Jammu & Kashmir High Court
Rajinder Singh vs . State Of J&K on 26 April, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
CRA No. 42/2016
Date of order: 26.04.2019
Rajinder Singh Vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner (s) : Mr. O. P. Thakur, Advocate.
For respondent(s) : Mr. Amit Gupta, AAG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
1. The instant criminal appeal has been filed by the appellant against judgment dated 11.08.2016 passed by 3rd Additional Sessions Judge, Jammu (Fast Track Court) in Challan no. 43/challan vide FIR no.160/2013 titled State v/s Rajinder Singh u/s 376 RPC by which appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 years and a fine to the tune of rupees 50,000/-.
2. The factual matrix of the case is that the prosecutrix (name withheld) approached the Police Station Kanachak on 10.09.2013 through an application dated 10.09.2013 and on the said application an FIR was registered on the same day. In the said FIR the prosecutrix has mentioned that for about last 10 years she has relations with appellant-Rajinder Singh, who had promised to marry her and on this pretext he had raped her many a times, and has now refused to honour his promise and is going to solemnize marriage with some other girl. It was also alleged that on 08.09.2013 at night appellant herein forcibly took the prosecutrix to a field where he raped her. On CRA No.42/2016 Page 1 of 23 this report, FIR No.160/2013 came to be registered with Police Station, Kanachack, Jammu for commission of offence under Section 376 RPC. The investigation of the case was entrusted to Inspector Jatinder Raina. During the course of investigation, the prosecutrix was got medically examined, her statement under Section 164-A Cr.P.C was recorded and it was found that the prosecutrix has been raped by the accused and investigation was culminated in the commission of offence under Section 376 RPC against the accused/appellant.
3. The accused was charge sheeted on 25.03.2014 for offences under section 366/376/506 RPC; he denied the accusation and court below after completion of trial, convicted the accused by virtue of impugned judgment and sentenced him accordingly.
4. The appellant has challenged the impugned judgment dated 11.08.2016 on the following grounds:-
That the Challan was produced against the appellant. 10 witnesses were cited in the Police Challan and statement of all the witnesses was got recorded before the Court, except Doctor Davinder Sanotra PW 7 and his evidence was discarded by the APP and PW 4 Reham Ali did not support the prosecution case about seizure of Condoms and Cluther of Prosecutrix from the place of incident.
That when Prosecutrix appeared before the Court, she tried to set up a different case. She changed the place of her meeting with the accused and she has also concealed that she travelled on the motor cycle of the accused from Chatha Gujran to the alleged place of incident. There is material contradiction between the statement of the Prosecutrix in her application for the registration of F.I.R, her statement under section 164-A Cr.P.C, and her statement recorded before the Court. There is material improvements in her statement which could go to the roots of the case. The statement of the Prosecutrix is contradictory with her own statements and with the statement of her mother Soma Devi. The statement of the Prosecutrix is CRA No.42/2016 Page 2 of 23 not supported by the Medical Evidence. The doctor has categorically said that there is no Sexual Intercourse committed with the Prosecutrix within 72hours where as her medical was conducted within 27hours from the alleged incident. Prosecutrix has alleged that she was raped thrice but no mark of violence was found on her body, she further alleged that she was beaten by the accused but no injury was found on the person of the Prosecutrix. According to the prosecutrix she was of 24 years of age at the time of alleged incident and accused was of 30 years. She was a mature lady and single handed intercourse is not possible without her consent and she stayed for full night with the accused and there was habitation about 100 meters distance from that place and she was provided with dinner but she has not complained or raised any voice. She further projected a case that there is love affair between her and the accused and for the last 10 years she is moving freely with the accused for day and night and there is physical relations between the accused and the Prosecutrix which she concealed from her family members and did not inform any person for 10 years and she has also undergone abortion for 3 times that too she has not informed anybody in her family and concealed it which shows that she is consenting lady and her consent has not been obtained by misrepresentation. There is also material contradiction between the statement of Prosecutrix about the seizure of Condom and Cluther and Sanjay Kumar witness to the seizure further another witness to the seizure of Condom and Cluther Reham Ali did not support the case of the prosecution. Sanjay Kumar is police personnel deputed with the S.H.O. asP.S.0. and is interested person , his statement could not be relied upon in view of the material contradiction That the Judgments cited by the trial Court in the, impugned Judgment does not match with the facts of the present case and could not be relied upon in the present facts of the case which are self-contradictory and contradictory with other evidence produced before the trial Court. There is lot of improvements and enhancement of the version of the Prosecutrix which could not be believed to be true and statement of the Prosecutrix does not inspire the confidence so the Judgments referred in the impugned Judgment could not be relied upon in the present fact of the case.
