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2008 DIGILAW 158 (UTT)

JOGA RAM v. STATE OF UTTARAKHAND

2008-04-07

J.C.S.RAWAT

body2008
JUDGMENT This appeal has been directed against the judgment and order dated 25.07.2006 passed by the learned Additional Sessions judge, Haldwani, Nainital in Sessions Trial No. 88 of 2005, State Vs. Joga Ram, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of 4 years with a fine of Rs. 5,000/- u/s 366 I.P.C. The appellant has also been convicted and sentenced to undergo rigorous imprisonment for a period of 7 years with a fine of Rs. 10,000/- u/s 366 I.P.C. In default of payment of fine, the appellant shall further undergo four months imprisonment. The sentences shall run concurrently. 2. The fact, in nutshell, are that on 01.04.2005 at about 5:05 pm, Nandan Singh, the brother of the prosecutrix lodged a report in the police station alleging therein that on 03.01.2005 a person claiming himself to be Arjun Singh (appellant) came to the house of Kishan Singh Negi and Ballam Singh, maternal uncles of the prosecutrix. The appellant told them that he is working in B.S.F. and at present he is posted in Jammu and Kashmir. He wanted to marry with the prosecutrix, sister of Nandan Singh. Thereupon, the complainant party told appellant that they would talk to the girl and inform him accordingly about this. In the meantime, the appellant visited the house of Nandan Singh twice or thrice. It is further alleged that on 06.01.2005, the prosecutrix went to Ramnagar market and did not return home. In this regard a missing report Ex.Ka.2 was lodged with the police station on the next day. It was alleged in the report that on 06.01.2005 the accused/appellant took the prosecutrix forcibly without her consent on giving threats from one place to another. Later on, it was revealed that the appellant was not posted in B.S.F. and his actual name is Joga Ram. He was the resident of Kaladhungi. The appellant took the prosecutrix firstly to Garjia Temple; then Rudrapur in a hotel in the night where sexual intercourse was committed with her; thereafter Chandel Farm of Ajeet Singh; and lastly she was taken to Bareilly in the farm of Hardayal Singh. It is further alleged that the prosecutrix received information through a friend of the appellant on telephone that the person (appellant) with whom she was living was not Arjun Singh but his actual name is Joga Ram. It is further alleged that the prosecutrix received information through a friend of the appellant on telephone that the person (appellant) with whom she was living was not Arjun Singh but his actual name is Joga Ram. Thereafter, on 30.03.2005 the prosecutrix made a telephonic call to Khim Singh who happens to be her uncle. She told him that she was living with the appellant in the farm of Hardayal Singh at Bareilly. On the next day, Khim Singh informed Nandan Singh about the said telephone message of the prosecutrix. Thereafter they went to search of the prosecutrix to Ramnagar on the next day in the morning. They were taken to their village Dhella and thereafter in the evening a report was lodged in the police station. The appellant was handed over to the police. The matter was investigated by the police. The prosecutrix was examined by the doctor and after completing the investigation, the police submitted the chargesheet before the court concerned. 3. After submission of charegesheet, the case was committed to the court of Sessions for trial and the trial court framed charge u/s 363, 366 and 376 I.P.C. against the accused/appellant. The accused/appellant denied the charges leveled against him and claimed his trial. 4. The prosecution in support of its case examined Pratap Singh PW1, Khim Singh PW2, Nandan Singh PW3, prosecutrix PW4, Dr. Bhagirathi Garbuyal PW5, Dr. J.K. Jha PW6 and S.I. Salauddin PW7. Pratap Singh PW1 is the neighbour of Nandan Skingh PW3. He has narrated the entire incident how the appellant came in the house of the prosecutrix and what conversations took place with the family members of the prosecutrix. Khim Singh PW2 is the uncle of the prosecutrix who has stated the entire episode in his evidence. He has also received the telephone on 30.03.2005 from the prosecutrix from Bareilly about her whereabouts. He went to the house of the Hardayal Singh with other persons to recover the prosecutrix and the appellant. Nandan Singh PW3 is the brother of the prosecutrix who had narrated the entire story as unfolded by the prosecution. The prosecutrix PW4 had narrated the entire incident. Dr. Bhagirathi Garbyal PW5 is the Medical Officer who had conducted the medical examination of the prosecutrix. She has given the following opinion in her evidence :- i. No mark of injury and abrasion seen on any part of body. The prosecutrix PW4 had narrated the entire incident. Dr. Bhagirathi Garbyal PW5 is the Medical Officer who had conducted the medical examination of the prosecutrix. She has given the following opinion in her evidence :- i. No mark of injury and abrasion seen on any part of body. Secondary sex character are developed. ii. No mark of injury seen in private part of body. Labia