Criminal Appeal (SJ) No.40 of 1999 **** Against the judgment, dated 17.02.1999, passed by Sri S.N. Chaudhary, Sessions Judge, Katihar, in Sessions Case No. 187 of 1990 **** Birendra Nath Das Pahari, son of Sri Rajai Kanth Das Pahari, resident of village Bighaphat, P.S. Barsoi, district Katihar .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. M/S Rakesh Kumar Sinha & Anju Prakash, Advs. For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted under Section 376 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.10,000/- and in default of fine to undergo, further, imprisonment for three years. 3. The prosecution case, as alleged by the informant, Aloka Kumari, aged 15 years, the victim, is that she is unmarried 2 daughter of a poor mosmat. The accused, Birendra Nath Das Pahari, has got a hauler mill at a distance of about 150 yards from her house. She used to visit the said hauler mill and the accused, Birendra Nath Das Pahari, also used to come in his her courtyard. It is alleged that the accused, Birendra Nath, enticed the victim to get the hauler mill registered in her name in pretext of marriage with her. The victim was not ready. It has, further, been alleged that one night at about 10.00 p.m., the appellant, Birendra Nath Das Pahari, entered into the eastern room of her house and raped her. On her cry her mother came and caught him having sexual intercourse against the will of her daughter. It has, further, been alleged that on hulla the neighbours, Kewal Das, Paharu Das, Shibu Das, Pawan Das came and the appellant-accused admitted before them that he will marry the victim and transfer the hauler mill in the name of the victim. It is, further, alleged that after said rape the appellant always used to come and live with the victim and established the sexual relation with her. Thereafter, the victim got pregnant and then the neighbours requested Birendra Nath Das Pahari to get marry with the victim. The panchayati also convened, but, the appellant refused on some pretext or other and now he has closed the hauler mill and left visiting the house of the victim. 4. On the fardbeyan of the informant the first information report lodged and during the investigation the victim was examined by the doctor. However, after investigation the charge sheet submitted. 3 5. During the trial nine witnesses were examined by the prosecution and the documentary evidence adduced are Exhibit 1, the medical report, dated 15.03.1989, Exhibit 2, the first information report of the Barsoi Police Station, Exhibit 3, the case diary of Barsoi Police Station. 6. During the trial P.W. 5, the victim, supported the prosecution case as alleged in the fardbeyan about rape and sexual intercourse promising to get marry and transfer the hauler mill. P.Ws. 2 and 3 have stated that the mother of Aloka Kumari disclosed that Birendra Nath Das Pahari raped her daughter, Aloka Kumari, by which Aloka has got pregnant and the victim has also stated the name of Birendra Nath Das Pahari. However, P.Ws. 2 and 3 are hearsay witnesses. P.W. 6 is the mother of the victim. The trial Court, took into consideration the evidence of the witnesses, particularly the evidence of P.Ws. 5 and 6, who supported the prosecution case regarding the rape as mentioned in the fardbeyan. P.W. 1 has come to state that Birendra Nath Das Pahari approached him for medicine for terminating pregnancy. P.W. 3 has stated that the mother of the victim disclosed him about the rape by Birendra Nath Das Pahari upon her daughter, Aloka Kumari. However, P.Ws. 1, 2 and 3 are not eye witnesses to the occurrence. The fardbeyan was recorded on 12.03.1989 with regard to the occurrence stating that it occurred six months back. The doctor has stated that he examined the victim on 15.03.1989 and found the age of the victim as 20-21 years on the basis of report of dental surgeon. The doctor also found that hymen was old 4 torn, vaginal canal admitted two fingers loosely and no spermatozoa was seen on microscopic examination and the doctor found pregnancy of victim of nine months and has proved the medical report. 7. The defence of the accused is that the victim was adult and was the consenting party. 8. The trial Court, however, taking into consideration the facts and circumstances, held that the subsequent sexual intercourse after the first one may be said to be by consent, but, the occurrence of the first night when the victim was raped and it was seen by her mother, thereafter, sexual intercourse continued on the allurement of marriage and transfer of land and hauler mill, hence, the accused continued to rape the victim by getting the consent fraudulently, which resulted in pregnancy of the victim and the prosecution has succeeded in proving the charge under Section 376 of the Penal Code beyond all reasonable doubts. 8. The learned counsel for the appellant, however, contends that no date of occurrence has been mentioned and the finding of the trial Court that the first rape was without consent and the subsequent rape on a promise of marriage obtaining consent by fraud is not sustainable under the facts and circumstances of the case. The occurrence alleged to have been taken place six months back in the first information report. But, the doctor has found the victim’s pregnancy of nine months and, hence, victim was pregnant even prior to the alleged occurrence. It is asserted that the first rape was permeated without consent. However, after the first occurrence the 5 matter was not reported the police when there was sufficient opportunity to the victim to report. The doctor has found the victim at the time of occurrence 20-21 years of age and, hence, the victim was a full grown lady and it is stated that she gave consent for further sexual intercourse on promise of marriage and continues to indulge in such activities until she became pregnant as the fraud or misconception of fact that the victim was giving a consent with regard to a promise to marry does not amount to misconception of fact, but, it amounts to a promiscuous relation. 