Monday, in the matter of Maheshwar Tigga Vs State of Jharkhand, the bench comprising Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee said that misconception can not spread over years. As the bench observed that the prosecutrix woman stayed fifteen days with the appellant and later filed the case seven days prior to the marriage of appellant with another girl.
“The prosecutrix had even gone and resided in the house of the appellant. 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.”
The appellant was convicted under IPC sections 376, 323 and 341 by the trial court. The prosecutrix woman accused appellant of “outraging her modesty at the point of a knife”.
“that four years ago the appellant had outraged her modesty at the point of a knife. He had since been promising to marry her and on that pretext continued to establish physical relations with her as husband and wife. She had also stayed at his house for fifteen days during which also he established physical relations with her.”
The bench also observed that the parents of the woman were aware of relationship between the woman and the appellant.
“The parents of the prosecutrix, .. both acknowledged awareness of the relationship between appellant and the prosecutrix and that they were informed after the first occurrence itself but offer no explanation why they did not report the matter to the police immediately.”
“The prosecutrix acknowledged that an engagement ceremony had also been performed. She further deposed that the marriage between them could not be solemnised because they belonged to different religions.”, the bench noted.
The court tried to find the answer as to whether the consensual physical relationship was under any misconception. To this, the bench stated that the only misconception is that there was “no consent”, further said that the misconception can not spread over years.
“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.”
The bench also noted quarrels in woman family due to relationship with the appellant.
“The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.”
The bench observed that appellant (man) had not made false promise of marriage. The woman was aware of the obstacles in their marriage.
“the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs.”
The bench also stated that, the marriage was not solemnised due to the societal reasons.
“An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed.”
The bench also noted the good behaviour of the appellant’s (man) family behaviour.
“The prosecutrix in her letters acknowledged that the appellant’s family was always very nice to her.”
The bench acquitted the man from the charges.
“In conclusion, we find the conviction of the appellant to be unsustainable and set aside the same. The appellant is acquitted.”