HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
S.B. Criminal Appeal No. 358 / 1990
For Appellant(s) : Dr. P.C. Jain with Mr. Amit Sharma
For Respondent(s) : Mr. NS Dhakad PP
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
The present appeal has been filed to assail the
impugned judgment dated 8.10.1990 rendered by the court of
Additional Sessions Judge No.1, Alwar in Sessions Case
No.66/1989. The said court vide impugned judgment convicted
the appellant Yuvraj Singh for the offence under Section 376 IPC
and vide a separate order of even date sentenced him to undergo
seven years RI and to pay a fine of Rs.50,000/-, in default thereof
to undergo additional three years RI. Fine of Rs. 50,000/- was
ordered to be paid to the prosecutrix (name withheld to protect
Aggrieved against his conviction and sentence, the
appellant has filed the present appeal in the year 1990. The said
appeal was admitted. Thereafter, appeal was listed for final
hearing and disposal but none appeared on behalf of the appellant
(2 of 8)
on 29.5.2014, 17.6.2016, 27.6.2016. On 7.12.2017, Dr. P.C. Jain
caused appearance for the appellant and pleaded no instructions.
Thus, this Court had issued non-bailable warrants. The appellant
in pursuance of non-bailable warrants was taken into custody.
Since the appellant is in custody, appeal was ordered to be listed
Today, the learned counsel for the parties have
addressed the arguments. Before arguments are dealt with, it will
be necessary to notice brief facts of the case.
On 27.5.1989, prosecutrix submitted written report
(Exhibit-P/1), on the basis of which, a formal FIR (Exhibit-P/2)
bearing No. 306/1989 was registered. The written report (Exhibit-
P/1) when translated into English, reads as under:-
Shriman Kotwal Saheb,
It is submitted that I (name withheld to protect her
identity) is resident of Gwalior. In 1984, I had come from
Gwalior to attend marriage at Alwar. Then Yuvraj Singh
son of Prabhu Singh, by caste Rajput, resident of Kala
Kuwa, Housing Board, 1 Ch 4, Alwar, had kept me in his
house as wife. He told me to stay with him and he will
marry me. I am carrying a pregnancy of three months
from the loins of Yuvraj Singh. On 15.5.1989, Yuvraj Singh
had performed another marriage and now after giving
beating, he has turned me out of the house. He has kept
me as wife for 5-6 years. He has performed bad act with
me due to which I am carrying his child. He has performed
another marriage and has turned me out of the house. I
have been left with no option, hence, it is prayed that legal
action be taken against him. I have been turned out of the
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house by giving beating by Yuvraj Singh and his father
Prabhu Singh. They have told me to return to Gwalior.
Therefore, strict legal action be taken against them.
After the FIR (Exhibit-P/2) was registered, appellant
was charged for the offence under Section 376 IPC. The charge
stated that in the year 1984, appellant had kept the prosecutrix as
his wife and was having continuous sexual relationship with her,
due to which prosecutrix became pregnant. It was further stated
in the charge that the prosecutrix was minor.
The prosecution in all examined thirteen witnesses.
The prosecutrix appeared in the court as P.W.1 and
reiterated as to what was stated by her in written report (Exhibit-
P/1). In examination-in-chief she stated that abortion was carried
by one Dr. Devyani. Yuvraj Singh accused was employed at
Bhilwara and she had accompanied him there. She further stated
that from Bhilwara, they came to Alwar, where they stayed for six
to seven months and later Yuvraj Singh got service at Kherthal
and she went alongwith him. In the court, prosecutrix stated that
on 15.5.1989, Yuvraj Singh had performed another marriage and
his elder sister had turned her out of the house. She further stated
that when Yuvraj Singh performed second marriage, she was
having pregnancy of three months and at the time of deposition in
the court, she was having full grown pregnancy of nine months.
She further stated that she and accused Yuvraj Singh stayed as
husband and wife.
Mahendra Singh (P.W.2) in the court deposed that the
(4 of 8)
prosecutrix was known to him and she was staying with the
accused. However, this witness stated that he is not aware in
which capacity accused had kept the prosecutrix.
Heera Lal (P.W.3) had not supported the prosecution.
He was declared hostile to the prosecution.
Dr. Raj Kumar Mishra (P.W.4) had medico-legally
examined the prosecutrix and had found seven simple injuries on
her person. This Court need not notice the injuries on the person
of prosecutrix, as no charge regarding beating was framed against
the appellant. In examination-in-chief, this witness stated that he
had carried ossification test of the prosecutrix and as per report,
she was aged 22 years and thus, in the year 1984, she was about
17 years of age. In cross-examination, this witness stated that the
age of the prosecutrix can be 23 years also.