mezora & minora well developed. Hymen torn up. Vagina admitted two fingers easily. It is pregnant as per ut. Size in 8-10 weeks. No mark of injury seen in any part of body. Vaginal semen sent to pathology for evidence of spermatozoa. The doctor has further opined that the prosecutrix was pregnant at the time of medical examination. The doctor has further stated that she has prepared the report Ex.Ka.3 at the time of medical examination of the prosecutrix. The prosecutrix was referred to Radiologist for ascertaining the age. Dr. J.K. Jha PW6 is the Radiologist who conducted the x-ray of the prosecutrix. He found the prosecutrix to be aged in between 19 to 20 years. S.I. Salauddin PW7 is the Investigating Officer of this case. 5. The accused/appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. The appellant further stated that he has been falsely implicated by the witnesses in this case. The accused/appellant did not adduce any evidence in support of his defence. 6. The learned Sessions judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced him as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. At the outset it needs to be mentioned here that it is not disputed that the prosecutrix had been subjected to sexual intercourse as alleged by the prosecution. It is also in the evidence of Dr. Bhagirathi Garbyal PW5 that the prosecutrix was found pregnant at the time of the medical examination. It is also revealed from the medical examination that the prosecutrix was subjected to sexual intercourse. 9. Now, it is to be deicded as to whether sexual intercourse was committed by the appellant or it was with the consent of the prosecutrix or it was without the consent of the prosecutrix. 10. It is also revealed from the medical examination that the prosecutrix was subjected to sexual intercourse. 9. Now, it is to be deicded as to whether sexual intercourse was committed by the appellant or it was with the consent of the prosecutrix or it was without the consent of the prosecutrix. 10. In support of the prosecution case all the three witnesses namely Pratap Singh PW1, Khim Singh PW2 and Nandan Singh PW3 have categorically stated in their evidence that on 03.01.2005 the appellant came to the house of Nandan Singh PW3 with the maternal uncle of the prosecutrix. He pretended himself to be one Arjun Singh, posted in B.S.F. at Jammu & Kashmir and wanted to marry with the prosecutrix. The family members of the prosecutrix asked the appellant that they would consult with other family members and after taking their views, they would inform him. In the meantime, the appellant also visited 4-5 times to the residence of the Nandan Singh PW3 in between 03.01.2005 to 06.01.2005. On 06.01.2005 the prosecutrix went to Ramnagar market. When she did not return till late night, a missing report was lodged at the police station and thorough search was made about her whereabouts but the prosecutrix could not be located. It is further stated that on 30.03.2005, the uncle of the prosecutrix Khim Singh PW2 received a telephonic call from the prosecutrix that the so called Arjun Singh who has taken away her under threats to Rudrapur and Bareilly is neither Arjun Singh nor employed in B.S.F. as stated by him. She also told that the actual name of the appellant is Joga Ram. She has also stated that she has been subjected to cruelty and forcible sexual intercourse by the appellant. Khim Singh PW2 informed this fact to the brother of the prosecutrix namely Nandan Singh PW3. Thereafter, the witnesses Pratap Singh PW1, Khim Singh PW2 and Nandan Singh PW3 reached at the house of Hardayal Singh where the prosecutrix alongwith the appellant was residing. They were taken to Ramnagar and thereafter report was lodged to this effect. The prosecutrix PW4 has corroborated the evidence of Pratap Singh PW1, Khim Singh PW2 and Nandan Singh PW3 with regard to the factum of the incident she has further stated that appellant came to her house and proposed her to marry. They were taken to Ramnagar and thereafter report was lodged to this effect. The prosecutrix PW4 has corroborated the evidence of Pratap Singh PW1, Khim Singh PW2 and Nandan Singh PW3 with regard to the factum of the incident she has further stated that appellant came to her house and proposed her to marry. She has further stated that on 06.01.2005 when she had gone to Ramnagar market, the appellant met her near grass mandi and offered a cup of tea in the adjoining restaurant. Thereafter, she was taken to Garjia temple. After visiting the temple, they came to back to Ramnagar. When they were going to Rudrapur, she resisted not to sit and go to Rudrapur in the scooter. The appellant threatened her with the dire consequences. When she was taken to Rudrapur on scooter, both of them stayed in a hotel in the night where the appellant committed forcible sexual intercourse upon her. When she resisted such act, she was threatened by the appellant. Thereafter, she was taken to a village where she was kept 12 to 13 days and subjected to sexual intercourse forcibly during these days by the appellant. Thereafter, she was taken to another place where sexual intercourse was also committed without her consent. Lastly, she was taken to village Bukharpur, Bareilly in the house of Hardayal Singh where she remained 10-12 days. She was subjected forcible sexual intercourse and cruelty by the appellant there also. When the appellant was not in the house, she made a telephonic call to her uncle and narrated the aforesaid tale to him on 30.03.2005. Thereupon, Nandan Singh PW3 alongwith 5-6 people came to the house of Hardayal Singh from where they have taken both of them to Ramnagar whereby report was lodged and she was medically examined by the doctor. 