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2004 DIGILAW 578 (MP)

Lata Bai v. State of M. P.

2004-07-27

A.K.SHRIVASTAVA, DIPAK MISRA

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Judgment ( 1. ) IN this revision preferred under Section 401 of the Code of Criminal Procedure (for brevity the Code) by the informant, the assail is to the judgment of acquittal dated 29-7-2002 passed by the learned First Additional Sessions Judge, Waraseoni, District Balaghat. On a perusal of the impugned judgment, it transpires that the petitioner as prosecutrix set the criminal law in motion, as a result of which the accused/respondent No. 2 was charged under Sections 376 and 506-B of the Indian Penal Code (in short the IPC ). It appears that the prosecutrix was a major and she lodged an FIR after the expiry of seven months of pregnancy. The learned Trial Judge took note of various facts including the consent given by the prosecutrix and the delay in lodging the FIR and eventually recorded the order of acquittal. ( 2. ) CRITICIZING the aforesaid judgment, it is submitted by Mr. K. K. Mishra, learned Counsel for the petitioner that she became a victim of circumstances inasmuch as the accused had allured her with a marriage proposal and, therefore, it can not be construed as consent and hence the approach of the learned Trial Judge paves the path of vitiation and deserves to be interfered requiring re-trial. ( 3. ) TO appreciate the aforesaid statement of Mr. K. K. Mishra, learned Counsel for the petitioner, we have carefully scanned the judgment passed by the learned Trial Judge. It is manifest that on 12-5-2001 the accused had entered into the house and had sexual intercourse with the prosecutrix and had pressurised her not to publicize the same as he was going to marry her. There is material on record that this relationship continued for considerable length of time and eventually the petitioner became pregnant. Judged from any angle or spectrum, it can not be said that there was any kind of resistance by the petitioner. In the case of Uday v. State of Karnataka, AIR 2003 SC 1639 , a two Judge Bench of the Apex Court in Paragraph 21 has held as under:-" 21. Judged from any angle or spectrum, it can not be said that there was any kind of resistance by the petitioner. In the case of Uday v. State of Karnataka, AIR 2003 SC 1639 , a two Judge Bench of the Apex Court in Paragraph 21 has held as under:-" 21. 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 a promise that he would marry her on a later date, can not be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this 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 analysis, 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, because 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 evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of offence, absence of consent being one of them. " ( 4. ) ON a perusal of the aforesaid paragraph, it is quite clear that each case has to be analysed and understood on its own facts and there is no strait jacket formula for determining whether consent given by the prosecutrix for sexual intercourse is voluntary or whether it is given under a misconception of fact. As we have indicated earlier, there was no misconception of fact and the evidence brought on record go a long way to show that the promise was not made before the sexual intercourse and, therefore, the story putforth by the prosecution has been rightly disbelieved. As we have indicated earlier, there was no misconception of fact and the evidence brought on record go a long way to show that the promise was not made before the sexual intercourse and, therefore, the story putforth by the prosecution has been rightly disbelieved. Quite apart from that the petitioner had succumbed on number of occasions and she had never stated before her family members that the accused/appellant had given any kind of assurance of marriage. ( 5. ) IN view of the limited jurisdiction which is exercisable in criminal revision, we are of the considered opinion, this is not a fit case where criminal revision should be entertained at the instance of the informant. ( 6. ) IN the result, we find no merit in the revision and the same stands dismissed summarily.