Tripura High Court
Shri Sanirai Kaloi vs The State Of Tripura on 22 December, 2020
Equivalent citations: AIRONLINE 2020 TRI 380
Author: S. Talapatra
Bench: S. Talapatra, S. G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) 50 of 2019
Shri Sanirai Kaloi,
son of Suran Manik Kaloi,
resident of Baishyamanipara,
PS: Ompi, Dist: Gomati Tripura
----Appellant(s)
Versus
The State of Tripura
---- Respondent(s)
For Appellant (s) : Mr. P.K. Biswas, Sr. Adv.
: Mr. P. Majumder, Adv.
: Mr. S. Roy, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. PP
Date of hearing : 05.06.2020
Date of pronouncement : 22.12.2020
Whether fit for reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
Judgment & Order
(S. Talapatra, J)
This appeal by the convict is directed against the judgment and order of conviction and sentence respectively dated 03.08.2009 and 05.08.2009 by the Addl. Sessions Judge, Gomati Judicial District, Udaipur in Case No.ST 25 (GT/A) of 2017 (T-1). By the said judgment, the appellant has been convicted under Section 417/376(2)(n) of the IPC. Pursuant to the said judgment, the appellant has been sentence to suffer rigorous imprisonment Page 2 of 52 of ten years and to pay fine of Rs 30,000/- with default stipulation for commission of offence punishable under Section 376(2) (n) of the IPC. He has been further sentenced to suffer simple imprisonment for six months for commission of offence punishable under Section 417 of the IPC. Both the sentences are directed to run concurrently. The period of detention, if any, undergone by the convict during investigation, inquiry and trial, has been directed to be set off from the substantive period of imprisonment. [2] The genesis of the prosecution case is rooted in the complaint (Exbt-1) lodged by the victim (PW-1) [the name is withheld to protect the identity of the victim] to the Officer-in- Charge, Ampinagar Police Station, Gomati District revealing that that the appellant by profession a government teacher had developed a relation that „of husband and wife‟ since 2012 on promise of marriage with her. In the complaint, it has been categorically stated that there had been physical relation and the appellant used to come in her house at night and stayed there. The victim used to go to the appellant‟s rented house. For „few days‟ before lodging the complaint, when the victim insisted the appellant to marry her, the appellant refused to marry her. The said affair was known to the parents of the victim as well as of the appellant. On 25.11.2016, when the victim got the information Page 3 of 52 that without apprising her, the appellant had settled his marriage with one girl, the victim informed her father. On the day of filing of the complaint i.e on 24.11.2016, the village elders and the chieftain held a meeting for an amicable settlement and in the meeting, the appellant admitted the love affair till January, 2014. Till 19.11.2016, according to the victim, the appellant used to call her but by resiling from the promise, he denied to marry the victim and the advice of the meeting as held on 24.11.2016 was also defied by him. On the basis of the said complaint (Exbt-1), Ompi PS Case NO.2016OMP009 under Section 417/376 of the IPC was registered as is evident from the first information report (Exbt-2) and taken up for investigation.
[3] It appears from the record that on completion of the investigation, the police report was filed on chargesheeting the appellant. In due course, on taking cognizance, the police papers were committed to the Sessions Judge, Gomati District, Udaipur for trial. The Sessions Judge, Gomati District Udaipur, had transferred the said case to the Court of the Additional Sessions Judge, Gomati District Udaipur, hereinafter referred to as the trial judge, for trial. On 22.08.2017, the charge was framed under Section 417 of the IPC for cheating the victim, by deceiving or dishonestly inducing her to compromise her chastity and to have Page 4 of 52 sexual intercourse on the promise of marriage. The charge was also framed under Section 376(2)(n) of the IPC for committing rape repeatedly. The appellant pleaded not guilty and claimed to be tried in accordance with law.
[4] In order to substantiate the charge, the prosecution adduced as many as nine witnesses (PWs-1 to 9) including the victim (PW-1) and proved in the evidence nine documentary evidence (Exbts-1 to 9) including the medical examination report of the victim (Exbt-8) and her statement as recorded under section 164(5) of the CrPC (Exbt-2). After recording of the prosecution‟s evidence, the appellant was examined under Section 313(1)(b) of the CrPC to have his response to the incriminating materials. In the said examination, the appellant has categorically stated that he had denied all the allegations brought against him in the meeting that was held on 24.11.2016. He has denied all other allegations. He has categorically stated he did not have any love affair nor had he maintained any physical relation with the victim who happens to be his cousin sister. He has further stated that in the meeting he had stated that he was already married. When, by the meeting, he was requested to find a suitable groom for the victim and to bear the cost of marriage, he had denied the allegations, but he has stated that they agreed to hold the Page 5 of 52 marriage of the victim with any other person as the victim was his cousin sister. In response to the question No.32, the appellant has stated that the victim is his cousin sister. He always avoided her when she insisted him to involve in a relationship with her. He had never maintained any love-relation with the victim nor had there been any promise to marry her for having physical relation as the victim is his cousin sister. There could not be any physical relation. He had always maintained the brother sister relationship. The appellant had stated that he had married one Manoraman Debbarma which was solemnized on 21.08.2015. He has also asserted that he has produced the marriage certificate with original with a photocopy. The allegations are malicious in nature and such allegations have been leveled as the appellant denied to have involved in the relationship with the victim. [5] To rebut the evidence of the prosecution and to support his contention as reflected in the statement made during the investigation under section 313 of the CrPC, the appellant adduced two witnesses (DWs 1 and 2). The trial judge having appreciated the argument as placed by the prosecution and the defence over the charge and having appreciated the evidence returned the finding of conviction on observing that it has been established by the prosecution that consent to physical relation by the appellant Page 6 of 52 was obtained on misconception of fact i.e. false assurance of marriage by the appellant. The said finding is under challenge in this appeal. Mr. P.K. Biswas, learned senior counsel assisted by Mr. P Majumder, learned counsel appearing for the appellant has contended that there is no proof of sexual intercourse, committed by the appellant. The victim tried to ensnare the appellant for marriage and as such she had designed the complaint of sexual intercourse on promise of marriage. To see them together is not material in the case as they are the cousins. It has been stated by the victim that after January, 2014, the appellant did not meet her physically but according to her they used to talk to each other over phone.
