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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2322 of 2010

Deepak Gulati                                …Appellant

Versus

State of Haryana          …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and order  dated 28.1.2010, passed by the Punjab & Haryana High  

Court at Chandigarh in CRA No. 960-SB of 1998 by way of which,  

the High Court has affirmed the judgment and order of the Additional  

Sessions Judge, Karnal dated 13.11.1998 passed in Sessions Case No.  

7  of  1995,  by way of  which the appellant  stood convicted for  the  

offences punishable under Sections 365 and 376 of the Indian Penal  

Code,  1860 (hereinafter  referred to  as  the `IPC’)  and sentenced  to  

undergo rigorous imprisonment for a period of three years, alongwith

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a  fine  of  Rs.2,000/-  under  Section  365  IPC;  and  rigorous  

imprisonment  for  a  period  of  seven  years,  alongwith  a  fine  of  

Rs.5,000/- under Section 376 IPC.  Both the sentences were ordered to  

run concurrently.   

2. Facts and circumstances giving rise to this appeal are that:

A. The appellant and Geeta, prosecutrix, 19 years of age, student  

of 10+2 in Government Girls Senior Secondary School, Karnal, had  

known each other for some time. Appellant had been meeting her in  

front of her school in an attempt to develop intimate relations with  

her.  On  10.5.1995,  the  appellant  induced  her  to  go  with  him  to  

Kurukshetra, to get married and she agreed.  En route Kurukshetra  

from Karnal, the appellant took her to Karna lake (Karnal), and had  

sexual  intercourse  with  her  against  her  wishes,  behind  bushes.  

Thereafter,  the appellant  took her  to  Kurukshetra,   stayed with his  

relatives for 3-4 days and committed rape upon her.   

B. The prosecutrix was thrown out after 4 days by the appellant.  

She then went to one of the hostels in Kurukshetra University, and  

stayed  there  for  a  few  days.   The  warden  of  the  hostel  became  

suspicious and thus, questioned the prosecutrix.   The prosecutrix thus  

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narrated  the  incident  to  the  warden,  who  informed  her  father.  

Meanwhile, the prosecutrix left the hostel and went to a temple, where  

she once again met the appellant.  Here, the appellant convinced her to  

accompany him to Ambala to get married. When they reached the bus  

stand, they found her father present there alongwith the police. The  

appellant was apprehended.   

C. Baldev  Raj  Soni,  father  of  the  prosecutrix,  had  lodged  a  

complaint on 16.5.1995 under Sections 365 and 366 IPC, which was  

later converted to one under Sections 365 and 376 IPC.  

D. The  prosecutrix  was  medically  examined  on  17.5.1995.  Her  

statement was recorded by the Magistrate under Section 164 of the  

Code  of  Criminal  Procedure,  1973  (hereinafter  referred  to  as  the  

`Cr.P.C.’)  on  20.5.1995.  After  completing  the  investigation,  a  

chargesheet  was  filed  against  the  appellant,  and  in  view  of  the  

material  on record,  charges  under  Sections  365 and 376 IPC were  

framed against him by the Sessions Court, vide order dated 3.5.1996.

 E. The prosecution examined 13 witnesses in support of its case  

and in view thereof, the Sessions Court convicted the appellant under  

Sections 365/376 IPC, vide judgment and order dated 13.11.1998 and  

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awarded him the sentence for the said charges as has been referred to  

hereinabove.

F. Aggrieved, the appellant preferred Criminal Appeal No. 960-

SB of 1998 (D & M) in the High Court of Punjab and Haryana at  

Chandigarh,  which stood dismissed by the impugned judgment and  

order dated 18.11.1998.  

Hence, this appeal.  

3. None present for the appellant.  In view thereof, the Court has  

examined the material on record and gone through both the impugned  

judgments with the help of Shri Kamal Mohan Gupta, learned counsel  

appearing on behalf of the State.   

