“Allowing the appeal, the Supreme Court said the prosecutrix in this case 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. She was conscious of the fact that her marriage might not take place owing to various considerations, including the caste factor. Hence it could not be said that she had not given her consent for having sex with the appellant, the Bench said and directed that the appellant, who had already served three-year imprisonment, be released.”
—————————————————————————————————————————————-
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 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 sexual
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 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 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 that she had not agreed to do so before marriage. When they
reached Kurukshetra and stayed with his relatives there, the appellant
had sexual 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 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.
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.
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 sexual
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-
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
sexual 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 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.
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
Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla
Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar
Verma v. State of Bihar & Anr., AIR 2007 SC 3059, and came to the
conclusion that in the event that the accused’s promise is not false
and has not been made with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such an act(s) would not
amount to rape. Thus, the same would only hold that where the
prosecutrix, under a misconception of fact to the extent that the
accused is likely to marry her, submits to the lust of the accused,
such a fraudulent act cannot be said to be consensual, so far as the
offence of the accused is concerned.
17. Rape is the most morally and physically reprehensible crime
in a society, as it is an assault on the body, mind and privacy of the
victim. While a murderer destroys the physical frame of the victim, a
rapist degrades and defiles the soul of a helpless female. Rape
reduces a woman to an animal, as it shakes the very core of her life.
By no means can a rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim, and therefore a rape victim
is placed on a higher pedestal than an injured witness. Rape is a
crime against the entire society and violates the human rights of the
victim. Being the most hated crime, rape tantamounts to a serious blow
to the supreme honour of a woman, and offends both, her esteem and
dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction between rape
and consensual sex and in a case like this, the court must very
carefully examine whether the accused had actually wanted to marry the
victim, or had mala fide motives, and had made a false promise to this
effect only to satisfy his lust, as the latter falls within the ambit
of cheating or deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false promise. Thus, the
court must examine whether there was made, at an early stage a false
promise of marriage by the accused; and whether the consent involved
was given after wholly, understanding the nature and consequences of
sexual indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion for the
accused, and not solely on account of mis-representation made to her
by the accused, or where an accused on account of circumstances which
he could not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do so. Such
cases must be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of the
accused was mala fide, and that he had clandestine motives.
19. In Deelip Singh (supra), it has been observed as under:
“20. The factors set out in the first part of Section
90 are from the point of view of the victim. The second
part of Section 90 enacts the corresponding provision from
the point of view of the accused. It envisages that the
accused too has knowledge or has reason to believe that the
consent was given by the victim in consequence of fear of
injury or misconception of fact. Thus, the second part lays
emphasis on the knowledge or reasonable belief of the
person who obtains the tainted consent. The requirements of
both the parts should be cumulatively satisfied. In other
words, the court has to see whether the person giving the
consent had given it under fear of injury or misconception
of fact and the court should also be satisfied that the
person doing the act i.e. the alleged offender, is
conscious of the fact or should have reason to think that
but for the fear or misconception, the consent would not
have been given. This is the scheme of Section 90 which is
couched in negative terminology.”
20. This Court, while deciding Pradeep Kumar Verma (Supra),
placed reliance upon the judgment of the Madras High Court delivered
in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed:
“We are of opinion that the expression “under a
misconception of fact” is broad enough to include all cases
where the consent is obtained by misrepresentation; the
misrepresentation should be regarded as leading to a
misconception of the facts with reference to which the
consent is given. In Section 3 of the Evidence Act
Illustration (d) states that a person has a certain
intention is treated as a fact. So, here the fact about
which the second and third prosecution witnesses were made
to entertain a misconception was the fact that the second
accused intended to get the girl married……..
“thus … if the consent of the person from whose
possession the girl is taken is obtained by fraud, the
taking is deemed to be against the will of such a person”.
… Although in cases of contracts a consent obtained by
coercion or fraud is only voidable by the party affected by
it, the effect of Section 90 IPC is that such consent
cannot, under the criminal law, be availed of to justify
what would otherwise be an offence.”
21. Hence, it is evident that there must be adequate evidence
to show that at the relevant time, i.e. at initial stage itself, the
accused had no intention whatsoever, of keeping his promise to marry
the victim. There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure to keep a promise
made with respect to a future uncertain date, due to reasons that are
not very clear from the evidence 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.
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 sexual 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
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)