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Date Of Decision: 7.1.202 vs State Of Himachal Pradesh on 7 January, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 654 of 2017
Date of Decision: 7.1.2020.
__
Kuldeep Kumar ………Appellant.

.
Versus

State of Himachal Pradesh ……….Respondent.

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting1? Yes.
For the appellant: Mr. Sanjeev Bhushan, Senior Advocate with Mr.
Rakesh Chauhan, Advocate.
For the respondent: Mr. Sudhir Bhatnagar, Mr. Anil Jaswal and Mr.
Arvind Sharma, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy Advocate General,

for the State.
__
Sandeep Sharma, J. (Oral)

By way of present appeal filed under Section 374 (2) of Cr.PC,

challenge has been laid to judgment of conviction dated 12.12.2017, passed

by the learned Sessions Judge, Chamba, H.P., in Sessions Trial No. 42 of 2015,

whereby court below while holding the appellant-accused (herein after

referred to as “the accused”) guilty of having committed offence punishable

under Section 376 of IPC, convicted and sentenced him to undergo rigorous

imprisonment for a period of seven years and to pay fine of Rs. 50,000/- and

in default of payment of fine, to further undergo rigorous imprisonment for a

period of three months.

2. Case of prosecution, as emerges from the record is that on

12.9.2013, the accused got engaged to victim-prosecutrix as per local

customs and rites of Pangi, District Chamba, H.P.. As per custom prevalent in

the area, boy and girl can have physical relationship with each other after

Whether reporters of the Local papers are allowed to see the judgment?

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engagement. Subsequent to engagement inter-se accused and victim-

prosecutrix, allegedly they had repeated sexual intercourse till December,

2013, under the existing customs/rituals prevalent in the area. After the

.

aforesaid alleged incident, accused remained in constant touch with the

prosecutrix till March, 2014, whereafter he stopped using his mobile phone.

Marriage inter-se accused and prosecutrix though was fixed for December,

2014, but since accused did not return back, marriage inter-se prosecutrix

and accused could not take place, whereafter father of the prosecutrix

reported the matter to SDM Pangi by way of written complaint. In the

aforesaid proceedings, father of the accused made a statement before the

SDM Pangi that accused, who is studying at Chandigarh, would come back

to perform the marriage, but fact remains that accused did not return back

and accordingly, matter came to be reported to the police by the

prosecutrix. SI Kamlesh Kumar, alongwith other police officials, while on

patrolling duty at bus stand Killar, Pangi, recorded the statement of victim-

prosecutrix under Section 154 Cr.PC and thereafter, sent the same to Police

Station Pangi for registration of FIR. After registration of case as referred

above, prosecutrix was medically examined at Regional Hospital Chamba by

PW12 Dr. Minakshi, who in her report (MLC Ext.PW12/A) though stated that no

internal or external injury is/was found on the person of the victim-prosecutrix,

but possibility of sexual intercourse cannot be ruled out. Statement of victim-

prosecutrix was also recorded under Section 164 Cr.PC in the court of

learned JMIC Chamba. Investigating Officer had also obtained certificate

from the former Pradhan of Gram Panchayat, Karyas with regard to custom

and rites prevalent in Pangi area (Ext.PW4/A).

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3. After completion of investigation, challan came to be filed in

the court of learned Sessions Judge Chamba, who being satisfied that prima-

facie case exists against the accused charged him for having committed

.

offence punishable under Section 376 of IPC, to which he pleaded not guilty

and claimed trial. Prosecution with a view to prove its case examined as

many as 13 witnesses, whereas accused in his statement recorded under

Section 313 Cr.PC., denied the case of the prosecution in toto and claimed

himself to be innocent. However, learned court below on the basis of

evidence led on record by the prosecution held the accused guilty of having

committed offence under Section 376 IPC and accordingly convicted and

sentenced him as per description given herein above. In the aforesaid

background, the petitioner has approached this Court in the instant

proceedings.

4. Having heard learned counsel for the parties and perused

material available on record, this Court finds that precisely the case of the

prosecution is that accused repeatedly sexually assaulted the victim-

prosecutrix on the pretext of marriage. Statements having been made by

material prosecution witnesses, if read in conjunction juxtaposing each

other, clearly reveal that on 12.9.2013 engagement inter-se victim-prosecutrix

and accused took place at the residence of victim-prosecutrix in Tehsil

Pangi, District Chamba, as per local customs and rites of Pangi. All the

witnesses including victim prosecutrix have stated that as per prevalent

custom in the area, a boy after his engagement with a girl can live with her in

her house and can also have sexual relationship before marriage.