4. The statement  of  the prosecutrix (PW.7) was recorded under  

Section 164 Cr.P.C. on 20.5.1995, wherein she has clearly stated that  

she  had gone alongwith  the  appellant  to  get  married  and for  such  

purpose, she had also obtained a certificate from her school as proof  

of her age.  On the said date i.e. 10.5.1995, as the appellant had been  

unable to reach the pre-decided place, the prosecutrix had telephoned  

him on the number provided by him.  She has further deposed that the  

appellant had asked her to have a physical relationship with him, but  

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that she had not agreed to do so before marriage. When they reached  

Kurukshetra  and  stayed  with  his  relatives  there,  the  appellant  had  

sexual intercourse with her for 3 days.  On the 4th day, she was thrown  

out of the house by the appellant and thus, she had  gone to the Girls  

Hostel in  Kurukshetra University, where she had stayed under the  

pretext of getting admitted to the university.  However, the university  

personnel  became suspicious,  and after  making enquiries  from her,  

they telephoned  her house.  She then left the university and had gone  

to  the  Birla  Mandir  at  Kurukshetra,  where  she  had  met  appellant.  

Here he lured her once again, and thus, she had agreed to accompany  

him to Ambala to get married in court there.  However, when they  

reached the old bus stand Kurukshetra, she had found her father and  

several police officials present there, and thereafter the appellant had  

been arrested and the prosecutrix was taken to Karnal.   

5. The prosecutrix was examined in court as PW.7 on 5.7.1996,  

wherein she deposed that on 10.5.1995, as per the agreed plan, she  

had left her house to go alongwith the appellant to Kurukshetra to get  

married in court.  However, she had not found the appellant at the  

place decided upon by them, and had thus telephoned him  at  the  

number  provided to  her  by  him.   She  was  then informed that  the  

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appellant had already left for Kurukshetra and hence, waited for him  

from 12.00 noon till 1.30 p.m. When he arrived, she went alongwith  

the appellant at 2.30 p.m. to Karna lake (Karnal) by bus.  Here, she  

was taken into some bushes behind the restaurant at Karna lake, and  

thereafter raped by the appellant. At the said time, she neither raised  

any objection,  nor  any hue  and cry.  The  prosecutrix  did  not  even  

mention the said incident to any person, despite going to Kurukshetra  

and staying there for 3-4 days.  She raised no grievance in this regard  

before any person or authority at the bus stand.  She continued to stay  

with the appellant in the house of his relatives and was raped there.  

The appellant continued to postpone their marriage on one pretext or  

the other. Thereafter, she was thrown out of the house. She thus went  

and  stayed  in  the  University  hostel  and  on  being  questioned,  she  

disclosed details regarding her treatment to the warden, who informed  

her family. After this, she went to the Birla Mandir at Kurukshetra,  

and  here  she  met  the  appellant  once  again.  The  appellant  made  

another  attempt  to  convince her  to  go  to  Ambala  with him to  get  

married in  court there. Upon reaching the old Bus Stand, she found  

her  brother  Rajinder  there alongwith a  police party,  who had been  

accompanying them in a jeep to Karnal.   

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6. In  his  statement,  Baldev  Raj  Soni  (PW.8),  father  of  the  

prosecutrix has deposed that on 10.5.1995, her daughter Geeta did not  

come home. He thus lodged a complaint and contacted Rajni, a friend  

of Geeta, who told him that the appellant Deepak had taken her to  

Kurukshetra.  On 17.5.1995,  the  police  had gone alongwith  him to  

Kurukshetra to locate  Geeta,  where they had found the prosecutrix  

and the appellant sitting at the old bus stand in Kurukshetra. Both of  

them had been caught hold of by them, and were brought to Karnal.   

7. Smt. P. Kant Vashisht (PW.10), Warden of Saraswati Bhawan  

Kurukshetra  University,  though  did  not  support  the  case  of  the  

prosecution, and was declared hostile, has deposed in her examination  

in chief that Geeta, prosecutrix, had been  brought to her office by one  

person, namely, Shri Ashwini, student of the engineering college, and  

that he had left Geeta in her office, stating that he would inform her  

parents. After sometime, her brother had come and taken her away.  

She was cross-examined by the prosecution, and she has deposed that  

the  prosecutrix  had  in  fact  stayed  in  the  hostel  without  any  

authority/permission. One Nirmla,  attendant therein had allowed her  

to stay in the hostel without any such requisite permission.   

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8. Smt. Krishana Chawla (PW.3), Lecturer of Political Science in  

Government  Senior  Secondary  School,  Karnal,  has  deposed  before  

court, and has proved the school register to show that the date of birth  

of the  prosecutrix was 26.6.1976.

