Dinesh Yadav @ Chamcham Yadav vs The State Of Bihar on 8 August, 2017

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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.324 of 2015
Arising Out of PS.Case No. -83 Year- 2003 Thana -KADWA District- KATIHAR

1. Dinesh Yadav @ Chamcham Yadav Son of Baldev Yadav Resident of village –
Kursel, P.S. Kadwa, District – Katihar
…. …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Sandeep Patil, Advocate.

For the Respondent/s : Smt. Abha Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 08-08-2017

Appellant Dinesh Yadav @ Chamcham Yadav has been

found guilty for an offence punishable under Section 376 IPC and

sentenced to undergo RI for 8 years as well as to pay fine of Rs.

5,000/- in default thereof, to undergo imprisonment of 6 months

additionally vide judgment of conviction and order of sentence dated

05.05.2015 passed by the Additional Sessions Judge-3rd, Katihar in

Sessions Trial No. 52/2004.

2. Victim PW-4 (name withheld) filed a complaint

petition no. 1098/2003 against Dinesh Yadav @ Chamcham Yadav,

Baldeo Yadav, Kaili Devi and Raju Ghosh showing the date of

occurrence from six months prior to 06.04.2003 disclosing the place

of occurrence as house of complainant as well as accused putting an

allegation that complainant happens to be poor lady and survives over

wages having earned over manual work. About six months ago,
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accused Dinesh engaged her for cleaning his cow-shed whereupon she

had gone there. During course thereof, Dinesh committed rape, in

spite of her protest whereupon became adamant to report police. The

accused Dinesh Yadav consoled her and said that he is going to marry

with her. The accused continued with the aforesaid activity

persuading her that he would marry with her. As a result of which, she

became pregnant and at the time of filing of complaint, her pregnancy

was 4-5 months old. She disclosed the same to Dinesh Yadav and

through him his parents also knew whereupon his parents got him

absconded. At the other end, his parents Baldeo Yadav and Kaili Devi

along with Raju Ghosh came to her place and directed her to terminate

the pregnancy otherwise, threatened of dire consequences. In the

aforesaid background, on 04.06.2006 at about 6.00 PM, accused,

Baldeo Yadav and Kaili Devi along with Raju Ghosh made house

trespass, assaulted her parents. During course thereof, they also

directed that complainant should abort the pregnancy, otherwise they

will not allow them to remain in the village. Villagers were also

informed having no fruitful results. In spite of informing police on

08.06.2003, police did not take any kind of action whereupon,

complaint petition has been filed. Furthermore, it has been asserted

that she is carrying pregnancy that of Dinesh Yadav. Jagarnath

Prasad, Phul Kumar Poddar, Raghunath Mandal, Basudeo Mandal,
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Pirthi Poddar, Raghunath Poddar, Harendra Poddar and Lakkhi

Poddar have been cited as witness.

3. The learned Magistrate directed the PS concerned to

register a case and investigate the same in accordance with Section

156(3) CrPC whereupon Kadwa PS Case No. 83/2003 was registered

followed with an investigation and after concluding the same, charge-

sheet was submitted facilitating the trial, which met with ultimate

result, subject matter of the instant appeal.

4. The defence case as is evident from the mode of

cross-examination as well as statement recorded under Section 313

CrPC is of complete denial.

5. It is further pleaded that the accused has got land

dispute with Phul Kumar Poddar who became instrumental in getting

this case filed.

6. In order to substantiate its case, prosecution had

examined altogether 10 PWs out of whom PW-1, Raghunath Poddar,

PW-2, Sorila Devi, mother of victim, PW-3 Phul Kumar Poddar PW-

4, Tetari Devi, PW-5, Dr. Sheela Gupta, PW-6, Jagarnath Das, PW-7,

Bhogan Mandal, PW-8, Raghunath Mandal, PW-9, Tulsi Pd. Sah and

PW-10, Basudeo Mandal as well as had also exhibited Injury report as

Ext-1.

7. Defence had also examined DW-1, Md. Yunus,
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Advocate and had exhibited an application as well as signature of the

appellant over the same as Ext-A, Ext-A/1.

