Sexual Intercourses Which Do Not Amount To Rapes:-
Since many false, fabricated & wrong cases of rapes are registered against innocent accused due to ignorance of laws & provisions relating to rapes & even charge sheeted by police due to various pressures by manipulations, tempering & distortions of facts/evidences & concocted stories, I have collected the following recent judgements & rulings of the Hon'ble Supreme Court & Hon'ble High Courts of various states in cases of rapes, love affairs, etc for use by all those falsely or wrongly accused of rapes for their own defence. The following judgements & rulings will also be useful for everyone to know every aspect of rape laws specially for defence & regarding the burden of proving sexual intercourse & absence of consent, the two main ingredients of rape; importance of medical evidences vis-à-vis statement of the prosecutrix(victim girl) under various circumstances; statements of the prosecutrix u/s 164 CrPC vis-à-vis statements of the prosecutrix before the trial court; age of consent & validity of consent under various circumstances; false allegations of rape in love affairs, whether sexual intercourse with false promise would amount to rape under various circumstances; importance of injuries & other signs of struggle; relevance of timing & delay of the FIR & omission of vital facts & circumstances in the FIR; inconsistencies, corroborations & contradictions; the previous & subsequent conducts & relationships of the prosecutrix & the accused, etc. The following rulings will also be useful for various women organizations & commissions so that they do not waste their valuable times & energy in rendering blind supports to wrong or false cases of rapes; and also for those likely & potential victim girls/women of such wrong/false cases so that they know what is not a rape & as such avoid lodging wrong FIR's & avoid subsequent unnecessary grilling by police, courts, defence advocates & also possible counter-cases by the falsely accused persons against them.
1. Jogi Dan v. State of Rajasthan, 2004 Cri 1726 at 1730(Raj). In a case of rape, the onus is always on the prosecutrix to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It was no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of prosecutrix witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However, great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. That accused is entitled to the benefit of every reasonable doubt.
2. Uday v. State of Karnataka, 2003 SCC(Cri) 775. The prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. Thus, result of sexual intercourse was not on false promise but "consent". Hence, conviction under Section 376 IPC liable to set aside.
Uday v. Sate of Karnatka, 2003 SCC ( Cri) 775: Pradeep Kumar Verma v. State of Bihar, 2007 AIR SCW 5532: Sanjay Kumawat v. Sate of M.P. 2008 (1) Crimes 540 (MP). In offence of rape, "absence of consent" is one of the ingredients to be proved by the prosecution in view to prove offence as to rape. This burden of proof lies on the prosecution.
3. Suresh N. Bhusare v. State of Maharashtra, 1998 Cr LJ 4559(SC); Jagannivasan v. State of Kerala, 1995 AIR SCW 3012:1995 SCC(Cri) 826, etc. Prosecutrix alleged to have gone to the shop of the accused for purchasing match box when the latter lifted her and committed rape. The testimony of the prosecutrix found unreliable. Her testimony that she was in advance stage of pregnancy at the time of the incident not found mentioned in FIR. Circumstances of the case showed that the prosecutrix voluntarily had gone to the shop of the accused. Accused acquitted.
4. Sardar Singh v. State of MP, 1988(1) Cri 486:1989(2) MPWN 152(MP).When there is vital omission in statement before police by prosecutrix and FIR lodged after 3 months, delay without any explanation, no offence is made out.
5. Manuddin Khan v. State of MP, 1991(1) East Cri C(NOC) 18(SC). The accused is entitled to acquittal as the story of rape was not supported by eye-witness and report of rape was lodged latei.e., after 7 days.
6. Jaharlal Das v. State of Orissa, 1991(1) MPWN 248(SC). The offence was not made out in view of the medical report which shows that accused has not committed rape on date of incident.
7. Kantu v. State of MP, 1991(1) MPWM 56. Since the FIR was lodged after 5 months and circumstance clearly established consent of prosecutrix no offence was made out as it can be based merely on suspicion.
8. Munna v. State of MP, 1988(1) MPWN 196. When chances of consent was not ruled out and FIR was filed late, accused cannot be convicted.
9. Poona Ram v. State of MP, 1989(2) MPLW 149. When FIR of rape lodged after 6 days and statement of prosecutrix is not corroborated, no offence was made. There is no cogent reason for delay of about 6 days in lodging the report. The injury on her back is of no consequence when the offence of rape has not been established by reliable evidence.
10. Kashiram v. State of MP, 1988(1) MPWN 75. In case medical evidence is negative, accused's arrest delayed and incident was unnatural, conviction cannot stand.
11. Prahlad Nath v. State of Assam, 1994(2) East Cri C 18(Guwahati). Where the doctor has made no internal examination of prosecutrix and there are no marks of violence on the body of prosecutrix if the prosecutrix is aged 20 years consent is not ruled out and conviction for rape is not possible.
12. Dilip v. State of MP, AIR 2001 SC 3049: 2001 Cri LJ 4721: 2002 SCC(Cri) 592,etc. Where the statement of prosecutrix being contradicted by her own aunt and medical evidenc and report of forensic scinece laboratory, even the concurrent orders of conviction of appellants under Section 376(2)(g) of IPC liable to be set aside.