9. Dr.  (Mrs.)  Amarjeet  Wadhwa  (PW.11),  Medical  Officer,  

Government  Hospital,  Karnal,  who  examined  the  prosecutrix  on  

17.5.1995, has deposed that  the prosecutrix  had indulged in sexual  

intercourse and was habitual to the same.   

10. Shri Bhagwan Chand (PW.12), ASI, the Investigating Officer,  

has  deposed that  after  recording the statement  of  the father  of  the  

prosecutrix on 17.5.1995, he had taken her father to Kurukshetra to  

search for the prosecutrix alongwith one constable.  At about 12.00  

noon, when they reached the old bus stand at Kurukshetra, the father  

of the prosecutrix noticed Geeta, sitting with the appellant Deepak in  

one  corner  of  the  bus  stand,  and thereafter,  they had apprehended  

them. He has also disposed that he had recorded the statement of the  

prosecutrix.    

11. There  exist  in  the  statements  of  the  witnesses  material  

contradictions,  improvements  and  embellishments.   In  the  cross-

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examination, Baldev Raj Soni (PW.8)   has deposed that he had gone  

to Kurukshetra with his relatives i.e. Ashwini Kumar and Surinder,  

and has stated that his son Rajinder was not with him at such time.  He  

has  not  deposed  that  he  had  received any telephone  call  from the  

warden  of  any  hostel,  as  has  been  suggested  by  the  prosecutrix.  

Furthermore,  the  prosecutrix  in  her  statement  under  Section  164  

Cr.P.C.,  has not  mentioned the incident  involving her  indulging in  

sexual  contact  with  the  appellant  at  the  Karna  lake  at  Karnal.  

Bhagwan Chand (PW.12)  has not mentioned that any relatives of the  

prosecutrix had accompanied them while they were traveling  from  

Kurukshetra to Karnal.    

12. The FIR in the present case has been registered under Sections  

365  and  366  IPC,  by  Baldev  Raj  Soni  (PW.8),  father  of  the  

prosecutrix, naming several persons, including the appellant, accusing  

them of  enticing  his  daughter  and  wrongfully  confining  her  at  an  

unknown place.  Thus, he has expressed his apprehension with respect  

to danger to the life of his daughter.

13. Admittedly,  the  prosecutrix  has  never  raised  any  grievance  

before any person at any stage. In fact, she seems to have submitted to  

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the will of the appellant, possibly in lieu of his promise to marry her. .  

Thus, a question arises with respect to whether, in light of the facts  

and circumstances of the present case, the appellant had an intention  

to  deceive  her  from  the  very  beginning  when  he  had  asked  the  

prosecutrix to leave for Kurukshetra with him from Karnal.   

14. The undisputed facts of the case are as under:

I. The prosecutrix  was 19 years  of  age at  the time of the said  

incident.

II. She  had inclination  towards  the appellant,  and had willingly  

gone with him to Kurukshetra  to get married.  

III. The appellant had been giving her assurance of the fact that he  

would get married to her.

IV. The  physical  relationship  between  the  parties  had  clearly  

developed  with  the  consent  of  the  prosecutrix,  as  there  was  

neither  a  case  of  any  resistance,  nor  had  she  raised  any  

complaint anywhere at any time despite the fact that she had  

been  living  with  the  appellant  for  several  days,  and  had  

travelled with him from one place to another.  

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V. Even after  leaving the  hostel  of  Kurukshetra  University,  she  

agreed and proceeded to go with the appellant to Ambala, to get  

married to him there.

15. Section 114-A of the Indian Evidence Act,  1872 (hereinafter  

referred to as the ‘Act 1872’) provides, that if the prosecutrix deposes  

that she did not give her consent, then the Court shall presume that  

she did not in fact, give such consent.  The facts of the instant case  

do not warrant that the provisions of Section 114-A of the Act 1872  

be pressed into service.  Hence, the sole question involved herein is  

whether  her  consent  had  been  obtained  on  the  false  promise  of  

marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have  

to be taken into consideration, alongwith the provisions of Section 90  

of the Act 1872. Section 90 of the Act 1872 provides, that any consent  

given under a misconception of fact, would not be considered as valid  

consent, so far as the provisions of Section 375 IPC are concerned,  

and  thus,  such  a  physical  relationship  would  tantamount  to  

committing rape.   

