Himachal Pradesh High Court
__________________________________________________________________________ vs State Of Himachal Pradesh on 7 January, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 654 of 2017
Date of Decision: 7.1.2020.
__________________________________________________________________________
Kuldeep Kumar .........Appellant.
.
Versus
State of Himachal Pradesh ..........Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the appellant: Mr. Sanjeev Bhushan, Senior Advocate with Mr.
Rakesh Chauhan, Advocate.
For the respondent: Mr. Sudhir Bhatnagar, Mr. Anil Jaswal and Mr.
Arvind Sharma, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy Advocate General,
for the State.
______________________________________________________________
Sandeep Sharma, J. (Oral)
By way of present appeal filed under Section 374 (2) of Cr.PC, challenge has been laid to judgment of conviction dated 12.12.2017, passed by the learned Sessions Judge, Chamba, H.P., in Sessions Trial No. 42 of 2015, whereby court below while holding the appellant-accused (herein after referred to as "the accused") guilty of having committed offence punishable under Section 376 of IPC, convicted and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 50,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months.
2. Case of prosecution, as emerges from the record is that on 12.9.2013, the accused got engaged to victim-prosecutrix as per local customs and rites of Pangi, District Chamba, H.P.. As per custom prevalent in the area, boy and girl can have physical relationship with each other after Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -2-engagement. Subsequent to engagement inter-se accused and victim-
prosecutrix, allegedly they had repeated sexual intercourse till December, 2013, under the existing customs/rituals prevalent in the area. After the .
aforesaid alleged incident, accused remained in constant touch with the prosecutrix till March, 2014, whereafter he stopped using his mobile phone.
Marriage inter-se accused and prosecutrix though was fixed for December, 2014, but since accused did not return back, marriage inter-se prosecutrix and accused could not take place, whereafter father of the prosecutrix reported the matter to SDM Pangi by way of written complaint. In the aforesaid proceedings, father of the accused made a statement before the SDM Pangi that accused, who is studying at Chandigarh, would come back to perform the marriage, but fact remains that accused did not return back and accordingly, matter came to be reported to the police by the prosecutrix. SI Kamlesh Kumar, alongwith other police officials, while on patrolling duty at bus stand Killar, Pangi, recorded the statement of victim-
prosecutrix under Section 154 Cr.PC and thereafter, sent the same to Police Station Pangi for registration of FIR. After registration of case as referred above, prosecutrix was medically examined at Regional Hospital Chamba by PW12 Dr. Minakshi, who in her report (MLC Ext.PW12/A) though stated that no internal or external injury is/was found on the person of the victim-prosecutrix, but possibility of sexual intercourse cannot be ruled out. Statement of victim-
prosecutrix was also recorded under Section 164 Cr.PC in the court of learned JMIC Chamba. Investigating Officer had also obtained certificate from the former Pradhan of Gram Panchayat, Karyas with regard to custom and rites prevalent in Pangi area (Ext.PW4/A).
::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -3-3. After completion of investigation, challan came to be filed in the court of learned Sessions Judge Chamba, who being satisfied that prima-
facie case exists against the accused charged him for having committed .
offence punishable under Section 376 of IPC, to which he pleaded not guilty and claimed trial. Prosecution with a view to prove its case examined as many as 13 witnesses, whereas accused in his statement recorded under Section 313 Cr.PC., denied the case of the prosecution in toto and claimed himself to be innocent. However, learned court below on the basis of evidence led on record by the prosecution held the accused guilty of having committed offence under Section 376 IPC and accordingly convicted and sentenced him as per description given herein above. In the aforesaid background, the petitioner has approached this Court in the instant proceedings.
4. Having heard learned counsel for the parties and perused material available on record, this Court finds that precisely the case of the prosecution is that accused repeatedly sexually assaulted the victim-
prosecutrix on the pretext of marriage. Statements having been made by material prosecution witnesses, if read in conjunction juxtaposing each other, clearly reveal that on 12.9.2013 engagement inter-se victim-prosecutrix and accused took place at the residence of victim-prosecutrix in Tehsil Pangi, District Chamba, as per local customs and rites of Pangi. All the witnesses including victim prosecutrix have stated that as per prevalent custom in the area, a boy after his engagement with a girl can live with her in her house and can also have sexual relationship before marriage.
