Intention of accused key in rape on promise of marriage: sc

Advocate/ nadeemqureshi1@gmail.com

 

Intention of accused key in rape on promise of marriage: SC

 

 

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2322 of 2010

Deepak Gulati …Appellant

Versus

State of Haryana …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment

and order dated 28.1.2010, passed by the Punjab & Haryana High

Court at Chandigarh in CRA No. 960-SB of 1998 by way of which,

the High Court has affirmed the judgment and order of the Additional

Sessions Judge, Karnal dated 13.11.1998 passed in Sessions Case No.

7 of 1995, by way of which the appellant stood convicted for the

offences punishable under Sections 365 and 376 of the Indian Penal

Code, 1860 (hereinafter referred to as the `IPC’) and sentenced to

undergo rigorous imprisonment for a period of three years, alongwith

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a fine of Rs.2,000/- under Section 365 IPC; and rigorous

imprisonment for a period of seven years, alongwith a fine of

Rs.5,000/- under Section 376 IPC. Both the sentences were ordered to

run concurrently.

2. Facts and circumstances giving rise to this appeal are that:

A. The appellant and Geeta, prosecutrix, 19 years of age, student

of 10+2 in Government Girls Senior Secondary School, Karnal, had

known each other for some time. Appellant had been meeting her in

front of her school in an attempt to develop intimate relations with

her. On 10.5.1995, the appellant induced her to go with him to

Kurukshetra, to get married and she agreed. En route Kurukshetra

from Karnal, the appellant took her to Karna lake (Karnal), and had

s*xual intercourse with her against her wishes, behind bushes.

Thereafter, the appellant took her to Kurukshetra, stayed with his

relatives for 3-4 days and committed rape upon her.

B. The prosecutrix was thrown out after 4 days by the appellant.

She then went to one of the hostels in Kurukshetra University, and

stayed there for a few days. The warden of the hostel became

suspicious and thus, questioned the prosecutrix. The prosecutrix thus

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narrated the incident to the warden, who informed her father.

Meanwhile, the prosecutrix left the hostel and went to a temple, where

she once again met the appellant. Here, the appellant convinced her to

accompany him to Ambala to get married. When they reached the bus

stand, they found her father present there alongwith the police. The

appellant was apprehended.

C. Baldev Raj Soni, father of the prosecutrix, had lodged a

complaint on 16.5.1995 under Sections 365 and 366 IPC, which was

later converted to one under Sections 365 and 376 IPC.

D. The prosecutrix was medically examined on 17.5.1995. Her

statement was recorded by the Magistrate under Section 164 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as the

`Cr.P.C.’) on 20.5.1995. After completing the investigation, a

chargesheet was filed against the appellant, and in view of the

material on record, charges under Sections 365 and 376 IPC were

framed against him by the Sessions Court, vide order dated 3.5.1996.

E. The prosecution examined 13 witnesses in support of its case

and in view thereof, the Sessions Court convicted the appellant under

Sections 365/376 IPC, vide judgment and order dated 13.11.1998 and

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awarded him the sentence for the said charges as has been referred to

hereinabove.

F. Aggrieved, the appellant preferred Criminal Appeal No. 960-

SB of 1998 (D & M) in the High Court of Punjab and Haryana at

Chandigarh, which stood dismissed by the impugned judgment and

order dated 18.11.1998.

Hence, this appeal.

3. None present for the appellant. In view thereof, the Court has

examined the material on record and gone through both the impugned

judgments with the help of Shri Kamal Mohan Gupta, learned counsel

appearing on behalf of the State.

4. The statement of the prosecutrix (PW.7) was recorded under

Section 164 Cr.P.C. on 20.5.1995, wherein she has clearly stated that

she had gone alongwith the appellant to get married and for such

purpose, she had also obtained a certificate from her school as proof

of her age. On the said date i.e. 10.5.1995, as the appellant had been

unable to reach the pre-decided place, the prosecutrix had telephoned

him on the number provided by him. She has further deposed that the

appellant had asked her to have a physical relationship with him, but

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that she had not agreed to do so before marriage. When they reached

Kurukshetra and stayed with his relatives there, the appellant had

s*xual intercourse with her for 3 days. On the 4th day, she was thrown

out of the house by the appellant and thus, she had gone to the Girls

Hostel in Kurukshetra University, where she had stayed under the

pretext of getting admitted to the university. However, the university

personnel became suspicious, and after making enquiries from her,

they telephoned her house. She then left the university and had gone

to the Birla Mandir at Kurukshetra, where she had met appellant.

