivek Singh Thakur),
Judge.
19th
September, 2016
*brb*
::: Downloaded on - 15/04/2017 21:15:16 :::HCHP