By – Lakshay Kumar

In the Supreme Court of India

Name of the Case	Deelip Singh @ Dilip Kumar Vs the State of Bihar
Citation	Crl. Appeal 44 of 2004
Date of the Case	3rd November 2004
Petitioner	Deelip Singh @ Dilip Kumar
Respondent(s)	The State of Bihar
Bench/Judges	P. Venkatarama, P.P. Naolekar
Statutes/Constitution Involved	Indian Penal Code, Indian Evidence Act, The Constitution of India
Important Sections/Articles	S 90, 375 of Indian Penal Code; S 90 of Indian Evidence Act; A 142 of the Constitution of India

Abstract

Laws in India are quite stern when it comes to sexual offences but yet need some clarifications to make it easy to conclude a case. Consent and will are overlapped concepts, various laws distinguish them like S 90 of the Indian Penal Code does in case of consent. Consent by force and consent by misconception are two different sides of a coin and so differs their level of punishment.

This case clarifies some of these concepts and gives a clear view of their application in certain cases.

Introduction

The case of a minor girl being subjected to rape, with her concept under misconception or allurement of fake promises, led to her conceiving a child. Everything was going smooth until when the accused backed out of the promise and the case took a swift turn to the court to seek justice for the atrocities, the victim had gone through.

This case deals with various exaggerations and improved statements to seek the strictest punishment available for the accused, which were, in turn, assessed carefully and dismissed by the court.

Background of the Case

• An FIR was registered to the PS Manihari on 25.10.1988, wherein a minor girl was subjected to rape against her will or without her consent.
• It was alleged that the accused used to visit the victim’s house often and used to have long talks and crack jokes with her.
• The accused often stated, “he would marry her” despite them being of a different caste and the girl being minor.
• The accused used to make seductive gestures and actions which made the girl uncomfortable, for the same, the girl even contented the Bhabhi of the accused and in response, Bhabhi said, “She will restrain him”.
• The accused still didn’t stop doing the same and continued with the gestures.
• The accused used to persuade her daily into having sexual affairs with him and one day she yielded to those persuasions when the accused forcefully raped her by promising her to marry her, to which the victim agreed.
• The sexual intercourse continued over time and one day she came to know of the fact of her being pregnant.
• The victim told the same to her parents and with the help of elders and the panchayat, it was decided the accused will marry her.
• The marriage proposal was opposed by the father of the accused and he with others abducted the accused and sent him away to prevent the marriage.
• The victim filed the FIR in response to sending away of the accused, after a long time of the alleged act of rape, as now the basis on which she provided her consent was falling apart and it was deemed to her as consent taken by a misconception.
• The trial court looking into the facts and concluding that the girl was a minor i.e. below 16 years of age and the consent was taken by the misconception of marrying her, convicted the accused and sentenced rigorous imprisonment of 10 years.
• The accused, being aggrieved by the sentence filed an appeal in the high court, which reduced the sentence from 10 years to 7 years but upheld the conviction of the trial court.
• The case was then presented in the apex court via means of the criminal appeal filed by the accused being aggrieved by the orders of both trial and high court.

Facts of the Case

• The girl was a minor when she was raped by taking her consent by a misconception.
• The accused often made contentions to marry her even though they were of different castes.
• After the first encounter, the girl submitted to the accused and continued with further intercourse, believing that the accused will marry her.
• An exaggeration was made in the court, where the victim contented, the first instance took place in the wheat fields of her father at midnight, which when carefully analyzed by the court were dismissed and were not kept for consideration on basis of other cross-examinations.
• The victim was six months pregnant when the FIR was registered.
• The father of the accused was alleged to abduct and send him away to prevent the marriage from happening as he was against it.
• Through the medical examinations, it was proved that the girl was a minor and was aged less than 16 years at the time of first intercourse.
• A 14 years old girl was born out of the event who is currently living with the married brother of the victim.
• It has been 2 years, the accused is in prison and both the parties are now married.

Issues Raised

• Whether it is a case of passive submission in the face of allurements made by the accused or a conscious decision on the part of the victim being fully aware of the nature and consequences of the act she indulging in? 

• Whether the implied consent given by the victim was the result of a misconception created in her mind as to the intention of the accused to marry her?