8. It has been submitted on behalf of the appellant that

the learned lower court had scrutinized as well as appreciated the

evidence available on the record contrary to the proposition of law, on

account thereof, the findings so recorded by the learned lower court is

not at all valid, legal as well as tenable. In order to justify the same, it

has been submitted that the occurrence as alleged happens to be

imaginary, because of the fact that as per prosecution case, the whole

event continued for months together and so, it was very difficult to

accept that it was without consent as the conduct of victim, the

appellant would have been properly perceived by her parents,

neighbours, as allowing the appellant to continue with sexual

indulgence suggest the parties to be lovelorn. Furthermore, it has also

been submitted that right from inception of the prosecution, it is

evident that the victim was major one and so, she was well aware of

the fact that in case of meeting of two adults of opposite sex under

physical intimacy would result in such kind of result including

pregnancy and so, being a major allowing the situation to continue

speaks itself an event of consent whereupon, the finding recorded by

the learned lower court happens to be irruptive one.

9. It has further been submitted that none of the
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witnesses are eyewitness to occurrence and considering the delay in

institution of this case and further, having appearance of PW-3, Phul

Kumar Poddar with whom appellant has got land dispute is indicative

of the fact that he happens to be instrumental in getting this case out

of personal grudge and vendetta. Apart from this, it is also evident

that the victim was well aware of the fact that she as well as appellant

belongs to two different caste apart from being co-villagers and so,

marriage was not at all possible, even then, indulging herself

maintaining physical intimacy speaks otherwise which, subsequently,

been misutilized by way of institution of this case at the instance of

PW-3.

10. Furthermore, it has also been submitted that even

considering the version of the prosecution, though not admitted, but

for argument‟s sake it happens to be breach of promise and for that

Section 417 of the IPC would be attracted and the same happens to be

the finding recorded by the Hon‟ble Apex Court times without

number. Consequent thereupon, the judgment of conviction and

sentence recorded by the learned lower court happens to be bad,

illegal and in likewise manner, the sentence being arbitrary.

11. On the other hand, learned APP while refuting the

submissions made on behalf of appellant, has submitted that from the

facts of the case, it is apparent that appellant succeeded in getting
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consent in deceptive manner in order to screen himself, who firstly

committed rape and then, continued with said act on the false promise

of marriage which he was knowing since before that he was not going

to marry as was already married, as well as being co-villager as well

as representing two different community. So, the lower Court rightly

held that there was deception as well as misrepresentation at the end

of accused/appellant while entering into physical relationship with the

victim, PW-4, whereupon conviction and sentence recorded by

learned lower court happens to be based upon sound legal principle.

As such, the judgment impugned does not warrant any interference.

12. During course of appreciation of the evidence having adduced

on behalf of prosecution, first of all, evidence of PW-5, the Doctor is

to be taken. She had examined victim, PW-4 on 16.07.2003. From her

evidence it is evident that she found the victim pregnant of 28-30

weeks. In the aforesaid background, no definite opinion regarding

rape was given. She had not found external as well as internal injuries

over the victim. In likewise manner, also found hymen old torn.

Vaginal canal loose admitting two fingers easily. However, her age

was not at all ascertained save and except presence of 32 teeth as

found by the dental doctor. Ossification test was not done. During

cross-examination, she was confined with regard to presence of 3rd

molar teeth whereupon she opined that the aforesaid event is found
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completed within 17-25 years and so, on query, she had opined that

she might be above 20 years of age although, as stated above, the

victim was not put under ossification test, nor being status of PW-5 as

Gynecologist, was incompetent to assert the same.

13. From her evidence it is apparent that she found the

victim (PW-4) pregnant and the pregnancy was in between 28-30

weeks which has not been challenged at the end of the defence.

14. In the aforesaid background, now the evidence of the

victim, PW-4 is to be seen. During her examination-in-chief, she had

stated that the occurrence is about 2 years ago. On that day, she was

engaged by Dinesh Yadav to clean his cow-shed. While she was there,

Dinesh committed rape as a result of which, she became pregnant.

When her parents knew about the same, they convened a Panchayati

but did not materialize. She had not accepted dictat of accused to

abort and continued with pregnancy, as a result of which she begot a

son who is along with her. She has further stated that Dinesh Yadav

raped her thrice or forth time. Baldeo Yadav, Kaili Devi and Raju

Ghosh had assaulted her parents in order to force them to terminate

the pregnancy. She had gone to the police station but police did not

record whereupon she filed a complaint case. Identified the accused in

dock.

15. During cross-examination at para-7, she had stated
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that she was married since before the time of occurrence. She had

disclosed to her lawyer that she happens to be married. However, she

had not disclosed the name of her husband in the complaint petition.

