Tuesday, July 30, 2013
Thursday, July 25, 2013
NEW DRAFT POLICY ON LAND- HOMESTEAD TO ALL - CEILING OF LAND TO 15 ACRES - EXEMPTIONS TO RELIGIOUS,EDUCATIONAL...TO BE DISCONTINUED..THESE INSTITUTIONS SHALL NOT BE ALLOWED TO USE MORE THAN ONE UNIT OF 15 ACRES
India, being a predominantly agricultural society, has a strong linkage
between land and social status of an individual. The fact that close to 70 % of the
population is dependent on land, either as farmers or farm laborers, means that it is
imperative to address the issue of land in such manner that it provides livelihood,
dignity and food security to millions of Indians. India has the largest number of rural
poor as well as landless households in the world. Landlessness is a strong indicator
of rural poverty in the country. Land is the most valuable, imperishable possession
from which people derive their economic independence, social status and a modest
and permanent means of livelihood. But in addition to that, land also assures them of
identity and dignity and creates condition and opportunities for realizing social
equality. Assured possession and equitable distribution of land is a lasting source for
peace and prosperity and will pave way for economic and social justice in India.
(a) Creation of land pool
i. In order to provide homestead land, minimum agricultural land, and shelter
to every family, it is essential that a land pool is created. The smallest unit in
this case will be a village or a cluster of villages, as the case may be, because it
is not realistic to expect people to migrate long distances for obtaining their
rights. The utilisation of the land pool for the purpose of homestead land or
agriculture shall begin as soon as the pool is created at the village / cluster
level.
ii. States shall work towards the creation of a land pool within a specified
timeframe comprising of, amongst others –
(a) agricultural waste land, whether illegally encroached or otherwise;
(b) restoration of land acquired, purchased and/or leased out to industries
etc. or acquired for development purposes/ projects but remaining
unutilised,
(c) surplus ceiling land by removing illegal occupation on those,
(d) Bhoodan land by removing illegal occupation on those ,
(e) Land being made available by correction of land records following
reconciliation of forest land and revenue land and
(f) Panchami land in Tamil Nadu/assigned land in Andhra Pradesh/ Gairan
land in Maharashtara also by removing illegal occupation on those.
(b) Assignment policy –
The States shall explore all available opportunities to create and maintain a
land pool in every village. For this purpose, the States shall
i. Conduct an inventory of government, ceiling surplus, bhoodan and other
categories of lands with the help of landless poor, Gram Panchayat, SHGs of
women, and Civil Society Organizations, under the supervision of Revenue
Authorities. As part of the inventory, comprehensive details about these
lands including details of current enjoyers should be collected and the
details should be made available to people.
ii. Evict ineligible encroachers of government lands, ceiling surplus and
bhoodan lands and distribute to the landless poor
(c) Time-bound assignment of land
i. Distribute/Assign/Allot the available land to eligible land less poor,
particularly the Scheduled Castes, Scheduled Tribes and other marginalized
and deprived landless in a time bound manner both for agriculture and
house sites. The allotment of land should be made in the name of women
member in the eligible family. The list of beneficiaries should be prepared
with the approval of Gram Sabha. The list of beneficiaries should be made
available to the public.
ii. Settle all the pending applications for regularization of unobjectionable
occupations of government land by conducting a special drive in a time
bound manner.
(d) Ceiling surplus lands
There is an urgent need to re-visit the land ceiling limits in different
categories. Excluding the achievements of some States like West Bengal, Kerala, and
Jammu and Kashmir, the imposition of land ceilings has not led to any worthwhile
redistribution of agricultural land in the rest of the country. Some of the suggestions
are:
i. Every state should revise its ceiling limits, if the existing limit is more than 5-
10 acres in the case of irrigated land and 10-15 acres for non-irrigated land.
ii. Exemptions to religious, educational, charitable, research and industrial
organizations as well as plantations and aqua farms should be strictly
discontinued. These institutions shall not be allowed to use more than one
unit of 15 acres.
iii. States shall adopt ‘single window’ system for re-distribution of ceiling surplus
land within a specified time frame.
iv. All States shall impose ceiling not only on ‘Ownership’ of land holdings but
also on ‘Operational’ land holdings to prevent concentration of large tracts of
land through lease-in. Under no circumstance shall a
person/institution/organisation be allowed to own more land than the ceiling.
v. For the purpose of curbing and monitoring evasions of ceiling laws through
fraudulent land transactions, the Benami Transactions (Prohibition of the
Right to Recover Property) Act, 1989 shall be appropriately amended.
vi. All the ceiling surplus lands, which are stated to have been distributed to the
landless poor, shall be physically verified to see whether the assignees are in
possession and enjoyment of these lands. If not, steps shall be taken to see
that the assignees are given possession of lands.
vii. States shall prepare and maintain an inventory of all ceiling surplus lands and
make it available for public scrutiny.
between land and social status of an individual. The fact that close to 70 % of the
population is dependent on land, either as farmers or farm laborers, means that it is
imperative to address the issue of land in such manner that it provides livelihood,
dignity and food security to millions of Indians. India has the largest number of rural
poor as well as landless households in the world. Landlessness is a strong indicator
of rural poverty in the country. Land is the most valuable, imperishable possession
from which people derive their economic independence, social status and a modest
and permanent means of livelihood. But in addition to that, land also assures them of
identity and dignity and creates condition and opportunities for realizing social
equality. Assured possession and equitable distribution of land is a lasting source for
peace and prosperity and will pave way for economic and social justice in India.
(a) Creation of land pool
i. In order to provide homestead land, minimum agricultural land, and shelter
to every family, it is essential that a land pool is created. The smallest unit in
this case will be a village or a cluster of villages, as the case may be, because it
is not realistic to expect people to migrate long distances for obtaining their
rights. The utilisation of the land pool for the purpose of homestead land or
agriculture shall begin as soon as the pool is created at the village / cluster
level.
ii. States shall work towards the creation of a land pool within a specified
timeframe comprising of, amongst others –
(a) agricultural waste land, whether illegally encroached or otherwise;
(b) restoration of land acquired, purchased and/or leased out to industries
etc. or acquired for development purposes/ projects but remaining
unutilised,
(c) surplus ceiling land by removing illegal occupation on those,
(d) Bhoodan land by removing illegal occupation on those ,
(e) Land being made available by correction of land records following
reconciliation of forest land and revenue land and
(f) Panchami land in Tamil Nadu/assigned land in Andhra Pradesh/ Gairan
land in Maharashtara also by removing illegal occupation on those.
