Himachal Pradesh High Court
Reserved On: 06.08.2024 vs Suresh Sharma on 8 August, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2024:HHC:6611 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 4125 of 2013 .
Reserved on: 06.08.2024
Date of decision: 08.08.2024
State of H.P. ...Appellant
Versus
Suresh Sharma ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No. For the Appellant: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.Gs. with Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs., Mr. J. S. Guleria and Mr. Raj Negi, Dy. A.Gs.
For the Respondent: Mr. Shanti Swaroop, Advocate.
Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondent under Section 376 of the Indian Penal Code (for short 'IPC'), the appellant-State has filed the instant appeal.
2. The case of the prosecution in brief is that the prosecutrix in the year 2010 was studying in RKMV at Shimla and staying with her distantly related maternal uncle Sh. Dula Ram who was residing alongwith his son as he was also studying at Shimla. She developed intimacy with the respondent who had proposed to marry her.
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3. On 27.1.2011, the respondent had raped the prosecutrix and it was thereafter that he had assured to marry .
her provided she did not disclose this fact to anyone. The respondent thereafter committed rape many times on the assurance that he would marry her. In between, the prosecutrix became pregnant and the respondent gave her some medicine which resulted in miscarriage.
4. On 16.11.2011, the prosecutrix had gone to the native place of the respondent, where she asked the father of the respondent to marry her with the respondent, but he refused. When the prosecutrix contacted the respondent on phone, he refused to talk her. The prosecutrix since 16.11.2011 started to reside at the house of the respondent till 08.12.2011 and then finally on 09.12.2011, lodged report No.11 (Ex.PW-7/A) with the police. The police thereafter filed an application Ex.PW-
7/B for conducting the medical examination. Thereafter FIR Ex.PW-15/A came to be registered against the respondent.
5. Dr. Leena conducted the medical examination of the prosecutrix on 10.12.2011 and found that the possibility of the prosecutrix having been exposed to recent sexual intercourse could not be ruled out. However, no allegations of injury were noted on the person of the prosecutrix and accordingly MLC, Ex.PW-13/B was issued.
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6. The respondent was arrested and an application Ex.PW-10/A was filled for conducting his medical examination.
.
PW-10 Dr. Sandeep Kaushik conducted his medical examination and found that there was nothing to suggest that the respondent was not capable of performing sexual intercourse. He issued MLC Ex.PW-10/B.
7. I.O. Inspector Amar Chand went to the spot and prepared the site plan Ex.PW-15/B. Nail clippings of the prosecutrix were taken and the underwear worn by the her was also seized. These were sealed in a packet with three seal impressions of seal "CMO". The case property was handed over to HC Shiv Kumar (PW-11), who sent the same to FSL, Junga through C. Gita Ram (PW-8). The result of analysis, Ex.PW-14/A was obtained in which it was shown that the blood and semen were not detected on nail clippings of the prosecutrix, however, blood was detected on the underwear and vaginal swab of the prosecutrix, but no semen was detected on the same. An application, Ex.PW-13/A was filed for obtaining the final opinion, upon which Dr. Poojan Dogra (PW-13) gave her final opinion Ex.PW-13/C to the effect that it was difficult to comment whether any recent sexual intercourse had taken place or not, however, she had also opined that the opinion given by Dr. Leena based on the examination of the prosecutrix on 10.12.2011 would ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 4 2024:HHC:6611 remain as the final opinion. The final opinion was stated to have been given by Dr. Poojan Dogra, as Dr. Leena had proceeded on .
maternity leave.
8. Further, the case of the prosecution is that on application Ex.PW-16/A, the police had obtained from Naresh Sharma (PW-6) Panchayat Sahayak, an abstract of parivar register (Ex.PW-6/B) and a copy of birth certificate of the
9.
r to prosecutrix (Ex.PW-6/C), which showed that she was born on 02.02.1991 and was major at the time of alleged incident.
On finding a prima-facie case, the respondent was charged and put to trial for offence punishable under Section 376 of IPC.
10. The prosecution in order to prove it's case examined as many as 15 witnesses.
11. After the closure of prosecution evidence, the incriminatory material on record was put to the respondent in his statement recorded as per the provisions of Section 313 of Cr.P.C. wherein he admitted that in the year 2010, the prosecutrix had been staying at Shimla. He also admitted that she had been staying with Sh. Dula Ram, his father in their quarter. He admitted that he had also been residing in the quarter with his father, since he was studying at Shimla.
However, he denied the allegations levelled by the prosecutrix ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 5 2024:HHC:6611 and claimed that he had never assured her to marry as she was distantly related and was his cousin. However, no evidence in .
defence was led by the respondent and claimed to be innocent and falsely roped in this case.