13. P. Narasimha v. State of AP, 1994(2) Cri 263(SC): 1994(4) SCC 453. The prosecutrix was above 16 years of age at the time of incident. Her consent can well be presumed even for sexual acts prior to marriage. Hence acquittal calls for no interference.
14. Sheo Shankar Sahu v. State of Bihar, 1993 East Cri C 769(Pat). When there is lack of proper evidence and there are other material defects in prosecutions case a person cannot be convicted for rape.
15. Jogi Dan v. State of Rajasthan, 2004 Cri 1726 at1731 to 33(Raj).Ordinarily, where forcibly sexual intercourse is committed there would be injury on her person of the victim. Absence of any injury on the person of a woman alleged to have been raped may go a long way to indicate that the alleged intercourse was a peaceful affair and the story of a stiff resistance put by the prosecutrix is false or an afterthought.
16. Jogi Dan v. State of Rajasthan, 2004 Cri 1726 at 1731 to 33(Raj). That on presumption under Section 114-A, it may be stated there that no doubt presumption under Section 114-A is available to cases that fall under Section 376(2), IPC and not to cases that fall under Section 376(1), IPC, in other words, in cases of gang rape, presumption under Section 114-A is available. It may further be stated here that the presumption about want of consent under Section 114-A is not conclusive. Evidence may still be given to disprove it. But in the absence of any evidence of disproof, there is no option with the Court but to raise a presumption about non-consent if circumstances for raising the presumption under Section 114-A exist. It must, however, be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman of immoral character if she says that some persons had sexual intercourse with her unless there existed satisfactory proof in support of the story of sexual intercourse.
17. Hurji v. State of Rajasthan, 2002 Cri LJ 472 at 474(Raj). Absence of injuries itself on her person negatives the allegation of rape. The medical evidence clearly discloses that PW 1 Smt. 'H' did not appear to have put any resistance to the alleged onslaught committed on her by the accused. From this the only irresistible inference that can be drawn is that the prosecutrix was consenting party. Thus from every point of view, the present case is not a case of forcible intercourse with PW 1 Smt, 'H' or against her will, but it is a case of consent between the two. Hence, statement of PW 1 Smt. 'H' does not inspire confidence on the point that the accused-appellant committed rape with her as there is no other corroboration to her statement. Hence, findings of Session Judge by which he convicted the accused-appellant for offence under Section 376, IPC are liable to be set aside and the accused-appellant is entitled to acquittal and appeal of the accused-appellant is liable to be allowed. For the reason mentioned above, the present appeal filed by the accused-appellant 'H' is allowed and the judgment and order dated 11.3.1987 passed by the Additional Session Judge is set aside and the accused-appellant is acquitted of the charge for offence under Section 376, IPC.
18. Dattapa v. State of Karnataka, 2004(3) Cri 498 at 500(Kant). Where the fact that the prosecutrix was a 20 years old adult woman and the accused could have been able to physically carry her to an open cow-shed in broad day light in the middle of the village and rape her against her wishes is something that is unlikely and admittedly no injuries of any type have occurred and even the cloths of the victim have neither been damaged or nor are they stained and the police have not seized any object, it would be virtually impossible to rely on the evidence of the prosecutrix to base a conviction.
19. Tarvinder Kr v. State of HP, 2004 Cri 396 at 399-402(HP). Where there is no cogent, and reliable evidence to prove that it is the accused who committed the rape on the child prosecutrix and even if his identity as the rapist, is at all established, there are several variations in the version of the prosecutrix on material particulars and the facts and circumstances show that the case has been registered against the accused with deliberations and consultations and the investigating agency has not played its part in the matter fairly and the prosecution has failed to connect the accused with the commission of the offence through half pant and pants of the accused due to irreconcilable difference of colour in the clothes sealed and the clothes chemically analysed in the laboratory, the accused is entitled to acquittal.
20. Shankarappa Basappa Ontiballi v. State of Karnataka, 2003(4) ILR(Kant) 2820: 2004 Cr LJ(NOC) 43(Kant). Where the prosecutrix alleged that the accused had taken her to the tea-shop on false pretext that her brother had been bitten by dog and her parents had come to the tea-shop and then committed forcible sexual intercourse with her consecutively for three times and that the accused had, gone out for two hours after committing intercourse for first time but there is no evidence to show that while going out the accused had locked the door of the shop or restrained her but the prosecutrix did not run away. Instead, she stayed in the tea-shop overnight and had breakfast and then left for hostel, the conduct of prosecutrix is sufficient to dislodge the case of the prosecution. Furthermore no permission from the hostel authorities is found to have been taken to take away the prosecutrix. In such circumstances, the accused is entitled to acquittal.
21. Subhash Mandal v. State of Jharkand, 2003(3) JLJR 615: 2004 Cr LJ(NOC) 81(Jhar). Where there is contradiction on the point of age of the victim girl who was alleged by the prosecution be of 15 years old and having child born to her out of the relationship with the accused, complaint was lodged after the victim was having pregnancy of 6-1/2 months, the said inordinate delay in lodging the complaint goes against the prosecution and the statement of the prosecutrix does not inspire confidence and, therefore, the prosecution has failed to prove the case against the accused beyond reasonable doubt.