Here he lured her once again, and thus, she had agreed to accompany

him to Ambala to get married in court there. However, when they

reached the old bus stand Kurukshetra, she had found her father and

several police officials present there, and thereafter the appellant had

been arrested and the prosecutrix was taken to Karnal.

5. The prosecutrix was examined in court as PW.7 on 5.7.1996,

wherein she deposed that on 10.5.1995, as per the agreed plan, she

had left her house to go alongwith the appellant to Kurukshetra to get

married in court. However, she had not found the appellant at the

place decided upon by them, and had thus telephoned him at the

number provided to her by him. She was then informed that the

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appellant had already left for Kurukshetra and hence, waited for him

from 12.00 noon till 1.30 p.m. When he arrived, she went alongwith

the appellant at 2.30 p.m. to Karna lake (Karnal) by bus. Here, she

was taken into some bushes behind the restaurant at Karna lake, and

thereafter raped by the appellant. At the said time, she neither raised

any objection, nor any hue and cry. The prosecutrix did not even

mention the said incident to any person, despite going to Kurukshetra

and staying there for 3-4 days. She raised no grievance in this regard

before any person or authority at the bus stand. She continued to stay

with the appellant in the house of his relatives and was raped there.

The appellant continued to postpone their marriage on one pretext or

the other. Thereafter, she was thrown out of the house. She thus went

and stayed in the University hostel and on being questioned, she

disclosed details regarding her treatment to the warden, who informed

her family. After this, she went to the Birla Mandir at Kurukshetra,

and here she met the appellant once again. The appellant made

another attempt to convince her to go to Ambala with him to get

married in court there. Upon reaching the old Bus Stand, she found

her brother Rajinder there alongwith a police party, who had been

accompanying them in a jeep to Karnal.

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6. In his statement, Baldev Raj Soni (PW.8), father of the

prosecutrix has deposed that on 10.5.1995, her daughter Geeta did not

come home. He thus lodged a complaint and contacted Rajni, a friend

of Geeta, who told him that the appellant Deepak had taken her to

Kurukshetra. On 17.5.1995, the police had gone alongwith him to

Kurukshetra to locate Geeta, where they had found the prosecutrix

and the appellant sitting at the old bus stand in Kurukshetra. Both of

them had been caught hold of by them, and were brought to Karnal.

7. Smt. P. Kant Vashisht (PW.10), Warden of Saraswati Bhawan

Kurukshetra University, though did not support the case of the

prosecution, and was declared hostile, has deposed in her examination

in chief that Geeta, prosecutrix, had been brought to her office by one

person, namely, Shri Ashwini, student of the engineering college, and

that he had left Geeta in her office, stating that he would inform her

parents. After sometime, her brother had come and taken her away.

She was cross-examined by the prosecution, and she has deposed that

the prosecutrix had in fact stayed in the hostel without any

authority/permission. One Nirmla, attendant therein had allowed her

to stay in the hostel without any such requisite permission.

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8. Smt. Krishana Chawla (PW.3), Lecturer of Political Science in

Government Senior Secondary School, Karnal, has deposed before

court, and has proved the school register to show that the date of birth

of the prosecutrix was 26.6.1976.

9. Dr. (Mrs.) Amarjeet Wadhwa (PW.11), Medical Officer,

Government Hospital, Karnal, who examined the prosecutrix on

17.5.1995, has deposed that the prosecutrix had indulged in s*xual

intercourse and was habitual to the same.

10. Shri Bhagwan Chand (PW.12), ASI, the Investigating Officer,

has deposed that after recording the statement of the father of the

prosecutrix on 17.5.1995, he had taken her father to Kurukshetra to

search for the prosecutrix alongwith one constable. At about 12.00

noon, when they reached the old bus stand at Kurukshetra, the father

of the prosecutrix noticed Geeta, sitting with the appellant Deepak in

one corner of the bus stand, and thereafter, they had apprehended

them. He has also disposed that he had recorded the statement of the

prosecutrix.