::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -4-5. Prosecutrix (PW1), at whose instance FIR Ext.PW13/A came to be registered deposed that she was engaged to the accused on 12.9.2013 as per customs and rites prevalent in Pangi, whereafter accused had started .
residing in the house of the prosecutrix. She deposed that accused had developed physical relations with her up to December, 2013, whereafter accused told her that he was going to Kullu. She deposed that she remained in contact with the accused on phone up to March, 2014, whereafter accused stopped talking to her. She deposed that her marriage with accused was fixed for December, 2014, but accused did not return home in the month of December, 2014. Thereafter, father of the victim-prosecutrix reported the matter to SDM Pangi, wherein father of the accused stated that his son is studying at Chandigarh and will come back to perform marriage, but when accused did not return for one month, they reported the matter to the police. In her cross-examination, prosecutrix while stating that she has studied up to +2 level admitted that she understands her good and bad. In her cross-examination, she stated that custom of the area was told to her by her sister. Victim-prosecutrix stated in her cross-examination that physical relationship was made on 17.9.2013 and accused had not stayed continuously in her house from September to December, 2013, but he used to visit her house twice or thrice in a month. She stated that accused had come to her house last time on 27.12.2013. She also admitted that her father had filed application before SDM Killar, Pangi against the accused and his father. she also admitted that her father wrote in the application that accused had solemnized the marriage and spoiled the life of his daughter.
She admitted that her father in application Ext.D3 submitted to SDM Killar, ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -5- Pangi had not mentioned regarding her physical relationship with the accused. She also admitted that all the witnesses are from her village and in relations. This witness admitted that police station is at a distance of 2 km .
from her house. If the statements having been made by PW2 and PW9 (father and mother of the victim-prosecutrix, respectively) are read in conjunction, it also suggests that accused after getting engaged to victim-
prosecutrix visited the house of the victim-prosecutrix at several occasions and developed physical relations.
6. PW2 in his cross-examination admitted that his daughter developed physical relations with the accused with her consent. He also admitted that his statement Ext.D4 was recorded by SDM. He stated in his cross-examination that it is compulsory to develop the sexual relationship with the accused after the engagement and it is incorrect that his daughter has herself refused to perform marriage with the accused.
7. PW9 (mother of the victim-prosecutrix) admitted in her cross-
examination that nobody had told her daughter about the custom and her daughter was herself aware of the same. This witness denied that they have demanded Rs. 5 lac from the family of the accused as "izat" (damages). This witness also denied the suggestion put to her that there is no custom in the area that boy and girl have to develop physical relations prior to marriage and her daughter herself refused to perform marriage in the October, 2014. If the statement of these aforesaid material prosecution witnesses are read in its entirety, it though suggests that as per local customs prevalent in the area, boy and girl can have sexual relationship prior to their marriage, but no ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -6- positive evidence in the shape of document suggestive of the fact that such custom is prevalent in the area, ever came to be placed on record.
8. PW3 Shivo Devi, Secretary of Mahila Mandal Jhalwas stated .
that after the engagement, accused used to visit the house of the victim prosecutrix. She stated that accused had not solemnized marriage with the victim-prosecutrix and she does not know when marriage was fixed between victim-prosecutrix and accused as her house is away from the victim. In her cross-examination, she stated that she saw the accused visiting the house of the victim twice. Though she denied suggestion put to her that she does not know whether the accused had developed physical relations with the victim after the engagement or not, but careful perusal of statement made by this witness also nowhere suggests that she was able to prove custom, if any, of having sexual relationship inter-se boy and girl before marriage.