• Whether the promise to marry was false to the knowledge and belief of the appellant and he never intended to act upon it?

Arguments of the Petitioner

• The appellant was ready to marry and never backed out of the promise.
• The victim gave consent for the sexual affair based on the fact that she trusted the appellant won’t break the promise and marry her.
• The victim used to have long talks with the appellant even though she didn’t like his seductive gestures and jokes.
• The victim used to accompany the appellant whenever and wherever he wanted.

Arguments by the Respondents

• The appellant was abducted by his father and other elderly to avoid the marriage.
• There was consent by misconception on behalf of the appellant, as he didn’t keep up with the promise of marrying the victim.

Related Provisions

“Section 90 in The Indian Penal Code

90. Consent known to be given under fear or misconception.—A consent is not such consent as it intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context if the consent is given by a person who is under twelve years of age.”[1]

“Section 375 in The Indian Penal Code

1[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT

(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. COMMENTS Absence of injury on the male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value, also the absence of any injury on the male organ of accused is no valid ground for the innocence of accused, conviction under section 375 I.P.C. proper; Mohd. Zuber Noor Mohammed Changwadia v. the State of Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence of spermatozoa cannot cast a doubt on the correct­ness of the prosecution case; Prithi Chand v. State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.”[2]

“Section 90 in The Indian Evidence Act, 1872

90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.—Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This Explanation applies also to section 81. Illustrations

(a) A has owned the landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper. STATE AMENDMENTS Uttar Pradesh.—(a) Renumber section 90 as sub-section (1) thereof;

(b) in sub-section (1) as so renumbered, for the words “thirty years”, substitute the words “twenty years”;

(c) after sub-section (1) as so renumbered, insert the following sub-section, namely:— “(2) Where any such document as is referred to in sub-section (1) was registered by the law relating to registration of documents and a duly certified copy thereof is produced, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, it is that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested”.

(d) After section 90, insert the following section, namely:— “90A. (1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a Court of Justice, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.

(2) This presumption shall not be made in respect of any document which is the basis of a suitor of defence or is relied upon in the plaint or written statement.” The Explanation to sub-section (1) of section 90 will also apply to this section; [Vide Uttar Pradesh Act 24 of 1954, sec. 2 and Sch. (w.e.f. 30-11-1954).] COMMENTS Presumption Assuming that the document is more than thirty years old and comes from proper custody, there would be no presumption that contents of the same are true; Mohiuddin v. President, Municipal Committee, Khargone, AIR 1993 MP 5.”[3]

“Article 142 in The Constitution Of India 1949

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made on this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order to secure the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”[4]

Judgment

• The appeal was allowed and the conviction by the trial court and the high court were set aside in the apex court after analyzing all the details and considering other evidence.
• An offer was made by the side of the appellant to provide compensation of an amount of ₹ 50,000 to the victim which was accepted by the court as she had gone through a trauma. The same amount was considered sufficient based on, the accused was in prison for the past 2 years, both the accused and victim were married and the accused/appellant had two children and they belonged to a backward class though they had agricultural lands.
• The said amount was directed through a DD, ₹ 10,000 was directed in the account of the victim and ₹ 40,000 for the benefit of the 14 years old girl for her benefit and to be transferred to a bank account opened in her name upon attainment of majority age.
• Clarifications for consent under S 90 of the Indian Penal Code were given.
• The issues were subdued by the hon’ble judges with their explanations as the victim was well aware they are of different caste’s yet she gave her consent for intercourse based on the promise of marriage.
• She was believed to be making a conscious decision at all times as proved by her evidence in this case.
• It wasn’t faking the promise but breach of promise as the father and others sent him away as they were against the marriage but the appellant was ready to marry the victim.

Conclusion

The victim was offered a compensational amount both for her and her daughter born out of the act. The appellant was acquitted, as the conviction by the trial court and the high court was set aside.

The evidence and statement provided by the victim were carefully analyzed by the court and reached the conclusions which helped in proving the conscious decision making of the victim and clarified the doubts between the false promise made by the appellant and the breach of promise.

The concept of consent under S 90 of the Indian Penal Code was clarified and its implication on various other sections like S 375 of the Indian Penal Code and how the case differs when it falls under S 114-A of the Indian Evidence Act.

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