That it appeared from the material on record that the Prosecutrix wants to solemnize marriage with the accused and when his marriage is settled somewhere else , and there was marriage within 2 days, to stop the marriage of the accused CRA No.42/2016 Page 3 of 23 Prosecutrix fabricated a false case and implicated the accused in a False and Frivolous case to satisfy her personal grudge. The relation between the accused and Prosecutrix was out of love affair and due to their different castes as social binding, marriage could not be made possible. This is a fit case where "UDAY Vs State of Karnataka 2003 SCC (CRA) 775 and Deepak Gulati Case 2013 AIR SCW 2987 could be relied upon and it was not a case of rape but trial court has not appreciated the facts and law in right prospects and passes a erroneous judgment and convicted and sentenced the accused on false grounds.
That the judgment and sentence of the accused passerby the trial court is not based on the facts of the case and deserves to be set aside.
That trial court has not appreciated the facts and law in true prospects and wrongly convicted the accused by relying upon contradictory version of the prosecution witnesses which does not inspire confidence. So Judgment Impugned and Sentence Order deserve to be quashed and set aside.
That the medical evidence does not support the version of the Prosecutrix and there was delay of 34 hours in lodging the F.I.R. that has not been explained in the case."
5. I have heard counsel for appellant, who has reiterated all the grounds taken in memo of appeal, whereas State counsel has supported the judgment. Before re-appreciating the evidence on record, the statements of witnesses as recorded by court below in the impugned judgment reads as under:-
PW-1 Prosecutrix (name withheld) has deposed that she identifies the accused present in the court, who is resident of her village and is residing adjacent to her house. About 10 years ago, they fell in love with each other and during that period, accused used to promise that he will marry her and on this pretext he has also developed physical relations with her and continued for about 8/9 years. Whenever she resisted for physical relationship, accused assured her that he will marry her. In the month of September CRA No.42/2016 Page 4 of 23 last year, brother of the accused told her that marriage of the accused has been arranged with some other lady and the marriage ceremony will be performed within two days. On hearing this, she made a phone call to the accused, who admitted the factum of marriage but told her that the marriage is just for the sake of formality, however, he will live with her. Accused called the witness at her sister's home at Kantowala. She reached there at about 9:00 pm and thereafter accused took her to a field of sugarcane situated at the back side of said house and told her that he is solemnizing marriage under pressure of his family members as they are not ready to solemnize his marriage with the victim. Thereafter, they took meal and during the night, accused had forcibly committed rape upon her thrice despite of the fact that she was in menstruation period and the accused also gave her a beating. Thereafter she went to the police station, Kana Chak and filed a complaint against accused. She testified her signatures on the report and admitted the contents of the same, which is exhibited as EXT-Pl. she has also admitted the contents of the FIR, exhibited as EXT-P1/1. Police has also shown one condom packet to the victim in the police station which was seized by them. Accused has used the condoms from the said packet and committed rape upon her thrice. She was medically examined and her statement under section 164-A Cr.P.C. was also got recorded by the Magistrate, which is exhibited as EXT-P1/2. She identifies her signatures and admitted the contents of her statement recorded under section 164-A Cr.P.C. Accused used to commit rape upon her on the assurance of marrying her.CRA No.42/2016 Page 5 of 23
On cross examination, the victim has stated that the complaint, exhibit EXT-P1 was got written by lady who resides adjoining to the police station. She had informed her mother before filing of the complaint in the police station and informed her about the incident who had accompanied her to police station. She was medically examined after four days of the incident. She was not taken to the place of occurrence. Accused belongs to Rajput community whereas she belongs to Batwal community. She is not aware whether marriage between these two communities can be solemnized or not. Accused maintained sexual relations with her before commencing her menstruation period. She conceived pregnancy for 3/4 times by the sexual intercourse of the accused with her and it was aborted at the instructions of the accused.