9. The learned counsel for the State, however, submits that the consent obtained by the appellant on a pretest of future marriage and, hence, the consent is no consent in the eye of law as the consent obtained on fraud and misconception of fact. 10. However, taking into consideration the facts and circumstances of the case it is alleged that the appellant allured the victim, however, having regard to the statements the points are relevant about the age of the victim and whether the consent can be said to have been obtained by fraud. However, in the fardbeyan the victim claimed herself to be a minor aged fifteen years. However, neither in the evidence of the mother nor in the evidence of the doctor, there is specific assertion that the victim was minor on the date of occurrence. The doctor, P.W. 4, has assessed the age of the victim as 20-22 years on the basis of radiological examination and though the victim has disclosed her age in her deposition on 25th March, 1995, as 22 years, but, the Court has assessed her age as 28 years and it has not 6 been challenged either by the prosecution or by the defence that the victim was not major. Hence, it is apparent that the victim was major on the date of occurrence. 11. However, it is true that no corroboration is required in convicting the appellant on the sole testimony of the victim. However, it is also well settled that the evidence of the rape in rape case is not like the evidence of accomplice. However, admissibility of the corroboration must be present in the mind of judge to decide the nature of corroboration required in the facts and circumstances of the case. If the evidence of the victim inspire confidence and does not suffer from any infirmity then the conviction can be recorded even on the sole testimony of the victim. However, if the evidence of the victim suffers from some infirmity then it is for the Court to decide the nature of the corroboration required to record conviction on the evidence of the prosecution case. Hence, it is well settled that the corroboration of the evidence of prosecution is not sine qua non in case of rape, but, the rule of admissibility must be present in the mind of judge is well known. 12. Here, under the facts and circumstances of the case, no date has been mentioned of the first occurrence. Even it has not been mentioned that how long time elapsed after the first occurrence. However, P.Ws. 5 and 6 are said to be the eye witnesses to the occurrence. They are the prosecutrix and her mother. P.Ws. 1, 2 and 3 are not the eye witnesses to the occurrence. Their evidence is that they learnt from the mother of the victim and, hence, they are hearsay 7 witnesses. 13. The case of the defence is that the victim was a consenting party and, hence, the question for consideration whether the consent was fraudulently obtained and to determine the question it is to be required to see whether at the time of rape the consent was given was based on a false promise by the appellant or misconception of fact. 14. Here, under the facts and circumstances, it is alleged that after the first occurrence accused used to visit the house. The victim and the appellant used to indulge in the sexual activities on the pretext and belief that the accused really will marry the victim. The question remains whether the assurance given by the appellant at the time of indulging in sexual intercourse without having no intention to fulfill the assurance. However, there is no evidence that the accused while giving assurance for marriage and indulged in the sexual intercourse has no intention to keep the promise and the possibility may be that subsequently when the victim conceived the accused might have thought otherwise. However, the case of the prosecution that after the first occurrence the victim gave consent for sexual intercourse and they went on continuing and having the sexual intercourse with the appellant there would have been promise of marrying her and transferring hauler mill till the victim conceived and the accused till then back out and, hence, it can not be said that till that time the accused has no intention to marry the victim at the very outset when he promised. However, the failure to keep promise at a 8 future uncertain date due to reason not very clear on the evidence does not amounts to misconception of fact at the inception of the act, itself, and in order to come within the meaning of misconception of the fact must have an immediate relevancy. However, here, under the facts and circumstances the fact is that the promise was given that he will marry on future date and there is no evidence that at the time of promise the appellant has no intention to marry. More over, it is not a case of giving a false assurance. The matter would have been different if consent obtained by creating a belief of fact which was false, i.e., belief that they are already married. Hence, having regard to the facts and circumstances that the victim was aged about 20-21 years of age and was full grown lady and since the act of sexual intercourse on a promise to marry and indulge in such activity until she becomes pregnant then it is apparent that it is an act of her promiscuous behaviour and not an act of misconception of fact. 15. Hence, having regard to the facts and circumstances that after the occurrence the victim has several opportunity to report the matter to police to lodge a case and she has not chosen so and allowed the appellant to continue the sexual intercourse and reported the matter only after victim’s being pregnant and, here, under the facts and circumstances pregnancy is of nine months and though it is alleged that the occurrence is of only six months back and, hence, the victim had sexual relation even prior to the alleged date. A woman’s consent to intercourse by mere act of helplessness inevitable compulsion when victim and family is clouded by fear or duress may 9 not be deemed to be consent, but, if she consciously permits with deliberation weighing the balance of good and evil then there is consent. Here the victim allowed the appellant to continue the sexual intercourse for pretty long time of nine month without resistance and without reporting when she had several opportunities, it can well be inferred that she was not under duress or fear and was consciously permitted it and, hence, there is consent. Under these facts and circumstances it is not proper to rely upon the sole testimony of the victim and her mother to record a conviction. 16. Hence, I find and hold that the prosecution has not been able to prove the charge beyond reasonable doubts. The order of conviction and sentence, recorded by the lower Court, is not sustainable in view of the fact that the victim was major and was consenting party so under the facts and circumstances it can not be held that the consent was obtained by fraud or under a misconception of fact and, hence, the order of conviction and sentence is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 14th day of December 2011, A.F.R., S.A.