In para-8, she had stated that after 5 months of occurrence, she had

gone to police station for lodging of a case along with her mother,

younger brother, Choukidar carrying an application which was

prepared at the dictation of her mother but she is unable to say about

the writer of the application. Police had not registered a case over the

aforesaid application nor inquired anything from her. In para-10, she

had disclosed that she had not narrated the incident to her husband

who is staying at Delhi. She had stated that the accused Dinesh had

raped her 3-4 times but she is unable to say the date and month. In

para-12, she had stated that Dinesh had got four cattles. Who was

cleaning his cow-shed now-a-days, she is unable to say. At the time

when Dinesh taken her away for cleaning the cow-shed none was

present. Dinesh caught hold of her hand and took her away to clean

the cattle-shed. She raised alarm attracting 8-10 persons. In para-13,

she had stated that after taking her inside the cattle-shed, he disclosed

that as her husband deserted her whereupon he will marry with her in

any circumstance and under aforesaid promiscuous event, he

succeeded to develop physical intimacy under free will. In para-14,

she had stated that she is unable to say the date and time of Panchayati
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but during course thereof, some sort of document was prepared which,

she had not filed. In para-15, she had stated that Phul Kumar Poddar is

known to her. She had also admitted litigation in between Dinesh and

Phul Kumar Poddar. She had further stated that her mother happens to

be beggar. Her father is old and infirm. She denied the suggestion that

at the instance of Phul Poddar she had instituted this case.

16. PW-1 is Raghunath Poddar, cousin brother of PW-4,

the victim. He had deposed that the occurrence is about 1 ½ years ago.

Accused Dinesh took away the victim on the pretext of cleaning of

cow-shed where, she was raped as a result of which, she became

pregnant whereupon, Panchayati was convened. Parents of Dinesh

removed him. Raghunath Mandal, Bado Mandal, Nagarnath Mandal,

Tulsi Sah, Chhagan Mandal, Phul Kumar Poddar and others have

participated therein. The aforesaid Panchayati did not yield

whereupon, victim had gone to lodge a case at police station but as the

same was not registered, on account thereof, the case was filed in the

court. During cross-examination at para-6, he had stated that this case

has been filed by the victim as well as her father. On account of

discloser having made by the victim, he came to know regarding the

occurrence about 1 ½ years ago but he is unable to say the exact date

as he happens to be simpleton. Panchayati was also convened but he is

unable to disclose the exact date. He had also put his LTI. Panchayati
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was held thrice. In para-8, he had stated that he happens to be cousin

brother of the victim and so he is full aware with the occurrence. In

para-9, he had further stated that the accused persons were

pressurizing the victim to abort. He had further stated that he came to

know about the occurrence from the victim. He denied the suggestion

that being cousin of the victim, he has falsely deposed.

17. PW-2 is mother of the victim. She had stated that she

had married her daughter about 3 years ago. Thereafter, her husband

had gone to Delhi leaving her. Her daughter lives along with her and

do manual work for her survival. Occurrence is about 1 ½ years ago.

Dinesh Yadav, on the pretext of cleaning of cow-shed, taken away her

daughter and raped her as a result of which she became pregnant.

There was Panchayati which did not materialize. Then thereafter, case

has been instituted by her daughter. She had begotten a son who is

living with her. During cross-examination at para-5, she had stated

that husband of her daughter deserted her saying characterless. None

of the family members of her son-in-law visits. Sometimes her

daughter begs. Sometimes, her daughter earns Rs. 200 to 300 from the

menial work. Phul Kumar Poddar is her neighbour who is a witness of

this case. In para-7, she had stated that there happens to be land

dispute amongst Phul Poddar as well as Dinesh. She had further stated

that Phul Poddar had come to Court. In para-8, she had stated that on
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the day of filing of the case, she along with victim as well as Phul

Kumar had come to court. In para-9, she had stated that her daughter

disclosed regarding rape after 4-5 months. Then thereafter, she came

to institute a case. No document has been created with regard to

Panchayati. Then had denied the suggestion that her daughter was

indulged in sin activity and taking advantageous position at the

instance of Phul Poddar, this case has been instituted.

18. PW-3 is Phul Kumar Poddar who had deposed that

about 1 ½ years ago the victim, her father and her mother came to

him. On query, the victim had disclosed that about 5-6 months ago

Dinesh Yadav engaged her for cleaning the cow-shed, where he

committed rape. He further disclosed that in case of alarm, she will be

murdered. If you keep silence, then he will marry and on that very

score, he continued in raping her as a result of which she became

pregnant. He had advised for convening Panchyati. On 04.06.2003,

there was uproar at the house of victim whereupon he had gone there

and seen Baldeo Yadav, Kaili Devi and Raju Ghosh engaged in

assaulting the parents of the victim and directed the victim to abort

otherwise, she will be assaulted and will be ousted from the village.