22. Sudhakar v. State of Maharashtra, AIR 2000 SC 2602: 2000(2) Supreme(Cri) 49, etc. When statement of presecutrix was recorded after 11 days from the date of occurrence by police and she committed suicide after more than five and half months, hence, statement of prosecutrix cannot be treated as dying declaration because it was not in series of circumstance of the transaction which resulted in death of deceased. Hence, accused cannot be convicted on mere suspicion.
23. Pawan Kr Mandal v. State of Bihar, 1995(1) East Cri C(NOC) 34: 1994(2) BLJ 828. As regards consent, the same is writ large on the face of it. Assuming the prosecution version to be correct, PW 1, as it appears, voluntarily accompanied the appellants for enjoying his company. She admitted that she had not raised any halla either at the place, from where she was taken, or where she was kept in village. She admitted that there are neighbouring houses of that of Anil Murmur. She had not even raised cries, when the appellant had allegedly left her all by herself and returned late in the evening. Therefore, assuming, but not holding, that PW 9 had seen the appellant and PW 1 going together towards Sosha Joli, no criminal liability can be fastened upon the appellant in as much as the prosecution having failed to prove that PW1 was less than 16 years, and she was undoubtedly a consenting party in the entire episode. At any rate, the prosecution case against him is not free from reasonable doubt, and he deserves the benefit of the same.
24. Ban Bihari Lakra v. State of Bihar, 1993 East Cri C 185(Pat). When eye-witness account and evidence of prosecutrix are full of infirmities and rape is not established by medical report, conviction cannot be sustained and accused persons deserve benefit of doubt.
25. Jinish Lal Shah v. State of Bihar, 2003 SCC(Cri) 395: 2002 SCCL Com 727.When evidence showing that prosecutrix had planned her departure from her house with the accused-appellant well in advance, hence it could not be said that there was any threat or inducement for leaving the house. Hence, in the absence of any material on record to show the contrary, accused-appelant could not be held guilty of rape of prosecutrix.
26. Allaudin v. State of Assam, 2004(1) Cri 149(Guwahati). Where the victim was above 16 years, the Court was to scrutinize evidence to ascertain whether sexual intercourse was with or without her consent and if the victim was confronted with her statement recorded under Section 164 CrPC, where she had not alleged sexual intercourse without her consent but rather had stated that she had been in love with the accused and left the house of her parents with her free will the accused could not be convicted for the offence of rape.
27. Rohtash v. State of Haryana, 2005(3) Cri 179(P & H). Where conduct of prosecutrix showed that she was consenting party which was supported by medical evidence and she being above 16 years of age, conviction under Section 376 IPC could not be sustained.
28. Sugambar Kuer v. State of Bihar, 1996(2) East Cri C 721(Pat). Where the major prosecutrix does not offer resistance to rape and her evidence was not corroborated by reliable evidence and medical evidence contradicts it, conviction for rape cannot be sustained.
29. Lalhunpuia v. State of Mizoram, 2004(2) Cri 165(Guwahati). Both victim girl and her mother stated that accused committed rape on the victim girl but doctor did not find any injury on her private parts. No seminal stain or otherwise was found on her clothes. Confessional statement of accused was recorded by the Magistrate on the very day of his production without giving him time for reflection. Confession was recorded in printed form and signature of accused was obtained. No material to show confession was voluntarily made; no lawyer represented the accused during trial. Accused pleaded guilty; no cross-examination of the prosecution witnesses. Conviction set aside and remanded for retrial.
30. Lalhunpuia v. State of Mizoram, 2004 Cr LJ 3447 at 3450(Guwahati).Where the evidence of the prosecutrix aged 12 years is not corroborated by the medical evidence and the confessional statement recorded by the Magistrate in a printed from signed by the accused who was not afforded legal aid suffers from legal infirmity and the records do not reveal that the accused had made the confession voluntarily, the conviction of the accused cannot be sustained.
31. Ashok Samrao Thakre v. State of Maharashtra, 2004(3) Cri 664 at 666(Bom). Where the evidence of the prosecutrix and medical evidence cannot be reconciled, the fact of commission of rape cannot said to have been proved.
32. Mangara Harijan v. State of Orissa, 2004(2) Cri 364: 2004 Cr LJ (NOC) 128(Ori). Where the evidence of the prosecutrix aged about 18 years has that the accused has entered her house, dragged her to a corner of the room and forcibly commited sexual intercourse is not corroborated by the medical evidence, there is no injury on her private parts and the alleged extra judicial confession of the accused is found not to be voluntary, the accused cannot be convicted for offence of rape
33. Sudhakar v. State of Maharashtra, 2004(3) Cri 657 at 662, 664(Bom). In the instant case, the totally of the evidence leads to the conclusion that the intercourse was not an act of gang rape by the accused persons but was a sexual intercourse with the consent of the prosecutrix and the conduct and manner in which the victim openly moved around impeach the testimony of the prosecutrix that she did not consent for the intercourse and thus even taking assistance of Section 114-A of the Evidence Act the prosecution has failed to prove the allegation of gang rape and the accused are liable to be acquitted.