[6] Mr. Biswas, learned senior counsel has submitted that it is unlikely that when the appellant married on 21.08.2015, the victim was unaware of that fact. Moreover, the marriage was solemnized under the provisions of Special Marriage Act, which requires the public notice of marriage by the intending parties. That apart, from the evidence of DWs 1 and 2, it will be apparent that the marriage was socially celebrated (see the testimony of DW-1, Gitush Debbarma). DW-2, Labanna Kaloi, a cousin of the appellant and the victim has categorically stated that she attended the that social marriage was solemnized between the appellant Page 7 of 52 and Manorama Debbarma on 21.08.2015. She has given an important input in the trial that the distance between the house of victim and the accused is about 300 meters. After marriage, the appellant had been residing with his wife, Manoarama Debbarma in his house. Even though she was examined by the investigating officer and she had disclosed the fact, but the prosecution held her back as the witness. DW-2 has also stated that the victim did never tell him anything about any relation with the appellant. [7] Mr. Biswas, learned senior counsel has submitted that if the testimony of the victim is scrutinized as a whole, particularly in the perspective of cross examination, it would be apparent that she is not only inconsistent. Even she had no objection in the marriage of the appellant. That apart, Mr. Biswas, leaner senior counsel has submitted that the victim has clearly stated in the cross-examination that her mother and father of the appellant are full blood sister and brother. She has also admitted in the cross- examination that she sent a message on 25.07.2016 that she would kill herself if the appellant failed to give Rs.5,00,000/- to her. In the other message sent on the same date at 10.39 pm, the victim stated that she would be committing suicide by consuming poison and making the appellant liable for that. By another message sent on 01.06.2016, at 9.17 am, she stated that she had Page 8 of 52 no objection if the appellant married someone. There is another message where the victim requested the appellant to look for a suitable boy for her or otherwise there might be some „problems‟. In another message, the victim demanded a sum of Rs.5,00,000/- from the appellant and it has been stated that if the demand is not fulfilled, she would kill him. In another message, the victim had stated that she had objection as regards the appellant‟s getting married with another girl, if he continued to talk to her. In another message, the victim demanded a sum of Rs.10,00,000 for her marriage. By another message, the victim wanted to know from the appellant when the said sum would be paid.
[8] Mr. Biswas learned senior counsel has submitted that trial judge has dismissed those evidence by stating that those are selective messages placed by the defence. It has been pointed out by Mr. Biswas, learned senior counsel that the trial judge has surprisingly observed as follows:
"Unless the complete series of messages exchanged between the accused and prosecutrix, are before the court in the form of legal evidence, this court cannot rely only upon the conversation of the prosecutrix, in such messages. Moreover the accused also did not produce the contents of such messages in the form of evidence. As far as the answer of the prosecutrix in her cross-examination that "in another message I stated that I will talk to the parents of Manorama Debbarma" is concerned, it appears to this court that the accused might have told the prosecutrix in chatting on mobile that "the parents of Manorama Debbarma were proposing marriage of Manorama with the accused" and probably the prosecutrix replied that "I will talk to the parents of Manorama Debbarma". From the contents of messages it is crystal Page 9 of 52 clear that such messages were not unilateral but were the result of chatting between the accused and prosecutrix The other messages regarding demand of money from the accused and threatening, are also appeared to be not unilateral but were the result of chatting between the accused and prosecutrix. So unless the complete series of messages exchanged in chatting between the accused and prosecutrix, are available in the record in the form of evidence no inference can be drawn basing on such messages."
[9] Mr. Biswas, learned senior counsel has expressed concern the way the evidence has been appreciated. In support of his contention, Mr. Biswas, learned senior counsel has relied a recent decision of the apex court in Shivashankar @ Shiva vs. State of Karnataka (the judgment dated 06.04.2018 delivered in Criminal Appeal No.504 of 2018) wherein the apex court had occasion to observe as follows:
"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 together as man and wife."
[10] Over that question, another decision of the apex court in Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others reported in AIR 2019 SC 327 has been relied by the Mr Biswas, learned senior counsel appearing for the appellant. In Dr. Dhruvaram Murlidhar Sonar (supra) the apex court having relied Shivashankar @ Shiva (supra), where it was held, as reproduced before, that in the course of relationship which has continued for eight years, having a sexual intercourse cannot later on be termed Page 10 of 52 as rape when the victim has stated that they lived together as man and wife, the apex court has elaborated the proposition in the passages as reproduced below:
"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.
21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home." Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had Page 11 of 52 taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.
22. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C."
[Emphasis added] [11] The counsel for the appellant has relied two decisions of the apex court on consent under misconception of fact vis-a-vis section 90 of the IPC. In Uday vs. State of Karnataka reported in (2000) 34 SCC 46, the apex court had observed as under:
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 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.
22.The approach to the subject of consent as indicated by the Punjab High Court in Rao Har Narain Singh : 1958 Cri LJ 563 and by the Kerala High Court in Vijayan Pillai : (1989) 2 Ker LJ 234 has found approval by Page 12 of 52 this Court in State of H.P. vs. Mango Ram (2000) 7 SCC
224. Balakrishnan, J. speaking for the Court observed :-
"The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. 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 after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
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 it. 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.
24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her.
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 Page 13 of 52 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. 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 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, is 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. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."
