Karnataka High Court
The State Of Karnataka vs Saddam Alias Khaza Hussen S/O. Allasab ... on 8 February, 2024
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CRL.A No. 100006 of 2020
C/W CRL.A No. 100551 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100006 OF 2020 (A)
C/W
CRIMINAL APPEAL NO. 100551 OF 2022
IN CRL.A NO. 100006/2020
BETWEEN:
NILOFER D/O. SHARIFSAB SAHEBNAVAR,
AGE - 25 YEARS, OCC - HOUSEHOLD WORK,
R/O - KUBIHAL VILLAGE,
NOW AT BANDIWAD VILLAGE,
TQ - HUBBALLI TQ - KUNDAGOL,
DIST - DHARWAD.
...APPELLANT
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
Digitally
signed by
SHIVAKUMAR
AND:
HIREMATH
Date:
2024.02.19
1. SADAM @ KHAZA HUSSEN
11:21:02
+0530 S/O. ALLASAB SHEIKHSANADI
AGE - 30 YEARS, OCC - AGRICULTURE
R/O - KALASANNAVAR ONI,
GAMANGATTI VILLAGE,
TQ - HUBBALLI, DIST - DHARWAD.
2. STATE OF KARNATAKA
THROUGH POLICE INSPECTOR,
HUBBALLI-DHARWAD
WOMEN POLICE STATION, HUBBALLI,
REP.BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENTS
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CRL.A No. 100006 of 2020
C/W CRL.A No. 100551 of 2022
(BY SRI. K.M. GUNDAWADE, ADDL. SPP FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
OF ACCUSED PASSED BY THE COURT OF THE VTH ADDL. DISTRICT
AND SESSIONS COURT, DHARWAD SITTING AT HUBBALLI, IN
SESSIONS CASE NO.149/2015 DATED 04/10/2019, CONSEQUENTLY
ALLOW THIS CRIMINAL APPEAL AND CONVICT ACCUSED I.E.,
RESPONDENT NO.1 HEREIN FOR THE OFFENCES PUNISHABLE U/S.
376, 417 AND 506 OF IPC.
IN CRL.A NO. 100551/2022
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR MAHILA POLICE STATION,
HUBLI DISTRICT
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH-580001.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADLL.SPP)
AND:
SADDAM ALIAS KHAZA HUSSEN
S/O. ALLASAB SHEIKHSANADI
OCC: AGRICULTURE,
R/O: KALASANNANAVAR ONI,
GAMANGATTI HUBBALLI-580025.
...RESPONDENT
(BY SRI. K.M. SHURALLI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
AND (3)OF CR.PC., PRAYING TO SET ASIDE AND GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 04.10.2019 PASSED BY THE V ADDL. DISTRICT AND
SESSIONS JUDGE DHARWAD SITTING AT HUBBALLI IN SPECIAL
CASE NO. 149/2015.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100006 of 2020
C/W CRL.A No. 100551 of 2022
JUDGMENT
These two appeals arising out of the acquittal
Judgment passed by the learned V Additional District and
Sessions Judge, Dharwad, sitting at Hubballi in
S.C.No.149/2015 dated 04.10.2019, wherein, the learned
Sessions Judge acquitted the accused/respondent for the
offences punishable under Sections 376, 417 and 506 of
Indian Penal Code.
2. The factual matrix of the prosecution case in
brief are;
P.W.18 being victim in this case on 22.06.2014,
lodged a complaint before the Women Police Station,
Hubballi-Dharwad as per Ex.P.18 before P.W.22 which
came to be registered in Crime No.22/2014 dated
22.06.2014 as per Ex.P32, for the offence punishable
under Sections 376, 506 and 420 of Indian Penal Code (for
short 'IPC') against the accused; alleging that the
accused/respondent and his son are from Gamanagatti
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village and have purchased plot and agricultural lands in
Kubihal village in the year 2010. As such, the accused was
visiting the house of P.W.4, who was the relative of victim
where the accused and victim had met for the first time.
