Deelip Singh @ Dilip Kumar
Vs. State of Bihar
 Insc 675 (3 November 2004)
P. Venkatarama Reddi &
P.P. Naolekar P. Venkatarama Reddi, J.
The appellant has been charged and convicted under Section 376 IPC for
committing rape of a minor girl (figured as PW12 in this case) in the month of
February, 1988. The IIIrd Additional Sessions Judge of Katihar sentenced him to
rigorous imprisonment for a period of ten years. On appeal, the High Court
upheld the conviction but modified the sentence to seven years. Aggrieved
thereby, the present appeal is filed by the accused.
The victim girl lodged a complaint to the police on 29.11.1988 i.e., long
after the alleged act of rape. By the date of the report, she was pregnant by
Broadly, the version of the victim girl was that she and the accused were
neighbours and fell in love with each other and one day, the accused forcibly
raped her and later consoled her saying that he would marry her, that she
succumbed to the entreaties of the accused to have sexual relations with him,
on account of the promise made by him to marry her and therefore continued to
have sex on several occasions.
After she 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 to marry her and his father took him out of the village
to thwart the bid to marry. The efforts made by the father to establish the
marital tie failed and therefore she was constrained to file the complaint
after waiting for sometime.
The prosecution adduced evidence in the form of school certificate and
medical expert's opinion to establish that by the date of the commission of
criminal act, the victim girl was aged less than 16 years in which case her
consent becomes immaterial. It is on this aspect the attention was focussed
more by the prosecution.
The trial Court accepted the prosecution case in this regard and found that
the girl was aged less than 16 years at the relevant point of time. The High
Court affirmed this finding. The trial Court also recorded an alternative
finding that she was forcibly raped on the first occasion and after that
incident the accused went on making false promises to marry her. It was
therefore held that either there was no consent or the consent was involuntary.
Thus, according to the trial Court, it was a case of having sexual intercourse
against the will of the victim girl or without her consent. If so, irrespective
of the age of the girl, the offence is deemed to be committed. As regards this
latter aspect, the High Court did not enter into any discussion.
Before proceeding to discuss the crucial points, it would be apposite to
refer to the contents of the report given by the victim girl to the
officer-in-charge of Manihari police station on the basis of which the FIR
(Ext.1) was registered on 25.10.1988. At this stage, we would like to observe
that her version as per the deposition given in the Court was somewhat
different, especially in regard to the manner in which the sexual relationship
was developed and the first sexual act was resorted to. To the extent
necessary, this aspect will be referred to at a later stage. The following is
the substance of the report (marked as Ext. 3/2) given to the police on
The informant and the accused were neighbours. The accused, by his gestures
and behaviour, tried to seduce her.
Whenever there was opportunity, he used to come to her house and used to cut
jokes and have fun with her in spite of her protests. On one occasion, a watch
was given to her as a gift. The accused went on telling that he wanted to marry
her but she expressed her disinclination. However, one day, she yielded to the
persuasion of the accused and had sexual contact with the accused and the same
has been going on from the month of February, 1988. The accused allured her
with promise of marriage and continued to have intercourse with her on account
of which she conceived.
During the second or third month of pregnancy, she informed her parents
about it. Her father talked to the accused and asked him to marry his daughter.
The accused accepted before the villagers that he was responsible for the
pregnancy and he was ready to marry her. However, the father of the accused did
not agree and proclaimed that the marriage will not take place under any
circumstances. The efforts made by her father by convening a panchayat etc.,
did not yield any result. Later on, the informant came to know that the father
of the accused Gopi Singh with the help of other villagers took away the
accused to an unknown place. Thereafter, she was advised to file the case by
her father and other elders. On the registration of the case, the charge sheet
was filed not only against the present appellant but also his father and others
who were alleged to have abducted the accused to prevent the marriage. However,
no charge was framed against them. The appellant is the sole accused who faced
The victim girl was sent for medical examination to CAS, Sadar Hospital,
Katihar on 28.11.1988. PW14the Doctor who along with other doctors examined
her, deposed that by the date of examination, she had pregnancy of six months
duration. The main purpose of sending her for medical examination appears to be
to assess her age. PW14 gave the opinion, on the basis of his own examination
and the examination of the Dental Surgeon and the X-rays taken by the
Radiologist that her age was between 16 and 17 years. The Investigating Officer
has not been examined in this case.