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5. Prosecutrix (PW1), at whose instance FIR Ext.PW13/A came to

be registered deposed that she was engaged to the accused on 12.9.2013

as per customs and rites prevalent in Pangi, whereafter accused had started

.

residing in the house of the prosecutrix. She deposed that accused had

developed physical relations with her up to December, 2013, whereafter

accused told her that he was going to Kullu. She deposed that she remained

in contact with the accused on phone up to March, 2014, whereafter

accused stopped talking to her. She deposed that her marriage with

accused was fixed for December, 2014, but accused did not return home in

the month of December, 2014. Thereafter, father of the victim-prosecutrix

reported the matter to SDM Pangi, wherein father of the accused stated that

his son is studying at Chandigarh and will come back to perform marriage,

but when accused did not return for one month, they reported the matter to

the police. In her cross-examination, prosecutrix while stating that she has

studied up to +2 level admitted that she understands her good and bad. In

her cross-examination, she stated that custom of the area was told to her by

her sister. Victim-prosecutrix stated in her cross-examination that physical

relationship was made on 17.9.2013 and accused had not stayed

continuously in her house from September to December, 2013, but he used to

visit her house twice or thrice in a month. She stated that accused had

come to her house last time on 27.12.2013. She also admitted that her father

had filed application before SDM Killar, Pangi against the accused and his

father. she also admitted that her father wrote in the application that

accused had solemnized the marriage and spoiled the life of his daughter.

She admitted that her father in application Ext.D3 submitted to SDM Killar,

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Pangi had not mentioned regarding her physical relationship with the

accused. She also admitted that all the witnesses are from her village and in

relations. This witness admitted that police station is at a distance of 2 km

.

from her house. If the statements having been made by PW2 and PW9

(father and mother of the victim-prosecutrix, respectively) are read in

conjunction, it also suggests that accused after getting engaged to victim-

prosecutrix visited the house of the victim-prosecutrix at several occasions

and developed physical relations.

6. PW2 in his cross-examination admitted that his daughter

developed physical relations with the accused with her consent. He also

admitted that his statement Ext.D4 was recorded by SDM. He stated in his

cross-examination that it is compulsory to develop the sexual relationship with

the accused after the engagement and it is incorrect that his daughter has

herself refused to perform marriage with the accused.

7. PW9 (mother of the victim-prosecutrix) admitted in her cross-

examination that nobody had told her daughter about the custom and her

daughter was herself aware of the same. This witness denied that they have

demanded Rs. 5 lac from the family of the accused as “izat” (damages). This

witness also denied the suggestion put to her that there is no custom in the

area that boy and girl have to develop physical relations prior to marriage

and her daughter herself refused to perform marriage in the October, 2014. If

the statement of these aforesaid material prosecution witnesses are read in

its entirety, it though suggests that as per local customs prevalent in the area,

boy and girl can have sexual relationship prior to their marriage, but no

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positive evidence in the shape of document suggestive of the fact that such

custom is prevalent in the area, ever came to be placed on record.

8. PW3 Shivo Devi, Secretary of Mahila Mandal Jhalwas stated

.

that after the engagement, accused used to visit the house of the victim

prosecutrix. She stated that accused had not solemnized marriage with the

victim-prosecutrix and she does not know when marriage was fixed between

victim-prosecutrix and accused as her house is away from the victim. In her

cross-examination, she stated that she saw the accused visiting the house of

the victim twice. Though she denied suggestion put to her that she does not

know whether the accused had developed physical relations with the victim

after the engagement or not, but careful perusal of statement made by this

witness also nowhere suggests that she was able to prove custom, if any, of

having sexual relationship inter-se boy and girl before marriage.

9. PW4 Jugni Chopra, Ex-Pradhan of Gram Panchayat, Karyas,

while stating that accused had not solemnized marriage with the victim

stated that she had given certificate to the police Ext.PW4/A, which bears

her signatures. She deposed that as per custom of the area, boy and girl

can develop physical relations with each other after their engagement. She

deposed that it is custom in the area that if anybody refuses to marry a girl

and girl is defamed, nobody performs marriage with her. Interestingly, this

witness in her cross-examination stated that she is totally illiterate and she

does not know, who scribed certificate Ext.PW4/A. She admitted that only

her signature and stamp has been obtained by the police. She admitted

that she cannot read and write what has been written in Ext.PW4/A. This

witness admitted in her cross-examination that she has heard about the

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custom of the area and Secretary, Gram Panchayat had obtained her

signatures on the certificate. This witness categorically stated in her cross-

examination that her husband had not developed relations with her after her

.

engagement. She admitted that it is correct that it is not compulsory to

develop physical relations after the engagement and prior to marriage by all

and sundry, rather it depends upon the wishes of the boy and girl, who

develop such relations.