PW-2 Soma Devi in her examination in chief has stated that she is the mother of the prosecutrix. Her husband has no landed property and her family members do the work of labour in the fields of landlords of the village by cultivating the crops. While the victim was reading in class 3, accused used to took the victim at different places and sometimes to his house also. The accused had developed physical relations with the victim since long and got her abortion for twice/thrice. Presently the victim is of 26/27 years of age. Accused maintained physical relations with her at the age of 10 years. The engagement of the victim was performed at 3/4 places but all the time, her engagement was cancelled by the intervention of the accused. Father of the prosecutrix has expired for the last 3/4 years and before his death she along with her husband had gone to the house of the accused and CRA No.42/2016 Page 6 of 23 requested the father of the accused to counsel his son, not to harass their daughter. The father of the accused had promised to warn his son to abstain from harassing the victim. The brother in law (jija) of the accused was also requested to counsel the accused, who had also promised to convince the accused but in spite of that accused did not obey them and continued to harass the victim. The accused used to intercept the victim while going to stitching centre at Burj. The accused was solemnizing his marriage and on receiving this information from his relatives, victim went to accused who kept her in a field of sugarcane for whole night and also assaulted her. This was told by the victim to her. She is not aware of filing the report before the police station.
On cross examination by learned defence counsel, witness has stated that she was aware of the physical relations of her daughter with the accused since she was reading in class 3rd or 4th . The complaint with regard to the physical relations by the accused with her daughter was not made to police though it was brought to the notice of Panch, namely, Ganga Ram and the parents of the accused. It is correct that due to threat and fear of the accused, the matter was not brought to the police because parents of the accused are very influential and wealthy persons and they could cause harm to their son also. The parents of the accused had informed her about the abortion of the victim. At one occasion she had accompanied her daughter for abortion.
PW 3 Sanjay Kumar in his examination in chief has stated that he was posted at Police Station, Kanachack on 11.09.2013. He had accompanied with SHO to Kantuwala in connection with the investigation. Accused Rajinder Singh CRA No.42/2016 Page 7 of 23 was also taken to Kantuwala who disclosed and identified a field having the crop of sugarcane where he had committed wrong with the victim. After inspection of the place of occurrence condoms of Cobra brand were recovered and seized. The seizure memo was prepared which bears his signatures and he identified the same and is exhibited as EXT- P3 being true and correct. APP has shown the empty packet of condoms and a ladies clip to the witness, who identified the same.
On cross examination, witness has deposed that accused was taken from police station to the place of occurrence in a police van. The victim was not present on that date and neither she went on spot. The place of occurrence was identified by the accused. One Reham Ali, who met them in the way, had not put his signatures in his presence.
PW-4 Reham Ali has appeared in the court and denied the execution of the seizure memo though admitted his signatures on the seizure memo.3.
PW-5 Raj Kumar has deposed that one motorcycle Pulsar was seized by the police in his presence and a seizure memo was prepared. He had signed the seizure memo as a witness. He testified his signatures upon the seizure memo appended with the file. The contents of the seizure memo are admitted being true and correct and seizure memo is exhibited as EXTP-5. In cross examination stated that he does not know who was owner of motorcycle; and why it was seized; he does not know whether motorcycle was of accused or not. PW-6. Ashwani Kumar, the witness has also admitted the contents of the seizure memo EXT.5. In cross examination has stated that, he does not know whether motorcycle was CRA No.42/2016 Page 8 of 23 belonging to accused Rajinder Singh or not. He does not know in which case it was seized and from where it was brought. He does not know urdu and he was made to sign in police station on seizure memo.
PW 7 was dropped by the prosecution being not necessary to the prosecution case.