[Emphasis added] [12] Mr. S. Ghosh, learned Addl. PP. appearing for the respondent in order to repel the submission advanced by the Page 14 of 52 counsel for the appellant has quite emphatically submitted that there is no reason to disbelieve the testimony of PW-1 (the victim) inasmuch as she has been categorically stated that on assurance of marriage, a physical relation between victim and the appellant took place and their relation had begun in 2004. She has also stated that 0from 2004 onwards they had established physical relation several times even though they are the first cousins. Mr. Ghosh, learned Addl. PP has submitted that if the statement of the victim is read together with the statement recorded under section 164(5) of the CrPC where she has stated to the recording Magistrate that on 2004, the appellant proposed her but she did not agree to establish an affair with him then the appellant insister her and assured to marry her. Since, 2004 she was in the relationship and the appellant used to visit her regularly and she used to visit his house. She had agreed to have the physical relationship with him on assurance that he would marry her and according to her lastly on 15.01.2014, they had last physical relation in her house and also in his house. She had also revealed about their relation to her parents on 10.04.2012. When she learnt that appellant was going to marry another girl on 15.01.2016, she had informed the development to her father who in turn reported the matter to the chieften. She has categorically Page 15 of 52 stated that the appellant had revealed in the said meeting that he had relation with another girl and they were married by the. He had formally married that girl on 25.11.2016. Since the appellant had refused to marry her, she had filed the complaint. [13] Mr. Ghosh learned Addl. PP has submitted as regard the admission in the cross examination in respect of the mobile messages. According to him, this cannot be taken into consideration, inasmuch as primary documents, the electronic messages have not been placed before the court. Mr. Ghosh, has finally submitted that the prosecution witnesses have corroborated her testimony in parts where they were witnesses of the transaction. Thus, the finding of conviction does not warrant any interference from this court.
[14] Mr. Ghosh, learned Addl. PP has relied a decision of the apex court in State of Uttar Pradesh vs. Naushad reported in (2013) 16 SCC 651 where the apex court held that in view of Section 90 of the IP if consent is given by the prosecutrix under misconception of fact, it is vitiated. When the accused had sexual intercourse with the prosecutrix on giving false assurance to her that he would marry her and becomes evident from the records that he never intended to marry her and procured her consent only for the reason of having sexual relation with her, that act of Page 16 of 52 the accused falls squarely under misconception of fact as he had sexual intercourse with such consent, as defined under section 90 of the IPC. For better the following passages are reproduced from Naushad (supra):
"19. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her.
20. In Yedla Srinivas Rao v. State of A.P. : (2006) 11 SCC 615, with reference to similar facts, this Court in para 10 held as under:-
"10. It appears that the intention of the accused as per the testimony of PW1 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 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 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 persuaded the girl to believe that he is going to marry her and obtained her consent for the Page 17 of 52 sexual intercourse under total misconception, cannot be treated to be a consent."
Further, in para 17 of the said judgment, this Court held that:-
"17. In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of PW1 as well as PW6 who was functioning as Panchayat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her."
Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact."
[15] On the same proposition of law Mr. Ghosh learned Addl. PP has relied two decisions of the apex court in Pramod Suryabhan Pawar vs. State of Maharashtra reported in (2019) 9 SCC 608 and Anurag Soni Vs. State of Chhattisgarh reported in AIR 2019 SC 1857. In both the judgments, the apex court has restated the law that "consent" based on misconception of fact is not consent in the eye of law. Where the promise to marry turns out to be false at the time of making promise that is not to abide by, but to deceive woman to convince to engage in sexual relation. There is a misconception of fact and that vitiates women‟s "consent". On the other hand, breach of promise cannot be said to be false promise as there is distinction in promises. For Page 18 of 52 example, in a case one undertaking by the maker was made to be broken and in the other, a case of breach of promise which is made in good faith but subsequently not fulfilled. 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. Based on such promise, the consent obtained from a woman cannot be treated as the consent under Section 375 of the IPC. To establish where the consent was vitiated by misconception of fact, two propositions are to be taken care of viz. (1) 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 (2) 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.
[16] It would be apposite to refer the following passages from Pramod Suryabhan Pawar (supra) to reflect how the apex court has appreciated the law:
"14. In the present case, the "misconception of fact"
alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh : (2019) 13 SCC 1, this Court held:
"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who Page 19 of 52 gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."
Similar observations were made by this Court in Deepak Gulati v State of Haryana : (2013) 7 SCC 675 "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..."
15. In Yedla Srinivasa Rao v State of Andhra Pradesh, 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 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 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."Page 20 of 52
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 : (2013) 7 SCC 675 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 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 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."
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 Page 21 of 52 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. 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 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..."
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 Page 22 of 52 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."
[Emphasis added] [17] Mr. P Majumder, learned counsel for the appellant has placed reliance on some other decisions as regards how to establish whether the consent was vitiated for "misconception of facts" arising out of promise to marry as referred in Pramod Suryabhan Pawar (supra). Reference has been made in Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1 SCC 88, where the apex court having approvingly referred to the decision of Madras High Court in N Jaladu, Re reported in ILR (1913) 36 MAD 453 had observed that a misrepresentation as regards the intention of the person seeking consent could give rise to the misconception of facts. Applying the principle to a case arising under Section 375 of the IPC, consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact, but a promise to marry without anything more, will not give rise to "misconception of fact" within the meaning of Section 90 of the IPC. Representation made deliberately by the accused with a view to elicit the consent of the victim without having the intention or Page 23 of 52 inclination to marry her will vitiate the consent. If on the facts, it is established that at the very inception of making of promise, the accused did not really narrated the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent given by the victim, will be of no avail to the accused to escalpate him from the ambit of section 375, Clause "secondly" of the IPC.
[18] Mr. Majumder, learned counsel has made a further reference to the following passages from Deelip Singh (supra) which according to him has close relevance in the present case:
"33. Coming to the first question, it is not easy to find a dividing line between submission and consent - a distinction which was pointed out by Coleridge J., reiterated by Tekchand J. in the Punjab decision and further reiterated by this Court in the two decisions referred to supra, except in the situation contemplated by clause fifthly of Section 375. Yet, the evidence has to be carefully scanned. It is fairly clear from the evidence of the victim PW12 that the predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her about the prospect of marriage with the accused. That she came to the decision to have a sexual affair only after being convinced that the accused would marry her, is quite clear from her evidence which is in tune with her earliest version in the first information report. There is nothing in her evidence to demonstrate that without any scope for deliberation, she succumbed to the psychological pressure exerted or allurements made by the accused in a weak moment. Nor does her evidence indicate that she was incapable of understanding the nature and implications of the act which she consented to. On the other hand, the scrutiny of evidence of PW12 gives a contra indication.
