Affair not discharging the promise of marriage cannot be held as misrepresentation: Supreme Court of India

The prosecutrix PW9 lodged FIR No. 25 of 1999 on 13.04.1999 alleging that four years ago the appellant had promising to marry her and on that pretext continued to established physical relations with her. Five days prior to the lodging of the F.I.R the appellant had established physical The Additional Judicial Commissioner Ranchi on committed rape upon her at the point of a knife. He did not prosecutrix their photographs together and the statement of the Learned senior counsel Mrs. V. Mohana on behalf of the the prosecutrix as also those written by her to the appellant marked as Exhibits during trial more than sufficiently were consensual in nature occasioned by their love affair. No offence under Section 375 IPC is therefore made out. The very casual and perfunctory leading to denial of proper the Scheduled Tribe while the prosecutrix was a Christian Pradesh 5 SCC 628 Vijayan vs. State of Kerala 2008) 4 SCC 763 Kaini Rajan vs. State of Kerala 9 SCC 113 Deepak Gulati vs. State of Haryana 7 SCC 6. Ms. Pragya Baghel learned counsel for the State submitted that the prosecutrix stood by the allegations during trial. The the sister of the prosecutrix had also confirmed that the latter and had come home crying. The appellant had told the prosecutrix to keep quiet in his absence revealing that his intentions were not bonafide. The defence of a consensual relationship is irrelevant considering that the prosecutrix was of marriage only to establish physical relations with the prosecutrix. He never had any such intentions from the very misrepresentation which is no consent in the eyes of the law 7. We have considered the submissions on behalf of the her age by first stating she was sixteen years on the date of the school has been disclosed either by the prosecutrix or her basis of documentary evidence such as school register etc years younger to him. There is thus wide variation in the of age applying the rule of the thumb on basis of the age disclosed by her in deposition on 18.08.2001 as 20 years. In absence of positive evidence being led by the prosecution with possibility of her being above the age of eighteen years on the A bare perusal of the examination of the accused under Section 313 Cr.P.C. reveals it to be extremely casual and were hiding near Tomra canal and after finding the about the incident you told them that “if I have which the informant as well as your parents were present also in the said ceremony your parents had gifted the informant a Saree and a blouse and the It stands well settled that circumstances not put to an principles of natural justice as it provides him the opportunity not only to furnish his defence but also to explain the incriminating circumstances against him. A probable defence the requirement of proof beyond reasonable doubt. This Court time and again has emphasised the importance of putting all Naval Kishore Singh v. State of Bihar 7 SCC 502 it CrPC was done in the most unsatisfactory manner given opportunity to explain any of the circumstances appearing in the evidence against him. At least the the form of questions and he should have been given was given to the accused in the instant case. We deprecate the practice of putting the entire evidence explanation. The trial Judge should have kept in mind explain the adverse circumstances in the evidence and done in a slipshod manner it may result in imperfect 10. The appellant belonged to the Scheduled Tribe while the different religious beliefs in a traditional society. They both resided in the same village Basjadi and were known to each other. The nature and manner of allegations coupled with the trial make it apparent that their love for each other grew and or sporadic in nature but regular over the years. The prosecutrix had even gone and resided in the house of the entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross examination that no 11. The parents of the prosecutrix P.Ws. 5 and 6 both acknowledged awareness of the relationship between appellant the matter to the police immediately. On the contrary P.W. 5 acknowledges that the appellant insisted on marrying in the Temple to which they were not agreeable and wanted the marriage to be solemnised in the Church. They further stated that the prosecutrix was sexually assaulted in her own 12. The prosecutrix acknowledged that an engagement marriage between them could not be solemnised because they belonged to different religions. She was therefore conscious of this obstacle all along even while she continued to establish physical relations with the appellant. If the appellant had married her she would not have lodged the case. She denied having written any letters to the appellant contrary to the was serious about the relationship desiring to culminate the same into marriage. But unfortunately for societal reasons the marriage could not materialise as they belonged to different 13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never misrepresentation from the very inception and the prosecutrix hold in the nature of evidence on record that the appellant we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her 14. Under Section 