IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 363 of 2001 Date of decision: 6.6.2008 Thakur Dass Appellant Versus State of H.P. Respondent Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? Yes. For the appellant: Mr. Anup Chitkara with Mr. Bhupender Ahuja, Advocates. For the respondent: Ms. Shubh Mahajan, Deputy Advocate General. V.K.Ahuja, J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Solan, dated 28.6.2001/29.6.2001, vide which the appellant was held guilty under Section 376 I.P.C. and was sentenced to undergo R.I. for eight years and to pay a fine of Rs.5000/-. In default of payment of fine, the appellant was to undergo R.I. for six months. Briefly stated the facts of the case are that on a complaint filed by one ‘A’ (name not mentioned) before the learned Judicial Magistrate, Kasauli. F.I.R. under Section 376/420 IPC was registered by the police on 8.6.1999 in pursuance of the order passed by the Court under Section 156(3) Cr.P.C. In the said complaint, the complainant alleged Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 that she joined as student in Micro Tech. Computer Education Institute owned by the appellant on 11.6.1997. It was alleged that the appellant started developing friendship with her and promised to marry with the complainant. In the month of August, 1997, the complainant was called by the appellant to his institute on Sunday and when she was working on the computer system, she was picked up by the accused who took her to a partitioned portion of the hall of institute where he had put bed. It was further alleged that the appellant committed forcible sexual intercourse with the complainant without her consent. She alleged that her mouth was gagged and she could not raise any hue and cry. Thereafter, the appellant had been promising to have marriage with the complainant and had been having continued sexual indulgence with the complainant. The complainant believed the appellant. The appellant had been postponing the promise of marriage on one pretext or other and the appellant continued to have sexual relations with the complainant on this false promise of marriage. The complainant became pregnant and she aborted on 3.10.1998 due to the medicines given to her at the instance of the appellant. The appellant promised to marry the complainant as per writing dated 12.5.1999 after six months, but before the expiry of six months, the complainant filed the present complainant, on which FIR was registered on 8.6.1999. The case was registered by the police. After investigation, the Challan was filed before the Judicial Magistrate, who committed the case to learned Sessions Judge, Solan, who tried the appellant under Sections 376/420 IPC leading to his conviction as detailed above. I have heard learned counsel for the parties and have gone through the record. 3 The submissions made by the learned counsel for the appellant were that the appellant has been charge sheeted for having committed rape upon the prosecutrix during intervening period from August, 1997 till July, 1998 and onwards and on various occasions at the premises of the computer institute. It was submitted that the prosecutrix had told one date only when she was alleged raped by the appellant i.e. on 20.8.1997. Thereafter, her statement is in general and she has not stated any specific dates when she was raped. It was submitted that manner in which the prosecutrix had alleged that she was raped by the appellant on 20.8.1997 makes her statement not credible since it was not possible for the appellant to have carried the prosecutrix from one room to another room since the girl was of the age of 25 years and the appellant was of the similar age. It was submitted that rape was committed allegedly in the computer institute situate in a busy place and in case, the prosecutrix had raised an alarm, she could have asked for help of some persons and the manner in which the rape was alleged to have been committed upon her does not inspire confidence that her version is correct. There is nothing in her statement that the appellant has promised the prosecutrix that he will marry her before sexual intercourse committed upon her and the promise to marry, if any, was allegedly given subsequently and, therefore, since the appellant was a consenting party, the prosecution has failed to prove that it was a rape committed upon her. Learned counsel for the appellant has also referred to some infirmities in the prosecution case, which makes her version doubtful and has submitted that the findings recorded by the learned trial Court are liable to be reversed and the appeal deserves to be allowed. 4 On a perusal of the statement of prosecutrix as PW-1, it is clear that she has stated that on 20.8.1997 when she was operating the computer, all of a sudden the command stopped and she made a complaint to the accused who was owner of the institute and the accused came there and made the computer functional. Thereafter, the accused picked her up and embraced her and forcibly lifted her from there and took her inside the room where a cot was lying. She stated that the accused threw her on the bed and gagged her mouth. Accused gripped her hands and he laid on her body, untied her Salwar forcibly and committed sexual intercourse Her private part started bleedings and blood fell on the sheet spread on the cot where he subjected her to this forcible sexual intercourse. She further stated that the accused continued to commit sexual intercourse with her for 20-25 minutes, upon which she told the accused that she would report about the entire incident to her parents and to the police. The accused told that he would marry her and she should not disclose it to any person. She also stated that he will visit her mother in the evening. It has further come in her evidence that the appellant came in the evening to her house and met her mother and assured that he would marry the prosecutrix. She became pregnant and thereafter also, from August, 1997 to September, 1998, the accused subjected her to sexual intercourse repeatedly under the promise and allurement that he will marry her. Thereafter, the accused administered her medicines for causing termination of pregnancy due to which she aborted. She further stated that the accused referred her to Dr. Lalita Prasher on 3.10.1998 for the termination of pregnancy. She stated that the accused also wrote her letters which are Exts. PA to PC. PW-2 5 Smt. Nirmala Devi, mother of the prosecutrix had corroborated the story to some extent that her daughter told her that the accused has subjected her to sexual intercourse in the institute and came in the evening and promised that he would marry her daughter. Thereafter her daughter told her that she has conceived pregnancy, which was got terminated by the accused by promising that he will marry the prosecutrix. PW-3 Dr.