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2007 DIGILAW 203 (ORI)

Pinki @ Rasmita Kundu @ Pal v. State of Orissa

2007-03-21

R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. : The petitioners assail the order dated 12.1.2004 passed by the J.M.F.C. Nimapara in G.R. Case No.823 of 2003 taking cognizance of the offence under Sections 379/376/109 of I.P.C. against petitioner No.1 and under Sections 417/493/366/376/379 of I.P.C. against petitioner No.2. 2. As per the prosecution case, on 16.8.2002 at 9.30 A.M. as usual while Saraswati Sahu, a student of Class-X of Damodar High School, Konark was going to attend the class, on the way petitioner No.2 threatened her with a sharp knife and asked her to follow him and accordingly out of fear she followed him. In the meantime one Tapu joined petitioner No.2 and both of them took Saraswati to a Chhak where all the three boarded a bus enroute Bhubaneswar. Tapu left petitioner No.2 and Saraswati in a house somewhere near Vani Vihar and returned back to his village at Konark. When asked by Saraswati about the reason of bringing her under threat, petitioner No.2 replied that he would marry her and so saying when attempted to cohabit with her, she refused to it, but still then he forcibly had sexual intercourse with her. He kept her at Bhubaneswar for ten days, and then took her to Khurda where they stayed for one month. From khurda he took the victim to Cuttack and kept her in a rented house near Badambadi. It is the further case of the prosecution that during their stay at Badambadi, petitioner No.1, the sister of petitioner No.2 used to come to the rented house regularly. On 31.10.2002 during evening hour both the petitioners suggested the victim to go for an outing to Kathajori but since she was suffering from fever, the victim refused their suggestion. Despite her protest the petitioners forcibly took her in a car and left her near Kathajo¬ri river in a senseless condition. On regaining senses she found that all the gold ornaments which she had put on, had been stolen away. One Bailasini rescued the victim, took her to her house and got her treated in a hospital. After being cured, on 29.11.2002 at 2.30- P.M. the victim talked with her father over telephone whereafter her father and some of his relatives came to Cuttack and took her to her house. 3. One Bailasini rescued the victim, took her to her house and got her treated in a hospital. After being cured, on 29.11.2002 at 2.30- P.M. the victim talked with her father over telephone whereafter her father and some of his relatives came to Cuttack and took her to her house. 3. Learned counsel for the petitioners submitted that as per the ossification test the age of the victim was 18 to 19 years. She voluntarily went with petitioner No.2 to Bhubaneswar, stayed there for ten days, then they went to Khurda, stayed there for one month and thereafter they went to Cuttack where they stayed for about more than two months. It transpires from the statement recorded under Section 161 of Cr.P.C. of the victim that while staying at Cuttack petitioner No.2 used to go outside in the morning and return in the evening. So if the victim was not a consenting party to the physical relationship with peti¬tioner No.2, she could have talked over telephone to her father and asked him to take her back, but she did not do so. As such the offence under Section 376 of I.P.C. cannot be attracted against petitioner No.2. Consequentially the offence under Sec¬tions 376/109 of I.P.C. also fails against petitioner No.1. As against this, learned Addl.Standing Counsel submitted that as found from the statement of the alleged victim, she re¬fused to cohabit with petitioner No.2 at the first instance, but when he promised to marry her, then only she kept physical rela¬tionship with him. But petitioner No.2 left her high and dry near river Kathajori during evening hour, that too when she was seri¬ously ill and was not in senses and refused to marry her. As it appears from the circumstances of the case the victim gave her consent for sexual intercourse on a misrepresentation of fact. Such a consent must be regarded as a consent given under miscon¬ception of fact and would not afford a defence for any offence as envisaged under Section 90 of I.P.C. So it can be said that petitioner No.2 ravished the victim without her consent and as such, the offence under Section 376 of I.P.C. would be attracted against him. He further submitted that according to the School Leaving Certificate issued by the Headmaster of Patrapada M.E. School, the date of birth of the victim was 12.6.1987. He further submitted that according to the School Leaving Certificate issued by the Headmaster of Patrapada M.E. School, the date of birth of the victim was 12.6.1987. The occur¬rence having been taken place on 16.8.2002, the victim was aged less than 16 years during that time. So even if it is presumed that she was a consenting party to the sexual act, still then petitioner No.2 cannot be wriggled out of the offence under Sec¬tion 376 of I.P.C. As against this learned counsel for the peti¬tioners further submitted that promise to marry without anything more would not give rise to misconception of facts. In support of his submission he relied on the decision Deelip Singh @ Dilip Kumar v. State of Bihar; 2005(1) SBR 278. Relying upon the same decision learned counsel for the petitioners further submitted that age given in the School Leaving Certificate cannot have more evidentiary value than the age determined by ossification test. Since the age of the victim in the present case has been deter¬mined to be 18 to 19 years on the basis of ossification test, she could not be said to be less than 16 years of age at the time of alleged occurrence. On perusal of the aforesaid decision it is found that the apex Court held that a misrepresentation deliberately made by accused with a view to elicit assent of the victim without having intention or inclination to marry her would