PW-8 Dr. Nishu Priya, Gynecologist, has deposed that on 10.09.2013 at 10:00 pm, she had examined the prosecutrix with alleged history of rape and on examination, she found hymen of the prosecutrix was not intact, no bleeding, vaginal slides, UPT, Ultrasound pelvis and x-ray and wrist sent for age verification. In her opinion, there was no evidence of recent sexual intercourse as per UPT, Ultrasound, vaginal slides report. The report was in her handwriting and bears her signatures, and the same was exhibited as EXT-P8. On cross-examination by learned Defence counsel,witness has deposed that she had personally examined the prosecutrix. At the time of examination, there was no sign of any injury. Recent intercourse means, intercourse within 72 hours. PW-9, Jatinder Raina has stated that he was posted as SHO Police Station, Kana chak in the year 2013. On 10.09.2013, victim came to police station and filed a written report inter- alia alleging that accused Rajinder Singh has committed rape upon her. FIR No.160/2013 for the commission of offence under section 376 RPC was registered. The written report annexed with the file is the same which was presented before him by the victim and it has already been exhibited as EXT- P1. The FIR annexed with the file also bears his signatures and its contents are correct which has already been exhibited as EXT-P1/1. The FIR was investigated by him personally CRA No.42/2016 Page 9 of 23 and during investigation he got the medical examination of the victim conducted and arrested the accused on 10.09.2013. The accused was taken to place of occurrence at Kantuwala where he disclosed and identified the place of occurrence with regard to rape. He prepared the site plan and also recovered the empty packets of condom and one clutcher. Seizure memo was prepared in this regard which has already been exhibited as EXT-P3. The motorcycle of the accused was seized and seizure memo was prepared in this regard which has already been exhibited as EXT-P5. During his investigation, offence under section 376 RPC was proved against the accused. On cross examination by the defence counsel, he has deposed that victim was accompanied by her mother at the time of filing the written report. The investigation was commenced on the same day of filing of the written complaint by the victim and first of all, the medical examination of the victim was conducted and on next day, he went to the place of occurrence along with the victim, PSO Sanjay Kumar, Reader Ashraf. There are dwelling house situated at a long distance of 90-100 meters from the place of occurrence. The people gathered on spot were the relatives of the accused that is why he has not arrayed them as a witness.
PW-10 Sh. Nisar Ahmed has deposed that he had endorsed his satisfaction to the investigation made by the IO.
6. From bare perusal of judgment of court below, it is evident that the court below after relying upon some judgments on rape and discussing the same, has given following reasons for conviction of accused :-
"54. I have perused the testimony of the prosecutrix and her mother. The testimony of these witnesses is quiet natural, inspires confidence and merits acceptance. Their evidence does not suffer from any serious infirmity and CRA No.42/2016 Page 10 of 23 thus can be relied upon. Her testimony does not suffer from any contradiction, which touches the core of the prosecution case. There is nothing in her lengthy cross-examination to discredit her testimony or to cast a shadow of doubt on her veracity. She has corroborated prosecution case in all material details.
55. The accused has taken the defence that the prosecution witnesses have given evidence against him wrongly. But there is no evidence of the accused on record to justify such a conclusion that the PWs have falsely implicated the accused. In fact there is nothing on record to show that the PWs have involved the accused in a false case. No such plea had been put to the PWs during their testimony in court and it is apparent that the plea is an afterthought.
56. It is a settled law that if the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Viewed thus, the facts and circumstances of the present case and the evidence adduced by the prosecution, particularly the statement of prosecutrix and her mother which inspire confidence as to its truthfulness, there is no reason forthcoming on the record that the prosecution witnesses have a motive to implicate the accused in a false case. It is also a settled principle of law that testimony of PWs cannot be discarded merely on account of a stray sentence appearing in his cross-examination, more so when the prosecution succeeds in proving its main case against accused.
57. The accused was charge sheeted for the commission of offences under sections 376, 366 and 506 RPC but keeping in view the facts and circumstances of the case and the statements of the prosecution witnesses, offences under sections 366 and 506 RPC are not made out. The prosecution has failed to prove these offences against the accused.
58. In view of above discussions, I am of the considered opinion that the prosecution has succeeded to prove the guilt of the accused namely Rajinder Singh for the commission of offences u/s 376 RPC only beyond all reasonable doubts. I, therefore, hold accused Rajinder Singh s/o Karnail Singh R/O Sui, Tehsil and District Jammu to guilty for the offences punishable u/s 376 RPC for which he is convicted. Copy of judgment be given free of cost to the accused forthwith. The accused is on bail, his bail bonds are cancelled and Addl. Public Prosecutor is directed to take the custody of the accused and produce him at11.30 AM. The file shall now come up for arguments on the quantum of punishment at 11.30 AM today."
7. I have given my thoughtful consideration to whole aspects of the matter.
CRA No.42/2016 Page 11 of 238. For more heinous offence, stricter proofs are required.
9. Further in case of rape, the statement of Prosecutrix is very important since in such cases normally direct evidence is not available. Court has to draw its conclusion from attending circumstances and probability of facts stated by victim. Conduct of Prosecutrix is very important in order to appreciate her evidence on right perspective. There should not be artificiality and unnaturalness in version of victim.
10. In AIR 2012 (SC) 2281 in case titled "Narender Kumar Vs. State (NCET of Delhi), it has been held:-
"23. the court while trying an accused on charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defense to explain as to how and why in rape case the victim and other witness have falsely implicated the accused.
24. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defense. However, great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted for an offence. There is an initial presumption of innocence of accused and the prosecution has brought home the guilt against he accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt. Prosecution has to prove its case beyond reasonable doubt and take support from weakness of case of defense. There must be proper legal evidence and material on record to record the conviction of accused. Conviction can be based on sole testimony of Prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept version of Prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality CRA No.42/2016 Page 12 of 23 and story projected by Prosecutrix is found to be improbable the prosecution case is liable to be rejected."
11. In present case, accused has been charge sheeted with allegation that on 08.09.2013, victim was moving alone on the road on foot and was going to her sister's house at Chata Gujran; meanwhile accused came on motorcycle and took her on her motorcycle at Kanwal and committed rape thrice with her at night. If we go through the statement of victim given on oath, it is evident that she was major (DOB- 25.4.1985) at the time of occurrence; accused was residing in her village adjacent to her house; both were in love with each other and during that period the accused used to promise her that he will marry her; and they developed physical relations with each other which continued for about 8/9 years; accused always assured her that he will marry her. It further appears from the statement of victim that in the month of September last year, brother of the accused told her that marriage of the accused has been arranged with some other lady and the marriage ceremony will be performed within two days; on hearing this, she made a phone call to the accused, who admitted the factum of marriage but told her that the marriage is just for the sake of formality, however, he will live with her. Then accused called her at her sister's home at Kantowala, where victim reached there at about 9:00 pm and thereafter accused took her to a field of sugarcane situated at the back side of said house; there they took meal and during the night, accused had forcibly committed rape upon her thrice despite of the fact that she was in menstruation period and the accused also gave her a beating. She also became pregnant 3/4 times, but was aborted at the instruction of accused.
CRA No.42/2016 Page 13 of 2312. From these facts, it does not appear that victim was ever kidnapped by accused; she went with accused with her consent; in her statement she has no where mentioned that accused took her on motorcycle.
13. In initial complaint Ext.-P1 on basis of which FIR has been lodged there is no mention of motorcycle; it has been stated that accused took her at night and committed rape on her thrice on 08.09.2013; there is no mention of taking her to sister's house. FIR has been lodged on 11.9.2013; this complaint does not bear any date; victim has been medically examined on 11.09.2013; PW-8 Dr. Nishu Priya, Gynecologist, has opined that there was no evidence of recent sexual intercourse as per UPT, Ultrasound, vaginal slides report. She has admitted report EXT-P8. On cross- examination this witness has stated that at the time of examination, there was no sign of any injury. Recent intercourse means, intercourse within 72 hours. There was no sign of any injuries of any types. Certificate also reveals that there was no evidence of pregnancy, if conceived before 17.08.2013.
Pathology report on the file though not exhibited would reveal that slides taken do not bear any spermatozoa.
14. In this way, statement of victim with regard sexual intercourse and she became pregnant ¾ times but aborted, are not supported by medical evidence. The statement of victim that accused beaten her is also not supported with medical evidence.
15. In AIR 2003 SC 3365 in case titled Devinder Singh & Ors., Vs. State H.P., it is held :-
"The medical evidence on record, as we have noticed earlier, does not support the case of the prosecution since on the CRA No.42/2016 Page 14 of 23 basis of medical evidence, it cannot be held affirmatively that the prosecutrix was subjected to sexual assault as alleged."
16. Accused belongs to Rajput community whereas victim belongs to Batwal community; so victim knew that there is hurdle in solemnization of marriage between them, even then he continued to have sexual relationship with her. Section 375 defines the offence of rape and enumerates seven 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 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.
17. Section 90 of the RPC defines "consent" known to be given under fear or misconception:-
"Section 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" Thus, Section 90 though does not define "consent", but describes what is not "consent".CRA No.42/2016 Page 15 of 23
18. 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. Consent 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 ascertained only on a careful study of all relevant circumstances.
19. In Uday v. State of Karnataka reported in (2003) 4 SCC 46, Apex 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:-
"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 straitjacket 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 CRA No.42/2016 Page 16 of 23 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. 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 understand 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 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 intercourse with the appellant, and her consent was not in consequence of any misconception of fact."
20. In Deelip Singh alias Dilip Kumar v. State of Bihar, reported in (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 psychological 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 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 CRA No.42/2016 Page 17 of 23 the promise made by him to marry her, and therefore continued to have sex on several occasions.