Further, accused and victim both used to travel in the bus
from Hubballi to Kubihal, since, the victim was pursuing
her education at Mahila Vidyapeetha, at Hubballi. Thereby,
they both fell in love and consequently, he had also gifted
a mobile phone to her with sim card bearing
No.9738116342 and accused used to text her and also
they were used to converse with each other by mobile
phone. It is in this background, he gaining her trust and
also by swearing to God, promised to marry her and took
her to his pump house in his garden land at Gamanagatti
village and had forcible sexual coitus with her, though she
had not consented for the same. However, they both had
sexual coitus repeatedly then onwards. Thereafter, he took
her signature on white papers to register their marriage
and took the joint photographs and finally when she raised
the marriage issue, he refused to marry her on the ground
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that, she is from the poor background and also his
marriage is fixed with some other girl who belongs to rich
family.
3. On the above background, the paternal uncles
of the complainant/victim i.e. P.W.16, P.W.17 requested
the accused to marry the Complainant and also visited to
the house of the accused, wherein, they met his father,
who in-turn rejected the proposal to marry the accused
with PW.18. Hence, the complainant and her family
members decided to lodge the complaint. Posteriorly, on
15.06.2014 the accused also threatened the complainant
with dire consequence by showing knife not to lodge the
complaint against him, failing which he will finish her.
Hence, without any other alternative, she filed compliant
on 22.06.2014 as per Ex.P.18 before the respondent-
Police as stated supra.
4. After registering the FIR against the accused,
the Hubballi-Dharwad Mahila Police, investigated the case
and laid the charge-sheet before the committal court for
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the offence punishable under Sections 376, 506 and 417
of Indian Penal Code.
5. After committal of the case before the Sessions
Court, the learned Sessions Judge framed the charges
against the accused/respondent for the aforementioned
offences and read over the same to him. However, the
accused denied the charges and claimed to be tried.
6. To prove the charges leveled against the
accused, the prosecution in total examined 22 witnesses
before the trial Court as per P.W.1 to P.W.22, so also got
marked 39 documents as Ex.P.1 to Ex.P.39 and got
identified two material objects as M.O.1 and M.O.2.
7. After completion of the prosecution evidence,
the learned Sessions Judge read over the incriminating
evidence of the prosecution witnesses to the accused as
contemplated under Section 313 of Cr.P.C. However, the
accused denied the same. The accused neither chose to
examine any witness on his behalf, nor got marked any
documents.
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8. Post assessment of the oral and documentary
evidence available on record, the learned Sessions Judge,
acquitted the accused for the charges leveled against him.
The correctness of the said Judgment is challenged under
these appeals. More specifically, the victim has filed
Crl.A.No.100006/2020 and the State has preferred appeal
in Crl.A.No.100551/2022.
9. We have heard Sri. Arvind D. Kulkarni for the
appellant in Crl.A.No.100006/2020 and learned Addl. SPP
for the appellant in Crl.A.No.100551/2022, so also Sri.
K.M.Shirahalli for the respondents/accused in both the
appeals.
10. Learned counsel for the appellant in
Crl.A.No.100006/2020, vehemently contends that, the
Judgment under this appeal suffers from perversity and
illegality and the learned Sessions Judge acquitted the
accused without properly appreciating the evidence
available on record. According to the learned counsel,
P.W.18- victim has categorically deposed in her evidence
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about the fact how the accused came in contact with her,
and the promise made by him to marry her, so also about
the sexual coitus committed by him in the pump house of
his landed property on several occasion against her
consent. She also deposed about the threat foisted by the
accused after the incident when she requested to marry
her. The said evidence of P.W.18 is corroborated by the
evidence of P.W.22- Police Inspector who registered the
case and investigated the same. Further, the Doctor-P.W.1
who conducted her examination, issued the certificate as
per Ex.P.1 and opined that, 'she might have undergone
any act like that of sexual intercourse'. In such
circumstances, there are no reason to discard the evidence
of P.W.18-prosecutrix. According to the learned counsel, it
is the settled position of law by this Court as well as by the
Hon'ble Apex Court that the evidence of prosecutrix has to
be treated on a higher pedestal and the Court should not
insist for any corroboration for her evidence if the same
has withstood the rigors of cross-examination. Hence,
according to him, the learned Sessions Judge without
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considering the above aspects, has proceeded to pass the
impugned order of acquittal and as such, he prays to allow
the appeal and to convict the accused.