9. PW4 Jugni Chopra, Ex-Pradhan of Gram Panchayat, Karyas, while stating that accused had not solemnized marriage with the victim stated that she had given certificate to the police Ext.PW4/A, which bears her signatures. She deposed that as per custom of the area, boy and girl can develop physical relations with each other after their engagement. She deposed that it is custom in the area that if anybody refuses to marry a girl and girl is defamed, nobody performs marriage with her. Interestingly, this witness in her cross-examination stated that she is totally illiterate and she does not know, who scribed certificate Ext.PW4/A. She admitted that only her signature and stamp has been obtained by the police. She admitted that she cannot read and write what has been written in Ext.PW4/A. This witness admitted in her cross-examination that she has heard about the ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -7- custom of the area and Secretary, Gram Panchayat had obtained her signatures on the certificate. This witness categorically stated in her cross-
examination that her husband had not developed relations with her after her .
engagement. She admitted that it is correct that it is not compulsory to develop physical relations after the engagement and prior to marriage by all and sundry, rather it depends upon the wishes of the boy and girl, who develop such relations.
10. PW5 Pan Raj, who otherwise appears to be cousin of the accused, while stating that engagement of victim-prosecutrix and accused was solemnized in October, 2014 stated like PW2 and PW9 that accused used to visit the house of the victim-prosecutrix after the engagement and marriage inter-se them was fixed. Most importantly, it has come in the statement of this witness that when marriage inter-se accused and victim-
prosecutrix could not take place, family of girl demanded sum of Rs. 5 lac, which could not be paid. It may be noticed here that this witness had got the marriage of proposal settled inter-se prosecutrix and accused. This witness stated that there is custom to meet each other after engagement, but it is not compulsory to develop sexual relations with each other. He stated that if physical relations are made by the accused, then he may have spoiled the life of the victim-prosecutrix. In his cross-examination, he admitted that engagement was solemnized with the consent of both the parties and he does not know that accused had solemnized marriage in the month of October, 2014 at Village Kufa. This witness also admitted that father of the victim had filed an application before Pradhan Killar and SDM Pangi regarding refusal of accused to solemnize marriage with his daughter and he ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -8- had demanded damages from the accused. This witness stated that family of the accused was not able to pay rupees five lac as demanded by the victim's family and thereafter, the matter was reported to the police. This .
witness also stated that victim herself refused to marry with the accused.
11. PW8 Gajinder Singh Ex-BDC Member stated that he had attended the engagement ceremony of the victim-prosecutrix and accused.
He deposed that after the engagement, marriage was fixed, but he does not remember the date. He also stated that after the engagement, accused visited the house of the victim 6-7 times and as per custom of the area, a boy and girl can visit the house and develop sexual relations. In his cross-
examination, he admitted that accused used to visit the house of the victim at the time of the festivals and he has not studied such custom. He while stating that he had developed physical relations with his wife prior to marriage stated that such type of relations are optional and not compulsory.
He also admitted that if both the parties are agreed, only then, physical relations can be developed.
12. Statements having been made by all the aforesaid prosecution witnesses, which are material and relevant for adjudication of the present case at hand nowhere suggests that prosecution was able to prove that there is custom prevalent in the Pangi area that boy and girl after their engagement can live together and have sex. PW2 and PW9 though have corroborated the version put forth by victim-prosecutrix (PW1), but version put forth by them being parents of victim-prosecutrix is required to be taken into consideration with utmost care and caution because there can be an element of bias and interestedness. Other material prosecution witnesses i.e. ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP -9- PW3 to PW5 though talked about prevalent custom in the area as has been taken note herein above, but they have not specifically stated that during this period, accused having taken undue advantage of custom prevalent in .
the area sexually assaulted/developed physical relations with the victim-
prosecutrix, rather they have simply stated that after engagement, they saw accused visiting the house of victim-prosecutrix. Moreover, PW3 and PW4, who have been specifically cited by prosecution to prove the custom, have not stated something specific with regard to custom prevalent in the area.