34. Jogi Dan v. State of Rajasthan, 2004 Cri 1726 at 1732, 1733(Raj). Where the statement of the prosecutrix that four accused persons had forcibly raped her against her will is not corroborated by the medical evidence and there are absence of evidence of struggle to avoid sexual contact of penetration as well as absence of any injury on the presecutrix, the presumption of Section 114-A of the Evidence Act is not available and as such no reliance can be placed on the solItary evidence of the prosecutrix to record conviction of the accused persons.
35. Inder Singh v. State of Rajasthan, 2002 Cri LJ 721 at 724,725(Raj): Queen v. Marsden, 1821(11) QBD 149. Absence of injuries on the person of the prosecutrix PW1 shows that accused-appellant had sexual intercourse with the prosecutrix with her tacit consent. The medical evidence clearly disclose that prosecutrix PW1 does not appear to have put up any resistance to the alleged onslaught committed on her by the accused-appellant. From this, the only irresistible interference can be that the prosecutrix was a consenting party.
36. Lakhanlal v. State of MP, 2004 Cr LJ 3962 at 3966(MP). Where the doctor has stated that no definite opinion can be given regarding the rape on the prosecutrix and it is clearly established that the prosecutrix left her house at her own free will and was in the company of the accused, it can be said for the purpose of sexual intercourse she was a consenting party and as such conviction under Section 376 IPC cannot be sustained.
37. Jinish Lal Sah v. State of Bihar, 2003 Cri LJ 4914. It was held by the Hon'ble Supereme Court that in the absence of any material to show that there was forcible marriage or rape, the prosecution version cannot be accepted. In the case in hand, prosecutrix was a consenting party. She of her own will and wish went with the appellant.
38. Mapillci PP Soppi v. State of Karnataka, 2004 Cri LJ 44 at 55(SC): 2004(1) A Cri R 22: AIR 2004 SC85. Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.
39. In the present case, the prosecutrix was examined by the lady doctor but unfortunately the prosecution has not examined her. In a case of rape the evidence of lady doctor is very materia is supported by two decisions of this Court. In the case ofNanlal Yadav's Case, 2002 Cri LJ 2184(MP), High Court held that the doctor who examined the prosecutrix was not produced and it was fatal to the prosecution. Similar view was taken by High Court in the case of Asha Ram's case, 1995(1) MPWN 24.
40. Dindayal Kewat v. State of Jharkand, 2003(3) East Cri C 135: 2004 Cr LJ (NOC) 147(Jhar). Where there are material contradictions and inconsistencies between the evidence of the prosecutrix and the evidence of the witness as to the alleged place of ravishment as well as the manner of the occurrence and the evidence of the prosecutrix is not corroborated by the medical and there was no external injury on her person or on her private parts, here is delay in lodging the FIR which was received by the Court concerned and there was no medical test whereas the defence plea that the accused has been falsely implicated in the case due to his refusal to solemnise marriage appears to be probable, the accused cannot be convicted for charge of offence under Section 376 IPC.
41. Lakhan Singh v. State of MP, 2004 Cr LJ 2473 at 2477(MP). Where the prosecutrix did not complain to anybody during the period of 15 days when she was in the company of the accused though she met with several persons including the ladies and it is found that she and the accused had submitted an application for registering their marriage before the Collector, it can be said that the prosecutrix was consenting party and, therefore, the accused cannot be convicted.
42. Lakshmana Naik v. State of Karnataka, 2004 Cr LJ 3913 at 3917(Kant).When the prosecutrix has clearly admitted that she was frequently visiting the house of the accused and moving together and it is only two days prior to the child birth the complain came to be lodged on the allegation that the accused had sexual intercourse on making false promise of marriage, the act of the accused does not attract the ingredients of Section 376 IPC.
43. Sarimoni Mahto v. Amulya Mahto, 2002 Cri LJ 3271 ( Jhar) 3272 : 2002 AIR Jhar HCR 790 : 2002 (I) JCR JHA 423 : 2002 (2) JLJR 121 : 2002 (4) Rec Cri R 334 :- Consent by prosecutrix --- Cannot be said to have been given under misconception of fact—Accused not guilty of rape.-- Viewed in the legal perspective and the definition of rape vis-a vis the consent element, as provided for in Section 375, I.P.C. when court considered the evidence on record which was mainly the deposition of the prosecutrix herself, what emerged manifestly clear was that the respondent No. 1 and the prosecutrix were having sexual intercourse with each other and that the prosecutrix all along was a consenting party to such sexual intercourse. She was also a willing party to this act. Not only this, according to her own statement this went on for as long as 1-1/2 years and only when she became pregnant as a result of such sexual intercourse, she, perhaps realized that time for action had come. Can it be said that a man had been having sexual intercourse with a woman for full 1-1/2 years, the woman being a consenting party to such act sexual intercourse between the two of them, and yet the act of sexual intercourse would amount to the man committing rape on the woman ? The answer has to be in the negative, because the element of consent being the most important ingredient for constituting the offence of rape, because the woman had consented, the offence is not made out at all.