He intervened and anyhow pacified the situation. Panchayati was

convened whereunder parents of Dinesh accepted their faults and

further offered to pay Rs. 10,000/- for abortion, on the other hand,
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Punches insisted for marriage. Parents of Dinesh did not accept the

same. Victim had begotten a son. Victim used to maintain herself by

doing menial work. He was present in the Panchayati. During cross-

examination at para-7, he had stated that he was present at Panchayati.

At para-8 and 9, there happens to be contradiction. In para-10, he had

admitted that the victim happens to be of his caste. He had further

admitted that no document was prepared with regard to Panchayati. In

para-11, he had disclosed that two sittings of Panchayati had held at

the house of Baldeo Yadav while one sitting at the house of victim. In

para-12, he had disclosed that the victim happens to be married. Her

marriage solemnized about three years ago. That means to say, 1 ½

years prior to the date of occurrence. Her husband had gone to work

about a year ago. 2-3 months after the occurrence, husband of victim

had come to his place but had not visited the place of victim. In para-

14, he had stated that Sasuralwala of victim had not participated in the

Panchayati. In para-15, he had stated that Baldeo had launched a case

against him one month after the occurrence. He had denied the

suggestion that Dinesh is not father of the boy rather his father

happens to be husband of the victim.

19. PW-6 and 8 had disowned to know about the

occurrence whereupon, they were declared hostile.

20. PW-7 had stated that the victim became pregnant at
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the end of Dinesh Yadav. Panchyati was held on that very score.

Parents of Dinesh facilitated Dinesh to leave the place. Baldeo and

Kaili Devi participated during course of Panchayati but declined to

obey the dictum of the Panchayati. On 04.06.2003, Baldeo Yadav,

Kaili Devi and Raju Ghosh directed the victim to abort which she

declined. She had begotten a child. During cross-examination, he had

stated that after marriage, victim had gone to her Sasural where she

stayed for 5-6 months. On the eve of Raksha Bandhan, her husband

accompanied her to her Naiher and then gone to Delhi. He had further

stated in para-7 that he is not an eyewitness to occurrence rather he

was one of the members of Panchayati. It was resolved in Panchayati

that marriage should be solemnized but the parents of Dinesh Yadav

were adamant to disobey the same, whereupon the case has been

instituted.

21. PW-9 had stated that it was disclosed by the victim

that Dinesh Yadav had raped her when she had gone to clean the cow-

shed of Dinesh Yadav having engaged therefor. Subsequently thereof,

Dinesh Yadav allured her that he will marry and then he continued

with the aforesaid activity as a result of which she became pregnant.

Subsequently thereof, Panchayati was convened. He was also one of

the participants. As the parents of Dinesh did not accede to oblige the

resolution of Panchayati, then there after a case has been instituted.
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During cross-examination, he had stated that he is unable to say the

date of occurrence. He had further stated that the victim was already

married since before the occurrence. However, she was staying at her

Maika. He had denied the suggestion that son had been begotten out

of wedlock.

22. PW-10 had stated that he was one of the members of

the Panchayati. It was resolved that as Dinesh Yadav had raped the

victim, Dinesh should marry but, his parents did not accede,

whereupon, a case has been instituted. Victim had begotten a child.

During cross-examination, he had stated that he had participated in the

Panchayati as requested by father of the victim. Also named so many

persons who have participated during Panchayati.

23. DW-1, an Advocate has been examined on behalf of

defence to say that one petition was filed on 04.08.2003 at the end of

Daresh Poddar over which both the parties had put their LTI.

Exhibited.

24. None other than PW-4, victim is an eyewitness to the occurrence.

However, pregnancy of victim, PW-4 has consistently been substantiated

and is found admitted at the end of appellant also having a suggestion that

the aforesaid son was begotten out of wedlock though suggest to other PWs

and not to victim. Further there happens to be consistent evidence on that

very score that about 1 and ½ years ago, from the date of occurrence, she
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was deserted by her husband. No cross-examination has been made,

neither any kind of evidence had been adduced on behalf of appellant

to controvert the same. Now coming to the activities of the respective

parties, it is evident from the evidence of PW-4, that she was raped at

the first occasion when she had gone to clean cow-shed on being

engaged by the appellant and on that very moment, she was persuaded

to keep mum with an allurement at the end of appellant to marry and

in the aforesaid background, he continued with physical intimacy,

subsequently, leading to pregnancy. So, with regard to subsequent

event, it could be on the pretext of an offer having at the end of the

appellant to marry. So far, occurrence is concerned, there happens to

be a specific disclosure at the end of the victim that she was raped by

the appellant while she had gone to clean his cow-shed on having

been engaged by him. No cross-examination at the end of appellant

has been made on that very score.

