SC reiterates Misconception of fact about Promise to Marry has to be in Proximity of Time to the Occurrence [Read Judgment]

On 28^th Sep, 2020 the Supreme Court in the case of Mahershwar Tigga v. The State of Jharkhand comprising of Justice in the case of Justice R.F. Nariman, Justice Navin Sinha and Justice Indira Banerjee held that the in the case of Rape Misconception of fact about Promise to Marry has to be in Proximity of Time to the Occurrence.

Factual Background

The Prosecutrix lodged FIR alleging that four years ago the appellant had outraged her modesty at the point of a knife. He had since been promising to marry her and on the pretext continued to establish physical relations with her and on that pretext continued to establish physical relations with her as husband and wife. She had also stayed at his house for fifteen days during which also he established physical relations with her. Five days prior to the lodging of the FIR, the appellant had established physical relations with her. The appellant had cheated her as now he was going to solemnise his marriage with another girl. All efforts at a compromise had failed.

The Additional Judicial Commissioner, Ranchi on consideration of the evidence convicted the appellant holding that the prosecutrix was 14 years of age when the appellant had first committed rape upon her at the point of a knife. He did not abide by his promise to marry her. The High Court dismissing the appeal opined that the letters written by the appellant to the prosecutrix, their photographs together, and the statement of the appellant recorded under Section 313 Cr.P.C. were sufficient to sustain the conviction.

Appellant Contentions and Submissions

Appellant submits before the Court that the:

1. FIR lodged belatedly after four years was clearly an after thought. The entire genesis of the allegations is highly doubtful and suspect as the prosecutrix in her cross examination admitted that the appellant had not committed rape.
2. The letters written by the appellant to the prosecutrix as also those written by her to the appellant marked as Exhibits during trial, more than sufficiently established a deep love affair between them over a period of time.
3. The Physical relations between the appellant and the Prosecutrix were consensual in nature occasioned by their love affair. No offence under Section 375 IPC is therefore, made out.
4. The question put to the appellant under Section 313 Cr.P.C were very casual and perfunctory, leading to denial of proper opportunity of defence causing serious prejudice to him by denial of the right to a fair trial.
5. The marriage between them could not materialize due to societal reasons as the appellant belonged to the Scheduled Tribe, while the Prosecutrix was a Christian.

 State Contentions and Submissions

State, submits before the Court that the:-

1. Prosecutrix stood by the allegations during trial. The delay in lodging the FIR has been sufficiently explained by reasons of the compromise efforts which failed to materialise.
2. Sister of the compromise efforts which failed to materialise and the sister of the prosecutrix had also confirmed that the latter was sexually assaulted by the appellant at the point of a knife and had come home crying.
3. 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 fourteen years of age.
4. Appellant had held out a false promise of marriage only to establish physical relations with the prosecutrix. He never had any such intentions from the very inception, and he obtained the consent of the appellant by a false misrepresentation, which is no consent in the eyes of the law.

Court Analysis

1. A bare perusal of the examination of the accused under Section   313   Cr.P.C.   reveals it   to be   extremely casual   and perfunctory in nature.
2. It   stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the 6 principles of natural justice as it provides him the opportunity not   only   to   furnish   his defense,   but   also   to   explain   the incriminating   circumstances   against   him
3. Under   Section   90   IPC,   a   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.

Judgment

The Supreme Court in its judgment stated that the appellant has been acquitted of the charge under Sections 420 and 540 IPC. No appeal has been preferred against the acquittal. There is no medical evidence on record to sustain the conviction under Section 323 IPC. No Offence is made out against the appellant under Section 341 IPC considering the statement of prosecutrix that she had gone to live with the appellant for 15 days of her own volition.

Further, the Supreme Court stated that consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deepseated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.

The Supreme Court, acquitted the appellant.

Read Judgment @Latestlaws.com