IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.2509 of 2017
Arising Out of PS.Case No. -450 Year- 2005 Thana –
KHAZANIHAT District- PURNIA
Om Prakash Mishra son of Sri Saroj Kumar Mishra, @ Saroj Kumar
Mishra, Resident of Village- Court Station, P.S. K.Hat, District-
Purnea.
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
: Mr. Arun Kumar Pandey, Advocate
: Mr. Swati Sinha, Advocate
For the Informant : Mr. Vikramdeo Singh, Advocate
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
CAV JUDGMENT
Date: 29-03-2018
The appellant/Om Prakash Mishra has been convicted
under Section 376 I.P.C by judgment dated 12.06.2017 passed
in Sessions Trial No. 1542 of 2010, arising out of K. Hat P.S.
Case No. 450 of 2005 dated 30.12.2005 by the learned 2nd
Additional District Sessions Judge, Purnea and by order dated
17.06.2017, he has been sentenced to undergo rigorous
imprisonment for seven years, to pay a fine of Rs. 25,000/- and
in default of payment of fine, to further suffer simple
imprisonment for one year. The amount of fine realized from the
appellant has been directed to be paid to the victim.
2. The appellant was made accused in this case on the
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basis of the F.I.R lodged by the victim (P.W. 3) which was
lodged on 30.12.2005. In the F.I.R, she has alleged that she was
being subjected to rape by the informant for about four years on
the false assurance of marriage. It was further stated by her that
about 2-3 days prior to lodging of the F.I.R, the appellant had
married another girl, despite the family members of the
appellant as well as of the girl knowing fully well that the
prosecutrix was having relationship with the appellant. She has
stated that in the four years of relationship with the appellant,
she became pregnant twice but was forcibly made to abort. She
has stated that she is desirous of getting into matrimonial
relationship with the appellant and in case he refuses to do so,
the family members of the appellant and the girl with whom he
has married, would be held responsible for the consequences.
On the basis of the aforesaid written report lodged by P.W. 3, K.
Hat P.S. Case No. 450 of 2005 dated 30.12.2005 was instituted
for investigation for the offence under Section 376 I.P.C.
3. The police, after investigation submitted charge-
sheet under Section 376 I.P.C. However, charges were framed
against the appellant under Sections 376 and 417 of the I.P.C.
4. The Trial Court, after examining six witnesses on
behalf of the prosecution and three on behalf of the defence,
acquitted the appellant under Section 417 I.P.C but convicted
him under Section 376 I.P.C. and sentenced him as aforesaid.
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5. At the trial, Amit Kumar and Banwari Mehta who
have been examined as P.Ws. 1 and 2 have not supported the
prosecution version and have been declared hostile.
6. The Investigating Officer of this case has also not
been examined because of his death.
7. One Pramila Ramani, who is maternal grand-mother
of Puja, with whom the appellant is said to have married, has
been examined as P.W. 5. She has only deposed that the father
of the victim worked as her Clerk and after the death of the
mother of the victim, she had been residing in her house and the
appellant as well as his sister always came to her house to meet
her. The prosecutrix, on being asked by her about the
relationship with the appellant, told her that she is going to
marry him. However, she has specifically deposed before the
Trial Court that during the period that the victim had been
residing in her house, she had never complained against the
appellant.
8. Dr. Tripti Sinha, Medical Officer (P.W. 4) who has
examined the victim on 30.12.2005 has deposed that the victim
had given her history of being in relationship with somebody for
the last five years and had sexual intercourse with him. The last
sexual encounter, as narrated by the victim, had taken place
about 10-12 days prior to lodging of the F.I.R. The victim had
also told her that the person with whom she was in sexual
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relationship, married another girl on 27.12.2005 whereafter she
had filed a police case on 30.12.2005. The last menstrual period
of the victim was stated to be on 11th December, 2005. The age
of the victim was assessed to be between 17-18 years by P.W. 4
but no sign of any sexual intercourse was found by her.
9. What is evident from the deposition of the witnesses
aforesaid and particularly P.W. 4 is that no sign of earlier
pregnancy and abortion or any recent sexual intercourse was
found. The victim (P.W. 3) had stated before the doctor also that
the police case was lodged by her only after the appellant had
married another lady and that she was in relationship with the
appellant. What also becomes evident from the deposition of
P.W. 5 is that no complaint ever was made by the
victim/prosecutrix during the period of relationship.