25. In this regard, Section 114A of the Evidence Act is

also to be taken into consideration whereunder a presumption has

been allowed in favour of victim when she declines the theme of

consent. The aforesaid presumption happens to be rebuttable in nature

and for that, obligation goes upon the accused to discharge it properly.

The first instance of rape in the cow-shed of appellant should have

been properly explained at the end of appellant in such a manner
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which could have exposed status of the victim to be a consenting

party. Mere presence of PW-3 who has not been cross-examined on

the point of land dispute persisting since before, although admitted by

PW-2 will not make the situation at ease because of the fact that

appellant did not succeed in dismantling the evidence of the victim.

More particularly, during course of cross-examination, PW-4 had

stated that Dinesh Yadav had committed rape three or four times but

she is unable to disclose the exact date, month. In para-22, she had

further stated that Dinesh had offered that as she had been deserted by

her husband, he would marry with her and in the aforesaid

background, they developed intimate relationship. So, with regard to

subsequent event, it may be breach of promise, may be punishable

under Section 417 IPC but so far first occurrence of rape is concerned,

that remained intact. So far, the status of illiterate, rustic and

simpleton witnesses are concerned, some sort of infirmity is bound to

occur when they are confronted with a person having legal acumen,

during course of cross-examination. Admittedly, the parties continued

till its exposure by way of pregnancy and so, there was delay on that

very score.

26. In State of Himachal Pradesh v. Sanjay Kumar as

reported in 2017 Cr.L.J. 1443, it has been held as follows:-

“24. When the matter is examined in the
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aforesaid perspective, which in the opinion of this
Court is the right perspective, reluctance on the part of
the prosecutrix in not narrating the incident to anybody
for a period of three years and not sharing the same
event with her mother, is clearly understandable. We
would like to extract the following passage from the
judgment of this Court in Tulshidas Kanolkar v. State of
Goa[(2003)8 SCC 590]:

“5. We shall first deal with the question
of delay. The unusual circumstances satisfactorily
explained the delay in lodging of the first information
report. In any event, delay per se is not a mitigating
circumstance for the accused when accusations of rape
are involved. Delay in lodging the first information
report cannot be used as a ritualistic formula for
discarding the prosecution case and doubting its
authenticity. It only puts the court on guard to search
for and consider if any explanation has been offered
for the delay. Once it is offered, the court is to only
see whether it is satisfactory or not. In case if the
prosecution fails to satisfactorily explain the delay
and there is possibility of embellishment or
exaggeration in the prosecution version on account of
such delay, it is a relevant factor. On the other
hand, satisfactory explanation of the delay is weighty
enough to reject the plea of false implication or
vulnerability of the prosecution case. As the factual
scenario shows, the victim was totally unaware of the
catastrophe which had befallen her. That being so, the
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mere delay in lodging of the first information report
does not in any way render the prosecution version
brittle.”

25. In Karnel Singh v. State of Madhya
Pradesh[(1995) 5 SCC 518], this Court observed that:

“7…The submission overlooks the fact that
in India women are slow and hesitant to complain of
such assaults and if the prosecutrix happens to be a
married person she will not do anything without
informing her husband. Merely because the complaint
was lodged less than promptly does not raise the
inference that the complaint was false. The reluctance to
go to the police is because of society’s attitude towards
such women; it casts doubt and shame upon her rather
than comfort and sympathise with her. Therefore, delay
in lodging complaints in such cases does not
necessarily indicate that her version is false…”

26. Likewise, in State of Punjab v. Gurmit
Singh Ors.[(1996) 2 SCC 384], it was observed:

“8…The courts cannot overlook the fact that
in sexual offences delay in the lodging of the FIR can
be due to variety of reasons particularly the reluctance
of the prosecutrix or her family members to go to the
police and complain about the incident which
concerns the reputation of the prosecutrix and the
honour of her family. It is only after giving it a cool
thought that a complaint of sexual offence is generally
lodged…”