11. Learned Addl. SPP appearing for the appellant
in Crl.A.No.100551/2022, submits that, the evidence of
P.W.18-victim has been supported by the evidence of
P.W.11, P.W.16 and P.W.20 and all these witnesses have
categorically deposed before the Court that the accused
initially made friendship with the victim-girl on the pretext
that he would marry her and they have seen the accused
and victim together on several occasions. Further, P.W.18
also has clearly deposed about the sexual act committed
by the accused on a false promise to marry her. He would
further submit that, the oral testimony of P.W.18 victim
corroborates with the medical evidence of P.W.1-Doctor
and her report at Ex.P.1. In such circumstance, according
to him, the prosecution has successfully proved the guilt of
the accused, in spite of the same, the learned Sessions
Judge without appreciating the evidences in right
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perspective has proceeded to pass the impugned Order
and as such, he prays to allow the appeal filed by the
State.
12. Refuting the above submissions made by the
learned counsel for the appellants, the learned counsel for
the respondent-accused, in support of the impugned
Judgment of the trial Court, would assert this Court that,
the prosecution miserably failed to prove the charges
leveled against the accused by leading cogent evidence
before the trial Court. On perusal of the evidence of
P.W.18- victim, she was aged about 23 years at the time
of the incident, who emphatically deposed that she
voluntarily accompanied the accused and they both had
consensual sexual coitus on several occasions. In such
circumstances, the act of the accused does not fall under
the ambit of Section 376 of IPC. Moreover, since P.W.18
herself admitted in her cross-examination that, they both
had developed physical relationship on several occasions
and she lodged the complaint, only when the accused
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failed to keep up with his promise and marry her. Hence,
there was no such initial promise by the accused to marry
her and thereby committed the act of sexual coitus with
her. In such circumstance, according to the counsel, the
offence under Section 417 of IPC, also does not attract
against the accused. The learned counsel also submits
that, there is an inordinate delay of nearly six months in
lodging the complaint, in such circumstance, the version of
P.W.18 cannot be relied to convict the accused for the
charges leveled against him. On these grounds he prays to
dismiss the appeal.
13. Having heard the learned counsel for the
respective parties and on perusal of the materials made
available before us, the only point that would arise for our
consideration is;
Whether the Judgment under this appeal
suffers from perversity or illegality?
14. This Court being the appellate Court on a
cursory glance and re-appreciation of the evidences placed
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by the prosecution before the trial Court, would find that,
though, the prosecution examined 22 witnesses before the
trial Court, among them,
P.W.1 is the Doctor who conducted the examination
of the victim and issued report as per Ex.P.1 and P.W.18 is
the victim/complainant, reiterated the contents of Ex.P.18
in her evidence and deposed regarding how the accused
came in contact with her and subsequently the promise
made by him to marry her and gifting of mobile to her and
also about the text message and conversation held
between them and later the forcible sexual coitus
committed by him, on her, on several occasion by
promising that he would marry her. She also deposed
about the Panchayats held by her parents in the house of
accused and the threat foisted by the accused after the
Panchayat and about lodging of complaint on 22.06.2014.
P.W.2 is the panch witness for Ex.P.2 i.e. seizure of
the undergarment of accused as per M.O.2. P.W.3 to
P.W.7 are the circumstantial witnesses who have not
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supported the case of the prosecution. P.W.8-father of the
accused also has not supported the case of the
prosecution. P.W.9-Doctor who examined the accused and
issued Ex.P.10 and opined that, the accused is capable of
performing sexual act. P.W.10 and P.W.11 are the panch
witnesses for Ex.P.12 and Ex.P.13 i.e., the mahazar drawn
where the accused gave threat to the complainant on
15.06.2014, so also the place where the accused
committed sexual coitus with the victim i.e., pump house,
respectively.
