MAHESHWAR TIGGAversusTHE STATE OF JHARKHAND

482                      [2020]REPORTS
               SUPREME COURT    9 S.C.R. 482               [2020] 9 S.C.R.


A                           MAHESHWAR TIGGA
                                       v.
                        THE STATE OF JHARKHAND
                       (Criminal Appeal No. 635 of 2020)
B                           SEPTEMBER 28, 2020
                   [R. F. NARIMAN, NAVIN SINHA AND
                          INDIRA BANERJEE, JJ.]
            Penal Code, 1860:
             ss.376, 323 and 341 – Prosecution under – Alleging that the
C     accused raped the prosecutrix at the point of knife 4 years ago
      when she was 14 years old and had continued to establish physical
      relations with her under pretext of marriage – Conviction under –
      By courts below – Appeal to Supreme Court – Held: There is wide
      variation in the evidence with regard to the age of prosecutrix –
D     Trial court had found the prosecutrix to be 14 years of age on the
      date of incident on the basis of her deposition – In the absence of
      positive evidence as regards her age, the possibility of her being
      above the age of 18 years cannot be ruled out – The benefit of
      doubt goes to the accused – The examination of the accused u/s.
      313 Cr.P.C. was casual and perfunctory – The delay of 4 years in
E     lodging FIR raises serious doubt about the truth and veracity of
      the allegations – In the facts of the case it cannot be held that the
      accused initially obtained her consent by putting her under fear or
      subsequently had fraudulently misrepresented in order to establish
      physical relations with the prosecutrix – The consent of the
      prosecutrix was conscious and deliberate choice – Conviction is
F
      unsustainable.
            s.90 – Consent given under fear of injury is not a consent –
      Consent given under a misconception of fact is no consent in the
      eye of law – But the misconception has to be in proximity of time to
      the occurrence.
G
            Code of Criminal Procedure, 1973:
            Importance of the questions put to an accused u/s. 313 are
      basic to the principles of natural justice – Circumstances not put to
      an accused u/s.313 cannot be used against him.
H
                                      482
    MAHESHWAR TIGGA v. THE STATE OF JHARKHAND                         483


      Allowing the appeal, the Court                                  A
      HELD: 1. The prosecutrix in her deposition dithered with
regard to her age by first stating she was sixteen years on the
date of occurrence and then corrected herself to state she was
thirteen. Though she alleged that the appellant outraged her
modesty at the point of a knife while she was on way to school, no    B
name of the school has been disclosed either by the prosecutrix
or her parents P.W.5 and 6. If the prosecutrix was studying in a
school there is no explanation why proof of age was not furnished
on basis of documentary evidence such as school register etc.
P.W.10, in cross examination assessed the age of the prosecutrix
to be approximately twenty-five years. P.W.2, the cousin (brother)    C
of the prosecutrix aged about 30 years deposed that she was six
years younger to him. There is thus wide variation in the evidence
with regard to the age of the prosecutrix. The trial court held the
prosecutrix to be fourteen years of age applying the rule of the
thumb on basis of the age disclosed by her in deposition on           D
18.08.2001 as 20 years. In absence of positive evidence being
led by the prosecution with regard to 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 benefit
of doubt therefore has to be given to the appellant. [Para 7][487-
H; 488-A-D]                                                           E
      2. The examination of the accused under Section 313 Cr.P.C.
was extremely casual and perfunctory in nature. It stands well
settled that circumstances not put to an accused under Section
313 Cr.P.C. cannot be used against him, and must be excluded
from consideration. In a criminal trial, the importance of the        F
questions put to an accused are basic to the principles of natural
justice as it provides him the opportunity not only to furnish his
defence, but also to explain the incriminating circumstances
against him. A probable defence raised by an accused is sufficient
to rebut the accusation without the requirement of proof beyond
reasonable doubt. [Para 8 and 9][488-E, H; 489-A-B]                   G
      Naval Kishore Singh v. State of Bihar (2004) 7 SCC
      502 : [2004] 3 Suppl. SCR 344 – relied on.
      3. The delay of four years in lodgement of the FIR, at an
opportune time of seven days prior to the appellant solemnising
his marriage with another girl, on the pretext of a promise to the    H
484            SUPREME COURT REPORTS                        [2020] 9 S.C.R.