vitiate consent. In the case at hand first the victim refused to have sexual rela¬tionship with petitioner No.2, but when he promised to marry her then only she gave her consent to it. Petitioner No.2 left the alleged victim near river Kathajori during evening hour while she was seriously ill and was not in senses, which prima facie shows that he deliberately made a representation with a view to elicit consent of the victim to cohabit with him. With regard to age, it is found from the said decision that during trial the father of the victim did not give the age of the latter. School Leaving Certificate was not proved in accordance with law. So the age as determined by the ossification test was accepted. In the instant case trial has not yet been commenced, so the aforesaid decision would not be applicable to the present case. School Leaving Certificate was not proved in accordance with law. So the age as determined by the ossification test was accepted. In the instant case trial has not yet been commenced, so the aforesaid decision would not be applicable to the present case. This is not the stage to enquire whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. From the F.I.R. and the statements recorded under Section 161 Cr.P.C. it is found that there is material against petitioner No.2 to proceed for the offence under Section 376 I.P.C. But there is no material whatsoever to show that peti¬tioner No.1 abetted the offence under Section 376 I.P.C. so the order of taking cognizance under Sections 376/109 I.P.C. against her cannot sustain. 4. With regard to the offence under Section 493 I.P.C. learned counsel for the petitioners submitted that the said of¬fence cannot be attracted against petitioner No.2 since the ingredients of that Section cannot be fulfilled even if the prosecution case as it is believed to be true. The essential ingredients of the offence under Section 493 of I.P.C. are as follows :- (i) the accused practised deception on a woman; (ii) the intention of the accused to practise deceit was to induce a woman to believe that she was lawfully married to the accused; (iii) there was cohabitation or sexual intercourse as a result of the deception. In the present case as it is found from statements under Section 161 Cr.P.C. that at first the alleged victim refused petitioner No.2 to cohabit with her, but when he promised to marry her then only she consented for the cohabitation. This clearly shows that the alleged victim was never made to believe that she was married to the accused. So the order of taking cognizance under Section 493 of I.P.C. against petitioners No.2 deserves to be quashed. 5. As regards the offence under Section 417 of I.P.C., learned counsel for the petitioners submitted that there is noth¬ing on record to show that petitioner No.2 cheated the victim in any manner. Admittedly petitioner No.2 promised to marry the victim, but subsequently refused to marry her. So there is mate¬rial to proceed against petitioner No.2 for the offence under Section 417 of I.P.C. 6. Admittedly petitioner No.2 promised to marry the victim, but subsequently refused to marry her. So there is mate¬rial to proceed against petitioner No.2 for the offence under Section 417 of I.P.C. 6. With regard to the offence under Section 379 of I.P.C., learned counsel for the petitioners submitted that as found from the statement of the victim, she had put on a pair of golden KANAFULA, two bracelets, one necklace and a pair of silver PAUNJI and a wrist watch during the time of occurrence, but it appears improbable that while going to attend the class, the victim had put on so many ornaments. Whether she had put on the ornaments or not can be known during the trial. It cannot be said at this stage that the statement of the victim in this regard is inher¬ently improbable. As discussed earlier both the petitioners took the victim in a car against her will and left her near river Kathajori in a senseless condition. When she regained senses she found her ornaments and wristwatch to have been stolen away. So, there is material for proceeding against both the petitioners for the offence under Section 379 of I.P.C. 7. With regard to the offence under Section 366 of I.P.C., learned counsel for the petitioners submitted that as per the ossification test the age of the alleged victim was 18 to 19 years during the alleged occurrence and it appears from the statement of the witnesses recorded under Section 161 of Cr.P.C. that the alleged victim voluntarily went with petitioner No.2; so this offence cannot be attracted against him. As per the School Leaving Certificate the age of the victim was below 16 years and as per ossification test her age was 18 to 19 years at the time of alleged occurrence. So, at this stage it cannot be said that the age of the victim was above 18 years. If the age of the victim was less than 18 years then petitioner No.2 can be said to have kidnapped the victim to force or seduce her for illicit intercourse. Otherwise also, when it appears from the statement of the alleged victim, recorded under Section 161 of Cr.P.C. that petitioner No.2 by show of knife forcibly took her from the road, the case can proceed against him for the offence under Section 366 I.P.C. 8. Otherwise also, when it appears from the statement of the alleged victim, recorded under Section 161 of Cr.P.C. that petitioner No.2 by show of knife forcibly took her from the road, the case can proceed against him for the offence under Section 366 I.P.C. 8. In the result, the CRLMC is allowed in part and while the order of taking cognizance under Sections 376/109 of I.P.C. against petitioner No.1 is quashed the order of taking cognizance under Sections 379/109 of I.P.C. against her is hereby confirmed. The order of taking cognizance under Section 493 of I.P.C. against petitioner No.2 is hereby quashed and the order of taking cognizance for the offence under Sections 417/366/376/379 of I.P.C. against him is confirmed. CRLMC allowed in part.