34. According to PW 12, she did not like accused making passionate gestures and therefore, she went to the house of the accused and made a complaint to his 'bhabhi'. Though she promised to restrain him, the accused continued to do so. Her further version is that she was not willing to marry the accused; even then the accused used to come to the courtyard of her house many a time and it Page 24 of 52 was within the knowledge of her parents and brother that the accused used to talk to her for hours. She used to accompany him whenever he wanted. Another statement of significance is that she tried to resist the talk of marriage by telling the accused that marriage was not possible because they belonged to different castes. However, she agreed to marry him after she was raped and under the impression that he would marry, she did not complain to anybody. These statements do indicate that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. The prospect of the marriage proposal not materializing had also entered her mind. Thus, her own evidence reveals that she took a conscious decision after active application of mind to the things that were happening. Incidentally, we may point out that the awareness of the prosecutrix that the marriage may not take place at all in view of the caste barrier was an important factor that weighed with the learned Judges in Uday's case in holding that her participation in the sexual act was voluntary and deliberate."
[19] In Deepak Gulati vs. State of Haryana reported in (2013) 7 SCC 675 which had referred to Pramod Suryabhan Pawar (supra), the apex court has revisited the law relating to consent under misconception of fact. That apart, it has been succinctly held that " Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the Page 25 of 52 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."
[20] In Deepak Gulati (supra), it has been also observed by the apex court that the sole question that occupies paramount importance is whether the prosecutrix‟s consent had been taken on false promise of marriage. Section 417, 375 and 376 IPC are to be taken into consideration along with Section 90 of the IPC as Section 90 of the IPC provides that any consent given on misconception of facts would not be considered as valid consent. So far as the provisions of Section 375 of the IPC are concerned, such physical relationship would be tantamount to committing rape, where the prosecutrix under a misconception of fact that the accused was likely to marry her, submitted to the lust of the accused, such a fraudulent act cannot be said to be consensual so far as the offence of the accused is concerned. The following passages from Deepak Gulati (supra) are of relevance in the context of the present case:
21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind Page 26 of 52 weighing, as in a balance, the good and evil on each side.
There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
22. In Deelip Singh : (2005) 1 SCC 88, it has been observed as under:
"19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
23. This Court, while deciding Pradeep Kumar Verma :
(2007) 7 SCC 413, placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re : ILR (1913) 36 Mad 453, wherein it has been observed:
"11. '26..............".......We are of opinion that the expression "under a misconception of fact" is broad enough to include all cases where the consent is Page 27 of 52 obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) [states] that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married........ "thus ... if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person". ... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
[21] The counsel for the appellant has thereafter placed two decisions of the apex court on mens rea at the time of inducing the person so cheated vis a vis section 415 of the IPC which defines cheating. The statutory provision is very clear as it provides whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or ommit to do anything which he would not do or omit, if he were not so deceived and which act or ommission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to be „cheat‟. Apparent on the face of the provision that the said section has two parts. While in the first part the person must „dishonestly „or „fraudulently‟ induce the person so deceived to deliver any property, in the second part the person Page 28 of 52 should intentionally induce the person so deceived to do or commit delivery or retention of property or to damage to reputation etc. When the offence is sought to be brought in the second part, it has to be established or made out that the person accused of cheating had intention of causing damage or harm to the victim‟s mind, body, reputation or property from inception. Hence, a guilty intention is an essential ingredient for the offence of cheating. In other words, to hold a person guilty for committing offence or cheating it has to be shown that his intention was dishonest at the time of making the „promise‟. Such a dishonest intention cannot be inferred from a mere fact that he could not subsequently fulfill the promise. This court before appreciating the decisions pressed by the counsel for the appellant would refer to few other decisions of the apex court.
[22] In State of Kerala vs. A. Pareed Pillai reported in AIR 1973 SC 326, the apex court has clearly observed that for forming criminal liability it has to be proved that from the very beginning a dishonest intention on the part of the person who is accused of cheating did exist. Merely that the accused could not keep the promise is inadequate to form the criminal liability. However, that breach may give rise to a civil liability. It has been clearly stated by the apex court in A Pareed Pilla (supra) that it is not sufficient Page 29 of 52 to fasten a criminal liability on them. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.
[23] In S.W. Palanitkar And Ors vs State Of Bihar reported in (2002) 1 SCC 241, the apex court has restated the law as follows:
"The ingredients of the offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)
(b), the act of omission should be one which causes or is likely to cause damage or harm .to the person induced in body, mind, reputation or property. One of us (D.P. Mohapatra J.) speaking for the Bench, in Hridaya Ranjan Prasad Verma & Ors. v. State of Bihar & Anr, [2000] 4 SCC 168, on facts of that case, has expressed thus :
"In determining the question it has to be kept in mind that the distinc- tion between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transac-tion, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudu-lent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
[emphasis supplied] Page 30 of 52 Finding that ingredients of the offence of cheating and its allied offences had not been made out, this Court interfered with the order of the High Court and quashed the criminal proceedings.
In G.V. Rao v. L.H.V. Prasad & Ors., [2000] 3 SCC 693, this Court in para 7 has stated thus :-
"As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the com- plainant to deliver any property; in the second part; the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR (1956) SC 575 a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered"
[emphasis added] [24] In B. Suresh Yadav vs Sharifa Bee reported in (2007) 13 SCC 107, the apex court has reiterated the law as enunciated in S.W. Palanitkar (supra) to add that for purpose of establishing the cheating the person accusing someone is required to show that the said person had fraudulent or dishonest intention at the time of making promise or representation.