A     prosecutrix raises serious doubts about the truth and veracity of
      the allegations levelled by the prosecutrix. The entire genesis of
      the case is in serious doubt in view of the admission of the
      prosecutrix in cross examination that no incident had occurred
      on 09.04.1999. [Para 10][490-A-B]
B           4.1. It is not possible to hold in the nature of evidence on
      record that the appellant obtained the consent of the prosecutrix
      at the inception by putting her under any fear. Under Section 90
      IPC a consent given under fear of injury is not a consent in the
      eyes of law. Under Section 90 IPC, a consent given under a
      misconception of fact is no consent in the eyes of law. But the
C     misconception of fact has to be in proximity of time to the
      occurrence and cannot be spread over a period of four years. It
      hardly needs any elaboration that the consent by the appellant
      was a conscious and informed choice made by her after due
      deliberation, it being spread over a long period of time coupled
D     with a conscious positive action not to protest. The prosecutrix
      in her letters to the appellant also mentions that there would
      often be quarrels at her home with her family members with regard
      to the relationship, and beatings given to her. In the facts of the
      present case, the solitary statement of the prosecutrix that at
      the time of the first alleged offence her consent was obtained
E     under fear of injury, is not acceptable. [Paras 13, 14][490-G-H;
      491-A-D]
             4.2 The facts and circumstances of the present case show
      that the appellant did not make any false promise or intentional
      misrepresentation of marriage leading to establishment of
F     physical relationship between the parties. The prosecutrix was
      herself aware of the obstacles in their relationship because of
      different religious beliefs. An engagement ceremony was also
      held in the solemn belief that the societal obstacles would be
      overcome, but unfortunately differences also arose whether the
      marriage was to be solemnised in the Church or in a Temple and
G
      ultimately failed. It is not possible to hold on the evidence available
      that the appellant, right from the inception did not intend to marry
      the prosecutrix ever and had fraudulently misrepresented only
      in order to establish physical relation with her. The prosecutrix
      in her letters acknowledged that the appellant’s family was always
H     very nice to her. [Para 18][492-F-H]
    MAHESHWAR TIGGA v. THE STATE OF JHARKHAND                          485