(b) Assignment policy –
The States shall explore all available opportunities to create and maintain a
land pool in every village. For this purpose, the States shall
i. Conduct an inventory of government, ceiling surplus, bhoodan and other
categories of lands with the help of landless poor, Gram Panchayat, SHGs of
women, and Civil Society Organizations, under the supervision of Revenue
Authorities. As part of the inventory, comprehensive details about these
lands including details of current enjoyers should be collected and the
details should be made available to people.
ii. Evict ineligible encroachers of government lands, ceiling surplus and
bhoodan lands and distribute to the landless poor
(c) Time-bound assignment of land
i. Distribute/Assign/Allot the available land to eligible land less poor,
particularly the Scheduled Castes, Scheduled Tribes and other marginalized
and deprived landless in a time bound manner both for agriculture and
house sites. The allotment of land should be made in the name of women
member in the eligible family. The list of beneficiaries should be prepared
with the approval of Gram Sabha. The list of beneficiaries should be made
available to the public.
ii. Settle all the pending applications for regularization of unobjectionable
occupations of government land by conducting a special drive in a time
bound manner.
(d) Ceiling surplus lands
There is an urgent need to re-visit the land ceiling limits in different
categories. Excluding the achievements of some States like West Bengal, Kerala, and
Jammu and Kashmir, the imposition of land ceilings has not led to any worthwhile
redistribution of agricultural land in the rest of the country. Some of the suggestions
are:
i. Every state should revise its ceiling limits, if the existing limit is more than 5-
10 acres in the case of irrigated land and 10-15 acres for non-irrigated land.
ii. Exemptions to religious, educational, charitable, research and industrial
organizations as well as plantations and aqua farms should be strictly
discontinued. These institutions shall not be allowed to use more than one
unit of 15 acres.
iii. States shall adopt ‘single window’ system for re-distribution of ceiling surplus
land within a specified time frame.
iv. All States shall impose ceiling not only on ‘Ownership’ of land holdings but
also on ‘Operational’ land holdings to prevent concentration of large tracts of
land through lease-in. Under no circumstance shall a
person/institution/organisation be allowed to own more land than the ceiling.
v. For the purpose of curbing and monitoring evasions of ceiling laws through
fraudulent land transactions, the Benami Transactions (Prohibition of the
Right to Recover Property) Act, 1989 shall be appropriately amended.
vi. All the ceiling surplus lands, which are stated to have been distributed to the
landless poor, shall be physically verified to see whether the assignees are in
possession and enjoyment of these lands. If not, steps shall be taken to see
that the assignees are given possession of lands.
vii. States shall prepare and maintain an inventory of all ceiling surplus lands and
make it available for public scrutiny.
Tuesday, July 23, 2013
റിയാലിറ്റി പരിപാടി ....
ചെറുപ്പത്തിൽ എവിടെയെങ്കിലും മനോരമ ആഴ്ചപ്പതിപ്പ് കണ്ടു ഒന്ന് പടം നോക്കിയാൽ തന്നെ അന്ന് വഴക്ക് കിട്ടുമായിരുന്നു. അത് പൈങ്കിളി കഥകളാണന്നും കുട്ടികൾ വായിക്കെണ്ടെന്നും പറയുമായിരുന്നു.
മനോരമ വായിച്ചു നടക്കുന്ന പൈങ്കിളി പെണ്ണുങ്ങൾ എന്നൊരു പ്രയോഗം തന്നെ ഉണ്ടായിരുന്നു.
എന്നാൽ ഇന്ന് ആ കഥകൾ പലതും സീരിയലുകൾ ആയി ആണും പെണ്ണും അത് ദിവസവും നോക്കിയിരിക്കുന്നത് കാണുമ്പോൾ സങ്കടം തോന്നും. ഇപ്പൊ അവരില പലരും വാർത്തകളും ഇഷ്ടപ്പെട്ടു തുടങ്ങി. കാരണം ഇപ്പോൾ രണ്ടും പൈങ്കിളി തന്നെയെല്ലേ.
അതിനിടയിൽ മന്ത്രി കെ സി ജോസഫ് പറഞ്ഞ ഒരു കാര്യം സത്യമാണ്. ആദിവാസികളുടെ ഇടയിലെ കാര്യങ്ങൾ പലതും അദ്ദേഹം പറഞ്ഞു. അതിനോടൊന്നും യോജിപ്പില്ല.
പക്ഷെ മന്ത്രി പറഞ്ഞ ഒരു കാര്യം ശരിയാണ് - ഇന്ന് നടക്കുന്ന പുതിയ റിയാലിറ്റി പരിപാടി - മലയാളി ഹൌസ് ഒരു ആഭാസ പരിപാടിയെന്ന് ... അത് തികച്ചും ശരി തന്നെ. ഒന്നുകിൽ അത് അഭിനയം അല്ലെങ്കിൽ അത് ആഭാസം തന്നെ. എതിരഭിപ്രായം ഉള്ളവരുണ്ടാകാം. പക്ഷെ അത് ആവിഷ്കാര സ്വാതന്ത്ര്യം എന്ന പേരിൽ മാത്രം അനുകൂലിക്കാം. പക്ഷെ കാര്യത്തിൽ അത് ആഭാസകരം തന്നെ .
മനോരമ വായിച്ചു നടക്കുന്ന പൈങ്കിളി പെണ്ണുങ്ങൾ എന്നൊരു പ്രയോഗം തന്നെ ഉണ്ടായിരുന്നു.
എന്നാൽ ഇന്ന് ആ കഥകൾ പലതും സീരിയലുകൾ ആയി ആണും പെണ്ണും അത് ദിവസവും നോക്കിയിരിക്കുന്നത് കാണുമ്പോൾ സങ്കടം തോന്നും. ഇപ്പൊ അവരില പലരും വാർത്തകളും ഇഷ്ടപ്പെട്ടു തുടങ്ങി. കാരണം ഇപ്പോൾ രണ്ടും പൈങ്കിളി തന്നെയെല്ലേ.
അതിനിടയിൽ മന്ത്രി കെ സി ജോസഫ് പറഞ്ഞ ഒരു കാര്യം സത്യമാണ്. ആദിവാസികളുടെ ഇടയിലെ കാര്യങ്ങൾ പലതും അദ്ദേഹം പറഞ്ഞു. അതിനോടൊന്നും യോജിപ്പില്ല.