[25] In Suryalakshmi Cotton Mills Vs. Rajvir Industries reported in (2008) 13 SCC 678, the apex court having referred to B. Suresh Yadav (supra) has restated the law that for establish the cheating the person who complaints of such criminal act is Page 31 of 52 required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. [26] The counsel for the appellant has referred those reported to nourish his submission. It has been contended that the prosecution, in the case in hand, has failed to establish the ingredients that from the very beginning the appellant had fraudulent and dishonest intention, if it is assumed that he had sexual intercourse with the victim, but is denied.
Anil Mahajan vs. Bhor Industries Ltd. and another reported in (2005) 10 SCC 228 where the apex court had occasion to observe as below:
"From mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning that is when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest is shown at the beginning of the transaction. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence."
[Emphasis added] It has been observed further that mere mention of the words "deceived" and "cheated" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, without any averment about deceit, cheating or fraudulent intention of the accused, it cannot be inferred that the accused Page 32 of 52 had the intention to deceive the complainant. In that decision, a reference to Nagawwa vs. Veeranna Shivalingappa Konjalgi reported in (1976) 3 SCC 736 has been made by the apex court where it had been observed that when somebody suffers injury to his person, property or reputation, he may remedy both under criminal and civil law. The injury alleged may form the basis of civil plaint and may also constitute the ingredients of some crime punishable under criminal law. In Nagawwa (supra) it has been clearly held that "To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence."
[27] Similar proposition has been laid down in K.P.Thimmappa Gowda vs State Of Karnataka reported in (2011) 14 SCC 475, as referred by the counsel for the appellant. In K.P.Thimmappa Gowda (supra) the apex court has observed as under:
"5. In the appeal filed by the State Government the High court reversed the finding of the trial court and held that the appellant had raped Rathnamma and had promised to marry her. It was observed that since the accused had given the impression that he would honour his promise of marrying her, this fact was not disclosed by her to anybody, including her mother. Admittedly, the appellant has married another woman. We are of the opinion that the appellant deserves the benefit of doubt because on careful consideration of the evidence on Page 33 of 52 record, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. In criminal cases, the rule is that the accused is entitled to the benefit of doubt. If the court is of the opinion that on the evidence two views are reasonably possible, one that the appellant is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the accused."
[28] For appreciating whether the victim gave her consent on misconception of fact for the sexual intercourse and whether at the very beginning of giving purported promise, the appellant had the intention to deceive, we need to appreciate the evidence on record. We have taken an exhaustive note of the submission made by the counsel for the parties and also noted the position of law in that respect.
[29] As stated the persecution adduced 9(nine) witnesses and 9 (nine) documentary evidence including the medical examination report of the victim (Exbt-8). The defence produced two witnesses.
[30] PW-1 is the complainant and the victim. According to her, she had been having sexual intercourse since 2004 and there was assurance of marriage with the appellant. However, the complaint has been filed after 12 years of the first occurrence as deduced from the statement of PW-1. PW-1 in the trial and in the complaint (Exbt-1) has clearly stated that she had filed the complaint having gathered the knowledge that the appellant was going to marry "another girl" without informing her on Page 34 of 52 25.11.2016. The complaint was filed on 24.11.2016. We have already taken note of the complaint and hence we avoid repeating the same. In the trial, the victim has stated that the appellant whom she identified in the trial is her first cousin. Against him, she has lodged the complaint alleging that she had love relation with him since 2004. Thereafter, the victim has stated in the trial as follows:
"He had promised to marry me. But did not fulfill his promise. On the assurance of marriage a physical relation between us also took place. He finally refused to marry me in the year 2016. I informed the matter to my parents, as well as, the local inhabitants whereupon a Salish was held on 24.11.2016 wherein Sanirai accepted that there was a love affairs, as well as, physical relation between us but refused to marry me as he wanted to marry another girl but refused to divulge her name."
[31] PW-1 has further stated in the trial that she had informed her parents on 10.04.2012 that there was love affairs between the appellant and her. Her complaint was written by one Prabir Shil (PW-5) and she put her signature on the complaint. She identified the complaint (Exbt-1). The police had produced her before the Magistrate for recording her statement (see Exbt-2 series). She was also taken for medical examination to Ompi Hospital. Thereafter, she made categorical statement that „from 2004 itself we had established physical relation several times'. [32] In the cross examination, she has stated that her elder sister was unmarried. She has made a revealing statement in the Page 35 of 52 cross examination that her mother and father of the appellant are full blood sister and brother. She has admitted that she has a mobile phone having no. 9856917843. She has further admitted that the distance of house of the appellant and that of theirs is less than 500 meters. The family of the appellant, according to her consists of the appellant, his parents and two sisters. She denied the suggestion that there was no love affair and there had been no physical relation between the appellant and her since 2004. She has denied that she tried to evolve a love affair with the appellant and the appellant has refused as she was his first cousin. Even she has denied that the appellant married one Monorama Debbarma on 21.08.2015 under Special Marriage Act. Thereafter, she has made the following statement:
" I do not know that same day a feast was held in the house of Sanirai and I along with my family member went to attend the same."
[33] Thereafter she has made certain unequivocal admissions and on considering their relevance, the relevant part is extracted as under:
"It is a fact that I sent one message to Sanirai on 27th May, 2016 at 5.53 pm and further on the following day also I sent a message on Sanirai's mobile at 10.39 pm. Thereafter, on 1st June, 2016 at 9.17 am I sent a message to Sanirai. Further, on 24th June, 2016 at 9.23 pm I sent a message to Sanirai. On the following day, i.e. on 25th June, 2016 at 6.26 pm I sent a message to Sanirai. Thereafter on 26th June, 2016 at 2016 pm I again sent a message to Sanirai. On 29th June, 2016 at 01.04 pm I sent a message to Sanirai. Thereafter on 11 th July, 2016 at 11.38 am I sent a message to Sanirai. On 16th September, Page 36 of 52 2016 at 7.55 pm I again sent a message to Sanirai through mobile. Thereafter, on 13th October, 2016 at 10.10 pm I sent a message to Sanirai.
I my first message I stated that I would ruined the family of Sanirai if he failed to give Rs.5,00,000/- (rupees five lakh) to me In another message I stated I would be committing suicide by consuming poison making Sanirai liable for that.