Age of victim:
The question of age of the victim girl is the first and foremost aspect that
needs to be considered in the present appeal. On this question we are unable to
concur with the finding of the trial Court as affirmed by the High Court. In
our view, the finding as reached by the trial Court is based on no evidence or
evidence which is doubtful. The prosecution wanted to prove her age by filing
the school transfer certificate through PW13. The certificate is Ext. P4.
It was purportedly issued by the Headmaster of the Primary/ Secondary
School, Nawabganj. Her date of birth, as recorded in the admission register, is
stated to be 4.2.1974.
The date of admission is mentioned as 22.2.1980 and the date of leaving the
school as 31.12.1981. It is mentioned in column 5 that the admission was given
on the basis of declaration of the father i.e. PW11. By the time she left the
school, she passed II Class. The date of issuance of the certificate was
7.1.1991 i.e. after the trial commenced. No explanation is forthcoming as to
why the Investigation Officer did not obtain the certificate in the course of
investigation and why the certificate was not produced by the father of the
girl (PW11). Apparently, the age was given on the basis of the declaration made
by the father. If so, the father was the best witness to speak about her age.
However, he did not say a word about her age.
If this certificate had been filed beforehand or if PW11 had said anything
about her age, the defence counsel would have been in a position to question
the father about the correctness of his declaration. That is one aspect. The
other and more important aspect is that the certificate (Ext.P4) has no
evidentiary value inasmuch as it is not properly proved by a witness who is
competent to speak to the relevant facts connected with the issuance and
custody of the certificate. The Headmaster or the staff of the school has not
The two witnesses examined to prove this document are PWs 13 and 15, whose
evidence, in our view, is really worthless. The certificate was produced by
PW13, who is said to be a clerk in Court (Mujeeb). It was marked subject to
objection raised by the defence. Who applied for it and how he came in
possession of it has not been explained.
Though he stated in the chief examination that the certificate was issued by
the Headmaster of Nawabganj School, in cross-examination, he frankly stated
that he could not say whose signature was there on the certificate. He further
stated that he had never gone to the school.
PW15an Advocate's clerk, is another witness examined by prosecution to prove
Ext.4. He stated in the chief-examination that the school leaving certificate
related to victim girl and it was in the handwriting of the Headmaster
Akhileshwar Thakur. In cross-examination, he admitted that he did not see the
certificate earlier and he met the Headmaster of the school 10 or 15 years
back. He also stated that the signature was illegible. Thus the evidence of PWs
13 & 15 does not throw any light on the authenticity or the genuineness of
the certificate. Obviously, they did not have any knowledge of the issuance of
the certificate. The original register was not before the Court.
The certificates have not come from proper custody. In the circumstances,
the certificate should have been eschewed from consideration. However the trial
Court and the High Court acted on it without demur and rested their conclusions
on this document. If we exclude Ext.P4 from consideration, the Court is left
with the evidence of the Medical Officer, PW14, according to whose assessment
the age of the girl was 16-17 years. The defence is entitled to rely on the
higher side of the age given by the Doctor. If so, the victim girl would be
aged more than 16 years when the alleged offence took place in February, 1988.
At the time of examination in the Court, it appears that the Court assessed the
age as 17, without any further elaboration. It is not safe to rely on such
For all these reasons we are of the view that the finding that the victim
girl was less than 16 years of age on the date of the first sexual intercourse
which the appellant had committed, cannot be sustained. If so, Clause sixthly
of Section 375 which says"with or without her consent, when she is under
16 years of age", is not attracted.