12. The learned Trial Court after recording evidence and evaluating the same, acquitted the respondent, constraining the appellant to file the instant appeal.
13. It is vehemently argued by the learned Additional Advocate General that the findings recorded by the learned trial court are perverse as material evidence on record has been totally misconstrued and misinterpreted.
14. On the other hand, Mr. Shanti Swaroop, learned Advocate, would emphasis that because of contradictions in the depositions of the material witnesses, which have been highlighted in the impugned judgment, no exception can be taken to the judgment passed by the learned trial court and therefore, the appeal deserves to be dismissed.
15. We have given a thoughtful consideration to the submissions made at the Bar and have also gone through the record of the learned trial court, more particularly, the evidence on record.
16. First of all, we would reiterate the principles laid down by the Hon'ble Supreme Court, governing the scope of ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 6 2024:HHC:6611 interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused upon the findings recorded .
by the learned trial Court.
17. In Rajesh Prasad vs. State of Bihar and another (2022) 2 SCC 471, the three Judge Bench of the Hon'ble Supreme Court encapsulated the legal position governing the field and after considering various earlier judgments held as under:-
r to "28. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 7 2024:HHC:6611 intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such .
phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
18. Further, in case titled as H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 581, the Hon'ble Apex Court summarized the principles governing the exercise of Appellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C. The relevant paragraphs No. 8 to 10 of the judgment are reproduced as under:-
"8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 8 2024:HHC:6611 by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal .
Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -
8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;
8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 9 2024:HHC:6611 impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the .
oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken.
10. There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour. While deciding about the reliability of the version of prosecution witnesses, their demeanour remains in the back of the mind of the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence, the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an appeal against acquittal."
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19. Thus, it is beyond the pale of doubt that the scope of interference by an Appellate Court for reversing the judgment of .
acquittal rendered by the learned trial Court has to be exercised within the four corners of the following principles:-
a) That the judgment of acquittal suffers from patent perversity;
b) That the same is based on misreading/omission to consider material evidence on record;
c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
d) rThe Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
20. Equally settled is the proposition that it is not the duty of the Appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court, expression of general agreement with reasons given by the Court, the decision of which is under appeal, would ordinarily suffice (Refer: Girijanandini Devi vs. Rabindernandini Choudhary AIR 1967 SC 124).
21. At the outset, it needs to be noticed that the case of the prosecution is one of the betrayal on the part of the respondent to marry the prosecutrix despite having promised to ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 11 2024:HHC:6611 marry and under the garb of marriage, the respondent has established physical relations with her. Thus, in this background, .
can the respondent be held guilty of having committed rape upon the prosecutrix on false promise of marriage.
22. Before adverting to the factual aspect, the Court would like to refer to Section 375 of IPC and its essential ingredients in the backdrop of Section 90 to decide whether
23.
r to consent of the prosecutrix was procured through misconception of fact.
Section 375 of IPC reads as under:
"[375. Rape.-- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
First. Against her will.
Secondly. Without her consent.::: Downloaded on - 08/08/2024 20:32:19 :::CIS
12 2024:HHC:6611 Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is .
interested, in fear of death or of hurt.
Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent. Explanation 1.For the purposes of this section, "vagina"
shall also include labia majora.
Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.A medical procedure or intervention shall not constitute rape.
Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape"
24. Thus, the prosecution must establish the following essential ingredients of rape:
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(i) the accused committed sexual intercourse with the woman;
.
(ii) he did so against her will or without her consent;
(iii) if there was a consent, it was obtained by putting her or any of her relations or person interested in fear of death or hurt;
(iv) where consent was taken in deceitful belief that the accused was husband;
(v) if consent was taken when the victim was incapable of understanding its nature and consequences due to-
(a) Unsoundness of mind,
(b) Intoxication,
(c) Administration of any stupefying drug or r substance by the accused either personally or through agents,
(vi) When the accused had sexual intercourse with his wife less than 15 years of age.
25. Now, even if, it is assumed that the respondent had committed sexual intercourse with the prosecutrix, then it is required to be seen whether the sexual intercourse was without her free consent which is essential to declare the respondent guilty of offence punishable under Section 376 of IPC.
26. Consent has been well explained in Section 90 of IPC which reads as under:
"90. Consent known to be given under fear or 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 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; or ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 14 2024:HHC:6611 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; or 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."
27. Now, the moot question is whether sexual intercourse was with free consent of the prosecutrix or was given by her on misconception of fact.