An argument can be raised based on Section 90, I.P.C. with respect to the legality of the consent on the ground that it was given under a misconception of fact. This argument can be very easily repelled by a counter argument that a woman consenting to have sexual intercourse with a man only on the promises (on the presumption that the promises is treated to be true and not false) that the man would ultimately marry her, cannot be said to have been given consent for sexual intercourse under a misconception of fact.
In such a case, even the investigation should not have started because a bare reading of the F.I.R. and a bare reading of the statement of the prosecutrix recorded under Section 161, Cr.P. C. would suggest and establish that no offence under Section 376, I.P.C. was made out primarily and mainly because on her own showing, the sexual intercourse between the two of them was on free will and consent of the prosecutrix herself. She being a consenting party, cannot be permitted to turn around and accuse the man of committing rape upon her, that too after repeated episodes of sexual intercourse, admittedly lasting for more than 1-1/2 years and she on her own showing, on her own admission, subjecting herself to such sexual intercourse on a promise that he was her future husband.
44. Uday v. State of Karnataka, MANU/SC/0162/2003. False Promise not misconception of fact; Accused Acquitted. The victim aged about 19 years was studying in a college and residing with her parents, brothers and sisters in Majali Gaongeri. The appellant was a friend of her elder brother Jagdish. The appellant resided in the neighbourhood and used to frequently visit her house—almost daily—and used to talk to her also, apart from other members of the family. A friendship developed between them and one day, the appellant proposed to her to marry him. The victim told him that since they belong to different castes such a marriage was not possible. The victim was a native of Tamil Nadu and belonged to the Goundar community, while the appellant was a Daivanya Brahim. One day at about 12 o'clock in the night when she was studying, the appellant came to the window of the room and called her out to talk to her. Since she was in love with him, she responded to his invitation and thereafter they went to the place where the house of the appellant was under construction. The appellant talked to her and thereafter kissed her and embraced her and promised to marry her. He also had sexual intercourse with her. She was not willing to have sexual intercourse, but in the circumstance, she consented because the accused had promised to marry her. They continued to meet thereafter and went out frequently. During this period as well, the appellant had stated many times that he would marry her. She also admitted that she had sexual intercourse with him about 15-20 times and that they used to have intercourse once or twice a week.
However, whenever the victim talked to the appellant about the marriage, he assured her that he would marry her after completion of the construction of the house, and that would be a registered marriage. This state of affairs continued till she discovered that she was pregnant. She told the appellant about the pregnancy but he assured her that she should not worry and that he will marry her after sometime. The suspicion of her mother was aroused during the sixth month of pregnant and she was, therefore, compelled to disclose everything to her mother. She told the appellant about her having disclosed everything to her mother and the appellant again assured her that he would take her to some other place and get married. Gradually when others came to know about the affair and her pregnancy, her brother enquired of the appellant as to whether he would marry her. The appellant told her brother that he would marry her, but this fact should not be revealed to his (appellant's) parents. In this eighth month of pregnancy, the appellant asked her to be ready to go with him and it was planned that they would leave early in the morning. The appellant did not turn up but the cousin of the appellant informed her that the appellant had gone to Sangli. Eight days later when the appellant returned from Sangli, her brother again asked the appellant as to whether he would marry her. The appellant told her brother to keep her at some other place and that he would bear her maintenance expenses and after her Delivery and completion of the construction of his house, he would marry her. This was not acceptable to the victim and her brother and this angered the appellant. Next day when her brother wanted to meet the appellant he did not come out of his house. Thereafter a quarrel followed between female members of the two families. Since the appellant did not marry her as promised, she lodged the complaint.
The sessions judge, accepting the evidence of the victim, concluded that though she had consented to have sexual intercourse with the appellant, that consent was not consent within the meaning of s 375 `secondly` having regard to s 90. According to him, the consent was obtained by making a false promise of marriage and, therefore, it was consent obtained by fraud and misrepresentation. He, therefore, held that in the facts and circumstances of the case, the appellant had sexual intercourse with the victim without her consent and was, therefore, guilty of the offence of rape punishable under s 376 of the IPC. The high court in appeal affirmed the finding of the trial court substantially for the same reasons.
Before the Hon'ble Supreme Court, the learned counsel for the appellant submitted that in the context of s 375 of the Indian Penal Code 1860, which is a special provision, the general provision, namely s 90 of the IPC was not of much assistance to the prosecution. According to him, s 375 thirdly, fourthly and fifthly, exhaustively enumerate the circumstances in which the consent given by the victim is vitiated and does not amount to consent in law. According to him, one has to look to s 375 alone for finding out whether the offence of rape had been committed. Secondly, it was submitted that even under s 90 of the IPC, the consent is vitiated only if it is given under a misconception of fact. A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact. The question of misconception of fact will arise only if the act consented to, is believed by the person consenting to be something else, and on that pretext sexual intercourse is committed. In such cases it cannot be said that she consented to sexual intercourse.