11. There exist in the statements of the witnesses material

contradictions, improvements and embellishments. In the cross-

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examination, Baldev Raj Soni (PW.8) has deposed that he had gone

to Kurukshetra with his relatives i.e. Ashwini Kumar and Surinder,

and has stated that his son Rajinder was not with him at such time. He

has not deposed that he had received any telephone call from the

warden of any hostel, as has been suggested by the prosecutrix.

Furthermore, the prosecutrix in her statement under Section 164

Cr.P.C., has not mentioned the incident involving her indulging in

s*xual contact with the appellant at the Karna lake at Karnal.

Bhagwan Chand (PW.12) has not mentioned that any relatives of the

prosecutrix had accompanied them while they were traveling from

Kurukshetra to Karnal.

12. The FIR in the present case has been registered under Sections

365 and 366 IPC, by Baldev Raj Soni (PW.8), father of the

prosecutrix, naming several persons, including the appellant, accusing

them of enticing his daughter and wrongfully confining her at an

unknown place. Thus, he has expressed his apprehension with respect

to danger to the life of his daughter.

13. Admittedly, the prosecutrix has never raised any grievance

before any person at any stage. In fact, she seems to have submitted to

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the will of the appellant, possibly in lieu of his promise to marry her. .

Thus, a question arises with respect to whether, in light of the facts

and circumstances of the present case, the appellant had an intention

to deceive her from the very beginning when he had asked the

prosecutrix to leave for Kurukshetra with him from Karnal.

14. The undisputed facts of the case are as under:

I. The prosecutrix was 19 years of age at the time of the said

incident.

II. She had inclination towards the appellant, and had willingly

gone with him to Kurukshetra to get married.

III. The appellant had been giving her assurance of the fact that he

would get married to her.

IV. The physical relationship between the parties had clearly

developed with the consent of the prosecutrix, as there was

neither a case of any resistance, nor had she raised any

complaint anywhere at any time despite the fact that she had

been living with the appellant for several days, and had

travelled with him from one place to another.

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V. Even after leaving the hostel of Kurukshetra University, she

agreed and proceeded to go with the appellant to Ambala, to get

married to him there.

15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter

referred to as the ‘Act 1872’) provides, that if the prosecutrix deposes

that she did not give her consent, then the Court shall presume that

she did not in fact, give such consent. The facts of the instant case

do not warrant that the provisions of Section 114-A of the Act 1872

be pressed into service. Hence, the sole question involved herein is

whether her consent had been obtained on the false promise of

marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have

to be taken into consideration, alongwith the provisions of Section 90

of the Act 1872. Section 90 of the Act 1872 provides, that any consent

given under a misconception of fact, would not be considered as valid

consent, so far as the provisions of Section 375 IPC are concerned,

and thus, such a physical relationship would tantamount to

committing rape.

16. This Court considered the issue involved herein at length in the

case of Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip

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Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla

Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep

Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, and

came to the conclusion that in the event that the accused’s promise is

not false and has not been made with the sole intention to seduce the

prosecutrix to indulge in s*xual acts, such an act(s) would not amount

to rape. Thus, the same would only hold that where the prosecutrix,

under a misconception of fact to the extent that the accused is likely

to marry her, submits to the lust of the accused, such a fraudulent act

cannot be said to be consensual, so far as the offence of the accused is

concerned.

17. Rape is the most morally and physically reprehensible crime in

a society, as it is an assault on the body, mind and privacy of the

victim. While a murderer destroys the physical frame of the victim, a

rapist degrades and defiles the soul of a helpless female. Rape

reduces a woman to an animal, as it shakes the very core of her life.

By no means can a rape victim be called an accomplice. Rape leaves a

permanent scar on the life of the victim, and therefore a rape victim is

placed on a higher pedestal than an injured witness. Rape is a crime

against the entire society and violates the human rights of the victim.

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Being the most hated crime, rape tantamounts to a serious blow to the

supreme honour of a woman, and offends both, her esteem and

dignity. It causes psychological and physical harm to the victim,

leaving upon her indelible marks.