പക്ഷെ മന്ത്രി പറഞ്ഞ ഒരു കാര്യം ശരിയാണ് - ഇന്ന് നടക്കുന്ന പുതിയ റിയാലിറ്റി പരിപാടി - മലയാളി ഹൌസ് ഒരു ആഭാസ പരിപാടിയെന്ന് ... അത് തികച്ചും ശരി തന്നെ. ഒന്നുകിൽ അത് അഭിനയം അല്ലെങ്കിൽ അത് ആഭാസം തന്നെ. എതിരഭിപ്രായം ഉള്ളവരുണ്ടാകാം. പക്ഷെ അത് ആവിഷ്കാര സ്വാതന്ത്ര്യം എന്ന പേരിൽ മാത്രം അനുകൂലിക്കാം. പക്ഷെ കാര്യത്തിൽ അത് ആഭാസകരം തന്നെ .
Sunday, July 21, 2013
NEW OLD AGE POLICY 2013 OF KERALA GOVERNMENT
Kerala Government has come out with various special features for people above the age of 60 as part of its new old age policy. The features includes special employment exchange, special protection for senior women etc..
FULL TEXT -
OLD AGE POLICY 2013 - KERALA
FULL TEXT -
OLD AGE POLICY 2013 - KERALA
Thursday, July 18, 2013
Sex with consent- under the promise of marriage - not an offence of RAPE. Did Supreme Court ordered so?
The discussion on the judgment in CRIMINAL APPEAL NO. 2322 of 2010 dated 20-5-2013, by the Supreme Court of India will give a separate answer, against the news which scrolled in some of the news editions and even in the head notes of some of the legal journals.
Obviously, when the day such judgment was pronounced, several victims of such incidents were shocked on seeing the headlines in the news. But when the full text is read, it will give a different view and not at all shocking as far as victims are concerned.
The court never said that, a man who acted without an intention to marry and committed consensual sex with his lover can go scotfree.
The section 90 of IPC- misconception of fact will be only point that can be urged for the victim who gave consent to sex, by thinking that the accused will marry her. The Court said in para 21-
" 21. Hence, it is evident that there must be adequate evidence to
show that at the relevant time, i.e. at initial stage itself, the
accused had no intention whatsoever, of keeping his promise to marry
the victim. There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure to keep a promise
made with respect to a future uncertain date, due to reasons that are
not very clear from the evidence available, does not always amount to
misconception of fact. In order to come within the meaning of the term
misconception of fact, the fact must have an immediate relevance.”
Section 90 IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten criminal liability on
the other, unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry her."
of age at the relevant time and was, hence, capable of understanding
the complications and issues surrounding her marriage to the
appellant. According to the version of events provided by her, the
prosecutrix had called the appellant on a number given to her by him,
to ask him why he had not met her at the place that had been pre-
decided by them. She also waited for him for a long time, and when he
finally arrived she went with him to the Karna lake where they
indulged in sexual intercourse. She did not raise any objection at
this stage and made no complaints to any one. Thereafter, she also
went to Kurukshetra with the appellant, where she lived with his
relatives. Here to, the prosecutrix voluntarily became intimate with
the appellant. She then, for some reason, went to live in the hostel
at Kurukshetra University illegally, and once again came into contact
with the appellant at the Birla Mandir. Thereafter, she even
proceeded with the appellant to the old bus-stand in Kurukshetra, to
leave for Ambala so that the two of them could get married in court at
Ambala. However, here they were apprehended by the police. "
FULL TEXT OF JUDGEMENT
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2322 of 2010
Deepak Gulati
…Appellant
Versus
State of Haryana …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment and
order dated 28.1.2010, passed by the Punjab & Haryana High Court at
Chandigarh in CRA No. 960-SB of 1998 by way of which, the High Court
has affirmed the judgment and order of the Additional Sessions Judge,
Karnal dated 13.11.1998 passed in Sessions Case No. 7 of 1995, by way
of which the appellant stood convicted for the offences punishable
under Sections 365 and 376 of the Indian Penal Code, 1860 (hereinafter
referred to as the `IPC’) and sentenced to undergo rigorous
imprisonment for a period of three years, alongwith a fine of
Rs.2,000/- under Section 365 IPC; and rigorous imprisonment for a
period of seven years, alongwith a fine of Rs.5,000/- under Section
376 IPC. Both the sentences were ordered to run concurrently.
2. Facts and circumstances giving rise to this appeal are that:
A. The appellant and Geeta, prosecutrix, 19 years of age, student
of 10+2 in Government Girls Senior Secondary School, Karnal, had known
each other for some time. Appellant had been meeting her in front of
her school in an attempt to develop intimate relations with her. On
10.5.1995, the appellant induced her to go with him to Kurukshetra, to
get married and she agreed. En route Kurukshetra from Karnal, the
appellant took her to Karna lake (Karnal), and had sexual intercourse
with her against her wishes, behind bushes. Thereafter, the appellant
took her to Kurukshetra, stayed with his relatives for 3-4 days and
committed rape upon her.
B. The prosecutrix was thrown out after 4 days by the appellant.
She then went to one of the hostels in Kurukshetra University, and
stayed there for a few days. The warden of the hostel became
suspicious and thus, questioned the prosecutrix. The prosecutrix
thus narrated the incident to the warden, who informed her father.
Meanwhile, the prosecutrix left the hostel and went to a temple, where
she once again met the appellant. Here, the appellant convinced her
to accompany him to Ambala to get married. When they reached the bus
stand, they found her father present there alongwith the police. The
appellant was apprehended.
C. Baldev Raj Soni, father of the prosecutrix, had lodged a
complaint on 16.5.1995 under Sections 365 and 366 IPC, which was
later converted to one under Sections 365 and 376 IPC.
D. The prosecutrix was medically examined on 17.5.1995. Her
statement was recorded by the Magistrate under Section 164 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’)
on 20.5.1995. After completing the investigation, a chargesheet was
filed against the appellant, and in view of the material on record,
charges under Sections 365 and 376 IPC were framed against him by the
Sessions Court, vide order dated 3.5.1996.
E. The prosecution examined 13 witnesses in support of its case and
in view thereof, the Sessions Court convicted the appellant under
Sections 365/376 IPC, vide judgment and order dated 13.11.1998 and
awarded him the sentence for the said charges as has been referred to
hereinabove.
F. Aggrieved, the appellant preferred Criminal Appeal No. 960-SB of
1998 (D & M) in the High Court of Punjab and Haryana at Chandigarh,
which stood dismissed by the impugned judgment and order dated
18.11.1998.
Hence, this appeal.
3. None present for the appellant. In view thereof, the Court has
examined the material on record and gone through both the impugned
judgments with the help of Shri Kamal Mohan Gupta, learned counsel
appearing on behalf of the State.
