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Madhya Pradesh High Court · body

2008 DIGILAW 1098 (MP)

Vinod Mangilal v. State of M. P.

2008-09-02

S.L.KOCHAR

body2008
Judgement The appellant has preferred this appeal against the judgment dated 9-4-2008 of the learned Addl. Sessions Judge, Garoth, District Mandsaur (M. P.) in S. T. No. 73/2007, whereby the appellant has been convicted under Section 376 and 366 of the Indian Penal Code and sentenced for R.I. of seven years with fine of Rs. 2,000/-and R.I. for five years with fine of Rs. 2,000/-respectively. In default of payment of fine he shall undergo six months R.I. on each count. However, the substantive jail sentences were directed to run concurrently. 2. Briefly stated that prosecution case as unfolded before the Trial Court is that on 18-4-2007 in the noon at 2.00 p.m. prosecutrix, aged about 16 years, was asked by acquitted co-accused Sunita that appellant will marry with her and took her to bus stand, Garoth. Prosecutrix boarded the bus and travelled up to Bhanpura. Prosecutrix was told by Sunita that appellant will meet her on Bhanpura bus stand and she may go with him. Sunita paid the travelling charges to the conductor. Appellant met the prosecutrix on bus stand, Bhanpura and took her in a bus to Neemuch. They stayed in a lodge in Neemuch, where name of the prosecutrix was disclosed as Rekha. Prosecutrix was kept in the lodge up to 22-4-2007 and appellant had sexual intercourse with her. On 23-4-2007, appellant went from Neemuch to Udaypur, where they stayed at the house of sister of appellant, there also they had sexual intercourse. Appellant left the prosecutrix at the house of his sister in Udaypur and came back on 24-4-2007 to Garoth. Appellant again reached at Udaypur on 14-5-2007 and told the prosecutrix that her parents had lodged the report, therefore she was taken to village Nimbaheda at the house of his aunt Gangabai. Prosecutrix was left there and appellant came to Garoth and returned back with the mother of Sunita named Gayatribai on 15-5-2007. Gayatribai told the prosecutrix not to give any statement against their family. On 16-5-2007, Gayatribai and appellant reached at Mandsaur, where Gayatribai and the prosecutrix alighted from the bus in Mandsaur and appellant reached at Garoth. Appellant threatened the prosecutrix for not to give statement in Police against him. Parents of the prosecutrix had lodged the missing report in P.S. Garoth on 20-4-2007. On 16-5-2007, Gayatribai and appellant reached at Mandsaur, where Gayatribai and the prosecutrix alighted from the bus in Mandsaur and appellant reached at Garoth. Appellant threatened the prosecutrix for not to give statement in Police against him. Parents of the prosecutrix had lodged the missing report in P.S. Garoth on 20-4-2007. Prosecutrix appeared before the police Garoth on 17-5-2007, where her recovery Panchnama was prepared and crime No. 173/2007 was registered against appellant and acquitted co-accused Sunita. Prosecutrix was medically examined by P.W. 1 Dr. Smt. Pramila Nahar, her MLC report is Ex. P/1. Appellant was arrested and also got medically examined by Dr. Kanhaiyalal Rathor (P.W. 7), his MLC report is Ex. P/6. 3. On completion of investigation, charge-sheet was filed against accused persons for commission of offence under Sections 376(1), 366 and 363 of the Indian Penal Code. 4. Accused persons denied the charges, therefore, put to trial. Learned Trial Court while acquitting co-accused Sunita, convicted the appellant as described hereinabove. 5. Having heard the learned counsel for the parties and after perusing the entire record carefully, this Court is of the view that conviction and sentence of the appellant for the above mentioned offences are not sustainable. 6. Learned trial Court has given specific finding, in paragraphs 11 and 12, that prosecutrix was about 20 years of age on the date of incident and prosecution has failed to establish beyond reasonable doubt that prosecutrix was below 18 years of age. Learned Trial Court acquitted the appellant from the charge under Section 363 of the IPC. 7. Prosecutrix (P.W. 8) has been married after incident with one Shabbir in the month of June 2007, before recording of her statement on 20-12-2007, She has stated this fact in paragraph 5 of her deposition. According to the prosecutrix, on the date of her going from her house; she was alone in her house, at that moment in the noon at 2.00 p.m. Sunita came to her house and took her to bus stand. Sunita got her boarded the bus for going to Bhanpura and told her that appellant will meet her at Bhanpura. According to the prosecutrix, on the date of her going from her house; she was alone in her house, at that moment in the noon at 2.00 p.m. Sunita came to her house and took her to bus stand. Sunita got her boarded the bus for going to Bhanpura and told