LexDEELIP SINGH @ DILIP KUMAR versus STATE OF BIHAR
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DEELIP SINGH @ DILIP KUMAR A v. STATE OF BIHAR NOVEMBER 3, 2004 [P. VENKATARAMA REDD! AND P.P. NAOLEKAR, JJ.] B Penal Code, I 860: Section 375, clause sixth-'With or without her consent, when she is under I 6 years of age '-Invocation of-Held: Finding that victim girl less C than I6 years on the date of first sexual intercourse not sustainable-Hence, clause sixth not atlracted Section 375, clause first-Sexual intercourse with victim girl 'against her wi/l'-Version of victim in court at variance with her version in FIR and D as such improbable-Hence, cannot be said that victim subject to rape 'against her will'. Section 375, Clause second and section 376-Rape-Commission of- Inducement to enter into sexual intercourse on promise to marry-Consent, given if falls within expression 'without her consent'-Section 375 clause E second, if attracted-Held: Victim took cot1scious decision after active application of mind to participate in the sexual act on being impressed that accused will marry her-It cannot be said that accused had no intention to marry her at all from the inception and that the promise made was false to his knowledge-Statement of prosecutrix showing that there was genuine intention which did not materialise-Hence, case of breach of promise to F marry-Section 375 clause second not attracted Section 90-Explanation of-What is not consent-Held: Consent given under fear of injury or misconception of fact is not consent-It is analogous to coercion and mistake of fact-First part of section 90 is from the point of view of victim and second from the point of view of accused emphasising on G the knowledge or reasonable belief of a person who obtains tainted consent- Both parts should be cumulatively satisfied-However, section 90 does not give exhaustive definition of consent for Penal Code and the normal connotation and concept of consent is not excluded 909 H 910 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R. A Consent-Absence of-Burden of proof-Is on the prosecution-In cases covered by Section 114-A position is different-Consent or absence thereof is to be gathered.from attendant circumstances-Previous or contemporaneous acts or subsequent conduct are relevant-Evidence Act, 1872-Section 114- A. B Constitution of India, 1950: Article 142-lnherent powers-Exercise of-Accused promising to marry victim woman, persuaded her to have sexual relations and caused pregnancy-Acquittal under Section 376-Though accused acquitted but on account of his reprehensible conduct is prima facie accountable for damages under Civil /aw-Hence, in exercise of power under C Article 142 accused directed to pay Rs.50,0001-towards compensation, as offered by him-Penal Code, 1860-Section 376. Words and Phrases: 'Consent '-Meaning of D According to the victim girl, she and the appellant were neighbours and fell in love with each other. One day appellant forcibly raped her and later consoled her that he would marry her. She succumbed to the entreaties and continued to have sexual relations and became pregnant. The intimacy continued to the knowledge of parents and other relatives under the · impression that the appellant would marry her. But the accused avoided to E marry her and as such the girl lodged a complaint long after the alleged act of rape and FIR was registered. Trial Court convicted and sentenced the accused under section 376 IPC for committing rape of minor girl. High Court upheld the conviction but modified the sentence. Hence the present appeal. F Allowing the appeal, the Court HELD:_ I.I. The findings ofthe trial court that it was a case of having sexual intercourse against the will of the victim girl or without her consent and thereafter went on making false promise to marry her as such liable to be convicted under section 376 IPC, as upheld by Higli Court are either perverse or vitiated by non-consideration of material evidence and relevant G . factors emerging from the prosecution evidence. Therefore, conviction and sentence is set aside. [929-D-EI 1.2. Accused is acquitted of the charges levelled against him on the ground of benefit of doubt. But the reprehensible conduct of the appellant, who committed breach of the promise to marry the victim woman an.d H persuaded her to have sexual relations and caused pregnancy cannot be DEELIP SINGH@ DILIP KUMAR v. ST ATE OF BIHAR 91 l ignored and as such the appellant is primafacie accountable for damages A under C
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