PW3 while stating that she had seen accused visiting the house of the victim admitted that she does not know whether accused had developed physical relations with victim-prosecutrix after the engagement or not. She has nowhere stated that there is a custom prevalent in the area that after engagement boy and girl can have sexual relations with each other. Most interestingly, PW4 Ex-Pradhan of Gram Panchayat Karyas stated that she does not know, who scribed Ext.PW4/A, this witness while admitting that she is totally illiterate stated that her signatures and stamp were obtained by the police. She stated that she cannot read and write what has been written in the Ext.PW4/A and Secretary Gram Panchayat had obtained her signatures on this certificate. This witness unambiguously stated in her cross-examination that her husband had not developed physical relations with her after her engagement and it is not compulsory to develop physical relations after the engagement and prior to marriage by all and sundry, rather it is upon the wish of a boy and girl to develop such relations. Version put forth by the independent witnesses PW3 and PW4, if read in conjunction juxtaposing statements having been made by PW1, PW2 and PW9, it completely belies ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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the version put forth by victim-prosecutrix and her parents PW2 and PW9 that it is compulsory for a boy and girl to develop physical relations after their engagement as per prevalent custom in the Pangi area, rather it depends .
upon the wish of the boy and girl after their engagement.
13. Similarly, version put forth by PW5 and PW8 nowhere proves the custom of having sexual relationship before marriage. PW5 though has specifically denied the knowledge, if any, with regard to sexual relationship inter-se victim and accused after their engagement, but he has categorically stated that after refusal on the part of the accused to marry victim-
prosecutrix, father of the prosecutrix demanded sum of Rs. 5 lac. He has also denied custom with regard to having sexual intercourse prior to marriage and after engagement as per custom prevalent in the area. PW8 though stated that accused used to visit the house of the victim at the time of the festivals, but nowhere categorically stated that after engagement, accused developed physical relationship with the victim-prosecutrix. He in his cross-
examination admitted that he has not studied such custom and he had developed physical relations with his wife prior to his marriage, but such types of relationship are optional and these are not compulsory.
14. Moreover, onus to prove that there was custom prevalent in the Pangi area that after engagement and prior to marriage, boy and girl can have sexual relationship is /was upon prosecution, especially when the case set up by the prosecution is that accused after getting engaged with victim-
prosecutrix not only lived in the her house many times, but also developed physical relations with her. In the case at hand, with a view to prove custom, prosecution besides prosecutrix and her parents (PW2 & PW9) also examined ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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so called independent witnesses i.e. PW3, 4, 5 and 8, but as has been discussed herein above, none of the witnesses have stated something specific with regard to custom prevalent in the area, rather they simply .
stated that as per custom in the area, accused after his engagement started visiting the house of the victim-prosecutrix and during this period, they had developed physical relations. However, this Court is of the view that prosecution with a view to prove custom as pleaded ought to have placed on record cogent and convincing evidence in the shape of some documentary proof because custom as has been pleaded in the case at hand is totally unheard of. Customs prevalent in the various tribal areas of Himachal Pradesh are either recorded in Wazib-Ul-Arj or gazettes, but in the instant case, no effort ever came to be made on behalf of the prosecution to prove custom as has been pleaded by placing reliance upon the aforesaid documents, if any.
15. Having carefully perused evidence available on record, this Court has no hesitation to conclude that court below has erred in concluding that after engagement, accused developed physical relations with victim-
prosecutrix in the garb of custom prevalent in the area on the pretext of marriage. Apart from statement of victim-prosecutrix, none of the prosecution witnesses have stated that after engagement, accused developed physical relations with victim-prosecutrix under the pretext of marriage, rather all the material prosecution witnesses except PWs 1 , 2 and 9 stated that they saw accused visiting the house of the victim-prosecutrix after his engagement. As has been already observed herein above, version put forth by PW2 and PW9, parents of victim-prosecutrix needs to be scanned ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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minutely and same could not have been believed mechanically by the court below without there being any corroboration by the another prosecution witnesses. No doubt, version put forth by the interested witnesses cannot be .