In another message I stated that I had no objection if Sanirai marries.
In yet another message I stated that Sanirai has to be bear the cost of my marriage.
In a subsequent message I stated that though you are married you may talk to me.
Thereafter in a message I stated that Sanirai is to look for a suitable boy for me otherwise, it may lead to a problem.
In another message I demanded Rs.5,00,000/- from Sanirai and in case of failure I threatened to kill him.
In another message I stated that I will talk to the parents of Manorama.
Thereafter in another message I stated that I had no objection with regard to the marriage of Sani and he may talk to me.
In another message I demanded to Sanirai Rs.10,00,000/- for my marriage.
In my last test message on 13th October, 2016 I asked for the date as on that Sanirai would be paying Rs.10,00,000/- to me and in case of failure I threatened him with dire consequence."
[34] The prints of those sms have been produced in the trial. Those have been discarded for the reason that thos are selected messages out of chatting. The victim stated in the cross- examination on 24.11.2016, she had lodged the complaint, but denied that appellant refused her proposal saying that since she was the younger sister, she should refrain from indulging in such Page 37 of 52 act. She has admitted that her house consists of one „single room‟ and her family is consisted of her parents, her elder sister besides her. She denied that there was no Shalish (the conciliation meeting on 24.11.2016). She has denied the suggestion as made by the defence contrary to her statement made in the trial. [35] PW-2, Deba Ranjan Kalai, the father of the victim (PW1) has stated in the trial that the appellant is the son of his wife‟s sister. Thereafter he made the following statement:
"My daughter told me that there was a love relation between her and Sanirai since 2012 and in the year 2016 he denied to marry my daughter. During this period Sanirai used to visit my house frequently. In relation to that matter a meeting was held on 24.11.2016 in our village in the house of Rabicharan Kalai, the then Chowdhyry of the village. In the said meeting in addition to other persons, I, my daughter and the accused Sanirai were also present. In the said meeting initially Sanirai accepted to marry my daughter but subsequently turned back and refused the same.
In our society a brother and sister can tie nuptial knot.
As per my knowledge there was a love relation between Sanirai and my daughter (**the name withheld) My daughter (**the name withheld) also told that there was a physical relation between them also on the assurance of marriage by Sanirai.
[36] PW-2 has admitted that though her daughter told him about the physical relation in the year 2014, the meeting was called on 24.11.2016 . He has denied that his daughter demanded any money from the appellant. Later on, he has explained that he did not have such knowledge. He has denied the suggestion contrary to his statement in the examination-in-chief.Page 38 of 52
[37] PW-3, Smt. Kirani Kalai is the mother of the victim (PW1). Her statement was recorded on 22.11.2017. She had stated in the trial that " Last year my daughter told me that she had a lover affairs including physical relation with accused Sanirai but he had refused to marry her. In relation to this matter a Salish was also held wherein Sanirai accepted the existence of love relation between him and my daughter and also agreed to marry her. But subsequently refused the same."
In the cross examination she has stated that they were not satisfied with the decision of the Chowdhury[the community head] who presided over the conciliation meeting but they did not take their grievance to the community superior, called "Rai". She has also denied the suggestion that the appellant got married on 21.08.2015 or that the appellant refused the love affair nor did he promise to marry the victim. PW-3 has stated that her daughter used to send messages to the appellant on mobile phone.
[38] PW-4, Ravi Charan Kalai is the chowdhury of the village. He has come forward to state that the victim came to him and stated that "she had long standing love affairs from the year 2012 with Sanirai (the appellant) but he had refused to marry her and requested me do something. Accordingly, I conveyed a Page 39 of 52 meeting on 24.11.2016 and appointed two persons as judges for looking into the complaint (1) Joychandra Kalai and Khagendra Kalai". PW-4 has stated further in the meeting that the victim had complaint that for all these years "she had been living with Sanirai as husband and wife but he was now avoiding her. When Sanirai was inquired, he accepted the love affairs with......(name withheld) but refused to marry her saying that he wanted to marry another or already married another girl." PW-4 has stated in the trial that he was not sure which was the statement of the appellant. In the meeting, parents of the victim had stated that appellant should take the victim to his house till her marriage was solemnized with the appellant. In the latter part of the examination-in-chef, it has been stated by PW-4 that "His parent refused the same saying that victim should reside at her parents' home itself and when marriage will be settled they would bear the cost of the marriage." Thus, the reference to marriage was not to in relation to the appellant. PW-4 has also stated that there is no prohibition in respect of marriage between "two persons who are distant brother and sister, if they fall in love relation". In the cross-examination, PW-4 has asserted that in the meeting, the victim levelled all allegations including in respect of live in relation between the victim and the appellant. PW-4 has admitted that Page 40 of 52 they did not investigate the matter on their own to ascertain the veracity of the allegation in respect of the live in relation between the victim and the appellant. PW-4 has also admitted that he had heard the victim had written several messages threatening the appellant. But, he has denied that the appellant got married 21.08.2015. Finally, he has stated that he was never examined by the police. But, he has categorically denied that there was no resolution that the appellant would find out a suitable groom for the victim and he would bear the cost of her marriage. Even the fact that the appellant had agreed to take the victim to his house has been denied by him. According to him, no decision was taken in that meeting. He has denied the suggestion that there was not love affair between the victim and the appellant. [39] PW-5, Prabir Shil has admitted that he scribed the compliant (Exbt-1) [40] PW-6, Dhruba Kalai has admitted that he was asked to be in the meeting held on 24.11.2016. In the meeting, the victim alleged that she had long standing love relation with the appellant. When the appointed judges inquired from the appellant, according to him, he had accepted the same. In the aftrermath of the inquiry the judges opined that the appellant had to marry the victim, but the appellant refused the same by saying he had Page 41 of 52 already married a girl. PW-6 has stated it was resolved in the meeting to arrange marriage of the victim, expenss of which would be borne by the appellant, but the appellant remained silent. On the other hand, the victim insisted on marrying the appellant. At this stage, the meeting was dissolved without passing any resolution. Thereafter, PW-6 has admitted as follows:
"As per knowledge, the appellant and the victim (the name withheld) are distant brother and sister. In our society a marriage between a distant brother and sister is permissible. In the meeting .....(the name withheld) alleged to have relation with Sani that of husband and wife."