After she became pregnant, she revealed the matter to her parents. Even thereafter, 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 damages 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 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."
21. In Crimial appeal no.1443 of 2018 decided on 20.11.2018, in case titled Dr. Dhruvaram Murilidhar Sonar v. The State of Maharashtra, the Apex court after relying 'Uday Vs. State of Karnataka' and 'Deelip Singh alias Dilip Kumar Vs. State of Bihar' (Supra), has further held as under:-
CRA No.42/2016 Page 18 of 23"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 station, the accused was arrested by the police.
The Court held that the physical relationship between the parties had clearly developed with the consent 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 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight 16 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".CRA No.42/2016 Page 19 of 23
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 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 between the parties would not constitute an offence under Section 376 of the IPC."
22. It is the case of victim that about 10 years ago, she fell in love with accused and during that period, accused used to promise that he will marry her and on this pretext he has also developed physical relations with her and continued for about 8/9 years. It is further case of victim that brother of the accused told her that marriage of the accused has been arranged with some other lady and the marriage ceremony will be performed within two days. On hearing this, she made a phone call to the accused and accused called the witness at her sister's home at Kantowala, where she reached at about 9:00 pm and thereafter accused took her to a field of sugarcane situated at the back side of said house; they took meal and during the night, accused had forcibly committed rape upon her thrice despite of the fact that she was in menstruation period and the accused also gave her a beating. So from these facts, it is evident that victim lodged FIR under CRA No.42/2016 Page 20 of 23 section 376 RPC only when she came to know that accused is going to solemnize marriage with other lady.
22. From these facts and applying above law, this court is of the considered opinion that in any case, if any sexual intercourse has taken place that has taken place consensually, which does not constitute rape in terms of section 376 RPC.
23. Now coming to seizure memo EXT-P3 of condoms and cluther of victim on spot, it is evident, I/O has seized these on spot in presence of two witnesses PWs Sanjay Kumar and Reham Ali. PW Reham Ali has not supported this fact. PW Victim has categorically stated that accused raped on her thrice and he used condoms. Had these condoms been used then definitely there would be having sign of spermatozoa; but except seizure police did not get these examined from FSL, in order to come to conclusion about sexual intercourse on victim by accused. So far as seizure memo of Motorcycle EXT-P/5 is concerned , as per its contents it was produced by accused Rajinder Singh on 20.11.2013 in presence of PWs Ashwani Kumar and Raj Kumar; PWs Ashwani Kumar and Raj Kumar witnesses to seizure Memo EXT-P/5 have stated that they do not know, whether motorcycle was of accused or not; why it was seized and from where and in which case it was seized. They have also stated that their signatures were obtained at Police Station. This relevant fact has not been proved beyond reasonable doubts. Although this has not too much of importance, but this fact can be considered along with other attending circumstances.
24. In 2016 AIR SC 406 in case titled Tilak Raj.v State of H.P., a three judges bench of apex court has held as under:-
CRA No.42/2016 Page 21 of 23"We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable. The evidence as a whole including FIR, testimony of prosecutrix and MLC report prepared by medical practitioner clearly indicate that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the Appellant seems to be consensual in nature. The trial court has rightly held thus: "23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bed room at night.
24. The entire circumstances discussed above and which have come to the fore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature.
25. It is also not the case that the consent had been given by the prosecutrix believing the accused's promise to marry her. For, her testimony itself shows that the entire story of marriage has unfolded after 05.01.2010 when the accused was stated to have been summoned to the office of the Dy. S.P. Prior to 05.01.2010, there is nothing on record to show that the accused had been pestering the prosecutrix for any alliance. The prosecutrix has said a line in her examination- in-chief, but her cross- examination shows that no doubt the two were in relationship, but the question of marriage apparently had not been deliberated upon by any of the two. After the sexual contact, come talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage."CRA No.42/2016 Page 22 of 23
25. In view of what has been discussed above and law on the subject, I am of the considered opinion that prosecution has not established its case beyond reasonable doubts. Statement of victim does not inspire confidence of Court. This appeal is allowed and impugned judgment of conviction and order of sentences, are set aside. Appellant be set free, if not required in any other case.
( Sanjay Kumar Gupta ) Judge Jammu:
26.04.2019 Bir* NARINDER KUMAR SHARMA 2019.04.26 12:24 I attest to the accuracy and integrity of this document CRA No.42/2016 Page 23 of 23