      4.3 Therefore, the consent of the prosecutrix was but a          A
conscious and deliberated choice, as distinct from an involuntary
action or denial and which opportunity was available to her,
because of her deep-seated love for the appellant leading her to
willingly permit him liberties with her body, which according to
normal human behaviour are permitted only to a person with whom
                                                                       B
one is deeply in love. [Para 20][493-B-C]
      Kaini Rajan v. State of Kerala (2013) 9 SCC 113 :
      [2013] 10 SCR 196; Uday v. State of Karnataka (2003)
      4 SCC 46 : [2003] 2 SCR 231; K. P. Thimmappa Gowda
      v. State of Karnataka (2011) 14 SCC 475 : [2011] 4
      SCR 200; Dhruvaram Murlidhar Sonar v. The State of               C
      Maharashtra and Others AIR 2019 SC 327 : [2018]
      13 SCR 920; Pramod Suryabhan Pawar v. State of
      Maharashtra and Another (2019) 9 SCC 608 : [2019]
      11 SCR 423 – relied on.
      5. The appellant has been acquitted of the charge under          D
Sections 420 and 504 I.P.C. No appeal has been preferred against
the acquittal. There is no medical evidence on record to sustain
the conviction under Section 323 I.P.C. No offence is made out
against the appellant under Section 341 I.P.C. considering the
statement of prosecutrix that she had gone to live with the
                                                                       E
appellant for 15 days of her own volition. Therefore, the conviction
of the appellant is unsustainable and the same is set aside. The
appellant is acquitted. [Paras 19 and 21][493-A-B, G]
      Parkash Chand v. State of Himachal Pradesh (2019) 5
      SCC 628 : [2019] 3 SCR 953; Vijayan v. State of Kerala
      (2008) 4 SCC 763; Deepak Gulati v. State of Haryana              F
      (2013) 7 SCC 675 – referred to.
                      Case Law Reference
[2019] 3 SCR 953               referred to            Para 5
(2008) 4 SCC 763               referred to            Para 5           G
(2013) 7 SCC 675               referred to            Para 5
[2004] 3 Suppl. SCR 344        relied on              Para 9
[2013] 10 SCR 196              relied on              Para 16
[2003] 2 SCR 231               relied on              Para 16
                                                                       H
486            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A     [2011] 4 SCR 200                  relied on                 Para 16
      [2018] 13 SCR 920                 relied on                 Para 17
      [2019] 11 SCR 423                 relied on                 Para 17
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      635 of 2020
B
            From the Judgment and Order dated 07.12.2018 of the High Court
      of Jharkhand at Ranchi in Cr.Appeal (S.J) No. 300 of 2004.
            Mrs. V. Mohana, Sr. Adv., Anup Kumar, Ms. Ankita Sharma,
      Ms. Nikita, Varun Narang, Ms. Pragya Baghel, Ms. Pallavi Langar, Ritesh
      Khare, Advs. for the appearing parties.
C
            The Judgment of the Court was delivered by
            NAVIN SINHA, J.
            1. Leave granted.
             2. The appellant assails his conviction under sections 376, 323
D     and 341 of the Indian Penal Code (in short, “IPC”) sentencing him to
      seven years, one year and one month respectively with fine and a default
      stipulation.
             3. The prosecutrix, PW9 lodged FIR No. 25 of 1999 on 13.04.1999
      alleging that four years ago the appellant had outraged her modesty at
E     the point of a knife. He had since been promising to marry her and on
      that pretext continued to establish physical relations with her as husband
      and wife. She had also stayed at his house for fifteen days during which
      also he established physical relations with her. Five days prior to the
      lodging of the F.I.R, the appellant had established physical relations with
      her on 09.04.1999. The appellant had cheated her as now he was going
F
      to solemnise his marriage with another girl on 20.04.1999. All efforts at
      a compromise had failed.
             4. The Additional Judicial Commissioner, Ranchi on consideration
      of the evidence convicted the appellant holding that the prosecutrix was
      14 years of age when the appellant had first committed rape upon her at
G     the point of a knife. He did not abide by his promise to marry her. The
      High Court dismissing the appeal opined that the letters written by the
      appellant to the prosecutrix, their photographs together, and the statement
      of the appellant recorded under Section 313 Cr.P.C. were sufficient to
      sustain the conviction.
H
    MAHESHWAR TIGGA v. THE STATE OF JHARKHAND                                487
                [NAVIN SINHA, J.]

