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2004 DIGILAW 176 (ORI)

Umakanta Mishra v. State of Orissa

2004-04-02

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — This revision is directed against the order dated 26.11.2003 passed by the learned Assistant Sessions Judge, Anandapur in S.T. No. 4/41 of 2003 framing charge under Section 376 of the Penal Code. 2. From the impugned order it appears that the learned Assistant Sessions Judge, Anandapur in S.T. No. 4/41 of 2003 had initially framed charge for commission of offences under Sections 493 and 313 of the Penal Code. A petition was filed by the Addi¬tional Government Prosecutor praying for amendment of the charge by adding offence under Section 376 of the Penal Code. In the impugned order the trial Court after hearing the parties framed charge under Section 376 of the Penal Code. 3. The sessions case arises out of a complaint filed by one Bipin Bihari Satpathy. The allegation in the complaint is that the daughter of the complainant Pramila Satpathy is a minor girl. The petitioner has got a grocery shop in the village and the victim was going to the said grocery shop for purchase of grocery articles. Taking advantage of this, it is alleged that the petitioner told the victim that he is not pulling on well with his wife and intends to go in for a divorce and marry the victim. With the aforesaid promise it is alleged that he had physical relationship with the victim which resulted in pregnancy and thereafter did not agree to marry the victim. A Panchayat was called where the petitioner admitted his guilt and promised to take the victim as his wife. Further, after making such promise before the Panchayat, the petitioner is alleged to have taken the victim forcibly to a Nursing Home (hospital at Barpada) and got the pregnancy aborted. After coming to know about such inci¬dent, the complaint was filed. The complaint was registered for commission of offences under Sections 493 and 313 of the Penal Code. The case being triable by Court of Session, the matter was committed and initially charge was framed under Sections 493 and 313 of the Penal Code. After some witnesses were examined, a petition was filed for framing additional charge under Section 376 of the Penal Code. In the impugned order the prayer having been allowed, the same is under challenge before this Court. 4. After some witnesses were examined, a petition was filed for framing additional charge under Section 376 of the Penal Code. In the impugned order the prayer having been allowed, the same is under challenge before this Court. 4. The learned counsel Shri Das appearing for the peti¬tioner submitted that on plain reading of the deposition of the victim, it will be clear that right from the beginning she had consent for all types of physical relationship and as per opinion of the doctor, she being a major, the case under Section 376 of the Penal Code is not made out. The learned Addl. Standing Coun¬sel referring to the depositions of witnesses submitted that the consent being under coercion/promise, is no consent and, therefore, offence under Section 376 of the Penal Code is clearly made out. 5. The victim in her deposition has stated that in the year 2002 a day before Ganesh Puja she had gone to the shop of the accused and during her visit to the shop the accused squeezed her breast and kissed her. This continued for about a month or two. Thereafter, it is alleged that the accused told her that he is not pulling with his wife and 8 to 10 days thereafter during day time when she had gone to the shop, the accused dragged her to his shop room, closed the door and took her to the inner room and forcibly cohabited with her. It is also alleged that on the very same day the accused cohabited with her on three occasions and she did not disclose the said fact to anybody. It is further alleged that when the accused again cohabited with her three days thereafter, she became pregnant due to regular cohabitation with the accused. In cross-examination she has stated that she had previous acquaintance with the legally married wife of the accused and she never raised any objection whenever accused squeezed her breast as she gave her a belief to marry. She has also stated in her statement that the accused made complete sexual intercourse with her on all occasions. There is no dispute that the doctor who has been examined in the case has opined that the victim is in the age group of 17 to 19 years. 6. She has also stated in her statement that the accused made complete sexual intercourse with her on all occasions. There is no dispute that the doctor who has been examined in the case has opined that the victim is in the age group of 17 to 19 years. 6. On these allegations the Court is called upon to decide as to whether prima facie offence under Section 376 of the Penal Code is made out or not. In this connection, reference may be made in the case of Udaya v. State of Karnataka reported in (2003) 25 OCR (SC) 1. The Apex Court while interpreting the meaning of rape observed as follows : “It, therefore, appears that the consensus of judicial opinion 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 promise that he would marry her on a later date, cannot be said to be given under misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with the view, but we must add that there is no strait jacket 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 analy¬sis, 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 be¬cause 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 evi¬dence keeping in view the fact that the burden is on the prosecu¬tion to prove each and every ingredient of the offence absence of consent being one of them.” 7. So far as the present case is concerned, it appears from the deposition of the victim that she not only knew the accused, a married person but also had acquaintance with the wife of the accused. So far as the present case is concerned, it appears from the deposition of the victim that she not only knew the accused, a married person but also had acquaintance with the wife of the accused. It further appears from the deposition of the said witness that initially for a period of one month or two she did not object to the behaviour of the accused prior to the al¬leged sexual intercourse. Knowing the accused to be a married person, she consented for sexual intercourse on several occa¬sions. Reliance was placed by the learned counsel for the State on the statement of the victim that on the first occasion force was applied for sexual intercourse. If that be so, there was no occasion for having sexual intercourse three times on the very same day as deposed by the victim. 8. On consideration of the aforesaid deposition of the victim, I am prima facie of the view that offence under Section 376 of the Penal Code is not made out as the consent given by the victim cannot be said to be under misconception of facts. I, therefore, allow the CRL REV and set aside the impugned order. The trial shall proceed for the offences under Sections 493 and 311 of the Penal Code. Crl. Revision allowed.