90 IPC a consent given under a misconception of fact has to be in proximity of time to the was a conscious and informed choice made by her after due In Uday the appellant and the prosecutrix resided relations continued between them on the understanding and “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual later date cannot be said to be given under a 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 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 a conclusion because each case has its own peculiar facts which may have a bearing on the burden is on the prosecution to prove each and 16. The appellant before the High Court relied upon Kaini case. The physical relationship between the parties was Thimmappa Gowda vs. State of Karnataka are considered persons are madly in love that they promise to each other several times that come what may they will get circumstances the promise loses all significance passion and find themselves in situations and circumstances where they in a weak moment succumb the prosecutrix willingly consented to having sexual in love not because he promised to marry her but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in promise. In any event it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented because there were unsustainable and set aside the same. The appellant is acquitted. He is directed to be set at liberty forthwith unless

Summary: Supreme Court acquitted the accused in the matter concerning whether failure to marry proves that the appellant never intended to marry and had fraudulently misrepresented to gain sexual favours held by Justice Navin Sinha in the case of Maheshwar Tigga Vs State of Jharkhand [Criminal Appeal no 635 of 2020 (Arising out of SLP (Crl.) No.393 of 2020)]. The accused belongs to the Scheduled caste while the respondent prosecutrix follows Christianity. The respondent had lodged a complaint against the accused a few days prior to the marriage of the accused with some other girl. The complaint was filed under the charge of assault and rape alleging that four years ago the appellant had outraged her modesty at knife-point. The delay in the filing of the complaint was justified by the appellants promise to marry the respondent and failure to come to a settlement. The respondent claimed to be of 14 years of age when the first incident of alleged rape had taken place. Considering the testimony, the Trial Court had convicted the appellant with a total of 8 years and 1-month imprisonment along with a fine. Further Jharkhand High Court rejected the appeal. Hence, the appellants approached the Supreme Court. The contention of the appellant was that they were in a love relationship and had engaged in consensual intercourse without any misrepresentation of facts. The letters written by both the appellant and the respondent were examined and by the language of the letters, it is clear that both were involved in an affair which they hoped to consummate into a marriage. Also, as alleged there is no evidence regarding the age of the respondent concerning the first incident of rape. According to the medical examiner, the respondent was aged approximately 25 years and as per the testimony of the respondent’s cousin who is 30 years of age the respondent is 6 years younger to him. No school records were also provided to prove that the respondent was underage at the alleged first incident. The contention of the respondent is that after the first incident of rape and assault the respondent parents approached the appellant who promised them to marry the respondent. Owing to such promise the respondent further had intercourse and lived with the appellant for 15 days. The respondent claimed that the appellant never had the intention of marrying her and used her for his desires. The Court observed that the accused was questioned in a very brief and casual manner. Placing reliance on Naval Kishore Singh v. State of Bihar [(2004) 7 SCC 502], it was held, “Under Section 313 Crpc the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given the opportunity to give his explanation. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give an explanation to the circumstances appearing in the evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence.” Supreme Court referred to the recent case of Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and Others [AIR 2019 SC 327] and in Pramod Suryabhan Pawar vs. State of Maharashtra and another [(2019) 9 SCC 608]  which dealt in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities,  the Court had quashed the proceedings. Failure of the respondent to prove the age and by examining the letters exchanged between the parties it is evident that they were in love and wished to marry but the respondent was aware of them belonging to different religion and thus failure to marry cannot prove that the appellant never intended to marry and had fraudulently misrepresented only in order to establish physical relation with her. The Court held that consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. Hence, the contention of rape and assault cannot be sustained as there are discrepancies between the facts alleged. Thus, the accused was acquitted. Click here to read the judgement