SYMBIOSIS LAW SCHOOL, PUNE

INDIAN PENAL CODE

‘IRAC’
DEELIP SINGH @DILIP KUMAR VS. THE STATE OF BIHAR
INTERNAL ASSIGNMENT -1

Name Muskan Jain

PRN 23010122003

Year 1st Year, Semester 1

Course LL.B.

SUBMITTED TO: Prof. S.M. Aamir Ali

CASE DETAILS
 CASE NO. – Appeal (crl.) 44 of 2004

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 DATE OF JUDGEMENT- 03/11/2004

 APPELLANTS- Deelip Singh @ Dilip Kumar
 RESPONDENTS- State of Bihar
 BENCH- P. VENKATARAMA REDDI & P.P. NAOLEKAR
 COURT- Hon’ble Supreme Court of India

FACTS OF THE CASE

 The victim girl filed a complaint to the police on 29/11/1988 of rape on the accused.
The victim girl was 6 months pregnant when the FIR was filed.
 According to the victim girl's account she was neighbours with the accused and they
both fell in love. One day the charged forcefully raped her and later reassured her by
saying that he would marry her.
 She reportedly gave in to the accused request for sex owing to his promise to marry
her and continued to have sex with him on several occasions.
 After she became pregnant, the intimacy continued much to the surprise of the parents
and other relatives who thought the accused would wed the girl.
 The accused refused to marry the girl and his father had to take him out of the village
to stop the proposal. After waiting a while, she was forced to submit a complaint after
the father's attempts to prove their marital connection were unsuccessful.
 The prosecution adduced evidence in the form of a school certificate and a medical
expert's opinion to establish that by the date of the commission of the criminal act, the
victim girl was aged less than 16 years in which case her consent became immaterial.
It is on this aspect the attention was focussed more by the prosecution.
 On November 28, 1988, the victim girl was transported to CAS, Sadar Hospital,
Katihar, for a medical evaluation. She was six months pregnant at the time of the
checkup, according to the doctor who evaluated her together with other medical
professionals. She was sent for a medical exam primarily to determine her age which
was somewhere around 16-17 years.
 The trial court found the girl to be a minor—under the age of 16—and that the
consent was obtained under the false impression of marrying her. As a result, it found
the accused guilty and sentenced him to a severe 10-year prison time.

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 Challenged by the punishment, the accused filed an appeal in the high court, reducing
the term from 10 years to 7 years while upholding the trial court's verdict.
 The case was subsequently brought to the Supreme Court through a criminal appeal
that the accused filed after feeling wronged by the rulings of both the trial and high
courts.

ISSUES OF THE CASE

1. Was the victim girl less than 16 years of age on the date of the first sexual intercourse
which the appellant had committed?

2. Whether the appellant had sexual intercourse with the victim girl against her will, and
is guilty under clause first of section 375?

3. Whether the appellant had sexual intercourse with the victim girl without her consent,
and is guilty under the clause secondly of section 375?

4. Can sexual intercourse consent to which has been obtained by making a false promise
of marriage, be rape within the meaning of Section 375 of the Indian Penal Code, 1860??

RULE OF LAW
SECTION 90 - Consent known to be given under fear or misconception.
“A consent is not such a 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 - 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: —
1
SECTION 90, INDIAN PENAL CODE, 1860

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(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, by reason 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.” 2
SECTION 376 – PUNISHMENT FOR RAPE
“Whoever, except in the cases provided for by sub-section (2), commits rape shall
be punished with imprisonment of either description for a term which shall not be
less than seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine unless the women raped is his own wife
and is not under twelve years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend to two years or
with fine or with both: Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of imprisonment for a
term of less than seven years.” 3

Article 142 in The Constitution of India 1949

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 in 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 for the purpose of securing the attendance of any person, the discovery or

2
SECTION 375, INDIAN PENAL CODE
3
SECTION 376, INDIAN PENAL CODE

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production of any documents, or the investigation or punishment of any contempt of

itself. 4

ANALYSIS OF THE CASE

1) The key issue is whether the accused engaged in non-consensual sexual activity with
the victim girl without her will. Without doing a careful study, the trial court accepted
her explanation, and the High Court agreed. FIR version of forcible sexual intercourse
was not put forward in the court but the victim tried to build her plea by stating the
incidents that happened in her father's wheat field. She also said that she was
pregnant, also stating that later the assured was ready to marry her through ' court
marriage '. In particular, the victim did not originally disclose any instances of violent
rape to the authorities because it was not included in her initial complaint. Her claim
that a rape took place in a wheat field at midnight seems uncertain and throughout
cross-examination, she contradicts herself. She went on to say that during this late-
night event when she started yelling, the accused put a gag over her mouth to make
her stop, which only served to increase doubt. Her claim, made during cross-
examination, that she visited the accused's home to express her disapproval of his
behaviour is another thing that damages her credibility. It doesn't make sense that
someone would be hesitant to risk sexual assault by spending the night with the
accused. Her allegation of non-consensual intercourse despite resistance is further
called into question by the fact that she admitted the accused had extended chats with
her that were known to her family. The most significant thing is that her court
evidence deviates from her first FIR statement, in which she specifically emphasized
"surrendering before him" because of his marriage promises. Her account of the initial
rape is riddled with contradictions, embellishments, and exaggerations, which
undermines the trial court's determination that it occurred under duress. The accused's
marriage pledges should not be trusted before PW12's account of the initial non-
consensual rape, it is imperative to emphasize at this time. As a result, the trial court's
first sexual intercourse without her will decision and subsequent marriage proposals
are unsupportable and will not be considered under section 375(1).