10. PW5 Pan Raj, who otherwise appears to be cousin of the

accused, while stating that engagement of victim-prosecutrix and accused

was solemnized in October, 2014 stated like PW2 and PW9 that accused used

to visit the house of the victim-prosecutrix after the engagement and

marriage inter-se them was fixed. Most importantly, it has come in the

statement of this witness that when marriage inter-se accused and victim-

prosecutrix could not take place, family of girl demanded sum of Rs. 5 lac,

which could not be paid. It may be noticed here that this witness had got

the marriage of proposal settled inter-se prosecutrix and accused. This

witness stated that there is custom to meet each other after engagement,

but it is not compulsory to develop sexual relations with each other. He

stated that if physical relations are made by the accused, then he may have

spoiled the life of the victim-prosecutrix. In his cross-examination, he

admitted that engagement was solemnized with the consent of both the

parties and he does not know that accused had solemnized marriage in the

month of October, 2014 at Village Kufa. This witness also admitted that father

of the victim had filed an application before Pradhan Killar and SDM Pangi

regarding refusal of accused to solemnize marriage with his daughter and he

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had demanded damages from the accused. This witness stated that family

of the accused was not able to pay rupees five lac as demanded by the

victim’s family and thereafter, the matter was reported to the police. This

.

witness also stated that victim herself refused to marry with the accused.

11. PW8 Gajinder Singh Ex-BDC Member stated that he had

attended the engagement ceremony of the victim-prosecutrix and accused.

He deposed that after the engagement, marriage was fixed, but he does not

remember the date. He also stated that after the engagement, accused

visited the house of the victim 6-7 times and as per custom of the area, a boy

and girl can visit the house and develop sexual relations. In his cross-

examination, he admitted that accused used to visit the house of the victim

at the time of the festivals and he has not studied such custom. He while

stating that he had developed physical relations with his wife prior to

marriage stated that such type of relations are optional and not compulsory.

He also admitted that if both the parties are agreed, only then, physical

relations can be developed.

12. Statements having been made by all the aforesaid prosecution

witnesses, which are material and relevant for adjudication of the present

case at hand nowhere suggests that prosecution was able to prove that

there is custom prevalent in the Pangi area that boy and girl after their

engagement can live together and have sex. PW2 and PW9 though have

corroborated the version put forth by victim-prosecutrix (PW1), but version put

forth by them being parents of victim-prosecutrix is required to be taken into

consideration with utmost care and caution because there can be an

element of bias and interestedness. Other material prosecution witnesses i.e.

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PW3 to PW5 though talked about prevalent custom in the area as has been

taken note herein above, but they have not specifically stated that during

this period, accused having taken undue advantage of custom prevalent in

.

the area sexually assaulted/developed physical relations with the victim-

prosecutrix, rather they have simply stated that after engagement, they saw

accused visiting the house of victim-prosecutrix. Moreover, PW3 and PW4,

who have been specifically cited by prosecution to prove the custom, have

not stated something specific with regard to custom prevalent in the area.

PW3 while stating that she had seen accused visiting the house of the victim

admitted that she does not know whether accused had developed physical

relations with victim-prosecutrix after the engagement or not. She has

nowhere stated that there is a custom prevalent in the area that after

engagement boy and girl can have sexual relations with each other. Most

interestingly, PW4 Ex-Pradhan of Gram Panchayat Karyas stated that she

does not know, who scribed Ext.PW4/A, this witness while admitting that she is

totally illiterate stated that her signatures and stamp were obtained by the

police. She stated that she cannot read and write what has been written in

the Ext.PW4/A and Secretary Gram Panchayat had obtained her signatures

on this certificate. This witness unambiguously stated in her cross-examination

that her husband had not developed physical relations with her after her

engagement and it is not compulsory to develop physical relations after the

engagement and prior to marriage by all and sundry, rather it is upon the

wish of a boy and girl to develop such relations. Version put forth by the

independent witnesses PW3 and PW4, if read in conjunction juxtaposing

statements having been made by PW1, PW2 and PW9, it completely belies

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the version put forth by victim-prosecutrix and her parents PW2 and PW9 that

it is compulsory for a boy and girl to develop physical relations after their

engagement as per prevalent custom in the Pangi area, rather it depends

.

upon the wish of the boy and girl after their engagement.