brushed aside solely on the ground of relationship, but version put forth by such witnesses needs evaluation minutely. In the case at hand, it has come specifically in the statement of PW5 Pan Raj, who as per story of prosecution was instrumental in settling the marriage inter-se victim-prosecutrix and accused that after refusal on the part of the accused to solemnize marriage with the victim-prosecutrix, father of the victim-prosecutrix demanded sum of Rs. 5 lac. Since parents of the accused expressed their inability to pay such huge amount, complainant at hand came to be lodged against the accused. Though other witnesses have denied suggestion put to them with regard to payment of money, but version put forth by this witness remained totally un-shattered. Version put forth by this witness gains significance when it stands duly established on record that prior to lodging of FIR in question, father of victim-prosecutrix lodged complaint with SDM Pangi i.e. Ext.D3, wherein he nowhere stated that his daughter has been sexually assaulted by the accused on the pretext of marriage under the garb of custom prevalent in the area. Careful perusal of Ext.D3 reveals that father of the victim-
prosecutrix simply complained that since accused had refused to marry his daughter, life of his daughter has been spoiled.
16. Though in the instant case, learned court below while placing reliance upon various judgment rendered by the Hon'ble Apex Court has proceeded to hold that delay in FIR is not fatal, but having carefully perused material available on record, this Court is in agreement with learned counsel ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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for the accused that no plausible explanation ever came to be rendered on record on behalf of the complainant with regard to delay in lodging FIR. No doubt, delay in lodging FIR is explainable and can be condoned if plausible .
explanation is rendered on record. In the case at hand as per own case of the prosecution, accused stopped talking to victim-prosecutrix after 27.12.2013, but there is no material available on record suggestive of the fact that after aforesaid date, complaint ever came to be lodged either by the complainant or by the victim-prosecutrix. Even if it is presumed that till December 2014, victim-prosecutrix was under impression that accused would marry her, it is not understood that what prevented the victim-prosecutrix and her parents to lodge FIR immediately after refusal on the part of the accused to marry in December, 2014. In the case at hand, father of the accused instead of lodging FIR chose to file complaint to SDM Pangi Ext.D3, wherein he chose not to disclose factum with regard to physical relationship.
if any, developed by the accused with victim-prosecutrix after engagement, which he ultimately withdrew without any rhyme and reason.
17. If the aforesaid act and conduct of father of victim-prosecutrix is seen and examined, it gives strength to the version put forth by PW5 that after refusal on the part of the accused to marry victim-prosecutrix, father of the victim-prosecutrix demanded sum of Rs. 5.00 lac but since family of the accused failed to pay that amount, father of the victim-prosecutrix withdrew the complaint from SDM and thereafter, after a lapse of two months filed FIR against the accused. Needles to say, delay in lodging report raises considerable doubt regarding the veracity of evidence of the prosecution and points towards the infirmity in the evidence render it unsafe to base any ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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conviction. Delay in lodging FIR quite often results in embellishment, which is definitely a creature of afterthought. In the case at hand, this Court after having carefully perused the conduct of father of the accused, which is .
apparent from the perusal of Ext.D3, is convinced and satisfied that FIR, which is subject matter of the appeal at hand is an afterthought and has been filed/lodged after considerable delay. It is not in dispute that at the time of the alleged incident, victim-prosecutrix was 26 years old and as such, it cannot be said that she was incapable of understanding the consequences of her being in the company of the accused, who allegedly after his engagement with victim-prosecutrix started residing at her house. She has admitted that police station is at the distance of 2 km from her house.
18. Medical evidence adduced on record by the prosecution in the shape of Ext.PW12/A also does not support the case of the prosecution.
PW12 Dr. Minakshi while proving a MLC Ext.PW12/A categorically opined/stated that no external or internal injury was found and seen on the person of the victim-prosecutrix. This witness has categorically opined that no blood scratches or injury were present during internal examination, but opined that on separating labia minora-hymen was absent. In her final opinion, this witness deposed that there was nothing to suggest that sexual intercourse had not taken place with victim-prosecutrix. This witness also admitted in her cross-examination that hymen can rupture due to physical exercise like riding, cycling and masturbation etc. Though, aforesaid medical evidence adduced on record nowhere clearly indicates forcible sexual assault/intercourse, if any, committed by the accused upon victim-
prosecutrix, but even otherwise same cannot be of any help/relevance to ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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the prosecution case, especially when there is no sufficient evidence to connect the accused with the offence alleged to have been committed by him under Section 376 IPC.