16. This Court considered the issue involved herein at length in the  

case of  Uday v. State of Karnataka,  AIR 2003 SC 1639;  Deelip  

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Singh @ Dilip Kumar  v. State of Bihar, AIR 2005 SC 203;  Yedla  

Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and  Pradeep  

Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059,  and  

came to the conclusion that in the event that  the accused’s promise is  

not false and has not been made with the sole intention to seduce the  

prosecutrix to indulge in sexual acts, such an act(s)  would not amount  

to rape. Thus, the same would only hold that where the prosecutrix,  

under a misconception of fact to the extent that the accused is  likely  

to marry her,  submits to the lust of the accused, such a fraudulent act  

cannot be said to be consensual, so far as the offence of the accused is  

concerned.   

17. Rape is the most morally and physically reprehensible crime in  

a society,  as it  is  an assault  on the body, mind and privacy of the  

victim. While a murderer destroys the physical frame of the victim, a  

rapist  degrades  and  defiles  the  soul  of  a  helpless  female.   Rape  

reduces a woman to an animal, as it shakes the very core of her life.  

By no means can a rape victim be called an accomplice. Rape leaves a  

permanent scar on the life of the victim, and therefore a rape victim is  

placed on a higher pedestal than an injured witness. Rape is a crime  

against the entire society and violates the human rights of the victim.  

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Being the most hated crime, rape tantamounts to a serious blow to the  

supreme  honour  of  a  woman,  and  offends  both,  her  esteem  and  

dignity.  It  causes  psychological  and  physical  harm  to  the  victim,  

leaving upon her indelible marks.  

18. Consent  may  be  express  or  implied,  coerced  or  misguided,  

obtained  willingly  or  through  deceit.  Consent  is  an  act  of  reason,  

accompanied by  deliberation, the mind weighing, as in a balance, the  

good and evil on each side.  There is a clear distinction between rape  

and  consensual  sex  and  in  a  case  like  this,  the  court  must  very  

carefully examine whether the accused had actually wanted to marry  

the victim, or had mala fide motives, and had made a false promise to  

this effect only to satisfy his lust, as the latter falls within the ambit of  

cheating or deception.  There is a distinction between the mere breach  

of a promise, and not fulfilling a false promise. Thus, the court must  

examine whether there was made, at an early stage a false promise of  

marriage by the accused; and whether the consent involved was given  

after  wholly,  understanding the  nature and consequences  of  sexual  

indulgence.  There may be a case where the prosecutrix agrees to have  

sexual intercourse on account of her love and passion for the accused,  

and not solely on account of mis-representation made to her by the  

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accused, or where an accused on account of circumstances which he  

could  not  have  foreseen,  or  which  were  beyond  his  control,  was  

unable to marry her,  despite having every intention to do so. Such  

cases must be treated differently.  An accused can be convicted for  

rape only if the court reaches a conclusion that the intention of the  

accused was mala fide, and that he had clandestine motives.  

19. In Deelip Singh (supra), it has been observed as under:   

“20. The factors set out in the first part of Section 90 are   from the point of view of the victim. The second part of   Section 90 enacts the corresponding provision from the   point  of  view  of  the  accused.  It  envisages  that  the   accused too has knowledge or has reason to believe that   the consent was given by the victim in consequence of   fear of injury or misconception of fact. Thus, the second   part  lays  emphasis  on  the  knowledge  or  reasonable   belief of the person who obtains the tainted consent. The   requirements  of  both  the  parts  should  be  cumulatively   satisfied. In other words, the court has to see whether the   person  giving  the  consent  had  given  it  under  fear  of   injury or misconception of fact and the court should also   be satisfied that the person doing the act i.e. the alleged   offender, is conscious of the fact or should have reason   to  think  that  but  for  the  fear  or  misconception,  the   consent would not have been given. This is the scheme of   Section 90 which is couched in negative terminology.”