Whether accused guilty under clause first of Section 375:
The next question is whether the appellant had sexual intercourse with the
victim girl against her will (vide first Clause of Section 375). The expression
'against the will' seems to connote that the offending act was done despite
resistance and opposition of the woman. On this aspect, the trial court did
believe the version of the informantvictim without much of discussion. In reaching
this factual finding, the trial Court failed to analyse and evaluate the
evidence of PW12the victim girl. The High Court merely affirmed the trial
Court's finding on this paint. We should, therefore, scrutinize her evidence
and examine whether it would, beyond reasonable doubt, lead to the conclusion
of the accused having had sexual contact against her will. Though in the FIR,
the version of forcible sexual intercourse has not been put forward, in the
deposition before the Court, PW12 tried to build up this plea. According to
PW12, the first act of rape took place in the wheat field of her father. This
is how she described the incident:
"In the field, once getting a chance, Dilip Singh forcibly raped me.
Dilip Singh told, 'you marry me', when I was weeping. He said weeping is
useless and we shall marry. He promised me of marriage and raped me several
times." She then stated that after she became pregnant, she revealed to
her mother about the rape. Later on, the accused became ready to marry her but
his father and others took him away from the village. She also stated that the
accused time and again told her that they will have a 'court marriage' (means,
registered marriage). In substance, what she deposed was that the first sexual
intercourse took place against her will, though she became a consenting party
later on. The first thing to be noticed is that in the report which she
admittedly gave to the police, this version was not given by her and she did
not complain of forcible rape. That apart, the version of rape in the wheat
field seems to be highly doubtful when tested in the light of her statements in
the cross-examination. She stated in paragraph 14 that "one day, while
talking, he pulled me down and forcibly raped me. This incident occurred at 12.00
in the night". That means, according to her version, the first incident of
rape took place on the wheat field at 12.00 in the midnight. It is highly
doubtful whether they would go to the wheat fields at that hour. Moreover, in
cross-examination, she makes a further improvement by stating that at the time
of first incident of rape at midnight, when she started shouting, the accused
gagged her mouth. One more thing which affects the credibility of her version
is her statement in the cross-examination that when the accused kept on making
gestures, she went to the house of the accused and lodged her protest with his
Bhabi. It is most unlikely that such unwilling person will go to a secluded
place in the company of the accused at an odd time in the night and take the
risk of being sexually assaulted. In any case, if the rape was committed by the
accused much against her will, she would not have volunteered to submit to his
wish subsequent to the alleged first incident of rape. She admitted that the
accused used to talk to her for hours together and that was within the
knowledge of her parents and brother. This statement also casts an element of
doubt on her version that she was subjected to sexual intercourse in spite of
her resistance. Above all, the version given by her in the Court is at variance
with the version set out in the FIR. As already noticed, she categorically
stated in the first information report that she 'surrendered before him' in
view of his repeated promises to marry. In short, her version about the first
incident of rape bristles with improbabilities, improvements and exaggerations.
It is a different matter that she became a consenting party under the impact of
his promise to marry her. That aspect, we will examine later.
But, what we would like to point out at this juncture is, it is not safe to
lend credence to the version of PW12 that she was subjected to rape against her
will in the first instance even before the appellant held out the promise to
We cannot, therefore, uphold the finding of the trial Court that the girl
was raped forcibly on the first occasion and that the talk of marriage emerged
only later. The finding of the trial Court in this respect is wholly
Whether clause secondly (without consent) is attracted:
The last question which calls for consideration is whether the accused is
guilty of having sexual intercourse with PW12 'without her consent' (vide
Clause secondly of Section 375 IPC). Though will and consent often interlace
and an act done against the will of a person can be said to be an act done
without consent, the Indian Penal Code categorizes these two expressions under
separate heads in order to be as comprehensive as possible.
What then is the meaning and content of the expression 'without her consent'?
Whether the consent given by a woman believing the man's promise to marry her
is a consent which excludes the offence of rape? These are the questions which
have come up for debate directly or incidentally.
The concept and dimensions of 'consent' in the context of Section 375 IPC
has been viewed from different angles.
The decided cases on the issue reveal different approaches which may not
necessarily be dichotomous. Of course, the ultimate conclusion depends on the
facts of each case.