The Supreme Court looked into the decisions of the various courts on the point. The High Court of Calcutta has consistently taken the view that the failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself. In Jayanti Rani Panda v. State of WB & Anor, 1984 Cr LJ 1535, it was held that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The same view was reiterated in Hari Majhi v. The State of WB, 1990 Cr LJ 650 and Abhoy Pradhan v. State of WB, 1999 Cr LJ 3534. Only one judgment of the Patna High Court in Saleha Khatoon v. State of Bihar & Anor, 1989 Cr LJ 202 had a contrary view. Therefore, the consensus of judicial opinion is in favour of the view that the consent given by the victim to sexual intercourse with a person with whom she is in love, on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. The court agreed with this view but added that there is no straitjacker formula for determining whether consent given by the victim 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 whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
Coming back to the instant case, the apex court analyzed that the victim was a grown up girl studying in a college. She was in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event, the proposal for their marriage was bound to be seriously opposed by their family members. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That was why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. Thus, she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact. Furthermore, according to the court, there was no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the victim stated that she had full faith in him. <span>The matter got complicated on account of the victim becoming pregnant. Saying so, the Supreme Court acquitted the accused of the charges of rape.
45. Baldhari Ohdar v. State of Bihar, 2001 Cri LJ 883(Pat) 886 : 2000 (2) BLJR 1581: 2000 (3) Crimes 207 : 2000 (2) East Cri C 713 : 2001 (3) Rec Cri R 183 :-Conduct of accused does not amount to offence of rape – Appeal allowed. – It is true that prosecutrix by the time of her evidence in court gave birth to a child. She stated that the accused –appellant was the father of the child. The evidence of the prosecurix was that accused –appellant had procured her consent by telling/assuring that he would marry her and believing on the same she had submitted to sexual intercourse with him. It had been urged on behalf of A.P.P. that consent of the girl was procured on false promise made by the accused- appellant to marry her was not a free or voluntary consent. As such the conviction of the accused- appellant was liable for the offence under Section 376 I.P.C. Even if the accused –appellant had made false promise to marry her and whereupon she had consented to sexual intercourse with him, it would not vitiate her consent for the sexual intercourse which she had given fully understanding the nature and implication of the act involved therein. It was not that the girl consented to the act on any understanding or misunderstanding that the accused –appellant was her husband (as distinct from 'would be' husband). It was not a case where the girl had any misconception about the nature of the act which she consented. In the instant case, the prosecutrix fully knew that what they were going to commit was the act of sexual intercourse.That being so, it did not become a case of rape when she consented to the act of sexual intercourse fully knowing the nature and implication of such act and when she was fully aware that the person concerned was not yet her husband, even if he had proposed to marry her. This proposition gets support from Division Bench decision of the Calcutta High Court in1984 Cr LJ 1535, another decision of the Calcutta High Court in Sundhamay Nath alias Bachchu v. State of West Bengal, 1999 Cr LJ 4482(DB) and a decision of this Court in 1990(2) Pat LJR 375.
The prosecutrix, her parents and P.Ws. 3 to 6 had stated that from the Panchayat accused –appellant had taken her to his home and after some days she was driven out. The question whether there had been a breach of contract to marry was a totally different matter with which one was not concerned in deciding whether a criminal charge of rape under Section 376, I.P.C had been established. The conduct of the accused-appellant in betraying the prosecutrix after making her pregnant and leaving the son abandoned, no doubt was highly reprehensible, yet with anguish it must be held that such conduct by itself did not become a ground for holding the accused-appellant guilty of the charge of rape under Section 376, I.P.C. If so advised, she may seek her redress for other reliefs available under the law including the maintenance of the child begotten by the appellant which did not fall within the domain of the present proceeding. In view of the discussions made above, it was held that the accused –appellant was not guilty of the charge under section 376,I.P.C.
46. Sanju Dutt v. State : (1993) 5 JT (SC) 225 : (1994) 5 SCC 402 : 1994 SCC (Cri) 1426. The settled rule of construction of penal provisions is that if there is a reasonable interpretation which will avoid the penalty in any particular case, Court must adopt that construction and if there are two reasonable constructions, Court must give the more lenient one; and if two possible and reasonable constructions can be put upon a penal provisions, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty.
47. Dilip v. State of MP, 2001 Cri LJ 4721 (SC) 4724: AIR 2001 SC 3049 : 2001 AIR SCW 4189 : 2001 (437) All Cri C 960 : 2001 (4) All Cri LR 347: 2001 (3) All Cri R 2697 : 2001 All MR (Cri) 2377 : 2001 (4) Crimes 105 : 2001 (4) Cur Cri R 109 : 2001 (8) JT 390 :2001 (21) OCR 629 : 2001 (2) Ori LR 703:2001 (4) Rec Cri R 383 : 2001 (7) Supreme 468.Testimony of Prosecutrix Being Doubtful, Appeal Allowed:- The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist, the fact remains that the 'probabilities factor' operates against the prosecutrix. The gang rape was alleged to have been committed at about 2 p.m. in her own house, situated in a populated village by the side of the main road where people were moving on account of Holy festival. The prosecutrix did raise hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecurix was said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, was not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains was not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix.
The counsel for the state relied on Section 114A of the Evidence Act, 1872 which provides that in a trial on a charge under section 376 (2) (g) of IPC on the prosecutrix stating that she was not a consenting party, the court shall presume absence of consent of the women alleged to have been raped. Suffice it to observe that court should not be misunderstood as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The Court found it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident became basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. Court found it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed. The appeals were accordingly allowed.