10. Thus, the only/solitary evidence with respect to
rape for four years is through the mouth of the
victim/prosecutrix (P.W. 3) herself. It would only be apposite in
the aforesaid circumstances to examine and scrutinize, with all
circumspection, the deposition of P.W. 3 to ascertain whether
she was subjected to rape for the last four years against her will,
in the first instance and thereafter, with her consent but the
consent having been given only on the basis of the
misconception that the appellant would marry her later, which
he did not.
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11. P.W. 3 has deposed that the occurrence is of the
period between 2001 to 2005. On 25.01.2001, P.W. 3/victim had
gone to the house of her friend/Mamta Kumari, who is the sister
of the appellant. When she called out Mamta Kumari from the
gate of her residence, the appellant came out and told her that
Mamta Kumari was in the bathroom. He asked her to sit in the
room. After about five minutes, the appellant came again and
closed the door from inside. When P.W. 3 wanted to know the
reason for closing the door, she was gagged, thrown on the
ground and raped. She started crying, on which the appellant
told her that it would only bring bad name to her and promised
to marry her later. Hearing this, P.W. 3 kept quiet. After about
some time, she came out of the room to go to her house when
she met her friend/Mamta Kumari (sister of the appellant) and
the mother of the appellant, who were coming from outside.
Seeing them, P.W. 3 started crying. She was asked by Mamta
Kumari and her mother the reason for her being upset. She
narrated about the occurrence to them. Hearing the aforesaid
story, the mother of the appellant expressed that if the appellant
had done this to her, he would be forced to marry her. At that
time, the appellant also expressed his willingness to marry P.W.
3. The mother of the appellant made her understand that she
would also co-operate in getting her married to the appellant but
only after the marriage of her daughter/Mamta Kumari, who had
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become of marriageable age. She was also asked by the mother
of the appellant not to disclose about the occurrence to anybody
as it would bring bad name to her reputation as also to the
reputation of the family of the appellant. Thereafter, the
appellant, at an interval of about 15-20 days, always visited her
house and maintained physical relationship with her.
12. After about 6-7 months of this relationship having
been established, she met with an accident in which one of her
legs was fractured. She was in the hospital for about 6-7 months
and during that period the appellant took good care of her but
continued to have sexual relationship with her even during that
period. This made her believe that he would marry her. She
became pregnant after some time but was forcibly made to eat
medicines for abortion. The relationship but continued. The
appellant kept on visiting her in the night and started
blackmailing her as well. She became pregnant again but on the
second occasion also, she was convinced by the appellant for
abortion. She was taken to a temple where the appellant swore
that he would marry her. She has identified her photograph with
the appellant in a temple. The name of the medicines which she
consumed for abortion and the letters written by the appellant to
her which proved that she was subjected to rape on a
misconception of fact were also identified by her.
13. In her cross examination, P.W. 3 has admitted that
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these facts were not stated by her in the F.I.R. She has further
stated that till about 2005, her father was alive. She had two
other sisters but no brother. Prior to the occurrence, her mother
had died. In the house where P.W. 3 was first raped, the
appellant lived with his three sisters, three brothers and parents.
She had visited the house of the appellant to give new year
greetings to her friend/Mamta Kumari/sister of the appellant. At
the time when she was raped in the first instance, she was not
asked by the appellant to disrobe and was straightway subjected
to sexual intercourse. She could not raise alarm because she had
been gagged by the appellant.
14. During her cross examination, she was asked
whether she knew Dost Mohammad. She answered in the
negative but admitted that she knew one Chhotu, who was a
friend of her brother-in-law. A photograph of her with Chhotu
was shown to her to which she replied before the Court that the
photograph was not taken along with her and that it was a
framed/procured photograph. She has also admitted in her
cross-examination that she used to sleep in the night in the
house of Pramila Ramani (P.W. 5) along with her sister. There
were three rooms in the house of Pramila Ramani (P.W. 5) and
she along with her sister occupied one room.