Indian Penal Code does not define 'consent' in positive terms, but what
cannot be regarded as 'consent' under the Code is explained by Section 90.
Section 90 reads as follows:
"90. Consent known to be given under fear or misconceptionA consent is
not such a consent as is 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; " Consent
given firstly under fear of injury and secondly under a misconception of fact
is not 'consent' at all. That is what is enjoined by the first part of Section
90. These two grounds specified in Section 90 are analogous to coercion and
mistake of fact which are the familiar grounds that can vitiate a transaction
under the jurisprudence of our country as well as other countries.
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.
Section 90 cannot, however be construed as an exhaustive definition of
consent for the purposes of the Indian Penal Code. The normal connotation and
concept of 'consent' is not intended to be excluded. Various decisions of the
High Court and of this Court have not merely gone by the language of Section
90, but travelled a wider field, guided by the etymology of the word 'consent'.
In most of the decisions in which the meaning of the expression 'consent'
under the Indian Penal Code was discussed, reference was made to the passages
occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law,
Words & PhrasesPermanent Edition and other legal Dictionaries. Stroud
defines consent as "an act of reason, accompanied with deliberation, the
mind weighing, as in a balance, the good and evil on each side". Jowitt,
while employing the same language added the following:
"Consent supposes three thingsa physical power, a mental power and a
free and serious use of them. Hence it is that if consent be obtained by
intimidation, force, mediated imposition, circumvention, surprise or undue
influence, it is to be treated as a delusion, and not as a deliberate and free
act of the mind." In Words & PhrasesPermanent Edition, Volume 8A, the
following passages culled out from certain old decisions of the American Courts
".adult female's understanding of nature and consequences of sexual act
must be intelligent understanding to constitute 'consent'.
Consent within penal law, defining rape, requires exercise of intelligence
based on knowledge of its significance and moral quality and there must be a
choice between resistance and assent. " It was observed by B.P. Singh, J.
speaking for the 329], "the Courts in India have, by and large, adopted
these tests to discover whether the consent was voluntary or whether it was
vitiated so as not to be legal consent".
There is a good analysis of the expression 'consent' in the context of
Section 375 IPC by Tekchand, J. in Rao learned Judge had evidently drawn
inspiration from the above passages in the law dictionaries. The observation of
the learned Judge that "there is a difference between consent and
submission and every consent involves a submission but the converse does not
follow and a mere act of submission does not involve consent", is quite
The said proposition is virtually a repetition of what was said by
Coleridge, J. in Regina vs Day in 1841 as quoted in Words and Phrases
(Permanent Edition) at page 205. The following remarks in Harnarain's case are
"Consent is an act of reason accompanied by deliberation, a mere act of
helpless resignation in the face of inevitable compulsion, non resistance and
passive giving in cannot be deemed to be Consent." The passages occurring
in the above decision were either verbatim quoted with approval or in condensed
form in the subsequent decisions: vide In Re : Anthony [AIR (2) K.L.J. 234].
All these decisions have been considered of Karnataka. The enunciation of law
on the meaning and content of the expression 'consent' in the context of penal
law as elucidated by Tekchand, J. in Harnarain's case (which in turn was based
on the above extracts from law Dictionaries) has found its echo in the three
Judge Bench [(2000) 7 SCC 224]. K.G. Balakrishnan, J. speaking for the Court
"Submission of the body under the fear or 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." On
the facts, it was held that there was resistance by the prosecutrix and there
was no voluntary participation in the sexual act. That case would therefore
fall more appropriately within Clause first of Section 375.
We shall turn our attention to the cases which dealt with the specific
phraseology of Section 90, IPC. We have an illuminating decision of the Madras
High Court rendered in 1913 in Re: N. Jaladu [ILR 36 Madras 453] in which a
Division Bench of that Court considered the scope and amplitude of the
expression 'misconception of fact' occurring in Section 90 in the context of
the offence of kidnapping under Section 361 IPC. The 2nd accused in that case
obtained the consent of the girl's guardian by falsely representing that the
object of taking her was for participating in a festival. However, after the
festival was over, the 2nd accused took her to a temple in another village and
married her to the 1st accused against her will. The question arose whether the
guardian gave consent under a misconception of fact. While holding that there
was no consent, Sundara Ayyar J. speaking for the Bench observed thus:
"We are of opinion that the expression 'under a misconception of fact'
is broad enough to include all cases where the consent is obtained by
misrepresentation; the misrepresentation should be regarded as leading to a
misconception of the facts with reference to which the consent is given.