48. Banamali Singh v. State of Orissa, 2001 Cri LJ 1313 (Ori) 1315 : 2001 (2) Crimes 374 : 2001 (92) Cut LJ 168 : 2001 (20) OCR 437 : 2001 (1) Ori LR 249.Offence u/s 376 Not Made Out-Accused Acquitted:- In the present case, the statement of the prosecutrix was bristling with infirmities and improbabilities and had not been corroborated by the only eye-witness to the occurrence(P.W.5) as well as from the medical evidence on record. The conduct of the prosecutrix appeared to be doubtful in asmuchas she did not report the occurrence to her maternal grandmother immediately after returning to the house or to anybody else during the same day and that she had stated to have washed the wearing pant (M.O.I.) which was stated to have been stained with blood. Above all, the statement of the prosecutrix that the accused committed rape on her by removing her pant upto the knee and without removing her frock, was found to be incredible inasmuch as the accused could not have committed any sexual intercourse with her when she had put on the pant, by removing the same upto the knee and without completely removing the same. There were no marks of any injury on the private part or body of the victim girl as well as of the accused and their wearing apparels were not stained with semen or blood. The accused could not have threatened informant had he really committed sexual intercourse with prosecutrix and informant could have convened a panchayati to bring the occurrence to the notice of the gentlemen of the village; but the informant had not done so.
For the aforesaid reasons, it will be quite unsafe to convict the accused placing reliance on the uncorroborated testimony of the prosecutrix. The Sessions Judge had failed to appreciate the evidence on record in its proper perspective and had erred in placing reliance on the uncorroborated testimony of the prosecutrix to convict the accused. Hence, the accused could not be convicted of the charge and he will be entitled to an acquittal. The impugned judgment was unsustainable and was liable to be set aside.
49. State of Rajasthan v. Munsi, 2001 Cri LJ 2756 (Raj) 2758 – 2759 : 2001 (2) Raj Cri C 1317 : 2001 (3) Rec Cri R 613 .Testimony of the Prosecutrix Rightly Rejected By Addl Session Judge-Accused Acquitted:- In this case, prosecutrix had herself admitted that she did not read in any school and, therefore, in the present case, there was no school certificate which could determine the age of the prosecutrix and in absence of school certificate or birth certificate, age, which had been assessed by the doctor in the report Ex. P-6 would prevail and thus, the findings of the Additional Session Judge, that prosecutrix was major on the date of occurrence were liable to be confirmed.
Looking to the statement of the prosecutrix, it appeared that she remained in the company of the accused-respondent No. 1 for three days (from the evening of 30.5.1995 up to 1. 6.1995): during these days she had sex many times with the accused-respondent No.1, she was a married lady and habitual to sexual intercourse and she had sexual intercourse with the accused-respondent No.1 many times and she did not receive any injury on her person or on her private part. In these circumstances, it can easily be said that she was a consenting party right from the very beginning and it was not a case of forcible sexual intercourse. Had there been forcible sexual intercourse by the accused-respondent No.1 with the prosecutrix, some sort of injuries would have been received by the prosecutrix and absence of injuries on the person of the prosecutrix negatived the allegation of rape and showed that the accused respondent No.1 had sexual intercourse with the prosecutrix with her tacit consent. Thus, in absence of corroboration from medical evidence, the testimony of the prosecutrix was rightly rejected by the Additional Session Judge.
50. Smti Chandri Das v. State of Orissa, 2001 Cri LJ 2455 (Ori) 245 : 2001 (20) OCR 541.The Allegation of Rape Not Credible-Opposite Parties Entitled to Benefit of Doubt:- After hearing the counsel at length in the aforesaid manner and perusal of the impugned judgment, High Court found that the evidence was not only properly assessed but also correctly considered to record the order of acquittal. It was noted that during medical examination of victim lady on 25.4.1994, the doctor did not find dried semen or similar substance in her private parts, there were no signs of any seminal fluid inside the vaginal wall, no other foreign body or loose pubic hair was found and above all, there was neither any injury nor pain besides absence of any proof of recent sexual intercourse. That falsifies the allegation of gang rape where allegedly four young persons successfully committed forcible sexual intercourse against the will of P.W. No. 1. Simply because the allegation of rape was made by a married woman in her late forties it cannot be accepted as gospel truth in the absence of the surrounding circumstances and evidence thereof lending corroborative support to give credibility to such an allegation. On perusal of the evidence of P.Ws. 1, 3 and 4 read with the evidence of doctor court found that allegations of rape was not credible. Therefore, in all fairness opposite parties 2 to 5 were entitled to the benefit of doubt. Under such circumstances, the impugned order of acquittal was not liable to be interfered with.
51. Krishna Mohali v. State of Bihar, 1997(2) Crimes 146 (Pat): It is thoroughly unsafe to rely on the evidence of the tutored witness.
52. Sheo Prasad v. State of MP., 1988 (2) Crimes 376 (MP): A judicial mind is always eager to search for corroboration from any direction whatsoever, for ascertaining the truth. The delay in lodging the first-information report by two days is an inordinately delayed information which does not assure a judicial mind and does not guarantee about the truthfulness of rape.