.
19. Having seen statements of material prosecution witnesses, as have been discussed herein above especially of victim-prosecutrix, it cannot be said that there was no consent, if any, on the part of the victim-prosecutrix to have sexual relationship with the accused, rather question, which needs to be determined is whether victim-prosecutrix had free consent or same was under the pretext of marriage.
20. In the instant case, learned court below has held that consent under misconception of fact by the prosecutrix on the basis of act and conduct of the offender is not a free consent. On the basis of evidence led on record by the prosecution, court below has concluded that prosecutrix submitted herself under mis-conception of fact that she was consenting for physical relations with her would be husband as the accused by getting engaged to her had intended to adopt her as life partner. The accused in the instant case belonged to the same tribal community and as such, he was having the knowledge that the prosecutrix was submitting herself under misconception of fact that he was going to be her life partner and as such, consent given by the prosecutrix was no consent, as was required under Section 375 of Cr.PC. However, this Court having carefully scanned /examined the evidence, which has been discussed in detail in earlier part of the judgment is not in agreement with the aforesaid finding returned by the court below, especially when prosecution has miserably failed to prove custom, if any, prevalent in the area as pleaded in the case at hand.
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Independent witnesses associated by the prosecution have nowhere stated that custom as has been pleaded in the case at hand is mandatory, rather all the prosecution witnesses in one way or the other have admitted that it .
depends upon boy and girl, whether they want to develop physical relations before marriage or not. Crux of the aforesaid finding with regard to consent recorded by the court below is that prosecutrix surrendered herself under misconception of fact that accused would marry her, meaning thereby, accused repeatedly sexually assaulted victim-prosecutrix on the pretext of marriage.
21. Recently, the Hon'ble Apex Court in case titled Pramod Suryabhan Pawar v. The State of Maharashtra and Anr passed in Criminal Appeal No. 1165 of 2019 on 21.8.2019 had an occasion to deal with almost similar case. While interpreting "consent" of a woman with respect to Section 375 IPC, the Hon'ble Apex Court held that consent of women in relation 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; firstly 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 and; secondly, 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. In the case at hand, though evidence available on record to certain extent suggests that there was promise on behalf of the accused to marry the victim prosecutrix, but admittedly there is no evidence that such promise was false and given in bad faith. There is no evidence suggestive of ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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the fact that accused from the day one after his engagement with prosecutrix had no intention to marry her. All the material prosecution witnesses have stated that after engagement accused started visiting house .
of the prosecutrix, but none of the witness has stated that accused had no intention to marry victim-prosecutrix. Though in the case at hand, factum with regard to engagement inter-se victim prosecutrix and accused stands proved with the statement of PW5 Pan Raj, who was alleged mediator, but if his deposition is read in its entirety, it nowhere suggests that accused got himself engaged with the victim-prosecutrix with a view to have sexual intercourse with her. True it is that intention of the accused while making promise of marriage to victim-prosecutrix, cannot be easily gathered from the statements of prosecution witnesses, but definitely same can be inferred in the totality of facts and circumstances of the case. Though in case at hand, prosecutrix made an endeavor to prove that accused despite his having engaged with victim-prosecutrix solemnized married with some other girl, but that may not be sufficient to conclude that accused had made false promise to the prosecutrix to marry her and such promise was given with no intention to being adhered to especially at the time when it was given because as per own case of the prosecution, accused solemnized marriage with other girl in October, 2014, whereas engagement inter-se prosecutrix and accused took place in September 2013. Relevant paras of the aforesaid judgment are as under:-
"15. In Yedla Srinivasa Rao v State of Andhra Pradesh (2006) 11 SCC 615, the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her.