4. The statement of the prosecutrix (PW.7) was recorded under
Section 164 Cr.P.C. on 20.5.1995, wherein she has clearly stated that
she had gone alongwith the appellant to get married and for such
purpose, she had also obtained a certificate from her school as proof
of her age. On the said date i.e. 10.5.1995, as the appellant had
been unable to reach the pre-decided place, the prosecutrix had
telephoned him on the number provided by him. She has further deposed
that the appellant had asked her to have a physical relationship with
him, but that she had not agreed to do so before marriage. When they
reached Kurukshetra and stayed with his relatives there, the appellant
had sexual intercourse with her for 3 days. On the 4th day, she was
thrown out of the house by the appellant and thus, she had gone to
the Girls Hostel in Kurukshetra University, where she had stayed
under the pretext of getting admitted to the university. However, the
university personnel became suspicious, and after making enquiries
from her, they telephoned her house. She then left the university
and had gone to the Birla Mandir at Kurukshetra, where she had met
appellant. Here he lured her once again, and thus, she had agreed to
accompany him to Ambala to get married in court there. However, when
they reached the old bus stand Kurukshetra, she had found her father
and several police officials present there, and thereafter the
appellant had been arrested and the prosecutrix was taken to Karnal.
5. The prosecutrix was examined in court as PW.7 on 5.7.1996,
wherein she deposed that on 10.5.1995, as per the agreed plan, she had
left her house to go alongwith the appellant to Kurukshetra to get
married in court. However, she had not found the appellant at the
place decided upon by them, and had thus telephoned him at the number
provided to her by him. She was then informed that the appellant had
already left for Kurukshetra and hence, waited for him from 12.00 noon
till 1.30 p.m. When he arrived, she went alongwith the appellant at
2.30 p.m. to Karna lake (Karnal) by bus. Here, she was taken into
some bushes behind the restaurant at Karna lake, and thereafter raped
by the appellant. At the said time, she neither raised any objection,
nor any hue and cry. The prosecutrix did not even mention the said
incident to any person, despite going to Kurukshetra and staying there
for 3-4 days. She raised no grievance in this regard before any
person or authority at the bus stand. She continued to stay with the
appellant in the house of his relatives and was raped there. The
appellant continued to postpone their marriage on one pretext or the
other. Thereafter, she was thrown out of the house. She thus went and
stayed in the University hostel and on being questioned, she disclosed
details regarding her treatment to the warden, who informed her
family. After this, she went to the Birla Mandir at Kurukshetra, and
here she met the appellant once again. The appellant made another
attempt to convince her to go to Ambala with him to get married in
court there. Upon reaching the old Bus Stand, she found her brother
Rajinder there alongwith a police party, who had been accompanying
them in a jeep to Karnal.
6. In his statement, Baldev Raj Soni (PW.8), father of the
prosecutrix has deposed that on 10.5.1995, her daughter Geeta did not
come home. He thus lodged a complaint and contacted Rajni, a friend of
Geeta, who told him that the appellant Deepak had taken her to
Kurukshetra. On 17.5.1995, the police had gone alongwith him to
Kurukshetra to locate Geeta, where they had found the prosecutrix and
the appellant sitting at the old bus stand in Kurukshetra. Both of
them had been caught hold of by them, and were brought to Karnal.
7. Smt. P. Kant Vashisht (PW.10), Warden of Saraswati Bhawan
Kurukshetra University, though did not support the case of the
prosecution, and was declared hostile, has deposed in her examination
in chief that Geeta, prosecutrix, had been brought to her office by
one person, namely, Shri Ashwini, student of the engineering college,
and that he had left Geeta in her office, stating that he would inform
her parents. After sometime, her brother had come and taken her away.
She was cross-examined by the prosecution, and she has deposed that
the prosecutrix had in fact stayed in the hostel without any
authority/permission. One Nirmla, attendant therein had allowed her
to stay in the hostel without any such requisite permission.
8. Smt. Krishana Chawla (PW.3), Lecturer of Political Science in
Government Senior Secondary School, Karnal, has deposed before court,
and has proved the school register to show that the date of birth of
the prosecutrix was 26.6.1976.
9. Dr. (Mrs.) Amarjeet Wadhwa (PW.11), Medical Officer, Government
Hospital, Karnal, who examined the prosecutrix on 17.5.1995, has
deposed that the prosecutrix had indulged in sexual intercourse and
was habitual to the same.
10. Shri Bhagwan Chand (PW.12), ASI, the Investigating Officer, has
deposed that after recording the statement of the father of the
prosecutrix on 17.5.1995, he had taken her father to Kurukshetra to
search for the prosecutrix alongwith one constable. At about 12.00
noon, when they reached the old bus stand at Kurukshetra, the father
of the prosecutrix noticed Geeta, sitting with the appellant Deepak in
one corner of the bus stand, and thereafter, they had apprehended
them. He has also disposed that he had recorded the statement of the
prosecutrix.
11. There exist in the statements of the witnesses material
contradictions, improvements and embellishments. In the cross-
examination, Baldev Raj Soni (PW.8) has deposed that he had gone to
Kurukshetra with his relatives i.e. Ashwini Kumar and Surinder, and
has stated that his son Rajinder was not with him at such time. He
has not deposed that he had received any telephone call from the
warden of any hostel, as has been suggested by the prosecutrix.
Furthermore, the prosecutrix in her statement under Section 164
Cr.P.C., has not mentioned the incident involving her indulging in
sexual contact with the appellant at the Karna lake at Karnal. Bhagwan
Chand (PW.12) has not mentioned that any relatives of the prosecutrix
had accompanied them while they were traveling from Kurukshetra to
Karnal.
12. The FIR in the present case has been registered under Sections
365 and 366 IPC, by Baldev Raj Soni (PW.8), father of the prosecutrix,
naming several persons, including the appellant, accusing them of
enticing his daughter and wrongfully confining her at an unknown
place. Thus, he has expressed his apprehension with respect to danger
to the life of his daughter.
13. Admittedly, the prosecutrix has never raised any grievance
before any person at any stage. In fact, she seems to have submitted
to the will of the appellant, possibly in lieu of his promise to marry
her. . Thus, a question arises with respect to whether, in light of
the facts and circumstances of the present case, the appellant had an
intention to deceive her from the very beginning when he had asked the
prosecutrix to leave for Kurukshetra with him from Karnal.
14. The undisputed facts of the case are as under:
I. The prosecutrix was 19 years of age at the time of the said
incident.
II. She had inclination towards the appellant, and had willingly
gone with him to Kurukshetra to get married.
III. The appellant had been giving her assurance of the fact that he
would get married to her.
IV. The physical relationship between the parties had clearly
developed with the consent of the prosecutrix, as there was
neither a case of any resistance, nor had she raised any
complaint anywhere at any time despite the fact that she had
been living with the appellant for several days, and had
travelled with him from one place to another.