15. From the deposition of P.W. 3, the following facts
emerge indisputably:
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16. Prior to her first meeting with the appellant, she did
not have any relationship with him. On the first day that she met
the appellant, she was raped in the house of the appellant but
she did not raise any alarm. The reason assigned for not raising
the alarm at the time of occurrence was that she was gagged by
the appellant. She did not try to come out of the room after the
act was over but stayed for some time in the house. She came
out of the house sometimes later, only to meet the mother and
sister of the appellant who were coming back home. She made
them know about the occurrence. On the assurance of the
appellant as well as his mother that the appellant would marry
her later, she agreed not to report about the occurrence to
anybody, much less her sister with whom she resided in the
house of P.W. 5. She permitted the appellant to establish
physical relationship with her at the interval of 15-20 days and
even during the period that she was treated for fracture of one
of her legs. The appellant had taken good care of her during the
period of treatment. Twice, she became pregnant but on the
asking/insistence of the appellant, she agreed for abortion and
finally, she filed a case only after 2-3 days of the appellant
having married another woman.
17. These admitted set of facts create a doubt whether
at all, the first act of rape as alleged by the victim is correct.
This is because there is no reference of any earlier relationship
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between the victim and the appellant. In that event, if the victim
was subjected to forceful rape, it is difficult to believe that after
the rape, a mere promise of marrying her later would satisfy her
and no complaint would be made by her at any quarter. If she
was subjected to rape without her will, she, as a part of natural
conduct of any person, would have tried to come out of the
room. It cannot be doubted that rape is one of the most
reprehensible crimes in the society, because it casts an impact
not only on the body of the victim but also on her mind. She is
rendered degraded and defiled, leaving a permanent scar on her
mind and body. She does not remain a mere injured witness or
an accomplice. The mindset of a person subjected to rape is
absolutely different. Before P.W. 3 was promised and assured of
help by the mother of the appellant, it was only a promise of the
appellant that he would marry her which made her keep quite.
She stayed back in the house for some time and thereafter came
out to go to her home. This causes a serious doubt about the
correctness of the version given by P.W. 3 about her first being
raped against her will and without her consent by the appellant.
18. What further flummoxes this Court is that the
appellant was permitted to establish sexual relationship with her
after the first encounter, at a interval of 15-20 days continuously
for about four years and also during the period when she was
under treatment in hospital. This also clearly gives an impression
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that there was no protest on the part of P.W. 3 or any attempt
on her part to prevent the appellant from being physically
intimate. This obviously is possible if the relationship is
consented.
19. What is to be seen in the present context is
whether the consent was on the misconception of the fact that
the appellant would later marry her. “Consent” is an act of
reason, accompanied by deliberation. The mind of the person
giving consent for sexual act weighs, as if, on a balance: the
good and evil on each side. A distinction therefore has clearly
been made between rape and consensual sex.
20. However, it need be examined with extreme
caution and circumspection whether in this case the consent was
given on a misconception of fact. In this context, it would be
only desirable to refer to Section 90 of the Indian Penal Code
which defines as to what would not be a consent. Section 90
reads as follows:-
“90. Consent known to be given under fear or
misconception.-A consent is not such a consent
as is intended by any section of this Code, if the
consent is given by a person under fear of injury,
or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that
the consent was given in consequence of such fear
or misconception; or
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Consent of insane person.-if the consent is given
by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature
and consequence of that to which he gives his
consent; or
Consent of child.-unless the contrary appears
from the context, if the consent is given by a
person who is under twelve years of age.”
21. On a plain reading of this Section, it becomes very
clear that though consent has not been defined but what is not a
consent has been explained. The victim as well as perpetrator of
the crime, both, are required to know that the consent was given
in consequence of any misconception.
22. There is a distinction between making a false
promise for marriage which could come under the category of
misconception in the mind of the victim and a breach of promise
or non-fulfillment of the promise. If the promise made by the
perpetrator of the crime is false from the beginning, any consent
by the victim would be of no consequence. If the promise to
marry is not fulfilled for reasons other than the deliberate act of
the offender in not keeping up the promise after satisfying his
bodily lust, it would not fall within the definition of rape as
defined under Section 375 of the I.P.C. But the converse would
not be true. If a false promise is made for obtaining the consent,
it is rape simpliciter.
