On 28th September 2020 the Supreme Court of India in the case of Maheshwar Tigga V. The State Of Jharkhand comprising of a three Bench Judge of Justice R.F. Nariman, Justice Navin Sinha, Justice Indira Banerjee, held that the circumstances not put to an accused under Section 313 of the Code of Criminal Procedure cannot be used against him, and must be excluded from consideration.
Factual Background
The prosecutrix, lodged an 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 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 F.I.R, the appellant had established physical relations with her. The appellant had cheated her as now he was going to solemnize 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 were written by the appellant to the prosecutrix, their photographs together, and the statement of the appellant recorded under Section 313 Cr.P.C. was sufficient to sustain the conviction.
Submissions on behalf of the Appellant
The counsel, on behalf of the appellant, submits that the F.I.R lodged belatedly after four years was clearly an afterthought. 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 with her. The letters were written by the appellant to the prosecutrix as also those written by her to the appellant marked as Exhibits during the trial, more than sufficiently established a deep love affair between them over a period of time. The prosecutrix was aged approximately 25 years as opined by P.W.10, the Doctor who medically examined her. 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. The questions put to the appellant under Section 313 Cr.P.C. were very casual and perfunctory, leading to a denial of proper opportunity of defence causing serious prejudice to him by denial of the right to a fair trial. 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. Reliance was placed on Parkash Chand vs. State of Himachal Pradesh, (2019) 5 SCC 628.
Submissions on behalf of the respondent
The counsel for the State submitted that the prosecutrix stood by the allegations during trial. The delay in lodging the FIR has been sufficiently explained by reason of the compromise efforts which failed to materialize. P.W. 7, 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. 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 fourteen years of age. The 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. The evidence of the prosecutrix is reliable.
Court Analysis
• 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.
• The appellant, before the High Court, relied upon Kaini Rajan (supra) in his defence. The facts were akin to the present case. The physical relationship between the parties was established on the foundation of a promise to marry.
• 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. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it is spread over a long period of time coupled with a conscious positive action not to protest.
Judgment
This Court set aside the conviction under Section 376 IPC. The appellant has been acquitted of the charge under Sections 420 and 504 I.P.C. No appeal has been preferred against the acquittal. There is no medical evidence on record to sustain the conviction under Section 323 I.P.C. No offense is made out against the appellant under Section 341 I.P.C. considering the statement of prosecutrix that she had gone to live with the appellant for 15 days of her own volition.
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