her that appellant will meet her at Bhanpura. Prosecutrix alone travelled from Garoth to Bhanpura in a bus and alighted from the bus at Bhanpura bus stand, where appellant met her Sunita told the prosecutrix that appellant will marry with her Prosecutrix, in her whole statement, has nowhere stated that appellant made a proposal of marriage before her or gave assurance for marriage because of which she allowed him to have sexual intercourse with her. According to prosecutrix, appellant took her from Bhanpura to Neemuch and they stayed in a lodge in Neemuch; where appellant had bad act with her. She has nowhere stated that the appellant committed bad act forcibly or against her consent or will. Further say of the prosecutrix is that after two days she was taken from Neemuch to Udaypur and they stayed at the house of sister of appellant for twenty days, there also appellant committed bad act with her. Again prosecutrix was taken from Udaypur to Nimbaheda at the house of aunt (Mausi) of the appellant, there they stayed for a day and thereafter went to Mandsaur; where appellant told her that he was telling lie and he would not marry with her. He also threatened her not to give statement against him and left her on the bus stand, from where she boarded the bus and reached at Garoth and went to Police Station. In cross-examination paragraph 6, she has admitted that Sunita was their neighbour but she was not having talk with her mother since 8 to 10 years and they were not having visiting terms. She further stated that prior to date of incident, she was not knowing the appellant and had not talked with him. If this is correct, then appellant had not extended any promise to prosecutrix to leave her parents' house for marriage with him. In paragraph 7, she has deposed that she left her village having four pair clothes, two pair of "Paijeb" and Rs. If this is correct, then appellant had not extended any promise to prosecutrix to leave her parents' house for marriage with him. In paragraph 7, she has deposed that she left her village having four pair clothes, two pair of "Paijeb" and Rs. 200/- and at that time her mother was not in the house and she did not leave any message with their neighbour. In her whole statement she has nowhere deposed that appellant committed sexual intercourse with her or there was penetration of his male organ into her. She has stated only this much that bad act was committed with her. There is no evidence that bad act was committed by the appellant against her consent or will or after promise for marriage. What acquitted co-accused Sunita had told to the prosecutrix, cannot be relied upon against the appellant. The prosecutrix remained in the company of the appellant and moved from one village to another village and from one town to another town for about one month and did not complain anything against the appellant to anybody. She has nowhere stated that she submitted herself because of promise made by the appellant to marry with her and she was having full belief and faith upon the appellant that he will marry with her. It has also come in the statement of the prosecutrix that in Udaypur she was residing in the house of sister of the appellant and appellant had gone out of Udaypur for 8-10 days. According to the prosecution case, when prosecutrix left her house without leaving any information for her parents and without obtaining their consent, the matter was reported to police on 20-4-2007 and parents of the prosecutrix started search of the prosecutrix and when prosecutrix and appellant came to know about this fact; appellant left the prosecutrix for going to Garoth from Mandsaur. It is not a case that after knowing lodging of report by the parents of the prosecutrix, prosecutrix asked the appellant to marry and appellant refused to marry with her. The learned Trial Court has held without any cogent and reliable evidence on record, in paragraph 21 of the impugned judgment, that appellant obtained consent on false promise and it was not a free consent of the prosecutrix, therefore, appellant would be liable for commission of offence of rape and consent was obtained on misconception of fact. 8. The learned Trial Court has held without any cogent and reliable evidence on record, in paragraph 21 of the impugned judgment, that appellant obtained consent on false promise and it was not a free consent of the prosecutrix, therefore, appellant would be liable for commission of offence of rape and consent was obtained on misconception of fact. 8. In case of Uday v. State of Karnataka (2003 (4) Supreme Court Cases 46 : (2003 Cri LJ 1539) the Supreme Court has considered in detail the definition of rape under Section 375 along with provision of Section 90 of the IPC regarding consent given under fear or misconception of fact and held that "for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, there