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23. Section 375 of the I.P.C. defines rape. A man is
said to commit rape if he subjects the victim to different acts as
defined in the Section, against her will or without her consent or
with her consent when the same has been obtained by putting
her or any person in whom she is interested in fear of death or
of hurt or with her consent when the offender knows that he is
not her husband and the consent is given because the victim
believes that the offender is lawfully married to her, or with her
consent when she is not capable of giving such consent because
of unsoundness of mind or intoxication or when she is under 18
years of age and unable to communicate consent.
24. The provision spells out conditions under which the
consent would not exclude the offence of rape. What is to be
noted is that if an act is committed against the will of a person,
it pre-supposes that it did not have the consent of the victim.
However, a separate category has been carved out where
“against the will” and “without her consent” have been
enumerated separately. This is only, to my mind, for being very
specific and comprehensive.
25. In the present case, the factual aspects have
already been enumerated. What is to be seen is whether it was a
case of abject submission of victim (P.W. 3) in face of an
allurement made by the appellant that he would marry her later.
Whether such an allurement was only for the purposes of
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beguiling the victim or was it a genuine promise of marriage by
convincing the victim to take a conscious decision for permitting
sexual act. Whether this tacit consent by the victim was a result
of misconception created in her mind about the intentions of the
appellant to marry her. These are questions which can only be
answered on the basis of an analysis of the deposition of the
victim and other materials brought before the Trial Court.
26. The main question to be seen is whether the
promise made by the appellant was a false one only to goad the
victim into subjecting herself to any sexual act.
27. From the evidence on record, what becomes very
clear is that the victim stayed in the house of P.W. 5 along with
her sister. The relationship with the appellant continued for a
long time i.e. for four years during which period, the appellant
visited the house of the prosecutrix and made her open the gate
in the night. It is not possible that this kind of relationship would
remain unnoticed. The victim has indicated about this
relationship to the land-lady who had pointly asked her about
her relationship with the appellant. P.W. 5 was informed by the
victim that the appellant would marry her.
28. Seeing these facts in the background of the
appellant having been taken good care of her during her post –
operative days in hospital, further gives an inkling that the
relationship was not superficial but there was every intention of
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the appellant to marry her. The appellant appears to be in love
with the victim.
29. This Court has also, out of the anxiety to discern
whether the promise made by the appellant was a false one or
genuine, gone through the letters, purportedly written by the
appellant to the victim. The letters reveal that the relationship
had become very serious and it was not possible for the
appellant to have lived his life without the victim. One of the
letters also indicate that a plan was hatched for eloping together.
The aforesaid letters (Ext No. 2) only indicate that the marriage
could not take place because of the opposition of the mother of
the appellant.
30. However, these letters would be of no avail if it is
found that first sexual intercourse between the appellant and the
victim had taken place when the victim was not of age i.e. below
the age of 18 years.
31. The records reveal that no attempt was made by
the prosecution to prove that in the first instance when the
victim was subjected to rape, she was less than 18 years of age.
The only evidence of age before the Trial Court or before this
Court is the assessment of the age of the victim as 17-18 years
on 30.12.2005 when she was examined by P.W. 4. This was
after four years of the relationship between the appellant and
the victim. If the outer limit of the age assessed by the P.W. 4
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(Doctor) is taken as the reference point, the victim would
definitely be much less than 18 years of age in the year 2001.
Since the allegation of rape in the first instance i.e. in the first
meeting of the appellant with the victim, is found to be doubtful,
it cannot be said with certainty that she was subjected to rape
against her will when the victim was not of the age of giving
consent.
32. In this background, the reference point would only
be the statement of the victim that the last sexual encounter
was about 10-12 days prior to lodging of the case. In that event,
the victim would not be of a minor age and would be capable of
giving consent. The evidence, part of which has already been
dealt with, viz. that the victim became pregnant twice, also
appears to be doubtful and not worthy of reliance for the reason
that (a) no document has been provided to show that the victim
was administered medicines for abortion (b) no oral or
documentary evidence regarding her treatment at Diwakar
hospital has been brought on record and (c) the victim had not
intimated two abortions to the Medical Officer (P.W. 4) and (d)
the report of P.W. 4 does not indicate any sign of sexual
intercourse or previous abortions.