13. Similarly, version put forth by PW5 and PW8 nowhere proves the

custom of having sexual relationship before marriage. PW5 though has

specifically denied the knowledge, if any, with regard to sexual relationship

inter-se victim and accused after their engagement, but he has categorically

stated that after refusal on the part of the accused to marry victim-

prosecutrix, father of the prosecutrix demanded sum of Rs. 5 lac. He has also

denied custom with regard to having sexual intercourse prior to marriage

and after engagement as per custom prevalent in the area. PW8 though

stated that accused used to visit the house of the victim at the time of the

festivals, but nowhere categorically stated that after engagement, accused

developed physical relationship with the victim-prosecutrix. He in his cross-

examination admitted that he has not studied such custom and he had

developed physical relations with his wife prior to his marriage, but such types

of relationship are optional and these are not compulsory.

14. Moreover, onus to prove that there was custom prevalent in the

Pangi area that after engagement and prior to marriage, boy and girl can

have sexual relationship is /was upon prosecution, especially when the case

set up by the prosecution is that accused after getting engaged with victim-

prosecutrix not only lived in the her house many times, but also developed

physical relations with her. In the case at hand, with a view to prove custom,

prosecution besides prosecutrix and her parents (PW2 PW9) also examined

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so called independent witnesses i.e. PW3, 4, 5 and 8, but as has been

discussed herein above, none of the witnesses have stated something

specific with regard to custom prevalent in the area, rather they simply

.

stated that as per custom in the area, accused after his engagement started

visiting the house of the victim-prosecutrix and during this period, they had

developed physical relations. However, this Court is of the view that

prosecution with a view to prove custom as pleaded ought to have placed

on record cogent and convincing evidence in the shape of some

documentary proof because custom as has been pleaded in the case at

hand is totally unheard of. Customs prevalent in the various tribal areas of

Himachal Pradesh are either recorded in Wazib-Ul-Arj or gazettes, but in the

instant case, no effort ever came to be made on behalf of the prosecution to

prove custom as has been pleaded by placing reliance upon the aforesaid

documents, if any.

15. Having carefully perused evidence available on record, this

Court has no hesitation to conclude that court below has erred in concluding

that after engagement, accused developed physical relations with victim-

prosecutrix in the garb of custom prevalent in the area on the pretext of

marriage. Apart from statement of victim-prosecutrix, none of the

prosecution witnesses have stated that after engagement, accused

developed physical relations with victim-prosecutrix under the pretext of

marriage, rather all the material prosecution witnesses except PWs 1 , 2 and 9

stated that they saw accused visiting the house of the victim-prosecutrix after

his engagement. As has been already observed herein above, version put

forth by PW2 and PW9, parents of victim-prosecutrix needs to be scanned

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minutely and same could not have been believed mechanically by the court

below without there being any corroboration by the another prosecution

witnesses. No doubt, version put forth by the interested witnesses cannot be

.

brushed aside solely on the ground of relationship, but version put forth by

such witnesses needs evaluation minutely. In the case at hand, it has come

specifically in the statement of PW5 Pan Raj, who as per story of prosecution

was instrumental in settling the marriage inter-se victim-prosecutrix and

accused that after refusal on the part of the accused to solemnize marriage

with the victim-prosecutrix, father of the victim-prosecutrix demanded sum of

Rs. 5 lac. Since parents of the accused expressed their inability to pay such

huge amount, complainant at hand came to be lodged against the

accused. Though other witnesses have denied suggestion put to them with

regard to payment of money, but version put forth by this witness remained

totally un-shattered. Version put forth by this witness gains significance when

it stands duly established on record that prior to lodging of FIR in question,

father of victim-prosecutrix lodged complaint with SDM Pangi i.e. Ext.D3,

wherein he nowhere stated that his daughter has been sexually assaulted by

the accused on the pretext of marriage under the garb of custom prevalent

in the area. Careful perusal of Ext.D3 reveals that father of the victim-

prosecutrix simply complained that since accused had refused to marry his

daughter, life of his daughter has been spoiled.