       5. Learned senior counsel, Mrs. V. Mohana on behalf of the            A
appellant, submits that the F.I.R lodged belatedly after four years was
clearly an afterthought. The entire genesis of the allegations is highly
doubtful and suspect as the prosecutrix in her cross-examination admitted
that the appellant had not committed rape with her on 09.04.1999. The
letters written by the appellant to the prosecutrix as also those written
                                                                             B
by her to the appellant marked as Exhibits during trial, more than
sufficiently established a deep love affair between them over a period of
time. The prosecutrix was aged approximately 25 years as opined by
P.W.10, the Doctor who medically examined her on 14.04.1999.The
physical relations between the appellant and the prosecutrix were
consensual in nature occasioned by their love affair. No offence under       C
Section 375 IPC is therefore, made out. The questions put to the appellant
under Section 313 Cr.P.C. were very casual and perfunctory, leading to
denial of proper opportunity of defence causing serious prejudice to him
by denial of the right to a fair trial. The marriage between them could
not materialise due to societal reasons as the appellant belonged to the
                                                                             D
Scheduled Tribe, while the prosecutrix was a Christian. Reliance was
placed on Parkash Chand vs. State of Himachal Pradesh, (2019) 5
SCC 628, Vijayan vs. State of Kerala, (2008) 4 SCC 763, Kaini Rajan
vs. State of Kerala, (2013) 9 SCC 113, Deepak Gulati vs. State of
Haryana, (2013) 7 SCC 675 and Uday vs. State of Karnataka,(2003)
4 SCC 46.                                                                    E
       6. Ms. Pragya Baghel, learned counsel for the State, submitted
that the prosecutrix stood by the allegations during trial. The delay in
lodging the FIR has been sufficiently explained by reason of the
compromise efforts which failed to materialise. P.W. 7, the sister of the
prosecutrix had also confirmed that the latter was sexually assaulted by     F
the appellant at the point of a knife and had come home crying. The
appellant had told the prosecutrix to keep quiet in his absence, revealing
that his intentions were not bonafide. The defence of a consensual
relationship is irrelevant considering that the prosecutrix was fourteen
years of age. The appellant had held out a false promise of marriage
only to establish physical relations with the prosecutrix. He never had      G
any such intentions from the very inception, and he obtained the consent
of the appellant by a false misrepresentation, which is no consent in the
eyes of the law. The evidence of the prosecutrix is reliable.
      7. We have considered the submissions on behalf of the parties.
The prosecutrix in her deposition dithered with regard to her age by first   H
488            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A     stating she was sixteen years on the date of occurrence and then
      corrected herself to state she was thirteen. Though she alleged that the
      appellant outraged her modesty at the point of a knife while she was on
      way to school, no name of the school has been disclosed either by the
      prosecutrix or her parents P.W.5 and 6. If the prosecutrix was studying
      in a school there is no explanation why proof of age was not furnished
B
      on basis of documentary evidence such as school register etc. P.W.10,
      in cross examination assessed the age of the prosecutrix to be
      approximately twenty-five years. P.W.2, the cousin (brother) of the
      prosecutrix aged about 30 years deposed that she was six years younger
      to him. There is thus wide variation in the evidence with regard to the
C     age of the prosecutrix. The Additional Judicial Commissioner held the
      prosecutrix to be fourteen years of age applying the rule of the thumb on
      basis of the age disclosed by her in deposition on 18.08.2001 as 20 years.
      In absence of positive evidence being led by the prosecution with regard
      to 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
D
      out. The benefit of doubt therefore has to be given to the appellant.
            8. A bare perusal of the examination of the accused under Section
      313 Cr.P.C. reveals it to be extremely casual and perfunctory in nature.
      Three capsuled questions only were asked to the appellant as follows
      which he denied:-
E
            “Question1. There is a witness against you that when the
            informant V. Anshumala Tigga was going to school you were hiding
            near Tomra canal and after finding the informant in isolation you
            forced her to strip naked on knifepoint and raped her.
            Question 2. After the rape when the informant ran to her home
F           crying to inform her parents about the incident and when the parents
            of the informant came to you to inquire about the incident, you
            told them that “if I have committed rape then I will keep her as
            my wife”.
            Question3. On your instruction, the informant’s parents performed
G           the “Lota Paani” ceremony of the informant, in which the informant
            as well as your parents were present, also in the said ceremony
            your parents had gifted the informant a Saree and a blouse and
            the informant’s parents had also gifted you some clothes”
            9. It stands well settled that circumstances not put to an accused
H     under Section 313 Cr.P.C. cannot be used against him, and must be
     MAHESHWAR TIGGA v. THE STATE OF JHARKHAND                                 489
                 [NAVIN SINHA, J.]