P.W.12-the then ASI, a formal witness. P.W.13 is the
father of the victim who is a circumstantial witness, also
treated hostile by the prosecution. P.W.14 is the owner of
the adjacent land where the pump house i.e., the place of
incident situated. P.W.15 and P.W.16 are the other
circumstantial witnesses. Among them P.W.15 turned
hostile and P.W.16 is one of the panchayatdar who
requested the accused to marry the victim-complainant.
P.W.17 and 19 are the photographers. P.W.20 is the friend
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of P.W.18, a circumstantial witness deposed that, the
accused and victim were in love with each other and the
accused used to call her through phone. P.W.21 is the
panch witness for Ex.P.22-panchanama under M.O.2
mobile of P.W.18 seized. P.W.22 is the police Inspector of
Women Police Station, Hubballi, who invested the case and
laid charge sheet against the accused.
15. On careful perusal of the above evidence, in
order to prove the charges leveled against the accused,
the prosecution mainly relied on the evidence of P.W.18
the victim so also the complaint lodged by her at Ex.P.18
and the evidence of P.W.1-Doctor who conducted her
examination.
16. On a meticulous reading of Ex.P.1 the complaint
lodged by P.W.18, depicts that, both the P.W.18 and
accused have known each other since 2010, as they both
met in house of a common relative situated in
complainant's village at Kubihalli. Thereafter, they both
used to travel in the same bus, since, she was pursuing
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her education in Hubballi Mahila Vidyapeetha. Even the
accused used to go with her and come back in the same
bus. As a result of all these incidents, they both fell in love
and thereafter as gesture of the same, accused gifted a
mobile phone-M.O.2 to her and they were sending
messages to each other, so also conversing through the
said M.O.2. However, as per her say, in the year 2013,
accused took her to pump house situated just adjacent to
his land at Gamanagatti village and committed sexual
coitus against her consent. It is further alleged in the
complaint that, subsequently, they both developed
physical relationship and PW.18 was involved in the
consensual physical relationship with the accused for
about six months, on the pretext of promising to marry
her in future. Finally, when the accused refused for the
marriage proposal, she lodged the complaint on
22.06.2014. As such, there is a delay of six months in
lodging the said complaint as rightly pointed out by the
learned counsel for the respondent. The said inordinate
delay in my opinion is not sufficiently explained by P.W.18
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in the case on hand. Howbeit, on careful perusal of her
evidence and the evidence of her friend-PW.19, they both
deposed that, the accused and P.W.18 were in relationship
of love and to that connection both were used
peregrinating with each other. Admittedly, P.W.18 has not
disclosed about the sexual act before 09.01.2014 to
anybody. Further, it is the evidence of P.W.18 that,
accused had forcible coitus with her and in the same time
she deposed that, he had promised her to marry and she
was involved in the same only under the impression that
he would marry her. But according to her, the said consent
was under misconception of facts envisaged under Section
90 of IPC. Even if the version envisaged by PW.18 is
believed, it creates a doubt in her case that if the accused
really had committed the rape on P.W.18 against her will
and wish. If so, she could have lodged the complaint or
ended such act in the first instance itself. But the accused
and P.W.18 have been in continued physical relationship
for a period of one year repeatedly, which, even if
believed, would clearly goes to prove that, the sexual
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coitus has been taken place on mutual consent of both the
parties. Hence, as rightly contended by the learned
counsel for the appellant the offence under Section 375 of
Indian Penal Code does not attract in this case. Further,
P.W.18 deposed in her evidence that, after 09.01.2014,
she had no occasion to meet the accused or texted him. In
such eventuality, the alleged threat foisted by the accused
on 15.06.2014, in our opinion a false and baseless
allegation for which neither any corroboration nor any
overt act's are forth coming. Further, according to her she
informed the alleged threat by the accused to her great-
Uncle Suleman Bhavakhan, who in-turn informed her that,
accused had come and offered money to him to convince
PW.18 to withdraw the complaint filed against him. As a
matter of fact, as on 15.06.2014 no case was registered.