When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed:
.
"10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl r submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent...."
16 Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:
"21. ... 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 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 ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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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 misrepresentation made to her by the 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 so. Such cases must be treated differently.
...
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the 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 r 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 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." (Emphasis supplied)
17 In Uday v State of Karnataka(2003) 4 SCC 46 the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:
"25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact.::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, .
that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the r prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. 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..." (Emphasis supplied)
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."
22. The Hon'ble Apex Court in Deelip Singh @ Dilip Kumar v. State of Bihar, 2005 (1) SCC 88, held as under:
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27.On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375 IPC, we have the decision of Division Bench of Calcutta High Court in Jayanti Rani Panda vs. State of West Bengal [1984 Crl.L.J. 1535]. The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in .
Uday (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at para 7:
"Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is...... why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged."
The discussion that follows the above passage is important and is extracted hereunder:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact.
But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. S. 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her." (emphasis supplied) The learned Judges referred to the decision of Chancery Court in Edgomgtpm vs. Fotz,airoce (1885) 29 Ch.D 459 and observed thus:
"This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect: "There must be a misstatement of an existing fact." Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Sec. 90 ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact."
After referring to the case law on the subject, it was observed in Uday, supra at paragraph 21:
.
"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
23. Ordinarily, the evidence of prosecution should not be suspect and should be believed and if the evidence is reliable, no corroboration is necessary, but the Hon'ble Apex Court in case titled Rajoo v. State of MP, AIR 2009 SC 858 has very carefully observed that statement made by the prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court because rape cases cause the greatest distress and humiliation to the victim but at the same time, false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The Hon'ble Supreme Court in the aforesaid judgment has categorically held that accused must also be protected against the possibility of false implication and it must be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
.
24. The Hon'ble Supreme Court in case titled Rai Sandeep @ Deepu v. State (NCT) of Delhi, 2012 (8) SCC 21, has held that sterling witness should be of a very high quality and caliber, whose version should, therefore, be unassailable. The Hon'ble Apex Court has held that such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end. Relevant paras of the judgment is reproduced herein below:-
22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said .
version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
23. On the anvil of the above principles, when we test the version of PW- 4, the prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests mentioned above. There is total variation in her version from what was stated in the complaint and what was deposed before the Court at the time of trial. There are material variations as regards the identification of the accused persons, as well as, the manner in which the occurrence took place. The so-called eye witnesses did not support the story of the prosecution. The recoveries failed to tally with the statements made. The FSL report did not co-relate the version alleged and thus the prosecutrix failed to instill the required confidence of the Court in order to confirm the conviction imposed on the appellants.
25. The Hon'ble Supreme Court in case titled Dinesh Jaiswal v. State of MP, (2010) 3 SCC 232, has held that there cannot be any quarrel with the proposition that evidence of prosecutrix is liable to be believed save in exceptional circumstances, but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence or not. On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon , could be regarded as consent for the purpose of Section 375 IPC.
26. If the evidence led on record by the prosecution is tested on the anvil of principle laid down in the aforesaid judgments relied upon in the instant judgment, this Court has no hesitation to conclude that testimony of material prosecution witnesses including prosecutrix is not worth credence ::: Downloaded on - 10/01/2020 20:25:12 :::HCHP
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and no conviction if any, under Section 376 IPC could have been based upon the same.
27. Consequently, in view of the detailed discussion made herein .
above as well as law relied upon, this Court has no hesitation to conclude that learned court below has not appreciated the evidence in its right perspective and as such, findings returned by it deserve to be set-aside.
Accordingly, present appeal is allowed and judgment passed by the Court below is quashed and set-aside and appellant-accused is acquitted of the offence punishable under Section 376 IPC. Bail bonds, if any, are discharged.
Fine amount, if any deposited by the appellant, be refunded to him. Release warrants be prepared forthwith.
Present appeal stands disposed of, so also pending applications, if any.
7th January, 2020 (Sandeep Sharma),
manjit Judge.
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