V. Even after leaving the hostel of Kurukshetra University, she
agreed and proceeded to go with the appellant to Ambala, to get
married to him there.
15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter
referred to as the ‘Act 1872’) provides, that if the prosecutrix
deposes that she did not give her consent, then the Court shall
presume that she did not in fact, give such consent. The facts of the
instant case do not warrant that the provisions of Section 114-A of
the Act 1872 be pressed into service. Hence, the sole question
involved herein is whether her consent had been obtained on the false
promise of marriage. Thus, the provisions of Sections 417, 375 and 376
IPC have to be taken into consideration, alongwith the provisions of
Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that
any consent given under a misconception of fact, would not be
considered as valid consent, so far as the provisions of Section 375
IPC are concerned, and thus, such a physical relationship would
tantamount to committing rape.
16. This Court considered the issue involved herein at length in the
case of Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @
Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v.
State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of
Bihar & Anr., AIR 2007 SC 3059, and came to the conclusion that in
the event that the accused’s promise is not false and has not been
made with the sole intention to seduce the prosecutrix to indulge in
sexual acts, such an act(s) would not amount to rape. Thus, the same
would only hold that where the prosecutrix, under a misconception of
fact to the extent that the accused is likely to marry her, submits
to the lust of the accused, such a fraudulent act cannot be said to be
consensual, so far as the offence of the accused is concerned.
17. Rape is the most morally and physically reprehensible crime in a
society, as it is an assault on the body, mind and privacy of the
victim. While a murderer destroys the physical frame of the victim, a
rapist degrades and defiles the soul of a helpless female. Rape
reduces a woman to an animal, as it shakes the very core of her life.
By no means can a rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim, and therefore a rape victim
is placed on a higher pedestal than an injured witness. Rape is a
crime against the entire society and violates the human rights of the
victim. Being the most hated crime, rape tantamounts to a serious blow
to the supreme honour of a woman, and offends both, her esteem and
dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction between rape
and consensual sex and in a case like this, the court must very
carefully examine whether the accused had actually wanted to marry the
victim, or had mala fide motives, and had made a false promise to this
effect only to satisfy his lust, as the latter falls within the ambit
of cheating or deception. 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; and whether the consent involved
was given after wholly, understanding the nature and consequences of
sexual indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion for the
accused, and not solely on account of mis-representation made to her
by the accused, or where an accused on account of circumstances which
he could not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do so. Such
cases must be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of the
accused was mala fide, and that he had clandestine motives.
19. In Deelip Singh (supra), it has been observed as under:
“20. The factors set out in the first part of Section 90 are
from the point of view of the victim. The second part of Section
90 enacts the corresponding provision from the point of view of
the accused. It envisages that the accused too has knowledge or
has reason to believe that the consent was given by the victim
in consequence of fear of injury or misconception of fact. Thus,
the second part lays emphasis on the knowledge or reasonable
belief of the person who obtains the tainted consent. The
requirements of both the parts should be cumulatively satisfied.
In other words, the court has to see whether the person giving
the consent had given it under fear of injury or misconception
of fact and the court should also be satisfied that the person
doing the act i.e. the alleged offender, is conscious of the
fact or should have reason to think that but for the fear or
misconception, the consent would not have been given. This is
the scheme of Section 90 which is couched in negative
terminology.”
20. This Court, while deciding Pradeep Kumar Verma (Supra), placed
reliance upon the judgment of the Madras High Court delivered in N.
Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed:
“We are of opinion that the expression “under a misconception of
fact” is broad enough to include all cases where the consent is
obtained by misrepresentation; the misrepresentation should be
regarded as leading to a misconception of the facts with
reference to which the consent is given. In Section 3 of the
Evidence Act Illustration (d) states that a person has a certain
intention is treated as a fact. So, here the fact about which
the second and third prosecution witnesses were made to
entertain a misconception was the fact that the second accused
intended to get the girl married…….. “thus … if the consent of
the person from whose possession the girl is taken is obtained
by fraud, the taking is deemed to be against the will of such a
person”. … Although in cases of contracts a consent obtained by
coercion or fraud is only voidable by the party affected by it,
the effect of Section 90 IPC is that such consent cannot, under
the criminal law, be availed of to justify what would otherwise
be an offence.”
21. Hence, it is evident that there must be adequate evidence to
show that at the relevant time, i.e. at initial stage itself, the
accused had no intention whatsoever, of keeping his promise to marry
the victim. There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure to keep a promise
made with respect to a future uncertain date, due to reasons that are
not very clear from the evidence available, does not always amount to
misconception of fact. In order to come within the meaning of the term
misconception of fact, the fact must have an immediate relevance.”
Section 90 IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten criminal liability on
the other, unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry her.
22. The instant case is factually very similar to the case of Uday
(Supra), wherein the following facts were found to exist:
I. The prosecutrix was 19 years of age and had adequate
intelligence and maturity to understand the significance and
morality associated with the act she was consenting to.
II. She was conscious of the fact that her marriage may not take
place owing to various considerations, including the caste
factor.
III. It was difficult to impute to the accused, knowledge of the
fact that the prosecutrix had consented as a consequence of a
misconception of fact, that had arisen from his promise to marry
her.
IV. There was no evidence to prove conclusively, that the appellant
had never intended to marry the prosecutrix.
23. To conclude, the prosecutrix had left her home voluntarily, of
her own free will to get married to the appellant. She was 19 years
of age at the relevant time and was, hence, capable of understanding
the complications and issues surrounding her marriage to the
appellant. According to the version of events provided by her, the
prosecutrix had called the appellant on a number given to her by him,
to ask him why he had not met her at the place that had been pre-
decided by them. She also waited for him for a long time, and when he
finally arrived she went with him to the Karna lake where they
indulged in sexual intercourse. She did not raise any objection at
this stage and made no complaints to any one. Thereafter, she also
went to Kurukshetra with the appellant, where she lived with his
relatives. Here to, the prosecutrix voluntarily became intimate with
the appellant. She then, for some reason, went to live in the hostel
at Kurukshetra University illegally, and once again came into contact
with the appellant at the Birla Mandir. Thereafter, she even
proceeded with the appellant to the old bus-stand in Kurukshetra, to
leave for Ambala so that the two of them could get married in court at
Ambala. However, here they were apprehended by the police.
24. If the prosecutrix was in fact going to Ambala to marry the
appellant, as stands fully established from the evidence on record, we
fail to understand on what basis the allegation of “false promise of
marriage” has been raised by the prosecutrix. We also fail to
comprehend the circumstances in which a charge of deceit/rape can be
leveled against the appellant, in light of the afore-mentioned fact
situation.