53. Chhatrapal v. State of MP., 1988 (2) Crimes 446 (MP): Delay of 23 hours in the case of rape in view of other material circumstances were weighed against the prosecution.
54. Banti @ Balvinder Singh v. State of MP, 1992 (1) Crimes 471 (MP): Five days' unexplained delay in a rape case is fatal.
55. Surechand v. State of MP., 1988 (2) Crimes 361 (MP): Three days delay in lodging FIR in a rape was considered serious considering other infirmities in the case of prosecution.
56. Gian Singh v. State of HP., (1996) 2 Crimes 213 (HP): Where rape had been committed on a 5- ½ years old girl, the unexplained delay of 40 hours in lodging the FIR was held fatal to the prosecution case.
57. Sanjeev Kumar v. Commr. of Police, (2002) 62 DRJ 103: (2002) 2 Rec Cri R 261:2002 CrLJ 2178(2183)(Delhi-DB) : If the information given is not clear or creates a doubt as to whether it discloses a commission of a cognizable offence some enquiry can precede before registration of the offence. In case of complaint of such nature made against public servants it is doubtful or similarly if it is found that ex-facie there is some untruth in the same, an enquiry can be conducted before registration of the case; the enquiry need not partake that of an investigation. It only is a preliminary enquiry that can be held.
58. Sanjeev Kumar v. Commr. of Police, (2002) 62 DRJ 103: (2002) 2 Rec Cri R 261:2002 CrLJ 2178(2183)(Delhi-DB) : Where a preliminary inquiry has already been conducted and it is found that there is little substance in the complaint made, direction under Art. 226/227 of the Constitution for the registration of the case would be unnecessary.
59. Purandar Bhukta v. State of Orissa, 1991 CrLJ 1388 (Ori): When the informant omitted to state about his sustaining a bleeding injury on his mouth both in the first information report as well as in his statement before the Investigation Officer, the same are material omissions which seriously impeach his credibility.
60. Mitter Sen v. State of UP., AIR 1976 SC 1156: (1976) 1 SCC 723: 1976 CrLJ 857: Material omission in FIR affecting the prosecution case renders FIR unacceptable.
61. Umakantha Rao v. State of Karnataka, 1991(1) Crimes 688, 699 (Kant-DB): The First Information Report after its retraction cannot be used to gun down the accused.
62. Guruvindappali Anna Rao v. State of AP, (2003)2 Crimes 72: (2003)3 Cur Cri R 84:2003 CrLJ 2353(3254, 3255)AP-DB: A statement of a witnesses recorded by a Magistrate under S. 164, Cr. PC is a public document, and it does not require any formal proof; it is not necessary to summon the Magistrate recording the prior statement to prove the contents thereof.
63. Allaudin v. State of Assam, 2004(1) Crimes 149(153)(Guwahatih):Where in statement under S. 164, Cr. PC, the prosecutrix had not stated that the accused raped her, her statement in Court that she was raped by the accused would not be believed, the accused would be acquitted of the charge under S. 376, IPC.
64. Kuldeep Kumar v. State of HP., 1991(3) Crimes 426(HP-DB): No examination of a witness is complete unless he is tendered for cross-examination by the opposite party who may forego its right if it so desires. Failure to cross-examine leads to the presumption that the witness's account is correct. In fact, it is by cross-examination only that truth is extracted from the witness and falsehood is exposed. Therefore, a statement which is not tendered for cross-examination is no evidence in the eyes of law.
65. Kuldeep Kumar v. State of HP., 1991(3) Crimes 426(HP-DB): A statement cannot be used against a party who has not been afforded an opportunity to cross-examine. It is a right which has to be given to every litigant unless he gives it up voluntarily. The right to cross-examine is basic for fair and just trial and it needs to be protected in all circumstances. It becomes the duty of the Court to see that it is not ignored or curtailed or circumscribed in any manner. If under any provision of law, the Court is given discretion to permit cross-examination, it must exercise its discretion judicially and liberally.
66. Subramanian v. State of Tamil Nadu, 2006(1) SCC 401: Where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
67. State of Maharashtra v. Suresh Nivrutti Bhurare, 1997(2) Crimes 257 (Bom): If two conclusions can be based upon the evidence on record the High Court should not disturb the finding of acquittal recorded by the trial Court.
68. New Delhi,14/02/2010: The Supreme Court has held that in rape cases the testimony of the victim cannot be considered to be the gospel truth, though in normal circumstances her statement has to be relied upon.Source: PTI.
A bench of justices H S Bedi and J M Panchal said while primacy has to be given to victim's statement, there can be no presumption that she is telling the ultimate truth as the charge has to be proved "beyond reasonable doubt" as in any other criminal case.
"We are conscious of the fact that in a matter of rape, the statement of victim must be given primary consideration.
But, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully," the apex court said in an order.
The court passed the observation while acquitting one of the three accused Abbas Ahmad Chowdhary charged with raping a minor girl.
It was the case of the prosecution that on September 15, 1997, the accused-appellants Md. Mizazul Haq, Abbas Ahmad Choudhury and one Ranju Das (absconding) had raped the victim after forcibly taking her to a tea estate in Jalalpur.
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