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27. In the same judgment the status of victim of rape as

well as reliability of his evidence has properly been discussed under

para-31 which is as follows:-

“After thorough analysis of all relevant and
attendant factors, we are of the opinion that none of the
grounds, on which the High Court has cleared the
respondent, has any merit. By now it is well settled that
the testimony of a victim in cases of sexual offences is
vital and unless there are compelling reasons which
necessitate looking for corroboration of a statement,
the courts should find no difficulty to act on the
testimony of the victim of a sexual assault alone to
convict the accused. No doubt, her testimony has to
inspire confidence. Seeking corroboration to a
statement before relying upon the same as a rule, in
such cases, would literally amount to adding insult to
injury. The deposition of the prosecutrix has, thus, to
be taken as a whole. Needless to reiterate that the
victim of rape is not an accomplice and her evidence
can be acted upon without corroboration. She stands
at a higher pedestal than an injured witness does. If
the court finds it difficult to accept her version, it may
seek corroboration from some evidence which lends
assurance to her version. To insist on corroboration,
except in the rarest of rare cases, is to equate one who
is a victim of the lust of another with an accomplice to
a crime and thereby insult womanhood. It would be
adding insult to injury to tell a woman that her claim
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of rape will not be believed unless it is corroborated
in material particulars, as in the case of an accomplice to
a crime. Why should the evidence of the girl or the
woman who complains of rape or sexual molestation be
viewed with the aid of spectacles fitted with lenses
tinged with doubt, disbelief or suspicion? The plea
about lack of corroboration has no substance {See
Bhupinder Sharma v. State of Himachal
Pradesh[(2003) 8 SCC 551]}. Notwithstanding this legal
position, in the instant case, we even find enough
corroborative material as well, which is discussed
hereinabove.”

28. Promiscuous indulgence under physical intimacy on

the pretext of offer to marry, has to be considered in the background

of intention of the parties. In case, it happens to be deceptive approach

of the accused who was knowing since before that he is not going to

marry, then in that circumstance, the aforesaid event would cast the

liability, which, the accused has to explain.

29. In Yedla Srinivasa Rao v. State of A.P. as reported

in (2006) 11 SCC, 615 it has been held as follows:-

“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
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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 sexual intercourse under
total misconception, cannot be treated to be a consent. In
this connection, reference may be made to a decision of
the Calcutta High Court in the case of Jayanti Rani Panda
v. State of West Bengal Anr., (1984) Cri.L.J.1535. In
that case it was observed that in order to come within the
meaning of misconception of fact, the fact must have an
immediate relevance. It was also observed that if a fully
grown up 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 and it was held that Section 90 IPC
cannot be invoked unless the court can be assured that
from the inception accused never intended to marry her.
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Therefore, it depends on case to case that what is the
evidence led in the matter. If it is fully grown up girl who
gave the consent then it is different case but a girl whose
age is very tender and she is giving a consent after
persuasion of three months on the promise that the
accused will marry her which he never intended to fulfil
right from the beginning which is apparent from the
conduct of the accused, in our opinion, Section 90 can be
invoked. Therefore, so far as Jayanti Rani Panda (supra)
is concerned, the porseuctirx was aged 21-22 years old.
But, here in the present case the age of the girl was very
tender between 15-16 years. Therefore, Jayanti Rani
Panda’s case is fully distinguishable on facts. It is always
matter of evidence whether the consent was obtained
willingly or consent has been obtained by holding a false
promise which the accused never intended to fulfil. If the
court of facts come to the conclusion that the consent has
been obtained under misconception and the accused
persuaded a girl of tender age that he would marry her
then in that case it can always be said that such consent
was not obtained voluntarily but under a misconception
of fact and the accused right from the beginning never
intended to fulfil the promise. Such consent cannot
condone the offence. Reliance can also be made in the
case of Emperor v. Mussammat Soma reported in (1917)
Crl. Law Journal Reports 18 (Vol.18). In that case the
question of consent arose in the context of an allegation
of kidnapping of a minor girl. It was held that the
intention of the accused was to marry the girl to one
23

