MAHESHWAR TIGGA versus THE STATE OF JHARKHAND

Citation: [2020] 9 S.C.R. 482 · Decided: 28-09-2020 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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482
SUPREME COURT REPORTS
[2020] 9 S.C.R.
MAHESHWAR TIGGA
v.
THE STATE OF JHARKHAND
(Criminal Appeal No. 635 of 2020)
SEPTEMBER 28, 2020
[R. F. NARIMAN, NAVIN SINHA AND
INDIRA BANERJEE, JJ.]
Penal Code, 1860:
ss.376, 323 and 341 – Prosecution under – Alleging that the
accused raped the prosecutrix at the point of knife 4 years ago
when she was 14 years  old and had continued to establish physical
relations with her under pretext of marriage – Conviction under –
By courts below – Appeal to Supreme Court – Held: There is wide
variation in the evidence with regard to the age of prosecutrix –
Trial court had found the prosecutrix to be 14 years of age on the
date of incident on the basis of her deposition – In the absence of
positive evidence as regards her age, the possibility of her being
above the age of 18 years cannot be ruled out – The benefit of
doubt goes to the accused – The examination of the accused u/s.
313 Cr.P.C. was casual and perfunctory – The delay of 4 years in
lodging FIR raises serious doubt about the truth and veracity of
the allegations – In the facts of the case it cannot be held that the
accused initially obtained her consent by putting her under fear or
subsequently had fraudulently misrepresented in order to establish
physical relations with the prosecutrix – The consent of the
prosecutrix was conscious and deliberate choice – Conviction is
unsustainable.
s.90 – Consent given under fear of injury is not a consent –
Consent given under a misconception of fact is no consent in the
eye of law – But the misconception has to be in proximity of time to
the occurrence.
Code of Criminal Procedure, 1973:
Importance of the questions put to an accused u/s. 313 are
basic to the principles of natural justice – Circumstances not put to
an accused u/s.313 cannot be used against him.
482
[2020] 9 S.C.R. 482
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Allowing the appeal, the Court
HELD: 1. The prosecutrix in her deposition dithered with
regard to her age by first stating she was sixteen years on the
date of occurrence and then corrected herself to state she was
thirteen. Though she alleged that the appellant outraged her
modesty at the point of a knife while she was on way to school, no
name of the school has been disclosed either by the prosecutrix
or her parents P.W.5 and 6. If the prosecutrix was studying in a
school there is no explanation why proof of age was not furnished
on basis of documentary evidence such as school register etc.
P.W.10, in cross examination assessed the age of the prosecutrix
to be approximately twenty-five years. P.W.2, the cousin (brother)
of the prosecutrix aged about 30 years deposed that she was six
years younger to him. There is thus wide variation in the evidence
with regard to the age of the prosecutrix. The trial court held the
prosecutrix to be fourteen years of age applying the rule of the
thumb on basis of the age disclosed by her in deposition on
18.08.2001 as 20 years. In absence of positive evidence being
led by the prosecution with regard to the age of the prosecutrix
on the date of occurrence, the possibility of her being above the
age of eighteen years on the date cannot be ruled out. The benefit
of doubt therefore has to be given to the appellant. [Para 7][487-
H; 488-A-D]
2. The examination of the accused under Section 313 Cr.P.C.
was extremely casual and perfunctory in nature. It stands well
settled that circumstances not put to an accused under Section
313 Cr.P.C. cannot be used against him, and must be excluded
from consideration. In a criminal trial, the importance of the
questions put to an accused are basic to the principles of natural
justice as it provides him the opportunity not only to furnish his
defence, but also to explain the incriminating circumstances
against him. A probable defence raised by an accused is sufficient
to rebut the accusation without the requirement of proof beyond
reasonable doubt. [Para 8 and 9][488-E, H; 489-A-B]
Naval Kishore Singh v. State of Bihar (2004) 7 SCC
502 : [2004] 3 Suppl. SCR 344 – relied on.
3. The delay of four years in lodgement of the FIR, at an
opportune time of seven days prior to the appellant solemnising
his marriage with another girl, on the pretext of a promise to the
MAHESHWAR TIGGA v. THE STATE OF JHARKHAND
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SUPREME COURT REPORTS
[2020] 9 S.C.R.
prosecutrix raises serious doubts about the truth and veracity of
the allegations levelled by the prosecutrix. The entire genesis of
the case is in serio

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