16. Though in the instant case, learned court below while placing

reliance upon various judgment rendered by the Hon’ble Apex Court has

proceeded to hold that delay in FIR is not fatal, but having carefully perused

material available on record, this Court is in agreement with learned counsel

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for the accused that no plausible explanation ever came to be rendered on

record on behalf of the complainant with regard to delay in lodging FIR. No

doubt, delay in lodging FIR is explainable and can be condoned if plausible

.

explanation is rendered on record. In the case at hand as per own case of

the prosecution, accused stopped talking to victim-prosecutrix after

27.12.2013, but there is no material available on record suggestive of the fact

that after aforesaid date, complaint ever came to be lodged either by the

complainant or by the victim-prosecutrix. Even if it is presumed that till

December 2014, victim-prosecutrix was under impression that accused would

marry her, it is not understood that what prevented the victim-prosecutrix

and her parents to lodge FIR immediately after refusal on the part of the

accused to marry in December, 2014. In the case at hand, father of the

accused instead of lodging FIR chose to file complaint to SDM Pangi Ext.D3,

wherein he chose not to disclose factum with regard to physical relationship.

if any, developed by the accused with victim-prosecutrix after engagement,

which he ultimately withdrew without any rhyme and reason.

17. If the aforesaid act and conduct of father of victim-prosecutrix

is seen and examined, it gives strength to the version put forth by PW5 that

after refusal on the part of the accused to marry victim-prosecutrix, father of

the victim-prosecutrix demanded sum of Rs. 5.00 lac but since family of the

accused failed to pay that amount, father of the victim-prosecutrix withdrew

the complaint from SDM and thereafter, after a lapse of two months filed FIR

against the accused. Needles to say, delay in lodging report raises

considerable doubt regarding the veracity of evidence of the prosecution

and points towards the infirmity in the evidence render it unsafe to base any

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conviction. Delay in lodging FIR quite often results in embellishment, which is

definitely a creature of afterthought. In the case at hand, this Court after

having carefully perused the conduct of father of the accused, which is

.

apparent from the perusal of Ext.D3, is convinced and satisfied that FIR, which

is subject matter of the appeal at hand is an afterthought and has been

filed/lodged after considerable delay. It is not in dispute that at the time of

the alleged incident, victim-prosecutrix was 26 years old and as such, it

cannot be said that she was incapable of understanding the consequences

of her being in the company of the accused, who allegedly after his

engagement with victim-prosecutrix started residing at her house. She has

admitted that police station is at the distance of 2 km from her house.

18. Medical evidence adduced on record by the prosecution in

the shape of Ext.PW12/A also does not support the case of the prosecution.

PW12 Dr. Minakshi while proving a MLC Ext.PW12/A categorically

opined/stated that no external or internal injury was found and seen on the

person of the victim-prosecutrix. This witness has categorically opined that no

blood scratches or injury were present during internal examination, but

opined that on separating labia minora-hymen was absent. In her final

opinion, this witness deposed that there was nothing to suggest that sexual

intercourse had not taken place with victim-prosecutrix. This witness also

admitted in her cross-examination that hymen can rupture due to physical

exercise like riding, cycling and masturbation etc. Though, aforesaid medical

evidence adduced on record nowhere clearly indicates forcible sexual

assault/intercourse, if any, committed by the accused upon victim-

prosecutrix, but even otherwise same cannot be of any help/relevance to

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the prosecution case, especially when there is no sufficient evidence to

connect the accused with the offence alleged to have been committed by

him under Section 376 IPC.

.

19. Having seen statements of material prosecution witnesses, as

have been discussed herein above especially of victim-prosecutrix, it cannot

be said that there was no consent, if any, on the part of the victim-prosecutrix

to have sexual relationship with the accused, rather question, which needs to

be determined is whether victim-prosecutrix had free consent or same was

under the pretext of marriage.

20. In the instant case, learned court below has held that consent

under misconception of fact by the prosecutrix on the basis of act and

conduct of the offender is not a free consent. On the basis of evidence led

on record by the prosecution, court below has concluded that prosecutrix

submitted herself under mis-conception of fact that she was consenting for

physical relations with her would be husband as the accused by getting

engaged to her had intended to adopt her as life partner. The accused in

the instant case belonged to the same tribal community and as such, he was

having the knowledge that the prosecutrix was submitting herself under

misconception of fact that he was going to be her life partner and as such,

consent given by the prosecutrix was no consent, as was required under

Section 375 of Cr.PC. However, this Court having carefully scanned

/examined the evidence, which has been discussed in detail in earlier part of

the judgment is not in agreement with the aforesaid finding returned by the

court below, especially when prosecution has miserably failed to prove

custom, if any, prevalent in the area as pleaded in the case at hand.