33. These facts coupled with the fact situation that the
present case has been lodged only after the appellant performed
marriage with another women, further establishes that the case
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has been lodged because of the appellant not having married the
victim. Even in the F.I.R, P.W. 3 has disclosed her mindset that
she wants to enter into matrimonial relationship with the
appellant and should it not happen, the consequences and the
responsibility shall fall on the family members of the appellant
and the woman with whom he has married. This clearly means
that she is ready to settle the case if she is married to the
appellant.
34. Section 114 of the Evidence Act, 1872 reads as
follows:-
“114. Court may presume existence of certain
facts.-The Court may presume the existence of any
fact which it thinks likely to have happened, regard
being had to the common course of natural events,
human conduct and public and private business, in
their relation to the facts of the particular case.”
35. This Section provides that if the prosecutrix
deposes that she did not give consent, the Court shall presume
that she did not in fact give such consent.
36. No discussion over this issue is necessary in the
present set of facts.
37. Hence, the sole question now remains whether the
consent had been obtained on the false promise of marriage.
38. In the case of Deepak Gulati Vs. State of
Haryana (2013) 7 SCC 675, it is held as follows :-
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“19. This Court considered the issue involved herein
at length in Uday v. State of Karnataka, Deelip
Singh v. State of Bihar, Yedla Srinivasa Rao v. State
of A.P. and Pradeep Kumar v. State of Bihar 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.
20. 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 higher
pedestal than an injured witness. Rape is a crime
against the entire society and violates the human
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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.
21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind 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 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
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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. An accused
can be convicted for rape only if the court reaches a
conclusion that the intention of the accused was
mala fide, and that he had clandestine motives.
22. In Deelip Singh it has been observed as under:
(SCC p. 99, para 19)
“19. The factors set out in the first part of Section
90 are from the point of view of the victim. The
second part of Section 90 enacts the corresponding
provision from the point of view of the accused. It
envisages that the accused too has knowledge or
has reason to believe that the consent was given by
the victim in consequence of fear or 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
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conscious of the fact or should have reason to think
that but for the fear or misconception, the consent
would not have been given. This is the scheme of
Section 90 which is couched in negative
terminology.”
23. This Court, while deciding Pradeep Kumar,
placed reliance upon the judgment of the Madras
High Court in N. Jaladu, In re, wherein it has been
observed: (Pradeep Kumar case, SCC pp. 418-19,
para 11)
“11. ‟26… “……We are of opinion that the expression
„under a misconception of fact‟, is broad enough to
include all cases where the consent is 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 causes of contracts a
consent obtained by coercion or fraud is only
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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.” (N. Jaladu, In re case, ILR
pp. 456-57)‟ (Deelip Singh case, SCC pp. 101-02,
para 26)”
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time, i.e. at
the initial stage itself, the accused had no intention
whatsoever, of keeping his promise to marry the
victim. There may, of course, be circumstances,
when a person having the best of intentions is
unable to marry the victim owing to various
unavoidable circumstances. The “failure to keep a
promise made with respect to a future uncertain
date, due to reasons that are not very clear from
the evidence available, does not always amount to
misconception of fact. In order to come within the
meaning of the term “misconception of fact”, the
fact must have an immediate relevance”. Section 90
IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten
criminal liability on the other, unless the court is
assured of the fact that from the very beginning, the
accused had never really intended to marry her.”
39. In the case of Kaini Rajan Vs. State of Kerala
Patna High Court CR. APP (SJ) No.2509 o f 2017 dt.29-03-2018
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(2013) 9 SCC 113, the Hon’ble Supreme Court again held as
follows:-
“14. This Court examined the scope of Section 375
IPC in a case where the facts have some
resemblance with the one in hand. Reference may
be made to the judgment of this Court in Deelip
Singh v. State of Bihar. In that case, this Court
examined the meaning and content of the
expression “without her consent” in Section 375 IPC
as well as whether the consent given by a woman
believing the man‟s promise to marry her, is a
consent which excludes the offence of rape. This
Court endorsed the principle that a
misrepresentation as regards the intention of the
person seeking consent i.e. the accused, could give
rise to the misconception of fact. While applying this
principle to a case arising under Section 375 IPC,
this Court held that the consent given pursuant to a
false representation that the accused intends to
marry could be regarded as consent given under
misconception of fact. But a promise to marry
without anything more will not give rise to
„misconception of fact‟ within the meaning of Section
90 IPC. This Court further held that: (SCC p. 104,
para 28)
“28………If on facts it is established that at the very
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inception of the making of promise, the accused did
not really entertain the intention of marrying her
and the promise to marry held out by him was a
mere hoax, the consent ostensibly given by the
victim will be of no avail to the accused to exculpate
him from the ambit of [the second clause of Section
375 IPC]
In the facts of that case, this Court held, that the
predominant reason which weighed with her in
agreeing for sexual intimacy with the accused was
the hope generated in her of the prospect of
marriage with the accused. The Court held that she
came to the decision to have a sexual affair only
after being convinced that the accused would marry
her and it is quite clear from her evidence, which is
in tune with her earlier version given in the first
information report. The Court noticed that she was
fully aware of the moral quality of the act and the
inherent risk involved and that she considered the
pros and cons of the act.
