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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.

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 .

Sunday, July 21, 2013

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."

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  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. "

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