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Independent witnesses associated by the prosecution have nowhere stated

that custom as has been pleaded in the case at hand is mandatory, rather

all the prosecution witnesses in one way or the other have admitted that it

.

depends upon boy and girl, whether they want to develop physical relations

before marriage or not. Crux of the aforesaid finding with regard to consent

recorded by the court below is that prosecutrix surrendered herself under

misconception of fact that accused would marry her, meaning thereby,

accused repeatedly sexually assaulted victim-prosecutrix on the pretext of

marriage.

21. Recently, the Hon’ble Apex Court in case titled Pramod

Suryabhan Pawar v. The State of Maharashtra and Anr passed in Criminal

Appeal No. 1165 of 2019 on 21.8.2019 had an occasion to deal with almost

similar case. While interpreting “consent” of a woman with respect to Section

375 IPC, the Hon’ble Apex Court held that consent of women in relation to

Section 375 must involve an active and reasoned deliberation towards the

proposed act. To establish whether the “consent” was vitiated by a

“misconception of fact” arising out of a promise to marry, two propositions

must be established; firstly the promise of marriage must have been a false

promise, given in bad faith and with no intention of being adhered to at the

time it was given and; secondly, the false promise itself must be of immediate

relevance, or bear a direct nexus to the woman’s decision to engage in the

sexual act. In the case at hand, though evidence available on record to

certain extent suggests that there was promise on behalf of the accused to

marry the victim prosecutrix, but admittedly there is no evidence that such

promise was false and given in bad faith. There is no evidence suggestive of

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the fact that accused from the day one after his engagement with

prosecutrix had no intention to marry her. All the material prosecution

witnesses have stated that after engagement accused started visiting house

.

of the prosecutrix, but none of the witness has stated that accused had no

intention to marry victim-prosecutrix. Though in the case at hand, factum with

regard to engagement inter-se victim prosecutrix and accused stands

proved with the statement of PW5 Pan Raj, who was alleged mediator, but if

his deposition is read in its entirety, it nowhere suggests that accused got

himself engaged with the victim-prosecutrix with a view to have sexual

intercourse with her. True it is that intention of the accused while making

promise of marriage to victim-prosecutrix, cannot be easily gathered from

the statements of prosecution witnesses, but definitely same can be inferred

in the totality of facts and circumstances of the case. Though in case at

hand, prosecutrix made an endeavor to prove that accused despite his

having engaged with victim-prosecutrix solemnized married with some other

girl, but that may not be sufficient to conclude that accused had made false

promise to the prosecutrix to marry her and such promise was given with no

intention to being adhered to especially at the time when it was given

because as per own case of the prosecution, accused solemnized marriage

with other girl in October, 2014, whereas engagement inter-se prosecutrix

and accused took place in September 2013. Relevant paras of the aforesaid

judgment are as under:-

“15. In Yedla Srinivasa Rao v State of Andhra Pradesh
(2006) 11 SCC 615, the accused forcibly established sexual
relations with the complainant. When she asked the
accused why he had spoiled her life, he promised to marry
her. On this premise, the accused repeatedly had sexual

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intercourse with the complainant. When the complainant
became pregnant, the accused refused to marry her.
When the matter was brought to the panchayat, the
accused admitted to having had sexual intercourse with
the complainant but subsequently absconded. Given this
factual background, the court observed:

.

“10. It appears that the intention of the accused as

per the testimony of PW 1 was, right from the
beginning, not honest and he kept on promising
that he will marry her, till she became pregnant. This
kind of consent obtained by the accused cannot

be said to be any consent because she was under
a misconception of fact that the accused intends
to marry her, therefore, she had submitted to sexual
intercourse with him. This fact is also admitted by
the accused that he had committed sexual
intercourse which is apparent from the testimony of

PWs 1, 2 and 3 and before the panchayat of elders
of the village. It is more than clear that the accused
made a false promise that he would marry her.
Therefore, the intention of the accused right from
the beginning was not bona fide and the poor girl
r submitted to the lust of the accused, completely
being misled by the accused who held out the

promise for marriage. This kind of consent taken by
the accused with clear intention not to fulfil the
promise and persuading the girl to believe that he is
going to marry her and obtained her consent for
the sexual intercourse under total misconception,

cannot be treated to be a consent….”