25. In view of the above, we are of the considered opinion that the
appellant, who has already served more than 3 years sentence, is
entitled to the benefit of doubt. Therefore, the appeal succeeds and
is allowed. His conviction and sentences awarded by the courts below
are set aside. The appellant is on bail. His bail bonds stand
discharged.
………………………J.
(Dr. B.S. CHAUHAN)
………………………J.
(DIPAK MISRA)
New Delhi,
May 20, 2013
Obviously, when the day such judgment was pronounced, several victims of such incidents were shocked on seeing the headlines in the news. But when the full text is read, it will give a different view and not at all shocking as far as victims are concerned.
The court never said that, a man who acted without an intention to marry and committed consensual sex with his lover can go scotfree.
The section 90 of IPC- misconception of fact will be only point that can be urged for the victim who gave consent to sex, by thinking that the accused will marry her. The Court said in para 21-
" 21. Hence, it is evident that there must be adequate evidence to
show that at the relevant time, i.e. at initial stage itself, the
accused had no intention whatsoever, of keeping his promise to marry
the victim. There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure to keep a promise
made with respect to a future uncertain date, due to reasons that are
not very clear from the evidence available, does not always amount to
misconception of fact. In order to come within the meaning of the term
misconception of fact, the fact must have an immediate relevance.”
Section 90 IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten criminal liability on
the other, unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry her."
In the concluding portion also, with reference to the particular facts of the case,
" 23. To conclude, the prosecutrix had left her home voluntarily, of
her own free will to get married to the appellant. She was 19 yearsof age at the relevant time and was, hence, capable of understanding
the complications and issues surrounding her marriage to the
appellant. According to the version of events provided by her, the
prosecutrix had called the appellant on a number given to her by him,
to ask him why he had not met her at the place that had been pre-
decided by them. She also waited for him for a long time, and when he
finally arrived she went with him to the Karna lake where they
indulged in sexual intercourse. She did not raise any objection at
this stage and made no complaints to any one. Thereafter, she also
went to Kurukshetra with the appellant, where she lived with his
relatives. Here to, the prosecutrix voluntarily became intimate with
the appellant. She then, for some reason, went to live in the hostel
at Kurukshetra University illegally, and once again came into contact
with the appellant at the Birla Mandir. Thereafter, she even
proceeded with the appellant to the old bus-stand in Kurukshetra, to
leave for Ambala so that the two of them could get married in court at
Ambala. However, here they were apprehended by the police. "
FULL TEXT OF JUDGEMENT
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2322 of 2010
Deepak Gulati
…Appellant
Versus
State of Haryana …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment and
order dated 28.1.2010, passed by the Punjab & Haryana High Court at
Chandigarh in CRA No. 960-SB of 1998 by way of which, the High Court
has affirmed the judgment and order of the Additional Sessions Judge,
Karnal dated 13.11.1998 passed in Sessions Case No. 7 of 1995, by way
of which the appellant stood convicted for the offences punishable
under Sections 365 and 376 of the Indian Penal Code, 1860 (hereinafter
referred to as the `IPC’) and sentenced to undergo rigorous
imprisonment for a period of three years, alongwith a fine of
Rs.2,000/- under Section 365 IPC; and rigorous imprisonment for a
period of seven years, alongwith a fine of Rs.5,000/- under Section
376 IPC. Both the sentences were ordered to run concurrently.
2. Facts and circumstances giving rise to this appeal are that:
A. The appellant and Geeta, prosecutrix, 19 years of age, student
of 10+2 in Government Girls Senior Secondary School, Karnal, had known
each other for some time. Appellant had been meeting her in front of
her school in an attempt to develop intimate relations with her. On
10.5.1995, the appellant induced her to go with him to Kurukshetra, to
get married and she agreed. En route Kurukshetra from Karnal, the
appellant took her to Karna lake (Karnal), and had sexual intercourse
with her against her wishes, behind bushes. Thereafter, the appellant
took her to Kurukshetra, stayed with his relatives for 3-4 days and
committed rape upon her.
B. The prosecutrix was thrown out after 4 days by the appellant.
She then went to one of the hostels in Kurukshetra University, and
stayed there for a few days. The warden of the hostel became
suspicious and thus, questioned the prosecutrix. The prosecutrix
thus narrated the incident to the warden, who informed her father.
Meanwhile, the prosecutrix left the hostel and went to a temple, where
she once again met the appellant. Here, the appellant convinced her
to accompany him to Ambala to get married. When they reached the bus
stand, they found her father present there alongwith the police. The
appellant was apprehended.
C. Baldev Raj Soni, father of the prosecutrix, had lodged a
complaint on 16.5.1995 under Sections 365 and 366 IPC, which was
later converted to one under Sections 365 and 376 IPC.
D. The prosecutrix was medically examined on 17.5.1995. Her
statement was recorded by the Magistrate under Section 164 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’)
on 20.5.1995. After completing the investigation, a chargesheet was
filed against the appellant, and in view of the material on record,
charges under Sections 365 and 376 IPC were framed against him by the
Sessions Court, vide order dated 3.5.1996.
E. The prosecution examined 13 witnesses in support of its case and
in view thereof, the Sessions Court convicted the appellant under
Sections 365/376 IPC, vide judgment and order dated 13.11.1998 and
awarded him the sentence for the said charges as has been referred to
hereinabove.
F. Aggrieved, the appellant preferred Criminal Appeal No. 960-SB of
1998 (D & M) in the High Court of Punjab and Haryana at Chandigarh,
which stood dismissed by the impugned judgment and order dated
18.11.1998.
Hence, this appeal.
3. None present for the appellant. In view thereof, the Court has
examined the material on record and gone through both the impugned
judgments with the help of Shri Kamal Mohan Gupta, learned counsel
appearing on behalf of the State.
4. The statement of the prosecutrix (PW.7) was recorded under
Section 164 Cr.P.C. on 20.5.1995, wherein she has clearly stated that
she had gone alongwith the appellant to get married and for such
purpose, she had also obtained a certificate from her school as proof
of her age. On the said date i.e. 10.5.1995, as the appellant had
been unable to reach the pre-decided place, the prosecutrix had
telephoned him on the number provided by him. She has further deposed
that the appellant had asked her to have a physical relationship with
him, but that she had not agreed to do so before marriage. When they
reached Kurukshetra and stayed with his relatives there, the appellant
had sexual intercourse with her for 3 days. On the 4th day, she was
thrown out of the house by the appellant and thus, she had gone to
the Girls Hostel in Kurukshetra University, where she had stayed
under the pretext of getting admitted to the university. However, the
university personnel became suspicious, and after making enquiries
from her, they telephoned her house. She then left the university
and had gone to the Birla Mandir at Kurukshetra, where she had met
appellant. Here he lured her once again, and thus, she had agreed to
accompany him to Ambala to get married in court there. However, when
they reached the old bus stand Kurukshetra, she had found her father
and several police officials present there, and thereafter the
appellant had been arrested and the prosecutrix was taken to Karnal.