Hence, the question of withdrawing the case does not arise
at all. Moreover, the said great-uncle of complainant,
Suleman was neither cited as a chargesheet witness nor
examined by the prosecution. Subsequently, P.W.18 and
her relatives have failed to explain the delay caused in
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lodging the Complaint. Admittedly, at the cost of
repetition, P.W.18 was aged about 23 years at the time of
incident and she was capable of understanding the
consequences of her decisions. Additionally, being
educated she has also failed to disclose the incident to
anybody for a period of almost six month which clearly
creates a doubt in the mind of this Court about her
version. P.W.13 who is the father of the P.W.18, deposed
that, he came to know about the relationship between his
daughter and accused only after 09.01.2014 and in-turn
he has communicated the same to P.W.16 who is the
brother-in-law. However, they failed to lodge any
complaint on the said day. Even otherwise, P.W.13 does
not have personal information in respect of the
relationship of the accused and P.W.18.
17. On careful perusal of the messages exchanged
by the accused and P.W.18 as per Ex.P.31, the same
depicts the relationship of love between the accused and
P.W.18. To particularize, ever since 13.12.2013 there are
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multiple messages exchanged between them and there are
no messages to corroborate the facts as pleaded by the
prosecution that, they were having physical relationship
with each other, except the unconditional loving
relationship between them. At the cost of repetition, it is
important to note that, though P.W.18 stated in her
evidence that, the accused had coitus with her forcibly
against her will, repeatedly, nothing prevented her to
inform the same to her parents or to lodge any complaint
for a period of six months. Hence, on careful perusal of the
above evidence, the testimony of P.W.18 does not inspire
confidence of this Court about the forcible act or the coitus
committed by the accused to her.
18. Be that as it may, as claimed by P.W.18, the
consent was given under the misconception of facts that
the accused would marry her, as such, the accused
committed a cheating on her also cannot be believable. In
order to justify the same we would rely upon the decision
of the Hon'ble Apex Court in Pramod Suryabhan Pawar
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v. State of Maharashtra, reported in (2019) 9 SCC
608, wherein the Hon'ble Apex Court has held that -
"14. In the present case, the "misconception
of fact" alleged by the complainant is the
appellant's promise to marry her. Specifically in
the context of a promise to marry, this Court has
observed that there is a distinction between a false
promise given on the understanding by the maker
that it will be broken, and the breach of a promise
which is made in good faith but subsequently not
fulfilled. In Anurag Soni v. State of
Chhattisgarh [Anurag Soni v. State of
Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine
SC 509] , this Court held : (SCC para 12)
"12. The sum and substance of the
aforesaid decisions would be that if it
is established and proved that from
the inception the accused who gave
the promise to the prosecutrix to
marry, did not have any intention to
marry and the prosecutrix gave the
consent for sexual intercourse on
such an assurance by the accused
that he would marry her, such a
consent can be said to be a consent
obtained on a misconception of fact
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as per Section 90 IPC and, in such a
case, such a consent would not
excuse the offender and such an
offender can be said to have
committed the rape as defined under
Sections 375 IPC and can be
convicted for the offence under
Section 376 IPC."
Similar observations were made by this Court
in Deepak Gulati v. State of Haryana [Deepak
Gulati v. State of Haryana, (2013) 7 SCC 675 :
(2013) 3 SCC (Cri) 660] (Deepak Gulati) : (SCC p.
682, para 21)
"21. ... There is a distinction between
the mere breach of a promise, and
not fulfilling a false promise. Thus,
the court must examine whether
there was made, at an early stage a
false promise of marriage by the
accused;"
15. In Yedla Srinivasa Rao v. State of A.P. [Yedla
Srinivasa Rao v. State of A.P., (2006) 11 SCC 615
: (2007) 1 SCC (Cri) 557] the accused forcibly
established sexual relations with the complainant.