28. Though, there is plethora of law on the subject discussed by the Hon'ble Supreme Court in its earlier judgments in Uday vs. State of Karnataka AIR 2003 SC 1639, Deepak Gulati vs. State of Haryana AIR 2013 SC 2071 and in Tilak Raj vs. State of Himachal Pradesh AIR 2016 SC 406, we would, however, refer to certain later judgments of the Hon'ble Supreme Court wherein the earlier law along with statutory provisions have been extensively dealt with by the Hon'ble Supreme Court.
29. In Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra and others AIR 2019 SC 327, it was observed as under:
"14. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 15 2024:HHC:6611 is done against her will and the second where it is done without her consent; the third, fourth and fifth when there .
is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression "against her 'will'" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent"
is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of.
15. Section 90 of the IPC defines "consent" known to be given under fear or misconception:-
"Section 90:
Consent known to be given under fear or mis- conception.--A consent is not such a consent as it intended by any section of this Code, if the con- sent is given by a person under fear of injury, or under a 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"
Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Con- sent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 16 2024:HHC:6611 ascertained only on a careful study of all relevant circumstances.
.
16. In Uday v. State of Karnataka (2003) 4 SCC 46, this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus:-
r "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the con- sent given by the prosecutrix to sexual inter- course 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 mis- conception 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 inter- course 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 bur- den is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.::: Downloaded on - 08/08/2024 20:32:19 :::CIS
17 2024:HHC:6611
23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In .
the instant case, the prosecutrix was a grown-
up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to under- stand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between r resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual inter- course with the appellant, and her consent was not in consequence of any misconception of fact."
17. In Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88, the Court framed the following two questions relating to consent:-
(1) "Is it a case of passive submission in the face of psycho- logical pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in?
(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her"?
In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 18 2024:HHC:6611 they fell in love with each other. One day in February, 1988, the accused forcibly raped her and later consoled .
her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she be- came pregnant, she revealed the matter to her parents. Even there- after, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed.
Therefore, she was constrained to file the complaint after waiting for some time. With this factual back- ground, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for dam- ages under civil law. It was held thus:-
"The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from ::: Downloaded on - 08/08/2024 20:32:19 :::CIS
19 2024:HHC:6611 the prosecution evidence establish this fact. On the other hand, the statement of PW 12 that "later on", the accused became ready to .
marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case at para 24 come to the aid of the appellant".
18. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 20 2024:HHC:6611 station, the accused was arrested by the police. The Court held that the physical relationship between the .
parties had clearly developed with the con- sent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused.
19. Recently, this Court, in Shivashankar @ Shiva v.
State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6 th April, 2018,(Reported in 2018 (3) All Cri LR 84 (SC), has observed that it is difficult to hold that sexual inter- course in the course of a relationship which has continued for eight years is 'rape', especially in the face of the complainant's own allegation that they lived together as man and wife. It was held as under:-
"In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant.
It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife".
20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 21 2024:HHC:6611 had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or .
deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship be- tween the parties would not constitute an offence under Section 376 of the IPC."
30. In Pramod Suryabhan Pawar vs. State of Maharashtra and another AIR 2019 SC 4010, the Hon'ble Supreme Court was dealing with quashing of an FIR wherein allegations regarding accused having established sexual relations on the promise of marriage had been levelled. The Hon'ble Supreme Court noticed that there were no allegations in the FIR that when the accused promised to marry the informant, it was done in bad faith or with an intention to deceive her and accordingly the FIR was quashed. It shall be apt to reproduce para-18 of the report which reads as under:-
::: Downloaded on - 08/08/2024 20:32:19 :::CIS22 2024:HHC:6611 "18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect .
to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
31. A three Judge Bench of the Hon'ble Supreme Court while examining an issue of "consent" in Maheshwar Tigga vs. State of Jharkhand (2020) 10 SCC 108 held that under Section 90 of IPC, consent given under fear of injury or misconception of fact is no consent in the eyes of law, but misconception of fact has to be in proximity of time to occurrence and cannot be spread over period of four years. In that case, it was found that the consent by the prosecutrix was conscious and informed choice made by her after due deliberation and had been spread over a long period of time coupled with conscious positive action and not to protest.
Considering all facts and circumstances, it was held by the Hon'ble Supreme Court that the appellant therein did not make any false promise or intentional misconception of marriage ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 23 2024:HHC:6611 leading to establishment of physical relationship between the parties. Prosecutrix herself was aware of the obstacles because .
of different religious beliefs. The Hon'ble Supreme Court after placing reliance on its earlier judgments, some of which have been mentioned and extracted above, in paras 18 and 20 observed as under:
"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 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.