15. In Ramdas v. State of Maharashtra this Court
held that: (SCC p. 179, para 23)
“23…….the conviction in a case of rape can be based
solely on the testimony of the prosecutrix, but that
can be done in a case where the court is convinced
about the truthfulness of the prosecutrix and there
exist no circumstances which cast a shadow of doubt
Patna High Court CR. APP (SJ) No.2509 o f 2017 dt.29-03-2018
24/ 26
over her veracity.”
16. Vijayan v. State of Kerala was a case where the
complaint was made by the prosecutrix after the
alleged commission of rape on her by the accused.
At the time of making the case, the prosecutrix was
pregnant for about seven months. This Court did not
press reliance on the sole testimony of the
prosecutrix. The Court noticed that flow that no DNA
test was conducted to find out whether the child was
born out of the said incident and the accused was
responsible for the said child.
17. K.P. Thimmappa Gowda v. State of Karnataka
was a case where the accused had assured the
prosecutrix that he would marry her and had sexual
affair, which was repeated on several occasions as
well. But he did not marry and she became
pregnant. That was a case where there was delay of
eight months in filing the complaint. The accused
was given the benefit of doubt holding that it would
not be possible to conclude that the alleged sexual
act was committed without the consent of the
prosecutrix.”
40. Thus, this Court is of the view that the allegation of
rape in the year 2001 could not be established because of the
doubtful circumstances, specially the conduct of the victim. The
fact that the relationship was established thereafter continuously
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for four years is an evidence of fact that the later sexual acts
were with the consent of the victim. The evidence about the
appellant having served the victim during her troubled days and
continuing with the relationship demonstrates that there was a
real intention of the appellant to marry the victim. Epistolary
messages, brought on record at the instance of the victim
reaffirm the aforesaid fact viz. that the appellant and the victim
were in absolute love; one of such letters even depicting a plan
to elope. Thus, it cannot be said that the intention of the
appellant was to satisfy his body lust by giving a false hope of
marriage to the victim. The marriage may or may not have
taken place because of other circumstances which are not clearly
known. In that event, if according to the victim, the relationship
continued for four years, it would be difficult to presume that it
was without the consent and against her will.
41. Under such circumstances stated above, it is also
difficult for this Court to presume that the appellant had made a
false promise to the victim that he would marry her and that the
consent was obtained on such misconception. For not keeping
his promise to marry the victim, the appellant can certainly not
be convicted and sentenced for rape.
42. In view of the above mentioned discussion, I am of
the considered opinion that the appellant, who has already
remained in custody for quite some time, is entitled to the
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benefit of doubt.
43. Accordingly, the judgment of conviction dated
12.06.2017 and order of sentence dated 17.06.2017 passed by
the learned 2nd Additional District Sessions Judge, Purnea in
Sessions Trial No. 1542 of 2010, arising out of K. Hat P.S. Case
No. 450 of 2005 are set aside.
44. The appeal succeeds.
45. The appellant is in jail. He is directed to be released
forthwith from Jail, if not wanted in any other case.
46. A copy of the judgment be transmitted to the
Superintendent of Jail for information, compliance and needful
action.
(Ashutosh Kumar, J)
Shageer/-
AFR/NAFR AFR
CAV DATE 22/03/2018
Uploading Date 29/03/2018
Transmission 29/03/2018
Date