16 Where the promise to marry is false and the intention of
the maker at the time of making the promise itself was not

to abide by it but to deceive the woman to convince her
to engage in sexual relations, there is a “misconception of
fact” that vitiates the woman’s “consent”. On the other

hand, a breach of a promise cannot be said to be a false
promise. To establish a false promise, the maker of the
promise should have had no intention of upholding his
word at the time of giving it. The “consent” of a woman

under Section 375 is vitiated on the ground of a
“misconception of fact” where such misconception was
the basis for her choosing to engage in the said act. In
Deepak Gulati this Court observed:

“21. … There is a distinction between the mere
breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether
there was made, at an early stage a false promise
of marriage by the accused; and whether the
consent involved was given after wholly
understanding the nature and consequences of

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– 19 –

sexual indulgence. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused,
and not solely on account of misrepresentation
made to her by the accused, or where an accused
on account of circumstances which he could not
have foreseen, or which were beyond his control,

.

was unable to marry her, despite having every

intention to do so. Such cases must be treated
differently.

24. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time i.e. at the initial stage itself, the accused had
no intention whatsoever, of keeping his promise to

marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure to
keep a promise made with respect to a future
uncertain date, due to reasons that are not very
r clear from the evidence available, does not always

amount to misconception of fact. In order to come
within the meaning of the term “misconception of
fact”, the fact must have an immediate
relevance”. Section 90 IPC cannot be called into
aid in such a situation, to pardon the act of a girl in
entirety, and fasten criminal liability on the other,

unless the court is assured of the fact that from the
very beginning, the accused had never really
intended to marry her.” (Emphasis supplied)

17 In Uday v State of Karnataka(2003) 4 SCC 46 the
complainant was a college going student when the
accused promised to marry her. In the complainant’s

statement, she admitted that she was aware that there
would be significant opposition from both the
complainant’s and accused’s families to the proposed

marriage. She engaged in sexual intercourse with the
accused but nonetheless kept the relationship secret from
her family. The court observed that in these circumstances
the accused’s promise to marry the complainant was not
of immediate relevance to the complainant’s decision to
engage in sexual intercourse with the accused, which was
motivated by other factors:

“25. There is yet another difficulty which faces the
prosecution in this case. In a case of this nature two
conditions must be fulfilled for the application
of Section 90 IPC. Firstly, it must be shown that the
consent was given under a misconception of fact.

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– 20 –

Secondly, it must be proved that the person who
obtained the consent knew, or had reason to
believe that the consent was given in consequence
of such misconception. We have serious doubts
that the promise to marry induced the prosecutrix
to consent to having sexual intercourse with the
appellant. She knew, as we have observed earlier,

.

that her marriage with the appellant was difficult on

account of caste considerations. The proposal was
bound to meet with stiff opposition from members
of both families. There was therefore a distinct
possibility, of which she was clearly conscious, that

the marriage may not take place at all despite the
promise of the appellant. The question still remains
whether even if it were so, the appellant knew, or
had reason to believe, that the prosecutrix had
consented to having sexual intercourse with him
only as a consequence of her belief, based on his

promise, that they will get married in due course.
There is hardly any evidence to prove this fact. On
the contrary, the circumstances of the case tend to
support the conclusion that the appellant had
reason to believe that the consent given by the
r prosecutrix was the result of their deep love for
each other. It is not disputed that they were deeply

in love. They met often, and it does appear that the
prosecutrix permitted him liberties which, if at all,
are permitted only to a person with whom one is in
deep love. It is also not without significance that the
prosecutrix stealthily went out with the appellant to

a lonely place at 12 o’clock in the night. It usually
happens in such cases, when two young persons
are madly in love, that they promise to each other
several times that come what may, they will get

married…” (Emphasis supplied)

18 To summarise the legal position that emerges from the

above cases, the “consent” of a woman with respect
to Section 375 must involve an active and reasoned
deliberation towards the proposed act. To establish
whether the “consent” was vitiated by a “misconception

of fact” arising out of a promise to marry, two propositions
must be established. The promise of marriage must have
been a false promise, given in bad faith and with no
intention of being adhered to at the time it was given. The
false promise itself must be of immediate relevance, or
bear a direct nexus to the woman’s decision to engage in
the sexual act.”

22. The Hon’ble Apex Court in Deelip Singh @ Dilip Kumar v. State of

Bihar, 2005 (1) SCC 88, held as under:

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– 21 –

27.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

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– 22 –

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:

.

“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.”

