Maheshwar Tigga v. Jharkhand. CRL APPEAL 635/2020. SUPREME COURT OF INDIA passed on 28 September 2020.

Section 376 (punishment for rape)
Section 323 (causing simple hurt)
Section 341 (wrongful restraint)

Complaint in 1999.

4 years prior he outraged her modesty at knife point.
Then he promised to marry her and then forced himself on her. she also stayed at his place for 15 days as well.

Cheated her and now going to marry someone else.

"The letters written by the appellant to the prosecutrix as also those written by her to the appellant marked as Exhibits during trial, more than sufficiently established a deep love affair between them over a period of time."

"Prosecutrix was aged approximately 25 years as opined by
P.W.10, the Doctor who medically examined her on 14.04.1999" despite claiming to be a minor when the incident occurred.

Inconsistencies in statements. Not all questions put to him under section 313 CrPC.


"In our opinion, 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 prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix."


"Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest."



"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was
given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."


The author is a Delhi based lawyer.

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