2. The appellant assails his conviction under sections 376, 323 and 341 of the Indian Penal Code (in short, “IPC”) sentencing him to seven years, one year and one month respectively with fine and a default stipulation.

4. The Additional Judicial Commissioner, Ranchi   on consideration of the evidence convicted the appellant holding that the prosecutrix was 14 years of age when the appellant had first committed rape upon her at the point of a knife. He did not abide by his promise to marry her.  The High Court dismissing the appeal opined that the letters written by the appellant to the prosecutrix, their photographs together, and the statement of the appellant recorded under Section 313 Cr.P.C. were sufficient to sustain the conviction.

9. It   stands   well   settled   that   circumstances   not   put   to   an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration.  In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not   only   to   furnish   his   defence,   but   also   to   explain   the incriminating   circumstances   against   him.   A   probable   defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. This Court, time and again, has emphasised the importance of putting allrelevant questions to an accused under Section 313 Cr.P.C. In Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was held to an essential part of a fair trial observing as follows:

“5……The questioning of the accused under Section 313 CrPC   was   done   in   the   most   unsatisfactory   manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing   in   the   evidence   against   him.   At   least,   the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was   given   to   the   accused   in   the   instant   case.   We deprecate   the   practice   of   putting   the   entire   evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence…”

10. The appellant belonged to the Scheduled Tribe while the prosecutrix belonged to the Christian community. They professed different   religious   beliefs   in   a   traditional   society.     They   both resided in the same village Basjadi and were known to each other.  The nature and manner of allegations, coupled with the letters exchanged between them, marked as Exhibits during the trial, make it apparent that their love for each other grew and matured over a sufficient period of time.  They were both smitten by each other and passions of youth ruled over their minds and emotions.  The physical relations that followed was not isolated or   sporadic   in   nature,   but   regular   over   the   years.     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 entire genesis of the case is in serious doubt in view of the admission   of   the   prosecutrix   in   cross   examination   that   no incident had occurred on 09.04.1999.

13. The   question   for   our   consideration   is   whether   the prosecutrix   consented   to   the   physical   relationship   under   any misconception of fact with regard to the promise of marriage by the   appellant   or   was   her   consent   based   on   a   fraudulent misrepresentation   of   marriage   which   the   appellant   never intended to keep since the very inception of the relationship.  If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out.  It is not possible to hold   in   the   nature   of   evidence   on   record   that   the   appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law.  In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix   that   at   the   time   of   the   first   alleged   offence   her consent was obtained under fear of injury. 

14.  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 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.

18. We have given our thoughtful consideration to the facts and circumstances  of  the   present  case and   are  of  the  considered opinion that 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.       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. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her.   The prosecutrix in her letters acknowledged that the appellant’s family was always very nice to her.

19. The   appellant   has   been   acquitted   of   the   charge   under Sections   420   and   504   I.P.C.     No   appeal   has   been   preferred against the acquittal.  There is no medical evidence on record to sustain the conviction under Section 323 I.P.C.   No offence is made   out   against   the   appellant   under   Section   341   I.P.C. considering the statement of prosecutrix that she had gone to live with the appellant for 15 days of her own volition.

20. We have no hesitation in concluding that the consent of the prosecutrix   was   but   a   conscious   and   deliberated   choice,   as distinct   from   an   involuntary   action   or   denial   and   which opportunity was available to her, because of her deep­seated love for the appellant leading her to willingly permit him liberties with her   body,   which   according   to   normal   human   behaviour   are permitted only to a person with whom one is deeply in love.  The observations   in   this   regard   in  Uday (supra)   are   considered relevant:

“25…It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances   the   promise   loses   all   significance, particularly when they are overcome with emotions and passion   and   find   themselves   in   situations   and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship.  This is what appears to have happened in this case as well, and the   prosecutrix   willingly   consented   to   having   sexual intercourse with the appellant with whom she was deeply in   love,   not   because   he   promised   to   marry   her,   but because she also desired it.   In these circumstances it would   be   very   difficult   to   impute   to   the   appellant knowledge   that   the   prosecutrix   had   consented   in consequence of a misconception of fact arising from his promise.   In   any   event,   it   was   not   possible   for   the appellant   to   know   what   was   in   the   mind   of   the prosecutrix   when   she   consented,   because   there   were more reasons than one for her to consent.”

21. In conclusion, we find the conviction of the appellant to be unsustainable   and   set   aside   the   same. The appellant is acquitted. He is directed to be set at liberty forthwith unless wanted in any other case.  The appeal is allowed.