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 deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only ::: Downloaded on - 08/08/2024 20:32:19 :::CIS
24 2024:HHC:6611 to a person with whom one is deeply in love. The observations in this regard in Uday v. State of Karnataka .
(2003) 4 SCC 46 are considered relevant: (SCC p. 58, para 25) "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 rwhat 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."
32. In Sonu alias Subhash Kumar vs. State of Uttar Pradesh and another AIR 2021 SC 1405, the Hon'ble Supreme Court was dealing with quashing of charge-sheet where the accused had allegedly committed rape on prosecutrix on pretext of promise of marriage. The Hon'ble Supreme Court after noticing that the relations between accused and the prosecutrix were of consensual in nature, wherein there were no allegations of promise to marry being false at inception, held ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 25 2024:HHC:6611 that subsequent refusal on the part of the accused from marriage did not constitute an offence and the charge-sheet was .
accordingly quashed. It shall be apt to reproduce para-11 of the report which reads as under:
11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR.
On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established."
33. In Shambhu Kharwar vs. State of Uttar Pradesh and another AIR 2022 SC 3901, the Hon'ble Supreme Court was dealing with a case of quashing of proceedings for an offence of rape wherein the accused and the victim, both educated adults, were found in consensual relations for 5 years.
The victim, during that period, got married to someone-else that ended in divorce by mutual consent in 2017. The allegations of victim indicated that her relationship with the accused continued ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 26 2024:HHC:6611 prior to her marriage, during its subsistence and even after grant of divorce. In these circumstances, it was found that .
crucial ingredients of offence of rape were absent since relationships between the parties were purely consensual. The Hon'ble Supreme Court after relying upon some of its earlier judgments (as noticed above) observed as under:
"12. In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.
13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ::: Downloaded on - 08/08/2024 20:32:19 :::CIS
27 2024:HHC:6611 ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely .
of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent.
14. The High Court, in the course of its judgment, has merely observed that the dispute raises a question of fact which cannot be considered in an application under Section 482 of CrPC. As demonstrated in the above analysis, the facts as they stand, which are not in dispute, would indicate that the ingredients of the offence under Section 376 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of CrPC on a completely misconceived basis."
34. Recently, the Hon'ble Supreme Court in Naim Ahamed vs. State (NCT of Delhi) 2023 Criminal Law Journal 2785, after considering the earlier judgments, as referred to above, held that there is difference between giving a false promise and committing of breach of promise by the accused. In the case of false promise, the accused, right from the beginning would not have any intention to marry the prosecutrix and would have cheated the victim by giving a false promise to marry her only with a view to satisfy his lust.
Whereas, in case of breach of promise, one cannot deny the possibility that the accused might have given a promise with all seriousness to marry her and subsequently might have ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 28 2024:HHC:6611 encountered certain circumstances unforeseen by him or the circumstances beyond his control which prevented him to fulfill .
his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376 of IPC.
35. Bearing in mind the aforesaid exposition of law, we shall now proceed to consider the facts on record.
36. The prosecutrix appeared as PW1 and stated that in the year 2010, she was residing at her uncle's house, namely, Sh. Dula Ram. In that year, she was studying in RKMV, Shimla.
The respondent is the son of Sh. Dula Ram. Sh. Dula Ram was not her real uncle, he was her mother's god-brother. She stated that in that house there was one room, one kitchen besides a bath-cum-toilet. Her bed was there in the kitchen. The others used to sleep on the beds placed in the room. The college was closed due to winter vacations. No one else, except her was present in the house on 27.1.2011. Around 12 noon, the respondent came there. She at that time was studying in the kitchen on her bed. The respondent had asked her to have physical relations with him, but she refused. He then forcibly raped her. When she told that she would disclose the fact to her uncle, the respondent had given an assurance that he would marry her. She had raised a hue and cry, when the respondent ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 29 2024:HHC:6611 had committed forcible intercourse with her, but none came to her rescue. At the time of incident, the respondent was only .
wearing a pant. The respondent subsequently also had physical relations with her without her consent. He had always been assuring to marry her. On 29.9.2011, she had a fall at Sanjauli, when she was admitted at IGMC, Shimla and was discharged on 14.10.2011. She then had gone to her mother's house situate at Mandri-Sunni. She narrated the incident to her mother on 21/22.10.2011. She then went to village Bharari. On 16.11.2011, she had disclosed the incident to her uncle Sh.Dula Ram and aunt Smt. Shanti Devi at village Kandabana. She had also narrated the incident to her brother Kamlesh. The respondent who had come to Kandabana, had lodged a report at Police Post, Kupvi that she had been residing at his house at village Kandabana. A compromise had taken place in between her and the respondent. As per the compromise, she had to stay at the house of the respondent. Lateron, respondent had refused to marry her. The matter was reported to the police on 09.12.2011.