20. This Court, while deciding  Pradeep Kumar Verma (Supra),  

placed  reliance  upon  the  judgment  of  the  Madras  High  Court  

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delivered in  N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has  

been observed:   

“We  are  of  opinion  that  the  expression  “under  a   misconception  of  fact” is  broad enough to include  all   cases  where  the  consent  is  obtained  by   misrepresentation;  the  misrepresentation  should  be   regarded as leading to a misconception of the facts with   reference to which the consent is given. In Section 3 of   the Evidence Act Illustration (d) states that a person has   a certain intention is treated as a fact. So, here the fact   about which the second and third prosecution witnesses   were made to entertain a misconception was the fact that   the second accused intended to get the girl married……..   “thus  …  if  the  consent  of  the  person  from  whose   possession  the  girl  is  taken  is  obtained  by  fraud,  the   taking is deemed to be against the will of such a person”.   … Although in cases of contracts a consent obtained by   coercion or fraud is only voidable by the party affected   by it, the effect of Section 90 IPC is that such consent   cannot, under the criminal law, be availed of to justify   what would otherwise be an offence.”

21. Hence, it is evident that there must be adequate  evidence to  

show that at the relevant time, i.e. at initial stage itself, the accused  

had no intention  whatsoever,  of  keeping his  promise  to  marry  the  

victim. There may, of course, be circumstances, when a person having  

the best of intentions is unable to marry the victim owing to various  

unavoidable circumstances.  The “failure to keep a promise made with  

respect to a future uncertain date, due to reasons that are not very clear  

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from  the  evidence  available,  does  not  always  amount  to  

misconception of fact.  In order to come within the meaning of the  

term  misconception  of  fact,  the  fact  must  have  an  immediate  

relevance.”  Section  90  IPC  cannot  be  called  into  aid  in  such  a  

situation,  to pardon the act of a girl in entirety, and fasten criminal  

liability on the other,  unless the court is assured of the fact that  

from the very beginning, the accused had never really intended to  

marry her.

22. The instant case is factually very similar to the case of  Uday  

(Supra), wherein the following facts were found to exist:

I. The  prosecutrix  was  19  years  of  age  and  had  adequate  

intelligence  and  maturity  to  understand  the  significance  and  

morality associated with the act she was consenting to.

II. She was conscious of the fact that her marriage may not take  

place  owing  to  various  considerations,  including  the  caste  

factor.

III. It was difficult to impute to the accused,  knowledge of the fact  

that  the  prosecutrix  had  consented  as  a  consequence  of  a  

misconception  of  fact,  that  had  arisen  from  his  promise  to  

marry her.

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IV. There was no evidence to prove conclusively, that the appellant  

had never intended to marry the prosecutrix.   

23. To conclude, the prosecutrix had left her home voluntarily, of  

her own free will to get married to the appellant.  She was 19 years of  

age at the relevant time and was, hence, capable of understanding the  

complications and issues surrounding her marriage to the appellant.  

According to the version of events provided by her, the prosecutrix  

had called the appellant on a number given to her by him, to ask him  

why he had not met her at the place that had been pre-decided by  

them. She also waited for him for a long time, and when he finally  

arrived she went with him to the Karna lake where they indulged in  

sexual intercourse. She did not raise any objection at this stage and  

made  no  complaints  to  any  one.   Thereafter,  she  also  went  to  

Kurukshetra  with the appellant,  where  she lived with his  relatives.  

Here  to,  the  prosecutrix  voluntarily  became  intimate  with  the  

appellant.   She then, for some reason, went to live in the hostel at  

Kurukshetra  University  illegally,  and once again came into contact  

with  the  appellant  at  the  Birla  Mandir.   Thereafter,  she  even  

proceeded with the appellant to the old bus-stand in Kurukshetra, to  

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leave for Ambala so that the two of them could get married in court at  

Ambala. However, here they were apprehended by the police.   

24. If  the prosecutrix  was  in  fact  going to Ambala to marry the  

appellant, as stands fully established from the evidence on record, we  

fail to understand on what basis the allegation of “false promise of  

marriage”  has  been  raised  by  the  prosecutrix.  We  also  fail  to  

comprehend the circumstances in which a charge of deceit/rape can be  

leveled  against  the  appellant,  in  light  of  the  afore-mentioned  fact  

situation.  

25. In view of the above, we are of the considered opinion that the  

appellant,  who  has  already  served  more  than  3  years  sentence,  is  

entitled to the benefit of doubt. Therefore, the appeal succeeds and is  

allowed. His conviction and sentences awarded by the courts below  

are set aside. The appellant is on bail. His bail bonds stand discharged.

………………………J. (Dr. B.S. CHAUHAN)

………………………J. (DIPAK MISRA)

New Delhi, May 20, 2013  

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