is no strait-jacket formula and each case has to be decided, considering the evidence and surrounding circumstances of that case". Supreme Court has taken into account the following facts for acquittal of the appellant :- (i) the prosecutrix (aged 19 years on the date of occurrence) had sufficient intelligence to understand the significance and moral quality of the act she was consenting to, (ii) she was conscious of the fact that her marriage with the appellant was difficult on account of caste considerations, (iii) it was difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix. 9. All the four above mentioned factual aspects are available in the instant case. There is no evidence on record that at the very inception appellant made a false promise with intention to seduce the prosecutrix to sexual intercourse. As a matter of fact, there is absolutely no evidence on record about commission of sexual intercourse and it was the duty of the prosecutor as well as the Court to clarify from the prosecutrix, whether there was any penetration of male organ into her. It is pertinent to mention here that the Supreme Court has issued directions for recording of the statement of the prosecutrix in camera so that she may give statement freely without any hesitation and shyness. 10. It is pertinent to mention here that the Supreme Court has issued directions for recording of the statement of the prosecutrix in camera so that she may give statement freely without any hesitation and shyness. 10. The statement of prosecutrix regarding her going without knowing the appellant, only on simple saying by acquitted co-accused Sunita, from Garoth to Bhanpura in a bus is not believable, specially when she took four pairs of clothes, "Paijeb" and money with her, shows that she left the house with pre-plan. Prosecutrix has nowhere stated that when she was left at bus stand Mandsaur, she requested the appellant not to leave her and marry with her. She and her parents have also nowhere stated that they tried their level best to marry the prosecutrix with the appellant but he refused. In the light of these facts and circumstances, it cannot be said that prosecutrix gave her consent on the basis of the promise of marriage made by the appellant and thereafter he refrained from fulfilling his promise, though prosecutrix tried her level best to marry with the appellant. It appears that after knowing the fact of lodging of report by the parents of the prosecutrix, they were in fear and appellant left her to go to her parents' house and she had also gone voluntarily without any complaint against the appellant and after reaching in the company of her parents she started levelling allegations against the appellant. 11. In the case of Deelip Singh alias Dilip Kumar v. State of Bihar (2005) 1 SCC 188 : ( AIR 2005 SC 203 ) while considering the provision of Section 375 and Section 90 of the IPC whether consent was given under fear of injury or misconception of fact, the Supreme Court has held as under :- The question is : What is the meaning and content of the expression "without her consent" in Section 375 secondly, IPC? Whether the consent given by a woman believing the man's promise to marry her is a consent which excludes the offence of rape? Though will and consent often interlace and an act done against the will of a person can be said to be an act done without consent, the Indian Penal Code categorises these two expressions under separate heads in order to be as comprehensive as possible. Though will and consent often interlace and an act done against the will of a person can be said to be an act done without consent, the Indian Penal Code categorises these two expressions under separate heads in order to be as comprehensive as possible. Further, it is not easy to find a dividing line between submission and consent except in the situation contemplated by clause fifthly of Section 375, IPC. Yet, the evidence has to be carefully scanned. The ultimate conclusion depends on the facts of each case. 12. Applying the aforementioned ratio decidendi in both the Supreme Court pronouncements in case of Uday v. State of Karnataka (2003 Cri LJ 1529) and Deelip v. State of Bihar ( AIR 2005 SC 203 ) (supra), this Court reached to ultimate conclusion that the findings of the Trial Court is not based on proper appreciation of evidence available on record and interpretation of Section 375 as well as Section 90 of the IPC regarding misconception of fact, has not been correctly done, therefore, this appeal is allowed, conviction and sentence of the appellant are hereby set aside. The learned trial Court is directed to release the appellant forthwith, if not wanted in any other criminal case. Office is directed to send a copy of this judgment along with the record to the trial Court for immediate compliance. Appeal allowed.