37. Having gone through the testimony of the prosecutrix, it emerges that the prosecutrix after being discharged from hospital had gone to her mother's house in Sunni where she narrated the entire incident to her mother somewhere around 21/22.10.2011. Thereafter, the prosecutrix ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 30 2024:HHC:6611 on 16.11.2011 went to the village of the respondent and disclosed the incident to his father and mother but surprisingly .
the matter was not reported to the police. Either in October or for that matter in November 2011 she reported the matter to police on 09.12.2011. Thus, there is unaccounted and unexplained delay of about more than two months in lodging the FIR which makes the case of the prosecution to be highly This r assumes suspicious and does not inspire confidence.
38. importance because prosecutrix's own case that she we.f. 16.11.2011 had stayed at it was the the house of the respondent up till 08.12.2011. It has further come in the evidence of the prosecutrix that she had disclosed all the aforesaid facts to her brother Kamlesh. The respondent had come to village and he had made a report at police post Kupvi that she had been residing in his village Kandabana.
Thereafter, a compromise compromise had taken place between her and the respondent, copy of which is Mark 'A' Ext. PW5/A. This fact is not in dispute in view of the admission made not only by the prosecutrix but even by her brother PW2 Kamlesh Kumar.
The compromise Ext. PW5/A read as under:-
"In a meeting of the Panchayat, a compromise was entered into between Suresh Sharma (accused) and the prosecutrix, which was acceptable to both and as per the compromise there remains no dispute ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 31 2024:HHC:6611 bteween the parties and they had agreed to take their cases back; in case any of the party resiled from .
the compromise, he would be declared unworthy by the Panchayat and would also be liable to punishment as per law."
39. It would be noticed that the compromise does not make a mention of any allegation of rape or make a mention of promise to marry and this document as observed above has been executed on 23.11.2011 between the parties while the prosecutrix had been residing in the house of the respondent, which she continued to do till 08.12.2011.
40. Lastly, there was no objection raised by the prosecutrix to the use of the term compromise that had been entered into between the prosecutrix and the respondent and, therefore, it can conveniently be held that w.e.f. 23.11.2011 on wards no dispute remained between them and they were to withdraw their respective cases.
41. As observed above, the prosecutrix was not only major but was also educated and, therefore, she knew what was good or bad for her.
42. That apart, the testimony of the prosecturix to the effect that she was subjected to sexual intercourse has not been supported by the scientific evidence.
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43. The Court is conscious and aware of the fact that in the case of the instant kind, the sole testimony of the prosecutrix .
can be sufficient to convict the accused. But, in order to prove the allegation of rape, such sole testimony of the prosecutrix must be reliable and of "sterling quality". However, we do not find the testimony of the prosecutrix to be qualified and to be termed as "sterling quality", rather, the prosecutrix does not
44.
r to appear to be trustworthy as she has consistently changed her statement from time to time to suit her convenience.
At this stage, it would be necessary to refer to the testimony of PW3 Neena, the owner of the premises, who in her cross-examination stated that in January, 2011, there were twenty tenants in her building and further stated that in the adjoining vicinity many people were residing there with their families and the families remained present throughout the day in the houses and hue and cry could be heard in the neighbourhood. She has gone a step ahead to state that if one speaks loudly, it can be heard in the neighbourhood.
45. PW4 Surinder Singh, who owned an adjoining building, categorically stated that the premises where the prosecutrix had been staying was thickly populated. As per the prosecturix, the alleged offence took place at mid noon on 27.01.2011 and she further claimed that she had raised hue and ::: Downloaded on - 08/08/2024 20:32:19 :::CIS 33 2024:HHC:6611 cry. If that be so, obviously, that could have attracted the attention of the neighbours.
.
46. There is nothing on record to even remotely suggest that the respondent had sexual relationship with the prosecutrix, which probablises the defence of the respondent that the prosecutrix was related to him being a distant sister.
47. The learned Trial Court has rightly and carefully scrutinized the testimonies of the prosecution witnesses and only thereafter acquitted the respondent on the ground that the prosecution has not been able to prove its case against the respondent beyond all reasonable doubts. The view taken by the learned trial court is plausible as well as possible one.
48. In view of the aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant appeal and the same is accordingly dismissed so also the pending application (s), if any.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
8th August, 2024 Judge
(sanjeev)
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