In Section 3 of the Evidence Act illustration (d) 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.
In considering a similar statute, it was held in England in R. v. Hopkins
1842, Car & M 17, 254 that a consent obtained by fraud would not be
sufficient to justify the taking of a minor. See also Halsbury's Laws of
England, Volume 9, page 623. In Stephen's Digest of the Criminal Law of England
(sixth edition, page 217), the learned author says with reference to the law
relating to "abduction of girls under sixteen" "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." This decision is an authority
for the proposition that a misrepresentation as regards the intention of the person
seeking consent, i.e. the accused, could give rise to the misconception of
fact. This view of the Madras High Court was accepted by a Division Bench of
Bombay High Court in Purshottam Mahadev vs. State of Bombay [AIR 1963 Bombay
74]. Applying that principle to a case arising under Section 375, consent given
pursuant to a false representation that the accused intends to marry, could be
regarded as consent given under misconception of fact.
On the specific question whether the consent obtained on the basis of
promise to marry which was not acted upon, could be regarded as consent for the
purpose of Section 375 IPC, we have the decision of Division Bench of Calcutta
High Court in Jayanti Rani Panda vs. State of West Bengal [1984 Crl.L.J. 1535].
The relevant passage in this case has been cited in several other decisions.
This is one of the cases referred to by this Court in Uday (supra) approvingly.
Without going into the details of that case, the crux of the case can be
discerned from the following summary given at para 7:
"Here the allegation of the complainant is that the accused used to
visit her house and proposed to marry her. She consented to have sexual
intercourse with the accused on a belief that the accused would really marry
her. But one thing that strikes us is . why should she keep it a secret from
her parents if really she had belief in that promise. Assuming that she had
believed the accused when he held out a promise, if he did at all, there is no
evidence that at that time the accused had no intention of keeping that
promise. It may be that subsequently when the girl conceived the accused might
have felt otherwise. But even then the case in the petition of complainant is
that the accused did not till then back out. Therefore it cannot be said that
till then the accused had no intention of marrying the complainant even if he
had held out any promise at all as alleged." The discussion that follows
the above passage is important and is extracted hereunder:
"The failure to keep the promise at a future uncertain date due to
reasons not very clear on the evidence does not always amount to a
misconception of fact at the inception of the act itself. In order to come
within the meaning of misconception of fact, the fact must have an immediate
relevance. The matter would have been different if the consent was obtained by
creating a belief that they were already married. In such a case the consent
could be said to result from a misconception of fact. But here the fact alleged
is a promise to marry we do not know when. If a full grown girl consents to the
act of sexual intercourse on a promise of marriage and continues to indulge in
such activity until she becomes pregnant it is an act of promiscuity on her
part and not an act induced by misconception of fact. S. 90 IPC cannot be
called in aid in such a case to pardon the act of the girl and fasten criminal
liability on the other, unless the Court can be assured that from the very
inception the accused never really intended to marry her." (emphasis
supplied) The learned Judges referred to the decision of Chancery Court in
Edgomgtpm vs. Fotz,airoce (1885) 29 Ch.D 459 and observed thus:
"This decision lays down that a misstatement of the intention of the
defendant in doing a particular act may be a misstatement of fact, and if the
plaintiff was misled by it, an action of deceit may be founded on it. The
particular observation at p. 483 runs to the following effect: "There must
be a misstatement of an existing fact." Therefore, in order to amount to a
misstatement of fact the existing state of things and a misstatement as to that
becomes relevant. In the absence of such evidence Sec. 90 cannot be called in
aid in support of the contention that the consent of the complainant was
obtained on a misconception of fact." After referring to the case law on
the subject, it was observed in Uday, supra at paragraph 21:
"It therefore appears that the consensus of judicial opinion is in
favour of the view that the consent given by the prosecutrix to sexual intercourse
with a person with whom she is deeply in love on a promise that he would marry
her on a later date, cannot be said to be given under a misconception of fact.