(Mrs.) Anita Sood has stated that vagina admitted two fingers easily. There were no mark of injury on the vulva and according to her opinion, the prosecutrix was habitual to sexual intercourse and there were no signs of previous pregnancy or previous abortion when she examined her. She stated that any such abortion or termination of pregnancy caused in October, 1998, is not clinically detectable after lapse of such a long period since she had examined the prosecutrix on 9.6.1999. The statements of other witnesses are not material. Coming to the statement of prosecutrix, a careful perusal of her statement shows that there are many infirmities in her statement which make her version doubtful that she was forcibly raped by the appellant. The occurrence is alleged to have taken place at about 10.30/11.00 AM in the institute. According to the statement of the Investigating Officer, the rape was committed in the building of the institute and Point ‘D’ is the place which was practical room of the computer and from there the prosecutrix was taken to Point ‘A’, where she was raped. There is good difference in between two places and it looks improbable that the appellant could forcibly take the prosecutrix from Point ‘D’ to Point ‘A’ without any resistance by the prosecutrix. PW-12 S.I. Lal Singh, Investigating Officer, has admitted in his cross- 6 examination that the computer centre run by the accused is in the midst of vicinity. PW-1 “A’ stated that there are lot of houses around the computer centre which is in the hired premises. Her statement also suggests that other boys, namely, Rajesh, Manish and Ravinder were with her, meaning thereby that they were present on that date, but they have not been associated by the police during the investigation of the case, though the statement of Ravinder under Section 161 Cr.P.C. was recorded but he was not examined. Keeping in view the fact that the institute was situated in a busy place and the occurrence is alleged to have taken place during day time, it cannot be said that it was possible for the accused to have committed the rape, in case the prosecutrix had raised an alarm. Her version does not inspire any confidence that the accused who was of the age of 25-26 years could forcibly lift the prosecutrix to a distant place who was also of the age of 25 years and she could not offer any resistance. She stated that at the time of rape, her mouth was gagged but there is nothing that when she was carried to the room, her mouth was gagged. Moreover, she stated that her mouth was gagged and her Salwar was untied and accused committed rape upon her. In case of a girl of 25 years fully grown up, it is not possible for a person to forcible rape her after removing her Salwar, since the prosecutrix is able to offer resistance or raise an alarm or make an attempt to save herself from the clutches of the accused. The manner in which the prosecutrix had been taken to the place forcibly and rape was committed does not make her version reliable and it cannot be accepted that she was not a consenting party to the act of sexual intercourse. 7 Coming to the plea that in case rape is committed upon a girl under a false promise of marriage, the offence of rape can be said to be complete, the learned counsel for the appellant had submitted that there is nothing in the statement of the prosecutrix to suggest that the promise of marriage was made by the appellant to the prosecutrix before sexual act. This promise of marriage was made after the act was complete when the prosecutrix gave a threat to lodge the report with the police and informed the incident to her parents. It has to be seen as to whether the said promise made subsequently can be said to be sufficient to prove that this was an act of rape since a false promise was given by the appellant after the commission of the sexual intercourse. I may make a reference to some of the decisions referred to by the learned counsel for the appellant:- The decision in Dameshwar Kumar Vs. State of Madhya Pradesh, 1999(2) Crimes 210, shows that facts of the said case are quite similar to the present facts. In that case also, the appellant had committed sexual intercourse with the girl and when she told the appellant that she would inform the incident to her parents, the appellant promised to marry her. Thereafter, also the girl stated that the accused continued to have sexual relation with her on assurance he would be marrying her for about 5 months, during which period she became pregnant. Coming to the final conclusion drawn by the Court it was held that even if the prosecutrix is believed that she continued to have sexual relationship with the appellant due to his promise of marriage with her but on scrutiny of evidence it does not appear that initial act of intercourse was without the consent of the prosecutrix or 8 had been done forcibly. Therefore, the conviction of the appellant under Section 376 IPC was held to be not justified. A perusal of the decision in Honayya Vs. State of Karnataka, 2001(1) Crimes 227, shows that in that case the sexual intercourse committed has not been committed on the false promise of marriage it was held by the Court that it would not amount to rape. The observations made are relevant and are being reproduced below:- “Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged. The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of the IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.” The decision in Kumaresh Chikkappa Bagodi Vs. State of Karnataka, Kolghatigi Police, 2002(2) Crimes 63, shows that the accused who was neighbour of the prosecutrix forcibly entered the house and committed rape on her. According to the complainant, even thereafter on number of occasions, the accused used to visit the house 9 and on the promise of getting married with her he had sexual intercourse with her. After referring to the evidence, it was held by the Court as under:- “Hence, in my view if a full grown girl, major or adult consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity till she becomes pregnant and in the present case even after the delivery of a child, it is only an act of promiscuity on her part and this voluntary consenting act of the victim cannot fasten any liability of commission of rape on the accused.” The decision in Jayanti Rani Panda Vs. State of West Bengal and another, 1984 CRI. L.J. 1535, relied upon by the learned counsel for the appellant shows that in that case, the consent had been given for sexual