5. The prosecutrix was examined in court as PW.7 on 5.7.1996,
wherein she deposed that on 10.5.1995, as per the agreed plan, she had
left her house to go alongwith the appellant to Kurukshetra to get
married in court. However, she had not found the appellant at the
place decided upon by them, and had thus telephoned him at the number
provided to her by him. She was then informed that the appellant had
already left for Kurukshetra and hence, waited for him from 12.00 noon
till 1.30 p.m. When he arrived, she went alongwith the appellant at
2.30 p.m. to Karna lake (Karnal) by bus. Here, she was taken into
some bushes behind the restaurant at Karna lake, and thereafter raped
by the appellant. At the said time, she neither raised any objection,
nor any hue and cry. The prosecutrix did not even mention the said
incident to any person, despite going to Kurukshetra and staying there
for 3-4 days. She raised no grievance in this regard before any
person or authority at the bus stand. She continued to stay with the
appellant in the house of his relatives and was raped there. The
appellant continued to postpone their marriage on one pretext or the
other. Thereafter, she was thrown out of the house. She thus went and
stayed in the University hostel and on being questioned, she disclosed
details regarding her treatment to the warden, who informed her
family. After this, she went to the Birla Mandir at Kurukshetra, and
here she met the appellant once again. The appellant made another
attempt to convince her to go to Ambala with him to get married in
court there. Upon reaching the old Bus Stand, she found her brother
Rajinder there alongwith a police party, who had been accompanying
them in a jeep to Karnal.
6. In his statement, Baldev Raj Soni (PW.8), father of the
prosecutrix has deposed that on 10.5.1995, her daughter Geeta did not
come home. He thus lodged a complaint and contacted Rajni, a friend of
Geeta, who told him that the appellant Deepak had taken her to
Kurukshetra. On 17.5.1995, the police had gone alongwith him to
Kurukshetra to locate Geeta, where they had found the prosecutrix and
the appellant sitting at the old bus stand in Kurukshetra. Both of
them had been caught hold of by them, and were brought to Karnal.
7. Smt. P. Kant Vashisht (PW.10), Warden of Saraswati Bhawan
Kurukshetra University, though did not support the case of the
prosecution, and was declared hostile, has deposed in her examination
in chief that Geeta, prosecutrix, had been brought to her office by
one person, namely, Shri Ashwini, student of the engineering college,
and that he had left Geeta in her office, stating that he would inform
her parents. After sometime, her brother had come and taken her away.
She was cross-examined by the prosecution, and she has deposed that
the prosecutrix had in fact stayed in the hostel without any
authority/permission. One Nirmla, attendant therein had allowed her
to stay in the hostel without any such requisite permission.
8. Smt. Krishana Chawla (PW.3), Lecturer of Political Science in
Government Senior Secondary School, Karnal, has deposed before court,
and has proved the school register to show that the date of birth of
the prosecutrix was 26.6.1976.
9. Dr. (Mrs.) Amarjeet Wadhwa (PW.11), Medical Officer, Government
Hospital, Karnal, who examined the prosecutrix on 17.5.1995, has
deposed that the prosecutrix had indulged in sexual intercourse and
was habitual to the same.
10. Shri Bhagwan Chand (PW.12), ASI, the Investigating Officer, has
deposed that after recording the statement of the father of the
prosecutrix on 17.5.1995, he had taken her father to Kurukshetra to
search for the prosecutrix alongwith one constable. At about 12.00
noon, when they reached the old bus stand at Kurukshetra, the father
of the prosecutrix noticed Geeta, sitting with the appellant Deepak in
one corner of the bus stand, and thereafter, they had apprehended
them. He has also disposed that he had recorded the statement of the
prosecutrix.
11. There exist in the statements of the witnesses material
contradictions, improvements and embellishments. In the cross-
examination, Baldev Raj Soni (PW.8) has deposed that he had gone to
Kurukshetra with his relatives i.e. Ashwini Kumar and Surinder, and
has stated that his son Rajinder was not with him at such time. He
has not deposed that he had received any telephone call from the
warden of any hostel, as has been suggested by the prosecutrix.
Furthermore, the prosecutrix in her statement under Section 164
Cr.P.C., has not mentioned the incident involving her indulging in
sexual contact with the appellant at the Karna lake at Karnal. Bhagwan
Chand (PW.12) has not mentioned that any relatives of the prosecutrix
had accompanied them while they were traveling from Kurukshetra to
Karnal.
12. The FIR in the present case has been registered under Sections
365 and 366 IPC, by Baldev Raj Soni (PW.8), father of the prosecutrix,
naming several persons, including the appellant, accusing them of
enticing his daughter and wrongfully confining her at an unknown
place. Thus, he has expressed his apprehension with respect to danger
to the life of his daughter.
13. Admittedly, the prosecutrix has never raised any grievance
before any person at any stage. In fact, she seems to have submitted
to the will of the appellant, possibly in lieu of his promise to marry
her. . Thus, a question arises with respect to whether, in light of
the facts and circumstances of the present case, the appellant had an
intention to deceive her from the very beginning when he had asked the
prosecutrix to leave for Kurukshetra with him from Karnal.
14. The undisputed facts of the case are as under:
I. The prosecutrix was 19 years of age at the time of the said
incident.
II. She had inclination towards the appellant, and had willingly
gone with him to Kurukshetra to get married.
III. The appellant had been giving her assurance of the fact that he
would get married to her.
IV. The physical relationship between the parties had clearly
developed with the consent of the prosecutrix, as there was
neither a case of any resistance, nor had she raised any
complaint anywhere at any time despite the fact that she had
been living with the appellant for several days, and had
travelled with him from one place to another.
V. Even after leaving the hostel of Kurukshetra University, she
agreed and proceeded to go with the appellant to Ambala, to get
married to him there.