excluded from consideration. In a criminal trial, the importance of the        A
questions put to an accused are basic to the principles of natural justice
as it provides him the opportunity not only to furnish his defence, but also
to explain the incriminating circumstances against him. A probable
defence raised by an accused is sufficient to rebut the accusation without
the requirement of proof beyond reasonable doubt. This Court, time and
                                                                               B
again, has emphasised the importance of putting all relevant questions to
an accused under Section 313 Cr.P.C. In Naval Kishore Singh v. State
of Bihar, (2004) 7 SCC 502, it was held to an essential part of a fair trial
observing as follows :-
      “5……The questioning of the accused under Section 313 CrPC
      was done in the most unsatisfactory manner. Under Section 313            C
      CrPC the accused should have been given opportunity to explain
      any of the circumstances appearing in the evidence against him.
      At least, the various items of evidence, which had been produced
      by the prosecution, should have been put to the accused in the
      form of questions and he should have been given opportunity to           D
      give his explanation. No such opportunity was given to the accused
      in the instant case. We deprecate the practice of putting the entire
      evidence against the accused put together in a single question and
      giving an opportunity to explain the same, as the accused may not
      be in a position to give a rational and intelligent explanation. The
      trial Judge should have kept in mind the importance of giving an         E
      opportunity to the accused to explain the adverse circumstances
      in the evidence and the Section 313 examination shall not be carried
      out as an empty formality. It is only after the entire evidence is
      unfurled the accused would be in a position to articulate his defence
      and to give explanation to the circumstances appearing in evidence       F
      against him. Such an opportunity being given to the accused is
      part of a fair trial and if it is done in a slipshod manner, it may
      result in imperfect appreciation of evidence…”
       10. The appellant belonged to the Scheduled Tribe while the
prosecutrix belonged to the Christian community. They professed different
                                                                               G
religious beliefs in a traditional society. They both resided in the same
village Basjadi and were known to each other. The nature and manner
of allegations, coupled with the letters exchanged between them, marked
as Exhibits during the trial, make it apparent that their love for each
other grew and matured over a sufficient period of time. They were
both smitten by each other and passions of youth ruled over their minds        H
490             SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A     and emotions. The physical relations that followed was not isolated or
      sporadic in nature, but regular over the years. The prosecutrix had even
      gone and resided in the house of the appellant. In our opinion, the delay
      of four years in lodgement of the FIR, at an opportune time of seven
      days prior to the appellant solemnising his marriage with another girl, on
      the pretext of a promise to the prosecutrix raises serious doubts about
B
      the truth and veracity of the allegations levelled by the prosecutrix. The
      entire genesis of the case is in serious doubt in view of the admission of
      the prosecutrix in cross examination that no incident had occurred on
      09.04.1999.
             11. The parents of the prosecutrix, P.Ws. 5 and 6 both
C     acknowledged awareness of the relationship between appellant and the
      prosecutrix and that they were informed after the first occurrence itself
      but offer no explanation why they did not report the matter to the police
      immediately. On the contrary, P.W. 5 acknowledges that the appellant
      insisted on marrying in the Temple to which they were not agreeable
D     and wanted the marriage to be solemnised in the Church. They further
      acknowledged that the appellant and the prosecutrix were in love with
      each other. Contrary to the claim of the prosecutrix, P.W. 6 stated that
      the prosecutrix was sexually assaulted in her own house.
             12. The prosecutrix acknowledged that an engagement ceremony
      had also been performed. She further deposed that the marriage between
E
      them could not be solemnised because they belonged to different religions.
      She was therefore conscious of this obstacle all along, even while she
      continued to establish physical relations with the appellant. If the appellant
      had married her, she would not have lodged the case. She denied having
      written any letters to the appellant, contrary to the evidence placed on
F     record by the defence. The amorous language used by both in the letters
      exchanged reflect that the appellant was serious about the relationship
      desiring to culminate the same into marriage. But unfortunately for societal
      reasons, the marriage could not materialise as they belonged to different
      communities.
G            13. The question for our consideration is whether the prosecutrix
      consented to the physical relationship under any misconception of fact
      with regard to the promise of marriage by the appellant or was her
      consent based on a fraudulent misrepresentation of marriage which the
      appellant never intended to keep since the very inception of the
      relationship. If we reach the conclusion that he intentionally made a
H     fraudulent misrepresentation from the very inception and the prosecutrix
    MAHESHWAR TIGGA v. THE STATE OF JHARKHAND                                491
                [NAVIN SINHA, J.]

gave her consent on a misconception of fact, the offence of rape under       A
Section 375 IPC is clearly made out. It is not possible to hold in the
nature of evidence on record that the appellant obtained her consent at
the inception by putting her under any fear. Under Section 90 IPC a
consent given under fear of injury is not a consent in the eyes of law. In
the facts of the present case we are not persuaded to accept the solitary
                                                                             B
statement of the prosecutrix that at the time of the first alleged offence
her consent was obtained under fear of injury.
       14. Under Section 90 IPC, a consent given under a misconception
of fact is no consent in the eyes of law. But the misconception of fact
has to be in proximity of time to the occurrence and cannot be spread
over a period of four years. It hardly needs any elaboration that the        C
consent by the appellant was a conscious and informed choice made by
her after due deliberation, it being spread over a long period of time
coupled with a conscious positive action not to protest. The prosecutrix
in her letters to the appellant also mentions that there would often be
quarrels at her home with her family members with regard to the              D
relationship, and beatings given to her.
      15. In Uday (supra), the appellant and the prosecutrix resided in
the same neighbourhood. As they belonged to different castes, a
matrimonial relationship could not fructify even while physical relations
continued between them on the understanding and assurance of marriage.
                                                                             E
This Court observed as follows:
      “21. It therefore appears that the consensus of judicial opinion is
      in favour of the view that the consent given by the prosecutrix to
      sexual intercourse with a person with whom she is deeply 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     F
      not a fact within the meaning of the Code. We are inclined to
      agree with this view, but we must add that there is no straitjacket
      formula for determining whether consent given by the prosecutrix
      to sexual intercourse is voluntary, or whether it is given under a
      misconception of fact. In the ultimate analysis, the tests laid down   G
      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                H
492             SUPREME COURT REPORTS                            [2020] 9 S.C.R.