intercourse on a promise of marriage. It was held that if a fully grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. It was further held that Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her. The main question which arises for consideration to my mind is as to whether the consent, in the alternative, was given by the prosecutrix on the promise to marry. It has also to be considered as to what is the effect of the consent, if any, if the promise is not made at the time the sexual intercourse was committed or it was given after the commission of the sexual intercourse. The term ‘consent’ used in Section 90 of the I.P.C. and as used in Section 375 of the I.P.C. was considered at length by their Lordships 10 of the apex court in Deelip Singh v. State of Bihar, 2005 SCC (Cri) 258, relied upon by the learned counsel for the appellant. The observations made in paras 14 to 17 are relevant and are being reproduced below: “14. The last question which calls for consideration is whether the accused is guilty of having sexual intercourse with PW 12 “without her consent” (vide clause secondly of Section 375 IPC). Though will and consent often interlace and an act done against the will of a person can be said to be an act done without consent, the Indian Penal Code categorizes these two expression under separate heads in order to be as comprehensive as possible. 15. What then is the meaning and content of the expression “without her consent”? Whether the consent given by a woman believing the man’s promise to marry her is a consent which excludes the offence of rape? These are the questions which have come up for debate directly or incidentally. 16. The concept and dimensions of “consent” in the context of Section 375 IPC have been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case. 17. The Indian Penal Code does not define “consent” in positive terms, but what cannot be regarded as “consent” under the Code is explained by Section 90. 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;…………..” It was held that the ‘consent’ given firstly, under fear of injury and secondly, under a misconception of fact is no ‘consent’ at all. The 11 consent given in the present case was not under fear of injury since the prosecutrix does not say that she consented to the act of sexual intercourse under fear or injury but the second part has to be considered if it is a consent due to the promise of marriage. In case the consent was given under the promise of marriage, the other facts and circumstances are to be considered and it could have been held that since the consent was given on the promise to marry and thereafter the sexual act was committed, it amounts to rape depending upon the statement of the prosecutrix. In the present case that question does not arise for consideration since the prosecutrix has clearly stated that the promise of marriage was made subsequently after the act of sexual intercourse was complete when she threatened to lodge the report with the police and inform her parents. Therefore, her own statement was sufficient that she never consented to the sexual act on the promise of marriage and, therefore, the question of consent having been given under misconception or misrepresentation does not arise. The term ‘consent’ supposes three things – a physical power, a mental power and a free and serious use of them. The term has been further explained in the above case by referring to a decision of the Rajasthan High Court in para 24, wherein it was observed as under: “Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent.” The conviction in that case was set aside though the facts of the case showed that the accused had allured the prosecutrix with promise of marriage and continued to have intercourse with her on account of which she consented. It was observed that in that case the accused 12 went on telling to marry her but she expressed her disinclination and he finally allured her with promise of marriage. However, after considering the facts of the case, it was held that the conviction imposed cannot be termed as proper. It was also observed in para 27 of the judgment referring to another decision of the apex court that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question of consent whether the consent was voluntary, or was given under a misconception of fact. It was observed that burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. In the light of the above law laid down by the apex court in Deelip Singh’s case (supra), it has to be considered as to whether the offence of rape was committed by the appellant or not. Coming to the facts of the case, it is clear that the prosecution had told about the occurrence of rape only on one occasion and thereafter, has stated in general that sexual intercourse was committed with her on the pretext of marriage but no dates and months have been given nor there is any specific evidence on the record as to how many time this was done by the appellant and on which date. Therefore, the charge specifically has to be taken for first occurrence that took place on 20.8.1997. Insofar as the act of appellant in 13 committing the rape on 20.8.1997 is concerned, I have already discussed above that no promise of marriage was given prior to the commission of sexual intercourse by the appellant. It cannot be held that the prosecutrix had submitted to the sexual intercourse only on the false promise given by the appellant. The manner in which the rape is alleged to have been committed, it could not have been forcibly but with the consent of the prosecutrix who was a consenting party, therefore, the appellant cannot be held liable for the offence of rape committed on 20.8.1997. The facts of the case clearly shows that thereafter the prosecutrix who was a girl of the age of 25 years continued sexual intercourse with the appellant who had promised to marry her and there is nothing in the statement of her mother who advised her not to do this act with the appellant till he agreed to the marriage with the prosecutrix. Coming to the promise made by the appellant vide letters Exts. PA to PC, these are not very clear since these were given after the act of sexual intercourse and this will not convert into the evidence under Section 376 IPC since these false promises were given by the appellant subsequently. In view of the fact that the prosecutrix was a consenting party to the sexual intercourse proved in this case alleged to have been committed on 20.8.1997, the appellant is not liable for the offence of rape since the statement of the prosecutrix cannot be said to be trustworthy that it was committed upon her by the appellant, against her consent. In