A false promise is not a fact within the meaning of the Code. We are inclined
to agree with this view, but we must add that there is no strait jacket formula
for determining whether consent given by the prosecutrix to sexual intercourse
is voluntary, or whether it is given under a misconception of fact.
In the ultimate analysis, the tests laid down by the Courts provide at best
guidance to the judicial mind while considering a question of consent, but the
Court must, in each case, consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because each case has its own
peculiar facts which may have a bearing on the question whether the consent was
voluntary, or was given under a misconception of fact. It must also weigh the
evidence keeping in view the fact that the burden is on the prosecution to
prove each and every ingredient of the offence, absence of consent being one of
them." The first two sentences in the above passage need some explanation.
While we reiterate that a promise to marry without anything more will not give
rise to 'misconception of fact' within the meaning of Section 90, it needs to
be clarified that a representation deliberately made by the accused with a view
to elicit the assent of the victim without having the intention or inclination
to marry her, will vitiate the consent. If on the facts it is established that
at the very inception of the making of promise, the accused did not really
entertain the intention of marrying her and the promise to marry held out by
him was a mere hoax, the consent ostensibly given by the victim will be of no avail
to the accused to exculpate him from the ambit of Section 375 Clause secondly.
This is what in fact was stressed by the Division Bench of the Calcutta High
Court in the case of Jayanti Rani Panda, supra which was approvingly referred
to in Uday's case, (supra). The Calcutta High Court rightly qualified the
proposition which it stated earlier by adding the qualification at the end"unless
the Court can be assured that from the very inception, the accused never really
intended to marry her". In the next para, the High Court referred to the
vintage decision of the Chancery Court which laid down that a misstatement of
the intention of the defendant in doing a particular act would tantamount to a
misstatement of fact and an action of deceit can be founded on it. This is also
the view taken by the Division Bench of the Madras High Court in Jaladu's case,
supra (vide passage quoted supra). By making the solitary observation that
"a false promise is not a fact within the meaning of the Code", it
cannot be said that this Court has laid down the law differently. The
observations following the aforesaid sentence are also equally important. The
Court was cautious enough to add a qualification that no strait jacket formula
could be evolved for determining whether the consent was given under a
misconception of fact. Reading the judgment in Uday's case as a whole, we do
not understand the Court laying down a broad proposition that a promise to
marry could never amount to a misconception of fact. That is not, in our understanding,
the ratio of the decision. In fact, there was a specific finding in that case
that initially the accused's intention to marry cannot be ruled out.
Having discussed the legal aspects bearing on the interpretation of the term
'consent' with special reference to Section 90 IPC, we must now turn our
attention to the factual aspects of the case related to consent.
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? 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? These are the questions which have to be
answered on an analysis of the evidence. The last question raises the allied
question, whether the promise to marry, if made by the accused, was false to
his knowledge and belief from the very inception and it was never intended to
be acted upon by him. As pointed out by this Court in Uday's case the burden is
on the prosecution to prove that there was absence of consent. Of course, the
position is different if the case is covered by Section 114-A of Evidence Act.
Consent or absence of it could be gathered from the attendant circumstances.
The previous or contemporaneous acts or the subsequent conduct can be
Whether on the basis of the evidence adduced by the prosecution, it is reasonably
possible to infer the lack of consent on the part of the prosecutrix is the
ultimate point to be decided.
A close scrutiny of evidence of the prosecutrixPW12 is what is called for,
there being no other evidence in the case which could throw light on the point
at issue. First, we must exclude from consideration that part of her version
which accuses the appellant of forcible sexual indulgence on the first
occasion. We have already discussed this aspect and rejected her version as
unreliable. Therefore, we have to address ourselves to the twin questions (1)
whether there was voluntary participation in the sexual act quite mindful and
conscious of what she was doing and its possible consequences and (2) whether
the victim girl was misled by the false promise of the accused to marry her and
therefore agreed to have sexual contact with him. In a way, these two two
aspects overlap and are interconnected.