4
Article 142, The Constitution of India 1949

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2) The court was whether the accused had sexual intercourse with the victim against her
consent and if guilty can be held guilty section 375(2). The victim contended in the
court that the first sexual intercourse took place between them and which was against
her consent and thereafter she became a consenting party to it. Their court found that
the version of the victim in the court and the FIR were different. The Court was
unable to conclude and finally held that there was nothing to show that the sexual
intercourse took place against the will of the victim or was done forcibly. When the
charge of rape was sought to be levied against the appellant, he had obtained consent
to sexual intercourse by making a false promise of marriage as per the court such
consent is covered under the expression “misconception of fact” stated under Section
90.

“THERE IS A VERY FINE LINE BETWEEN WILL AND CONSENT WHICH IS MORE
OR LESS DEFINED UNDER SECTION 375 AND SECTION 90 OF IPC.”

3) The primary challenge at hand is determining the victim's age, which is critical in the
prosecution of the accused under Section 376 IPC for rape. The victim's date of birth
was listed as 4.2.1974, according to a school transfer document (Ext. P4) presented by
the prosecution. However, the legitimacy and reliable worth of the certificate were
denied. PW13 and PW15, two crucial witnesses, gave testimony relating to the
certificate. Both witnesses were unable to successfully verify the document because
PW13 was unable to recognize the signature and PW15 was unaware of it beforehand.
Due to ownership and validity issues, the defence contended that the certificate should
not be taken into consideration. Without it, the victim's age estimation is completely
based on PW14's medical examination, which estimates her age between 16 to 17
years. The clarity on the issue in the current case can be thoroughly understood after
analysing the definition of rape provided under Section 375 of IPC. As it is very clear,
every law can be interpreted in various manner, the act of the appellant can be held
under Section 376 for rape as he had sex with the victim after making a false promise
of marriage. These objections to the certificate's credibility throw doubt on the girl's

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age at the time of the alleged incident. The defence suggested relying on the higher
age estimate, which might have an effect on how Section 376 of the IPC defines the
offense. For all of the above-mentioned grounds, we believe that the finding that the
victim girl was under 16 at the time of the appellant's first sexual encounter cannot
stand. If so, Section 375's sixth clause -"with or without her consent, when she is
under 16 years of age", is not attracted.

4) A consent is not such a 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 a reason to believe, that the consent was
given in consequence of such fear or misconception; or Consent of an 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). The Court ruled
that “A promise to marry within the meaning of Section 90, needs to be clarified that
representation is deliberately made by the accused to elicit the consent of the victim
without having the intention to marry her, then it will vitiate the consent. The whole
'misconceptions of fact’ under section 90 was stressed by the division of bench of
the Calcutta High court in the case of Jayanti Rani panda5 which was approvingly
referred to in Uday case.6 If on the facts, it is established that at the inception of the
making the promise, the accused did not have any intention of marrying her and the
promise to marry made by him was merely a hoax, the accused forcibly raped her and
later consoled her saying that he will marry her. Both of them continued to have sex
with each other on several occasions on account of the promise made by the accused
to marry her. The consent ostensibly given by the victim will not be sufficient to save
accused within the ambit of Section 375(2)”. However, in the present case, the
Supreme Court found it to be a case of breach of promise and not false promise and
acquitted the appellant of the charge of rape under Section 376 of the I.P.C. by the
Supreme Court based on given facts and circumstances decided that because no
evidence gave rise to inference beyond reasonable doubt that the accused had no
intention to marry the victim and he made a false promise to his knowledge.
5
1984 Cri LJ 1535: (1983) 2 CHN 290 (Cal)
6
(2003) 4 SCC 46: 2003 SCC (Cri) 775: (2003) 2 Scale 329

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5) Though there is no evidence to establish beyond reasonable doubt that the appellant
made a false or fraudulent promise to marry, there can be no denial of the fact that the
appellant did commit breach of the promise to marry, for which the accused is prima
facie accountable for damages under civil law. When we apprised the appellant's
counsel of our prima facie view point on this aspect and elicited his response on
passing a suitable order in exercise of power vested in this Court under Article 142 of
the Constitution, the learned counsel took time to get instructions. The appellant is
prepared to pay a sum of Rs.50,000 by way of monetary compensation irrespective of
acquittal under Article 142. Though the said amount is not an adequate compensation,
we are not inclined to call upon the appellant to pay more for more than one reason:
firstly, the appellant has been in jail for about two years by now; secondly, we are
informed that the accused belongs to a backward class and his family is not affluent
though they have some agricultural lands; lastly, the incident took place about 15
years back and in the supervening period, the prosecutrix as well as the appellant
married and we are told that he has two children. In these circumstances, we accept
the offer of the appellant.

Conclusion :
This case is a perfect example of judges substituting their own views on policy as opposed to
applying the law, to the case at hand. It is clearly the view of the judges that in cases of
sexual intercourse, consent to which has been based on a false promise of marriage, injustice
is done to the prosecutrix and the accused has to be punished. This attitude of the judges can
easily be discerned from a close reading of the case and in particular is clearly exemplified by
the following passage in the judgment- “We cannot ignore the reprehensible conduct of the
appellant, who by promising to marry the victim woman, persuaded her to have sexual
relations and caused pregnancy. The act of the accused left behind her a trail of misery,
ignominy and trauma. The only solace is that she married subsequently. “While the attitude
of the judges might be justified in condemning the actions of the accused it does not allow
them to find a cause for penal action where none exists. In this regard it would be appropriate
to quote the observations of the Karnataka High Court in State of Karnataka v. Antoniades-
“The moral aspects of the case are entirely different because even if a court or a society
disproves of the conduct of the accused in a criminal court, it would not be permissible to
record a conviction unless the strict ingredients of law are satisfied.” In future cases which
come before the court on this question, the judiciary, keeping with the above observation,
should rectify the error made in Deelip and thereby decide this question correctly.

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