Dayaram and she obtained Kujan’s consent to take away
the girl by misrepresenting her intention. In that context
it was held that at the time of taking away the girl there
was a positive misrepresentation i.e. taking the girls to
the temple at Jawala Mukhi and thereafter they halted for
the night in Kutiya (hut) some three miles distance from
Pragpur and met Daya Ram, Bhag Mal and Musammat
Mansa and Musammat Sarasti was forced into marrying
Daya Ram. This act was found to be act of kidnapping
without consent. But, in the instant case, a girl though
aged 16 years was persuaded to sexual intercourse with
the assurance of marriage which the accused never
intended to fulfil and it was totally under misconception
on the part of the victim that the accused is likely to
marry her, therefore, she submitted to the lust of the
accused. Such fraudulent consent cannot be said to be a
consent so as to condone the offence of the accused. Our
attention was also invited to the decision of this Court in
the case of Deelip Singh Alias Dilip Kumar v. State of
Bihar, [2005] 1 SCC 88 wherein this Court took the view
that prosecturix had taken a conscious decision to
participate in the sexual act only on being impressed by
the accused who promised to marry her. But accused’s
promise was not false from its inception with the
intention to seduce her to sexual act. Therefore, this case
is fully distinguished from the facts as this Court found
that the accused promise was not false from its inception.
But in the present case we found that first accused
committed rape on victim against her will and consent
24

but subsequently, he held out a hope of marrying her and
continued to satisfy his lust. Therefore, it is apparent in
this case that the accused had no intention to marry and it
became further evident when Panchayat was convened
and he admitted that he had committed sexual intercourse
with the victim and also assured her to marry within 2
days but did not turn up to fulfil his promise before the
Panchayat. This conduct of the accused stands out to hold
him guilty. What is a voluntary consent and what is not a
voluntary consent depends on the facts of each case. In
order to appreciate the testimony, one has to see the
factors like the age of the girl, her education and her
status in the society and likewise the social status of the
boy. If the attending circumstances lead to the conclusion
that it was not only the accused but prosecutrix was also
equally keen, then in that case the offence is condoned.
But in case a poor girl placed in a peculiar circumstance
where her father has died and she does not understand
what the consequences may result for indulging into such
acts and when the accused promised to marry but he
never intended to marry right from the beginning then the
consent of the girl is of no consequence and falls in the
second category as enumerated in Section 375 -“without
her consent”. A consent obtained by misconception while
playing a fraud is not a consent.

11. ***

12. ***

13. ***

14. ***
25

15. ***

16. ***

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 prosecutrix that he would marry
her. Therefore, we are satisfied that the conviction and
sentence awarded to the appellant is correct and no case
is made out for our interference. The appeals are
dismissed.”

30. In State of U.P. v. Naushad reported in AIR 2014

SC 384, it has been held under para-12 and 13 which are as follows:-

12. The answer to point no.3 is pertaining to the question
of sentence awarded by the trial court to the accused. The
trial court has justified in awarding of maximum sentence
of life imprisonment to the accused under Section 376 of
the IPC on the ground that the facts of this case are of a
26

very grave nature. The accused being related to the
prosecution used to often visit her house and took undue
advantage of this relationship and kept the prosecutrix
under the misconception that he would marry her and
committed rape on her for more than two years thereby
making her pregnant. In such circumstances, the trial
court held that it would be justifiable to award the
maximum sentence to the accused. We, therefore, hold
that the trial court was correct in awarding the maximum
sentence of life imprisonment to the accused as he has
committed a breach of the trust that the prosecutrix had
in him, especially due to the fact that they were related to
each other. He thus invaded her person, by indulging in
sexual intercourse with her, in order to appease his lust,
all the time knowing that he would not marry her. He
committed an act of brazen fraud leading her to believe
that he would marry her.

13. A woman‟s body is not a man‟s plaything and he
cannot take advantage of it in order to satisfy his lust and
desires by fooling a woman into consenting to sexual
intercourse simply because he wants to indulge in it. The
accused in this case has committed the vile act of rape
and deserves to be suitably punished for it.

31. After analyzing as well as crystallizing the legal

principle as referred hereinabove, it has become crystal clear that

consent is the theme which accused has to prove, as the court has to

presume in light of Section 114A of the Evidence Act, contrary to it,
27

having at the end of victim, positive assertion that there was no

consent.

32. Consent is not defined under IPC, specifically

Section 375 IPC did not. However, Section 90 of the IPC deals with

consent, but also did not define what constitute consent, rather it

categorizes what did not constitute consent whereunder consent given

by the prosecutrix under misconception of fact, would not constitute a

valid consent. Moreover, obligation goes upon the accused and it is

accused who has to discharge the burden in terms of Section 114A of

the Evidence Act.

33. So far facts of the present case is concerned,

appellant had vehemently denied the allegation without any

alternative option. He had carried the same during course of his

statement recorded under Section 313 CrPC and so, tried to illude.

34. It is true that like any other criminal trial, the trial of

rape case has also to carry in same way having an obligation at the

end of prosecution to support its case beyond reasonable doubt, but

once it is supported, the onus shifts upon the accused which has to be

discharged under theme of preponderance of probability.