18. Consent may be express or implied, coerced or misguided,

obtained willingly or through deceit. Consent is an act of reason,

accompanied by deliberation, the mind weighing, as in a balance, the

good and evil on each side. There is a clear distinction between rape

and consensual s*x and in a case like this, the court must very

carefully examine whether the accused had actually wanted to marry

the victim, or had mala fide motives, and had made a false promise to

this effect only to satisfy his lust, as the latter falls within the ambit of

cheating or deception. There is a distinction between the mere breach

of a promise, and not fulfilling a false promise. Thus, the court must

examine whether there was made, at an early stage a false promise of

marriage by the accused; and whether the consent involved was given

after wholly, understanding the nature and consequences of s*xual

indulgence. There may be a case where the prosecutrix agrees to have

s*xual intercourse on account of her love and passion for the accused,

and not solely on account of mis-representation made to her by the

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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.

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

“20. The factors set out in the first part of Section 90 are

from the point of view of the victim. The second part of

Section 90 enacts the corresponding provision from the

point of view of the accused. It envisages that the

accused too has knowledge or has reason to believe that

the consent was given by the victim in consequence of

fear of injury or misconception of fact. Thus, the second

part lays emphasis on the knowledge or reasonable

belief of the person who obtains the tainted consent. The

requirements of both the parts should be cumulatively

satisfied. In other words, the court has to see whether the

person giving the consent had given it under fear of

injury or misconception of fact and the court should also

be satisfied that the person doing the act i.e. the alleged

offender, is conscious of the fact or should have reason

to think that but for the fear or misconception, the

consent would not have been given. This is the scheme of

Section 90 which is couched in negative terminology.”

20. This Court, while deciding Pradeep Kumar Verma (Supra),

placed reliance upon the judgment of the Madras High Court

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delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has

been observed:

“We are of opinion that the expression “under a

misconception of fact” is broad enough to include all

cases where the consent is obtained by

misrepresentation; the misrepresentation should be

regarded as leading to a misconception of the facts with

reference to which the consent is given. In Section 3 of

the Evidence Act Illustration (d) states that a person has

a certain intention is treated as a fact. So, here the fact

about which the second and third prosecution witnesses

were made to entertain a misconception was the fact that

the second accused intended to get the girl married……..

“thus … if the consent of the person from whose

possession the girl is taken is obtained by fraud, the

taking is deemed to be against the will of such a person”.

… Although in cases of contracts a consent obtained by

coercion or fraud is only voidable by the party affected

by it, the effect of Section 90 IPC is that such consent

cannot, under the criminal law, be availed of to justify

what would otherwise be an offence.”

21. Hence, it is evident that there must be adequate evidence to

show that at the relevant time, i.e. at initial stage itself, the accused

had no intention whatsoever, of keeping his promise to marry the

victim. There may, of course, be circumstances, when a person having

the best of intentions is unable to marry the victim owing to various

unavoidable circumstances. The “failure to keep a promise made with

respect to a future uncertain date, due to reasons that are not very clear

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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.

22. The instant case is factually very similar to the case of Uday

(Supra), wherein the following facts were found to exist:

I. The prosecutrix was 19 years of age and had adequate

intelligence and maturity to understand the significance and

morality associated with the act she was consenting to.

II. She was conscious of the fact that her marriage may not take

place owing to various considerations, including the caste

factor.

III. It was difficult to impute to the accused, knowledge of the fact

that the prosecutrix had consented as a consequence of a

misconception of fact, that had arisen from his promise to

marry her.

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IV. There was no evidence to prove conclusively, that the appellant

had never intended to marry the prosecutrix.

23. To conclude, the prosecutrix had left her home voluntarily, of

her own free will to get married to the appellant. She was 19 years of

age at the relevant time and was, hence, capable of understanding the

complications and issues surrounding her marriage to the appellant.

According to the version of events provided by her, the prosecutrix

had called the appellant on a number given to her by him, to ask him

why he had not met her at the place that had been pre-decided by

them. She also waited for him for a long time, and when he finally

arrived she went with him to the Karna lake where they indulged in

s*xual intercourse. She did not raise any objection at this stage and

made no complaints to any one. Thereafter, she also went to

Kurukshetra with the appellant, where she lived with his relatives.