In the cross-examination, he has admitted that he did not state to the investigating officer that the victim alleged to have a relation with the appellant like that of husband and wife. But he has denied the suggestion that no such allegation was made. He has submitted that the victim and the appellant are his relatives. He has also admitted the victim‟s mother and father of the appellant are sister and brother. He denied the other suggestins made to him.
[41] PW-7, Khagendra Kalai was one of the participants in the salish. He has stated that both the victim and the appellant were having a love affair but the appellant had refused to marry the victim. He has also stated that mother of the victim and father of the accused are "full blood brother and sister", but he Page 42 of 52 has denied the suggestion that the appellant did not have love affair with the victim. PW7 has denied to have any knowledge of marriage of the appellant with another girl.
[42] PW-8, Joy Chandra Kalai was the another „judge‟ appointed by the Chowdhury. He has replicated the statement of PW-7. In the cross-examination he has denied the suggestion that the victim was not having a love affair with the appellant. [43] PW-9, Shri Ujjal Chowdhury had investigated the case and he has given a short narrative how he had conducted investigation. He has stated that he prepared the hand sketch map of two POs with index. Those hand sketch maps were admitted in the trial as Exbts- 4, 5, 6 and 7. He arranged for the medical examination of the victim in the Ompi CHC and also for recording the statement of her under Section 164(5) of the CrPC. That apart, he has recorded the statement of the victim and other witness including one Pinki Rani Kalai who has not been examined in the trial. He has stated that the medical examination report of the victim was collected by him, but the report has not been admitted at his instance, nor the doctor was introduced for that purpose. Thus, the fact of sexual intercourse was left to be proved on the testimony of the victim. There was also no explanation how that medical report was admitted in the evidence. But in the Page 43 of 52 cross-examination he has stated that after completion of the investigation, having found a prima facie in the evidence so collected he filed the charergsheet on 31.03.2017 under Sections 417 and 376 of the IPC. He has admitted in the cross- examination that there was no explanation for delay in filing the complaint. He has also made the following statement in the cross- examination as follows:
"During investigation from the statement of witnesses I came to know that accused Sanirai got his marriage registered on 21.08.2015 with another lady but I did not investigate on such fact."
[44] After the examination of the appellant under section 313 (1)(b) of the CrPC it surfaced that there was a meeting where the victim made false allegations against the appellant. That is the reason why the appellant had denied that he did have any love affair or he maintained any physical relation with the victim. In the meeting, he had admitted that he had been married by that time with another girl and he had agreed to support the marriage of the victim with any other person as she was his cousin sister. In the said cross-examination, the appellant has made a categorical statement that the victim is his cousin sister and he always avoided her when she started insisting him to involve in a relationship. He had never maintained any love relation with the victim nor had he promised to marry her. He was never involved Page 44 of 52 in any physical relationship with the victim as the victim is her cousin sister. The appellant has further stated that he had married one Manorama Debbarma on 21.08.2015 and he produced the original marriage certificate with one photocopy in the court. [45] For the defence, two witnesses were adduced. [46] DW-1 Sri Gitosh Debbarma has confirmed that on 21.08.2015 the appellant married on Manorama Debbarma under Special Marriage Act before the Special Marriage Officer, West Tripura, Agartala. He was the witness to the marriage and signed in the register of Marriage as the witness. He has indentified the certificate of marriage (Exbt-A) and photocopy thereof (Exbt-B). He lives in a distant place. There was no cross-examination at all in respect of the said marriage.
[47] DW-2 Labannya Kalai has stated that the appellant and the victim are his cousins. He has categorically stated that on 21.08.2015 along with the persons of the locality, he had attended the marriage. According to him, the distance between the house of the victim and the appellant is about 300 meters. After marriage, the appellant has been living with his wife Manorama Debbarma in his house. He had made a categorical statement that he has been examined by the investigating officer and he had revealed those facts to the investigating officer. He has asserted that victim did Page 45 of 52 not disclose anything and he did not state anything before the "social meeting".
In the cross-examination on the social meeting the victim has alleged of the physical relation of the appellant with her.
[48] It is to be noted that in the statement as recorded under Section 164(5) of the CrPC, the victim has replicated what she has stated in the complaint with a little bit elaboration. She has stated under section 164(5) of the CrPC that she had physical relation in their house and in the appellant‟s house. During their relation, the appellant had physical relations several times with her. In the year 2007, she asked him when he would marry her, at that time he told her after completion of studies, he would inform her when he would marry her. Thereafter, she had asked about their marriage several times and every time the appellant replied that he will marry her. This part of the statement is conspicuous in her deposition.
[49] In the said statement, the victim has referred to the fact that she proposed to have an affair with the appellant. She has also stated that her parents asked the parents of the appellant when they would arrange their marriage. They had replied by saying that when the appellant would be ready, they will arrange Page 46 of 52 their marriage. Neither the victim nor her parents has stated this fact in the trial. Thereafter, she had stated that on 24.11.2016 she came to know that the appellant is in relation with another girl, whom he was going to marry on 25.11.2016. During that time, on the complaint of the victim, the matter was taken to the village Chowdhury. In that meeting, the appellant refused to marry her and then she filed the complaint.
[50] Without prejudice to the question of admissibility, we have looked into the medical examination report, which is not a public document. The said report was admitted in the trial being marked as Exbt -8). To our surprise in the order dated 22.11.2018 the trial judge has made the following observation:
"At this state, Learned Defence Counsel Mr. Surata Roy has submitted that he does not deny the contents of Potency Test Report of accused Sani Rai Kalai and the medical examination report of the victim of this case and the same may be admitted in the evidence.
Accordingly, as per Section 294 of Cr.PC the medical report of the victim is marked as Exhibit-8 and the Potency Test Report of the accused is marked as Exhibit-
9."