35. Therefore, the evidence of prosecutrix, PW-4

explains substantiating the activity of appellant would have been

explained at least under banner of consent, but the reason best known
28

to the appellant, never it been suggested nor properly pleaded.

However, court delved over the same and found appellant happens to

be married since before having children. The vagrancy of victim, PW-

4 who was deserted, being hand to mouth virtually, had been

exploited at his end and even knowing since before that he was

already married having children, being of two different castes, co-

villager, would not marry and even then, allured by way of offering

false promise of marriage which he carried under mephitic intention

and continued in sexual indulgence, is a circumstance which is found

duly cared by the principle so laid down by the Hon‟ble Apex Court

as referred herein above.

36. In Deepak Gulati v. State of Haryana reported in

2013 Cr.L.J 2990

15. Section 114-A of the Indian Evidence Act, 1872
(hereinafter referred to as the „Act 1872‟) provides, that
if the prosecutrix deposes that she did not give her
consent, then the Court shall presume that she did not in
fact, give such consent. The facts of the instant case do
not warrant that the provisions of Section 114-A of the
Act 1872 be pressed into service. Hence, the sole
question involved herein is whether her consent had been
obtained on the false promise of marriage. Thus, the
provisions of Sections 417, 375 and 376 IPC have to be
taken into consideration, alongwith the provisions of
Section 90 of the Act 1872. Section 90 of the Act 1872
29

provides, that any consent given under a misconception
of fact, would not be considered as valid consent, so far
as the provisions of Section 375 IPC are concerned, and
thus, such a physical relationship would tantamount to
committing rape.

16. This Court considered the issue involved herein at
length in the case of Uday v. State of Karnataka, AIR
2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of
Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of
A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v.
State of Bihar Anr., AIR 2007 SC 3059, and came to
the conclusion that in the event that the accused‟s
promise is not false and has not been made with the sole
intention to seduce the prosecutrix to indulge in sexual
acts, such an act(s) would not amount to rape. Thus, the
same would only hold that where the prosecutrix, under a
misconception of fact to the extent that the accused is
likely to marry her, submits 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.

17. Rape is the most morally and physically
reprehensible crime in a society, as it is an assault on the
body, mind and privacy of the victim. While a murderer
destroys the physical frame of the victim, a rapist
degrades and defiles the soul of a helpless female. Rape
reduces a woman to an animal, as it shakes the very core
of her life. By no means can a rape victim be called an
accomplice. Rape leaves a permanent scar on the life of
the victim, and therefore a rape victim is placed on a
30

higher pedestal than an injured witness. Rape is a crime
against the entire society and violates the human rights of
the victim. Being the most hated crime, rape tantamounts
to a serious blow to the supreme honour of a woman, and
offends both, her esteem and dignity. It causes
psychological and physical harm to the victim, leaving
upon her indelible marks.

18. 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 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
31

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.

19. In Deelip Singh (supra), it has been observed as
under:

“20. 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.”

20. This Court, while deciding Pradeep Kumar Verma
(Supra), placed reliance upon the judgment of the Madras
High Court delivered in N. Jaladu, Re ILR (1913) 36
32

Mad 453, wherein it has been observed:

“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) 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. 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
33

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.

37. In State of Himachal Pradesh v. Shree Kant

Shekari reported in AIR 2004 SC 4404, it has been held:-

Even otherwise the High Court seems to
have fallen in grave error in coming to the conclusion
that the victim has not shown that the act was not done
with her consent. It was not for the victim to show that
there was no consent. Factually also the conclusion is
erroneous right from the beginning that is from the stage
when the FIR was lodged and in her evidence there was a
categorical statement that the rape was forcibly done
notwithstanding protest by the victim. The High Court
was therefore wrong in putting burden on the victim to
show that there was no consent. The question of consent
is really a matter of defence by the accused and it was for
him to place materials to show that there was consent. It
is significant to note that during cross examination and
the statement recorded under Section 313 of the Code of
Criminal Procedure, 1973 (in short the ‘Code’) plea of
consent was not taken or pleaded. In fact in the
statement under Section 313 of the Code the plea was
34

complete denial and false implication.

38. Consequent thereupon, appeal sans merit and is,

accordingly, dismissed.

39. Appellant is under custody which he will remain till

saturation of the sentence.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE 21.07.2017
Uploading Date 08.08.2017
Transmission 08.08.2017
Date

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