Here to, the prosecutrix voluntarily became intimate with the

appellant. She then, for some reason, went to live in the hostel at

Kurukshetra University illegally, and once again came into contact

with the appellant at the Birla Mandir. Thereafter, she even

proceeded with the appellant to the old bus-stand in Kurukshetra, to

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leave for Ambala so that the two of them could get married in court at

Ambala. However, here they were apprehended by the police.

24. If the prosecutrix was in fact going to Ambala to marry the

appellant, as stands fully established from the evidence on record, we

fail to understand on what basis the allegation of “false promise of

marriage” has been raised by the prosecutrix. We also fail to

comprehend the circumstances in which a charge of deceit/rape can be

leveled against the appellant, in light of the afore-mentioned fact

situation.

25. In view of the above, we are of the considered opinion that the

appellant, who has already served more than 3 years sentence, is

entitled to the benefit of doubt. Therefore, the appeal succeeds and is

allowed. His conviction and sentences awarded by the courts below

are set aside. The appellant is on bail. His bail bonds stand discharged.

………………………J.

(Dr. B.S. CHAUHAN)

………………………J.

(DIPAK MISRA)

New Delhi,

May 20, 2013

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Reply   
 
Lawyer/Advocate

Very informative judgement and useful to us.
 
Reply   
 


Advocate

Why do courts take such burden on their heads like this?  It is very simple.  Instead of forcing the appellant to serve three years sentence in jail, and instead of wasting time of high court and supreme court, the Trial court itself should have asked the appellant "to prove whether he really wanted to marry her".  It should also inquired the girl if she is interested in the appellant and is forced by parents to complain against him, and if, she is given an opportunity, she would marry him now under the protection of court.  If he marries her with court's initiative, then he should have been acquitted of the offence by Trial court itself.  Now what happened is wastage of time by court.  His motives are not known.  It is true that his intention to deceive her is not conclusively proved but also his innocence is not conclusively proved.  If the SC acquits him after he serves three years sentence, he will cite this three years sentence as reason for not marrying her....Pahle hi karlenaa thaa shaadi...ab complaint karke mujhe teen saal jail mein daalne ke baad kaise shaadi karungaa use?

 

So the present position is, injustice to all parties concerned.  A.  to girl - because his innocence is not prove conclusively and she could not marry him  B. to boy - he suffered punishment of three years.  C.  to courts, in particular, SC and High court....wastage of precious time.  D.  to people like me who read this case - no knowledge of what his (appellant's) intentions could have been if he as allowed to proceed to Ambala along with girl before he was apprehended by police in bus stand.

 
Reply   
 
Advocate

E.  To prosecution – wastage of valuable time of Police and Public prosecutor.

 
Reply   
 
Advocate

Where the balance of probabilities swing towards presumption of innocence of accused, court should not acquit the accused, wherever there is possibility of proving such innocence on the initiative provided by court, without giving him an opportunity to prove his innocence.

 
Reply   
 
Advocate

Supreme Court in many judgments viewed that Courts should not be mute spectators to the proceedings of Examination in Chief, Cross examination and Re examination.  Trial courts are expected to actively participate in those proceedings to know about exact position of facts.  This case is very simple.  The accused has easy opportunity to prove his innocence instead of rebutting the charges made against him by complainant.  The complainant is not the prosecutrix but her father.  So it is very easy to take presumption that after the prosecutrix and the accused were apprehended in bus stand, the prosecutrix took the side of father.  So the simple question the Trail court could have asked the accused is to prove his innocence.  "If you are given court's protection are you willing to marry her/him"...the court should have asked the both the accused and prosecutrix during Examination in Chief and Cross examination. It should have also asked the prosecutrix, "what made you take the side of complainant (your father) after you were caught in bus stand along with accused".  If he is ready to marry her, his innocence would be conclusively proved and there would not be any need for him to rebut the charges.  The very fact that the complainant is girl's father, not herself shows that the prosecution worked for her father not for her.  Trial court should have identified this during trial itself.

 
Reply   
 
Samaritan

When will the Powers That Be wake up to realize something is drastically dysfunctional in the System? Something is drastically wrong if the Hon. SC has to tutor judges on how to reason. The appellant served more than 3 years of his sentence, the conviction of which was based upon flawed judicial leanings. Any corrective action proposed upon the disjointed tribunals or will it be ‘business as usual’?

 
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