[51] The said order has been passed after the evidence of prosecution was recorded. For that reason, it has been noted in the said order that the evidence of prosecution side was closed. From the medical examination report (Exbt-8), it is found that the victim stated her age to be 27 years on the day of examination i.e. 21.11.2016 and she had named the appellant as the Page 47 of 52 perpetrator to the medical officer. For obvious reason, there was no marks of physical violence. The medical officer found that the hymen of the victim was ruptured but the medical officer has given the opinion that there was no indication of recent sexual activities but it was possible that aggregate size penis could penetrate several times. The appellant was found potent to do the sexual intercourse by the report, Exbt-9.
[52] Having appreciated the rival contentions and keenly assessed the evidence as recorded in the trial, in particular the testimony of the victim (PW 1), there cannot be any doubt that the appellant and the victim are first cousins, inasmuch as the father of the appellant and the victim‟s mother are full blood brother and sister. The victim has admitted that after January 2014, she did not meet appellant and the complaint was filed on 24.11.2016. In the village meeting, she had stated that the similar fact, but she had added in the trial that she used to talk to the appellant over her phone. Moreover, her complaint was that she had physical relation in her house. Her house, as stated by the victim, consists of one single room. In that room she has been residing with her parents and her elder sister. This fact offends the veracity of the victim‟s statement. PWs 2 and 3, the parents of the victim have stated that they were aware of the love relation being Page 48 of 52 reported by their daughter. Even they were reported of physical relation between them. The mother of the victim (PW3) has stated that she was informed by her daughter about the affair sometime in 2016 that she had a love affair and physical relation with the appellant. According to the parents, the appellant admitted the said relation in the village meeting. Even, PW3 denied the incidence of marriage of the appellant which took place on 21.08.2015.
[53] In the village meeting, the parents of the victim made a proposal, according to PW4 [the community head] that till the marriage of the appellant, the victim should reside with the appellant in their residence. PW4, the community head, has stated that marriage between "two persons who are distant brother and sister can take place, if they fall in love relation". This statement of the community head is contrary to the statement made by PW2, father of the victim. PW2 has stated in their society brother and sister can tie nuptial knot. It appears to this court that the statement of PW4, in this regard, is acceptable inasmuch as he had clearly stated that marriage is only possible between the brother and sister who are distantly related. But, in the instant case, the appellant and the victim (PW1) are first cousins. Hence, it is very difficult to believe that there was any assurance of Page 49 of 52 marriage. Even if it is assumed that there was a love relation or incestuous sexual relation. When we scanned the messages sent by the victim, it appears to us that the victim was ready to abandon the proposal of marriage with the appellant, had the appellant promised to bear the cost of her marriages and looked for a suitable boy for her. It appears that she threatened the appellant. The trial judge has not considered these pieces of evidence even though the victim (PW1) has admitted the content of the messages in the trial. The messages were also before the court in print. On admission, those message are fit to be read in evidence, but the trial judge did not do that.
[54] The defence is quite satisfactorily proved that the appellant got married on 21.08.2015 in his house which is 500/300 meter away from the house of the victim. The victim has claimed that she did not know that the appellant married one Manorama Debbarma under Special Marriage Act by giving notice in advance. The certificate of marriage (Exbt-A) has been placed in the evidence. After marriage, the appellant had been leading his married life with Manaroma Debbarma in his house. The victim did not even allege that the sexual intercourse that took place between the appellant and her was without her consent. The only allegation that has been made by her that the appellant did Page 50 of 52 promise to marry her. If the statement of the victim (PW1) is scrutinized threadbare, it will be apparent that having sexual intercourse on promise of marriage is a clear after thought, if read the testimony as a whole. Her clear statement is that out of love affair, they had the physical relation. It would be appropriate to quote the statement that has been made by the victim in the trial, which reads as follows:
"I have lodged a case against him alleging that I had a love relation with him since 2004 and he had promised to marry him, but did not fulfill his promise".
[55] Immediately thereafter the victim has stated that on the assurance of marriage, a physical relation between them took place, but that statement even has not been corroborated by her father Debaranjan Kaloi (PW2) or by her mother Kirani Kaloi (PW3) to whom she had disclosed the relation after long years. When the entire family live in one single room, sexual intercourse in such sites is either improbable or rarity. It is improbable because they had allegedly sexual intercourse umpteen times. PWs 2 and 3 only stated that she had a love affair including physical relation with the accused Sanirai but he had refused to marry her. PW4 the community head called Choudhury has also stated that the victim sated that "all these years she had been living with Sanirai (the appellant) as husband and wife but now he Page 51 of 52 was avoiding her. Sanirai was inquired and he had accepted the existence of the love affair with the .....(the victim by name) but refused to marry her saying that he wanted to marry another girl or had already been married to another girl. This only demonstrates the nature of the victim girl to exaggerate. Aspect of sexual intercourse has not been vouched by her parents, even though both of whom testified in the trial.
[56] Having considered the circumstances and revelation made in the evidence by the victim, we are of the view that prosecution has failed to persuade us to believe that on promise of marriage, the sexual intercourse, if any, had taken place. There is no evidence, to infer misconception of fact under Section 90 of the IPC. Moreover, there cannot be any indictment for cheating when the victim girl had claimed money to leave the proposal of marriage at lurch. This is a clear case of consensual sex between two adult man and woman and as such the sexual intercourse as alleged cannot be brought as offence punishable under section 376(2)(n) of the IPC or under the definition of rape as provided by Section 375 of the IPC. As we have already observed that the element of cheating is manifestly absent in the evidence and hence the charge as framed under section 417 of the IPC is bound to fail.
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[57] Having observed thus we are of the further view that the judgment of conviction and the order of sentence dated 03.08.2019 are liable to be interfered with and set aside. Accordingly, it is ordered.
In the result, the appeal stands allowed.
The appellant be set al liberty forthwith, unless wanted in any other case.
Send down the LCRs forthwith.
JUDGE JUDGE Dipak