15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter
referred to as the ‘Act 1872’) provides, that if the prosecutrix
deposes that she did not give her consent, then the Court shall
presume that she did not in fact, give such consent. The facts of the
instant case do not warrant that the provisions of Section 114-A of
the Act 1872 be pressed into service. Hence, the sole question
involved herein is whether her consent had been obtained on the false
promise of marriage. Thus, the provisions of Sections 417, 375 and 376
IPC have to be taken into consideration, alongwith the provisions of
Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that
any consent given under a misconception of fact, would not be
considered as valid consent, so far as the provisions of Section 375
IPC are concerned, and thus, such a physical relationship would
tantamount to committing rape.
16. This Court considered the issue involved herein at length in the
case of Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @
Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v.
State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of
Bihar & Anr., AIR 2007 SC 3059, and came to the conclusion that in
the event that the accused’s promise is not false and has not been
made with the sole intention to seduce the prosecutrix to indulge in
sexual acts, such an act(s) would not amount to rape. Thus, the same
would only hold that where the prosecutrix, under a misconception of
fact to the extent that the accused is likely to marry her, submits
to the lust of the accused, such a fraudulent act cannot be said to be
consensual, so far as the offence of the accused is concerned.
17. Rape is the most morally and physically reprehensible crime in a
society, as it is an assault on the body, mind and privacy of the
victim. While a murderer destroys the physical frame of the victim, a
rapist degrades and defiles the soul of a helpless female. Rape
reduces a woman to an animal, as it shakes the very core of her life.
By no means can a rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim, and therefore a rape victim
is placed on a higher pedestal than an injured witness. Rape is a
crime against the entire society and violates the human rights of the
victim. Being the most hated crime, rape tantamounts to a serious blow
to the supreme honour of a woman, and offends both, her esteem and
dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction between rape
and consensual sex and in a case like this, the court must very
carefully examine whether the accused had actually wanted to marry the
victim, or had mala fide motives, and had made a false promise to this
effect only to satisfy his lust, as the latter falls within the ambit
of cheating or deception. 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; and whether the consent involved
was given after wholly, understanding the nature and consequences of
sexual indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion for the
accused, and not solely on account of mis-representation made to her
by the accused, or where an accused on account of circumstances which
he could not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do so. Such
cases must be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of the
accused was mala fide, and that he had clandestine motives.
19. In Deelip Singh (supra), it has been observed as under:
“20. The factors set out in the first part of Section 90 are
from the point of view of the victim. The second part of Section
90 enacts the corresponding provision from the point of view of
the accused. It envisages that the accused too has knowledge or
has reason to believe that the consent was given by the victim
in consequence of fear of injury or misconception of fact. Thus,
the second part lays emphasis on the knowledge or reasonable
belief of the person who obtains the tainted consent. The
requirements of both the parts should be cumulatively satisfied.
In other words, the court has to see whether the person giving
the consent had given it under fear of injury or misconception
of fact and the court should also be satisfied that the person
doing the act i.e. the alleged offender, is conscious of the
fact or should have reason to think that but for the fear or
misconception, the consent would not have been given. This is
the scheme of Section 90 which is couched in negative
terminology.”
20. This Court, while deciding Pradeep Kumar Verma (Supra), placed
reliance upon the judgment of the Madras High Court delivered in N.
Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed:
“We are of opinion that the expression “under a misconception of
fact” is broad enough to include all cases where the consent is
obtained by misrepresentation; the misrepresentation should be
regarded as leading to a misconception of the facts with
reference to which the consent is given. In Section 3 of the
Evidence Act Illustration (d) states that a person has a certain
intention is treated as a fact. So, here the fact about which
the second and third prosecution witnesses were made to
entertain a misconception was the fact that the second accused
intended to get the girl married…….. “thus … if the consent of
the person from whose possession the girl is taken is obtained
by fraud, the taking is deemed to be against the will of such a
person”. … Although in cases of contracts a consent obtained by
coercion or fraud is only voidable by the party affected by it,
the effect of Section 90 IPC is that such consent cannot, under
the criminal law, be availed of to justify what would otherwise
be an offence.”
21. Hence, it is evident that there must be adequate evidence to
show that at the relevant time, i.e. at initial stage itself, the
accused had no intention whatsoever, of keeping his promise to marry
the victim. There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure to keep a promise
made with respect to a future uncertain date, due to reasons that are
not very clear from the evidence available, does not always amount to
misconception of fact. In order to come within the meaning of the term
misconception of fact, the fact must have an immediate relevance.”
Section 90 IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten criminal liability on
the other, unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry her.
22. The instant case is factually very similar to the case of Uday
(Supra), wherein the following facts were found to exist:
I. The prosecutrix was 19 years of age and had adequate
intelligence and maturity to understand the significance and
morality associated with the act she was consenting to.
II. She was conscious of the fact that her marriage may not take
place owing to various considerations, including the caste
factor.
III. It was difficult to impute to the accused, knowledge of the
fact that the prosecutrix had consented as a consequence of a
misconception of fact, that had arisen from his promise to marry
her.
IV. There was no evidence to prove conclusively, that the appellant
had never intended to marry the prosecutrix.
23. To conclude, the prosecutrix had left her home voluntarily, of
her own free will to get married to the appellant. She was 19 years
of age at the relevant time and was, hence, capable of understanding
the complications and issues surrounding her marriage to the
appellant. According to the version of events provided by her, the
prosecutrix had called the appellant on a number given to her by him,
to ask him why he had not met her at the place that had been pre-
decided by them. She also waited for him for a long time, and when he
finally arrived she went with him to the Karna lake where they
indulged in sexual intercourse. She did not raise any objection at
this stage and made no complaints to any one. Thereafter, she also
went to Kurukshetra with the appellant, where she lived with his
relatives. Here to, the prosecutrix voluntarily became intimate with
the appellant. She then, for some reason, went to live in the hostel
at Kurukshetra University illegally, and once again came into contact
with the appellant at the Birla Mandir. Thereafter, she even
proceeded with the appellant to the old bus-stand in Kurukshetra, to
leave for Ambala so that the two of them could get married in court at
Ambala. However, here they were apprehended by the police.
24. If the prosecutrix was in fact going to Ambala to marry the
appellant, as stands fully established from the evidence on record, we
fail to understand on what basis the allegation of “false promise of
marriage” has been raised by the prosecutrix. We also fail to
comprehend the circumstances in which a charge of deceit/rape can be
leveled against the appellant, in light of the afore-mentioned fact
situation.
25. In view of the above, we are of the considered opinion that the
appellant, who has already served more than 3 years sentence, is
entitled to the benefit of doubt. Therefore, the appeal succeeds and
is allowed. His conviction and sentences awarded by the courts below
are set aside. The appellant is on bail. His bail bonds stand
discharged.
………………………J.
(Dr. B.S. CHAUHAN)
………………………J.
(DIPAK MISRA)
New Delhi,
May 20, 2013
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