When she asked the accused why he had spoiled
her life, he promised to marry her. On this
premise, the accused repeatedly had sexual
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intercourse with the complainant. When the
complainant became pregnant, the accused
refused to marry her. When the matter was
brought to the panchayat, the accused admitted to
having had sexual intercourse with the
complainant but subsequently absconded. Given
this factual background, the Court observed : (SCC
pp. 620-21, para 10)
"10. It appears that the intention of
the accused as per the testimony of
PW 1 was, right from the beginning,
not honest and he kept on promising
that he will marry her, till she
became pregnant. This kind of
consent obtained by the accused
cannot be said to be any consent
because she was under a
misconception of fact that the
accused intends to marry her,
therefore, she had submitted to
sexual intercourse with him. This fact
is also admitted by the accused that
he had committed sexual intercourse
which is apparent from the testimony
of PWs 1, 2 and 3 and before the
panchayat of elders of the village. It
is more than clear that the accused
made a false promise that he would
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marry her. Therefore, the intention
of the accused right from the
beginning was not bona fide and the
poor girl submitted to the lust of the
accused, completely being misled by
the accused who held out the
promise for marriage. This kind of
consent taken by the accused with
clear intention not to fulfil the
promise and persuading the girl to
believe that he is going to marry her
and obtained her consent for the
sexual intercourse under total
misconception, cannot be treated to
be a consent."
17. In Uday v. State of Karnataka [Uday v. State
of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri)
775] the complainant was a college-going student
when the accused promised to marry her. In the
complainant's statement, she admitted that she
was aware that there would be significant
opposition from both the complainant's and
accused's families to the proposed marriage. She
engaged in sexual intercourse with the accused but
nonetheless kept the relationship secret from her
family. The Court observed that in these
circumstances the accused's promise to marry the
complainant was not of immediate relevance to the
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complainant's decision to engage in sexual
intercourse with the accused, which was motivated
by other factors : (SCC p. 58, para 25)
"25. There is yet another difficulty which
faces the prosecution in this case. In a
case of this nature two conditions must
be fulfilled for the application of Section
90 IPC. Firstly, it must be shown that the
consent was given under a misconception
of fact. Secondly, it must be proved that
the person who obtained the consent
knew, or had reason to believe that the
consent was given in consequence of
such misconception. We have serious
doubts that the promise to marry induced
the prosecutrix to consent to having
sexual intercourse with the appellant. She
knew, as we have observed earlier, that
her marriage with the appellant was
difficult on account of caste
considerations. The proposal was bound
to meet with stiff opposition from
members of both families. There was
therefore a distinct possibility, of which
she was clearly conscious, that the
marriage may not take place at all
despite the promise of the appellant. The
question still remains whether even if it
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were so, the appellant knew, or had
reason to believe, that the prosecutrix
had consented to having sexual
intercourse with him only as a
consequence of her belief, based on his
promise, that they will get married in due
course. There is hardly any evidence to
prove this fact. On the contrary, the
circumstances of the case tend to support
the conclusion that the appellant had
reason to believe that the consent given
by the prosecutrix was the result of their
deep love for each other. It is not
disputed that they were deeply in
love. They met often, and it does appear
that the prosecutrix permitted him
liberties which, if at all, are permitted
only to a person with whom one is in
deep love. It is also not without
significance that the prosecutrix stealthily
went out with the appellant to a lonely
place at 12 o'clock in the night. It usually
happens in such cases, when two young
persons are madly in love, that they
promise to each other several times that
come what may, they will get married."
(emphasis supplied)
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18. To summarise the legal position that emerges
from the above cases, the "consent" of a woman
with respect to Section 375 must involve an active
and reasoned deliberation towards the proposed
act. To establish whether the "consent" was
vitiated by a "misconception of fact" arising out of
a promise to marry, two propositions must be
established. The promise of marriage must have
been a false promise, given in bad faith and with
no intention of being adhered to at the time it was
given. The false promise itself must be of
immediate relevance, or bear a direct nexus to the
woman's decision to engage in the sexual act.