Dr. Harish Manocha (P.W.5) in the court stated that as
per Radiological examination, the prosecutrix was aged 19 years
and in the year 1984, she may be about 14 years of age.
Lekhraj Singh (P.W.6) had partly investigated the case.
Vikram Singh (P.W.7) had prepared the site plan
(Exhibit-P/4) of the house where the accused was residing.
Smt. Sushila Devi (P.W.8) in the court stated that she
was married with the accused from last one year and she had not
seen the prosecutrix staying with the accused.
Ashok Yadav (P.W.9) in the court stated that accused
had taken room on rent and he had disclosed that the prosecutrix
was his wife.
(5 of 8)
Rohitash (P.W.10) stated that the accused was working
in Annapurna Textile Mill. He was staying at the house of Ashok
Yadav (P.W.9) and Yuvraj Singh accused was a tenant in Room No.
2 and with him, the prosecutrix was residing, as wife.
Harprasad (P.W.11) stated that the accused was staying
in a rented room alongwith the prosecutrix.
Madan Sharma (P.W.12) stated that he was employed
in Annapurna Textile Mill as a Supervisor and accused Yuvraj Singh
@ Yogesh was working in the said Mill.
Munshi Singh (P.W.13) being SHO, Police Station
Kotwali, Alwar, has proved documents on the basis of which
Thereafter, the statement of the accused was recorded
under Section 313 Cr.P.C. The accused in his statement further
stated that the prosecutrix had come to his house to stay as a
Dr. P.C. Jain, the learned counsel for the appellant has
submitted that the doctor who had carried abortion has not been
examined. Furthermore, no DNA Test was conducted to prove the
allegation that the prosecutrix became pregnant from the loins of
the appellant. The learned counsel for the appellant has submitted
that even if it is assumed that the prosecutrix was first wife of the
appellant, and later the accused performed another marriage, it
will constitute offence of Bigamy under Section 494 IPC. It is
contended that the said offence is non-cognizable. The learned
counsel for the appellant contended that in no case, offence under
Section 376 IPC is made out.
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The learned counsel for the appellant relied upon the
case of Uday vs. State of Karnataka, AIR 2003 Supreme
Court 1639, wherein it is stated as under:-
“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 giveny 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 quesdtion 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
Mr. N.S. Dhakd, the learned Public Prosecutor has
submitted that it has come in evidence that the prosecutrix was
staying with the accused as wife.
To appreciate the arguments raised by the learned
counsel for the parties, first this Court has to determine the age of
Dr. Raj Kumar Mishra (P.W.4) in examination-in-chief
has stated that as per Exhibit-P/7, the prosecutrix was aged 22
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years and in the year 1984, she was aged about 17 years. It has
been rightly contended by the learned counsel for the appellant
that the margin of two years on either side is to be granted to the
report of ossification test to determine the age of the prosecutrix.
It is contended that the prosecutrix was thus, more than 18 years
of age, in the year 1984.
The prosecution was also examined by Dr. Harish
Manocha (P.W.5) Radiologist. He has stated that as per
Radiological examination (Exhibit-P/10), prosecutrix was aged 19
years and thus, in the year 1984, she was aged about 14 years.
In case, margin of two years on either side is granted
to the prosecutrix for determining the age of prosecutrix, then in
the year 1984, the prosecutrix was above 16 years of age. Under
the unamended Indian Penal Code, age of consent was 16 years.
Therefore, it is case of consensual sex.
The accused and the prosecutrix were having
continuous sexual relationship for a period of five years. From the
year 1984 to 1989, consensual sexual relationship remained
between the accused and the prosecutrix. It has come in evidence
that the prosecutrix had became pregnant and abortion was
carried, later she again became pregnant. Though the conduct of
the accused appellant may be morally bad, but same will not fall
within the ambit of Section 375 IPC which defines rape, as the
prosecutrix was herself a consenting party to the sexual
relationship. Therefore, taking totality of circumstances, this court
shall extend benefit of doubt to the appellant, as no offence of
rape is made out.
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Consequently, the appeal is accepted. The conviction
pronounced and sentence awarded upon the appellant by the trial
court is set aside. He is acquitted of the charge.
The appellant who is in custody shall be released by the
trial court if he is not involved in any other case, after complying
with section 437A Cr.P.C.
(KANWALJIT SINGH AHLUWALIA)J.