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 victimPW12 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.
According to PW12, 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 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.
The remaining question is whether on the basis of the evidence on record, is
it 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. PW12 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 materialize on account of the pressure exerted
by his family elders. It seems to be a case of breach of promise to marry
rather than a case of false promise to marry. On this aspect also, the
observations of this Court in Uday's case at paragraph 24 comes to the aid of
We reach the ultimate conclusion that the findings of the trial court as
affirmed by the High Court are either perverse or vitiated by non-consideration
of material evidence and relevant factors emerging from the prosecution
evidence. We cannot, therefore, sustain the conviction.
In the result, the conviction and sentence is set aside and the appeal is
With this verdict, the appellant, no doubt extricates himself from the
clutches of the penal law by getting the benefit of doubt on charge levelled
against him. But, we cannot ignore the reprehensible conduct of the appellant,
who by promising to marry the victim woman, persuaded her to have sexual
relations and caused pregnancy. The act of the accused left behind her a trail
of misery, ignominy and trauma. The only solace is that she married
We are informed that the female child born out of the illicit relationship
is now living with her married mother and she is about 14 year old now. Though
there is no evidence to establish beyond reasonable doubt that the appellant
made a false or fraudulent promise to marry, there can be no denial of the fact
that the appellant did commit breach of the promise to marry, for which the
accused is prima facie accountable for damages under civil law. When we
apprised the appellant's counsel of our prima facie view point on this aspect
and elicited his response on passing a suitable order in exercise of power
vested in this Court under Article 142 of the Constitution, the learned counsel
took time to get instructions. We are now informed that the appellant is
prepared to pay a sum of Rs.50,000 by way of monetary compensation irrespective
of acquittal. Though the said amount is not an adequate compensation, we are
not inclined to call upon the appellant to pay more for more than one reason:
firstly, the appellant has been in jail for about two years by now; secondly,
we are informed that the accused belongs to a backward class and his family is
not affluent though they have some agricultural lands; lastly, the incident
took place about 15 years back and in the supervening period, the prosecutrix
as well as the appellant married and we are told that he has two children. In
these circumstances, we accept the offer of the appellant.
The appellant's counsel has brought a Demand Draft for Rs.50,000 drawn in
favour of the Chief Judicial Magistrate, Sahibganj. The Draft is handed over
just now to the Court Officer. The concerned Registrar of this Court shall send
the Draft to the C.J.M., Sahibganj for being credited to his account in the
first instance. The C.J.M. shall take immediate steps to summon the prosecutrix
whose name and address shall be furnished by the counsel for the appellant in
the course of the day to the Registrar of this Court. Out of the amount of
Rs.50,000, a sum of Rs.10,000 shall be paid over to the prosecutrix in cash if
she makes a request and the remaining amount of Rs.40,000 shall be kept in a
fixed deposit in a Bank in the name of the minor girl namely Miss Sangeeta
Kumari with the prosecutrix as her guardian. The accrued interest shall be paid
to the prosecutrix once in two years. The amount of Rs. 40,000/- with remaining
interest thereon shall be disbursed to the girl after she attains the majority
by getting an account opened in a Bank in her name. However, for the purpose of
meeting the imminent needs of the minor girl, the C.J.M. can permit the amount
to be paid over to the guardian (prosecutrix) either partly or in whole
depending on the genuine and reasonable requirements concerning the maintenance
of the child. The C.J.M. shall submit a report to the Registrar of this Court
on the action taken in this regard within two months.
A translated copy of the part of the judgment starting from page 37 shall be
furnished to the prosecutrix by the CJM.
The CJM may appoint a counsel under the legal aid scheme to assist the
prosecutrix and the girl whenever necessary in connection with the
implementation of this order.
Accordingly, the order is passed in the interests of justice in exercise of
powers vested in this Court under Article 142 of the Constitution.