19. If the case on hand is juxtapose the findings of
the Hon'ble Apex Court supra, though the case portrayed
in a manner of 'false promise to marry', the prosecution
has utterly failed to prove with cogent evidences as to
accused had intention/mensrea since inception, to deceive
her and reject the proposal of marriage. Moreover, as
observed by the Hon'ble Apex Court, even in the given
case, though according to PW.18, accused committing the
forcible sexual coitus on her on the first instance was on
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false pretext to marry and subsequently she agreeing on
the same was also on the ground that he had promised
her to marry; the same cannot be relied on to shift the
guilt on the accused on the context of 'false promise to
marry' for the very reason that, she had hid the said fact
from her parents. As found by the Hon'ble Apex court in
the case of Uday v. State of Karnataka, reported in (2003)
4 SCC 46, (the finding of which is also relied in the above
referred decision of the Hon'ble Apex court), that very act of
hiding the act of sexual coitus, even after there existed a
promise to marry would clearly indicate that, even the
complainant/Victim-PW.18 was aware of the fact that, there
existed a difficulty in acceptance of the marriage of both
accused and victim by her parents. As such, she decided not to
inform them at the initial stage itself. When this being the case,
when a promise given by the accused has been breached,
cannot be termed as one that was falsely given, by reaping the
benefits and safeguards of Section 90 of IPC. Moreover, as
deposed by independent witnesses who held the panchayats
and also the father of the victim girl, when there was talks of
convincing the parents and the accused were being held, the
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accused was very much present to the incident to answer the
allegations. As such, in our considered opinion, the contention
of the prosecution, is in no manner a believable and probable
contention for the reason that, a relationship which was existed
since 2010, has come to an end during the year 2019, and the
same is not at all sufficient to prove the guilt and the mensrea
on the part of the accused since inception. In addition to this,
as stated supra, even the text messages of the accused and
PW.18 are perused, would only depict the bonding of the
accused and PW.18, but nothing else. Additionally, it is also the
case of the prosecution that, both victim and accused were
having frequent sexual intercourse and in the course of their
relationship, she had also conceived and in order to abort the
same, necessary pills were also consumed. This fact put-forth
by the prosecution would only go to show that, at no point of
time accused intended to turn-around from the relationship
apart from having a sole intention to marry her, as it also can
be inferred that the relationship of accused and victim had
continued post such incident too. In such circumstance, we
are of the agreed opinion that, the prosecution also has
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miserably failed to prove the guilt of the accused under
Section 417 of the IPC.
20. We are aware of the fact that, the evidence of
the prosecution holds a greater value and should be
considered on a higher pedestal, but we are also aware of
the legal position that the same should be of sterling
quality in order to make reliance upon the same. In the
case on hand, if the evidence of PW.18 is considered,
regardless of the depositions of the other witnesses also,
even in such circumstances for the discussions made
above, we do not find any overt act attributed against the
accused except for the omnibus claim of "False promise to
marry" as already opined by us. As such, this Court is
curbed to hold that the evidence deposed by PW.18 is not
a reliable source of evidence as the same does not pass
the test of sterling quality. This court would rely upon the
decision of the Hon'ble Apex Court in the case of
Raisandeep @ Deepu Vs. State of NCT Delhi reported
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in AIR 2012 SCC 3157 to justify the above findings. As
the top Court in paragraph No.22 has held as under -
"22. In our considered opinion, the "sterling
witness" should be of a very high quality and
calibre whose version should, therefore, be
unassailable. The court considering the version of
such witness should be in a position to accept it for
its face value without any hesitation. To test the
quality of such a witness, the status of the witness
would be immaterial and what would be relevant is
the truthfulness of the statement made by such a
witness. What would be more relevant would be
the consistency of the statement right from the
starting point till the end, namely, at the time
when the witness makes the initial statement and
ultimately before the court. It should be natural
and consistent with the case of the prosecution
qua the accused. There should not be any
prevarication in the version of such a witness. The
