On September 28th 2020, a three-judge Bench of the Supreme Court acquitted a rape Accused-Appellant in the case of Maheshwar Tigga v The State of Jharkhand. The court observed that misconception of fact arising out of a promise to marry has to be in proximity of time to the occurrence and cannot be spread over a long period coupled with a conscious positive action not to protest.
The Trial Court convicted the appellant and held that the Prosecutrix was fourteen 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. Moreover, the High Court dismissed the appeal. It 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. Hence, the Appellant assailed his conviction before the Supreme Court.
The Appellant’s Counsel submitted that the physical relations between the Appellant and the Prosecutrix were consensual. Moreover, the questions put to the Appellant under Section 313 Cr.P.C. were very casual and perfunctory. It led to the denial of proper opportunity of defence causing serious prejudice to him. It denied him right to a fair trial. The marriage between them could not materialise due to societal reasons as the Appellant belonged to the Scheduled Tribe, while the prosecutrix was a Christian.
The Counsel for the State submitted that 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 obtained the consent of the appellant by a false misrepresentation, which is no consent in the eyes of the law.
The three-judge Bench comprising Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee heard the matter. The Bench made several observations concerning the issues at hand.
Firstly, the Court observed that there is a wide variation in the evidence about the age of the Prosecutrix. In the absence of positive evidence being led by the prosecution concerning the age of the Prosecutrix on the date of occurrence, the possibility of her being above the age of eighteen years on the date cannot be ruled out.
The Bench then proceeded to the issue with respect to the examination of the Accused. A bare perusal of the examination of the accused under Section 313 of the Cr.P.C. reveals it to be extremely casual and perfunctory. The Court held that, in terms of criminal trials, there is great importance pertaining to the questions put forth to the Accused.
This is due to the fact that it would provide the Accused with the opportunity not only to furnish his defence but also to explain the incriminating circumstances against him. Thus, the Bench went on to emphasise the importance of putting all relevant questions to an accused under Section 313 Cr.P.C
The Bench further observed that as per Section 90 of the Indian Penal Code, consent given under a misconception of fact is no consent in the eyes of law. However, this misconception of fact has to be in proximity of time to the occurrence and cannot be spread over years.
The Bench observed that the Consent given by the Appellant was a conscious and informed choice made by her after due deliberation, it is spread over a long period coupled with a conscious positive action not to protest.
Taking into consideration the facts and circumstances of the case, the Court allowed the appeal. In doing so, The Bench observed the conviction to be “Unsustainable”. Thus, the conviction of the Appellant was set aside.
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