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.”
             16. The appellant, before the High Court, relied upon Kaini Rajan
B     (supra)in his defence. The facts were akin to the present case. The
      physical relationship between the parties was established on the foundation
      of a promise to marry. This Court set aside the conviction under Section
      376 IPC also noticing K.P. Thimmappa Gowda vs. State of Karnataka,
      (2011)14 SCC 475. Unfortunately, the High Court did not even consider
      it necessary to deal with the same much less distinguish it, if it was
C     possible. It is indeed unfortunate that despite a judicial precedent of a
      superior court having been cited, the High Court after mere recitation of
      the facts and the respective arguments, cryptically in one paragraph
      opined that in the nature of the evidence, the letters, the photograph of
      the appellant with the prosecutrix and the statement of the appellant
      under Section 313 Cr.P.C., his conviction and sentence required no
D     interference.
             17. This court recently in Dhruvaram Murlidhar Sonar vs. The
      State of Maharashtra and Others, AIR 2019 SC 327 and in Pramod
      Suryabhan Pawar vs. State of Maharashtra and another, (2019) 9
      SCC 608 arising out of an application under Section 482 Cr.P.C. in similar
E     circumstances where the relationship originated in a love affair, developed
      over a period of time accompanied by physical relations, consensual in
      nature, but the marriage could not fructify because the parties belonged
      to different castes and communities, quashed the proceedings.
             18. We have given our thoughtful consideration to the facts and
      circumstances of the present case and are of the considered opinion
F     that the appellant did not make any false promise or intentional
      misrepresentation of marriage leading to establishment of physical
      relationship between the parties. The prosecutrix was herself aware of
      the obstacles in their relationship because of different religious beliefs.
      An engagement ceremony was also held in the solemn belief that the
G     societal obstacles would be overcome, but unfortunately differences also
      arose whether the marriage was to solemnised in the Church or in a
      Temple and ultimately failed. It is not possible to hold on the evidence
      available that the appellant right from the inception did not intend to
      marry the prosecutrix ever and had fraudulently misrepresented only in
      order to establish physical relation with her. The prosecutrix in her letters
H     acknowledged that the appellant’s family was always very nice to her.
     MAHESHWAR TIGGA v. THE STATE OF JHARKHAND                                   493
                 [NAVIN SINHA, J.]

      19. The appellant has been acquitted of the charge under Sections          A
420 and 504 I.P.C. No appeal has been preferred against the acquittal.
There is no medical evidence on record to sustain the conviction under
Section 323 I.P.C. No offence is made out against the appellant under
Section 341 I.P.C. considering the statement of prosecutrix that she had
gone to live with the appellant for 15 days of her own volition.
                                                                                 B
       20. We have no hesitation in concluding that the consent of the
prosecutrix was but a conscious and deliberated choice, as distinct from
an involuntary action or denial and which opportunity was available to
her, because of her deep-seated love for the appellant leading her to
willingly permit him liberties with her body, which according to normal
human behaviour are permitted only to a person with whom one is deeply           C
in love. The observations in this regard in Uday (supra) are considered
relevant:
       “25…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. As stated by the               D
       prosecutrix the appellant also made such a promise on more than
       one occasion. In such circumstances the promise loses all
       significance, particularly when they are overcome with emotions
       and passion and find themselves in situations and circumstances
       where they, in a weak moment, succumb to the temptation of
       having sexual relationship. This is what appears to have happened         E
       in this case as well, and 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. In these circumstances it would be very difficult
       to impute to the appellant knowledge that the prosecutrix had             F
       consented in consequence of a misconception of fact arising from
       his promise. In any event, it was not possible for the appellant to
       know what was in the mind of the prosecutrix when she consented,
       because there were more reasons than one for her to consent.”
       21. In conclusion, we find the conviction of the appellant to be          G
unsustainable and set aside the same. The appellant is acquitted. He is
directed to be set at liberty forthwith unless wanted in any other case.
The appeal is allowed.


Kalpana K. Tripathy                                            Appeal allowed.
                                                                                 H