witness should be in a position to withstand the
cross-examination of any length and howsoever
strenuous it may be and under no circumstance
should give room for any doubt as to the factum of
the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-
relation with each and every one of other
supporting material such as the recoveries made,
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the weapons used, the manner of offence
committed, the scientific evidence and the expert
opinion. The said version should consistently
match with the version of every other witness. It
can even be stated that it should be akin to the
test applied in the case of circumstantial evidence
where there should not be any missing link in the
chain of circumstances to hold the accused guilty
of the offence alleged against him. Only if the
version of such a witness qualifies the above test
as well as all other such similar tests to be applied,
can it be held that such a witness can be called as
a "sterling witness" whose version can be accepted
by the court without any corroboration and based
on which the guilty can be punished. To be more
precise, the version of the said witness on the core
spectrum of the crime should remain intact while
all other attendant materials, namely, oral,
documentary and material objects should match
the said version in material particulars in order to
enable the court trying the offence to rely on the
core version to sieve the other supporting
materials for holding the offender guilty of the
charge alleged."
21. Further, as stated supra, there is also a delay of
six months in lodging the complaint from the date of
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alleged first forceful sexual coitus is concerned. Said
delayed complaint would not only hamper the prosecution
case but would also render the accused defenseless. The
explanation given by the prosecution to dodge the delay
aspect is also as already held by this Court, cannot be
considered a licit delay. Moreover, in the given peculiar
facts and circumstances, the victim has not only waited for
six months to give the complaint, there is also a delay post
unwanted abortion too. As such, awarding a conviction to
the accused merely on the evidence of prosecutrix is not
only untenable but also in our considered view, a
dangerous one, when kept in mind the jurisprudential
aspects of Criminal Law is concerned. We would buttress
our opinion by relying on the decision of the Hon'ble Apex
Court in the case of Vijayan v. State of Kerala, reported
in (2008) 14 SCC 763, wherein, the Hon'ble Apex Court
in paragraph No.5 has held as under -
"5. The present case wholly depends upon the
testimony of the prosecutrix. The incident in the
present case took place seven months prior to
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the date of lodging the complaint as a realisation
dawned upon her that she has been subjected to
rape by the appellant-accused. No complaint or
grievance was made either to the police or the
parents prior thereto. The explanation for delay
in lodging the FIR is that the appellant-accused
promised her to marry therefore the FIR was not
filed. In cases where the sole testimony of the
prosecutrix is available, it is very dangerous to
convict the accused, specially when the
prosecutrix could venture to wait for seven
months for filing the FIR for rape. This leaves
the accused totally defenceless. Had the
prosecutrix lodged the complaint soon after the
incident, there would have been some
supporting evidence like the medical report or
any other injury on the body of the prosecutrix
so as to show the sign of rape. If the prosecutrix
has willingly submitted herself to sexual
intercourse and waited for seven months for
filing the FIR it will be very hazardous to convict
on such sole oral testimony. Moreover, no DNA
test was conducted to find out whether the child
was born out of the said incident of rape and
that the appellant-accused was responsible for
the said child. In the face of lack of any other
evidence, it is unsafe to convict the accused.
Therefore, we are of the opinion that the view
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taken by the trial court and the learned Single
Judge of the High Court in convicting the
appellant-accused under Section 376 IPC cannot
be sustained. Consequently, we set aside the
judgment and order of the trial court as also of
the High Court and quash the conviction and
sentence of the appellant-accused under Section
376 IPC. The accused may be released forthwith
from custody if not required in any other case."
22. In view of the above detailed and examined so
also considered discussion, we are of the congruent view
that, the learned Sessions Judge has rightly passed the
impugned Judgment by acquitting the accused for the
charges leveled against him. Consequently, we answer the
above raised point in negative and proceed to dismiss
the appeals filed by both the State and the Victim.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