23. Ordinarily, the evidence of prosecution should not be suspect

and should be believed and if the evidence is reliable, no corroboration is

necessary, but the Hon’ble Apex Court in case titled Rajoo v. State of MP, AIR

2009 SC 858 has very carefully observed that statement made by the

prosecutrix cannot be universally and mechanically applied to the facts of

every case of sexual assault which comes before the Court because rape

cases cause the greatest distress and humiliation to the victim but at the

same time, false allegation of rape can cause equal distress, humiliation and

damage to the accused as well. The Hon’ble Supreme Court in the aforesaid

judgment has categorically held that accused must also be protected

against the possibility of false implication and it must be borne in mind that

the broad principle is that an injured witness was present at the time when

the incident happened and that ordinarily such a witness would not tell a lie

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– 23 –

as to the actual assailants, but there is no presumption or any basis for

assuming that the statement of such a witness is always correct or without

any embellishment or exaggeration.

.

24. The Hon’ble Supreme Court in case titled Rai Sandeep @ Deepu

v. State (NCT) of Delhi, 2012 (8) SCC 21, has held that sterling witness should

be of a very high quality and caliber, whose version should, therefore, be

unassailable. The Hon’ble Apex Court has held that such witness should be

in a position to accept it for its face value without any hesitation. To test the

quality of such a witness, the status of the witness would be immaterial and

what would be relevant is the truthfulness of the statement made by such a

witness. What would be more relevant would be the consistency of the

statement right from the starting point till the end. Relevant paras of the

judgment is reproduced herein below:-

22. In our considered opinion, the ‘sterling witness’ should be of a
very high quality and caliber whose version should, therefore, be
unassailable. The Court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the

witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the

statement right from the starting point till the end, namely, at the
time when the witness makes the initial statement and ultimately
before the Court. It should be natural and consistent with the
case of the prosecution qua the accused. There should not be

any prevarication in the version of such a witness. The witness
should be in a position to withstand the cross- examination of any
length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum
of the occurrence, the persons involved, as well as, the
sequence of it. Such a version should have co-relation with each
and everyone of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well as

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– 24 –

all other similar such tests to be applied, it can be held that such
a witness can be called as a ‘sterling witness’ whose version can
be accepted by the Court without any corroboration and based
on which the guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the crime
should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said

.

version in material particulars in order to enable the Court trying
the offence to rely on the core version to sieve the other

supporting materials for holding the offender guilty of the charge
alleged.

23. On the anvil of the above principles, when we test the version

of PW- 4, the prosecutrix, it is unfortunate that the said witness has
failed to pass any of the tests mentioned above. There is total
variation in her version from what was stated in the complaint
and what was deposed before the Court at the time of trial.
There are material variations as regards the identification of the
accused persons, as well as, the manner in which the

occurrence took place. The so-called eye witnesses did not
support the story of the prosecution. The recoveries failed to tally
with the statements made. The FSL report did not co-relate the
version alleged and thus the prosecutrix failed to instill the
required confidence of the Court in order to confirm the
conviction imposed on the appellants.

25. The Hon’ble Supreme Court in case titled Dinesh Jaiswal v. State

of MP, (2010) 3 SCC 232, has held that there cannot be any quarrel with the

proposition that evidence of prosecutrix is liable to be believed save in

exceptional circumstances, but to hold that a prosecutrix must be believed

irrespective of the improbabilities in her story, is an argument that can never

be accepted. The test always is as to whether the given story prima facie

inspires confidence or not. 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.

26. If the evidence led on record by the prosecution is tested on

the anvil of principle laid down in the aforesaid judgments relied upon in the

instant judgment, this Court has no hesitation to conclude that testimony of

material prosecution witnesses including prosecutrix is not worth credence

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– 25 –

and no conviction if any, under Section 376 IPC could have been based

upon the same.

27. Consequently, in view of the detailed discussion made herein

.

above as well as law relied upon, this Court has no hesitation to conclude

that learned court below has not appreciated the evidence in its right

perspective and as such, findings returned by it deserve to be set-aside.

Accordingly, present appeal is allowed and judgment passed by the Court

below is quashed and set-aside and appellant-accused is acquitted of the

offence punishable under Section 376 IPC. Bail bonds, if any, are discharged.

Fine amount, if any deposited by the appellant, be refunded to him. Release

warrants be prepared forthwith.

Present appeal stands disposed of, so also pending

applications, if any.

7th January, 2020 (Sandeep Sharma),
manjit Judge.

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