11. It is not disputed that the prosecutrix PW4 was aged about 18 to 20 years at the time of commission of the offence. The appellant was a young man aged about 23 to 24 years at the time of commission of the offence. When the appellant was examined u/s 313 Cr.P.C. he has stated his age 24 years. Thus, there is no dispute that the prosecutrix was above the age of 16 years on the date of the occurrence. The prosecutrix was residing with her brother in her village. When the appellant was examined u/s 313 Cr.P.C. he has stated his age 24 years. Thus, there is no dispute that the prosecutrix was above the age of 16 years on the date of the occurrence. The prosecutrix was residing with her brother in her village. It is the prosecution case that the appellant pretended himself to be Arjun Singh and came to the house of Nandan Singh PW3, brother of the prosecutrix on 03.01.2005. The appellant wanted to marry with the prosecutrix. He also visited her house 3 to 4 times in between 03.01.2005 to 06.01.2005. 12. Learned counsel for the appellant contended that the prosecutrix was a consenting party to the sexual intercourse committed upon her; the findings recorded by the learned Additional Sessions Judge are unsustainable; and there was ample evidence to show that the appellant had committed sexual intercourse with the prosecutrix with her consent. Learned A.G.A. refuted the contentions and supported the findings recorded by the learned Sessions Judge. It is evident from the evidence of the prosecution witnesses that on 06.01.2005 the prosecutrix went to the market to purchase the goods. It is also in the evidence that she went to the market at about 8:30 a.m. alongwith her two sisters. She has further stated in her evidence that she handed over all the articles to her sisters to take it to the home. Thus, it is apparent that before going with the appellant, the prosecutrix had given all the articles to her sisters. The gumsudgi report Ex. Ka. 2 reveals that on 06.01.2005 when the prosecutrix was going to her house, her maternal uncle alighted her from the vehicle and she left to her house from there. When it was inquired by Nandan Singh PW3 about the whereabouts of the prosecutrix, he has stated this fact to him. When she appeared before the Magistrate u/s 164 Cr.P.C. she has narrated somewhat different story that she had been called by the appellant to Ramnagar market. Thus there are different versions how she went to the market and how she went to the appellant. Thereafter, the prosecutrix has stated that the appellant met her at the grass mandi. He had taken the prosecutrix to Sunder Sweet House where she was offered a cup of tea. They were together in the sweet house for about one hour. Thus there are different versions how she went to the market and how she went to the appellant. Thereafter, the prosecutrix has stated that the appellant met her at the grass mandi. He had taken the prosecutrix to Sunder Sweet House where she was offered a cup of tea. They were together in the sweet house for about one hour. Thereafter, she has stated that she was taken to Garjia temple on scooter where they visited the temple and came back to Ramnagar. When they reached at Ramnagar, the appellant asked her to accompany him on scooter to Rudrapur. She refused to accompany him. When she refused, the appellant threatened her to kill. Then she went to Rudrapur on scooter where they stayed in the hotel and rape was committed upon her in the night. It is also in the evidence that on the next day, they went to Rudrapur market by a rickshaw. The prosecutrix had not sought help from the people that the appellant was taking her forcibly. She has further stated in her cross-examination that she did not narrate the incident or she did not sought any help from the persons staying in the hotel or staff present in the hotel. There is no further evidence of the prosecutrix as to where the said scooter was left there in which they went upto hotel Rudrapur from Ramnagar. It is also in the evidence of the prosecutrix that from Rudrapur to some village they boarded on a bus in which a number of passengers were sitting on a bus. The prosecutrix neither sought the help nor stated the factum of abduction to anyone of them. It is also in the evidence that the appellant and the prosecutrix stayed in the village for few days. In the house where they stayed had four children, father-in-law & mother-in-law and spouse but the prosecutrix did not narrate anything to them about the factum of abduction or forcible sexual intercourse. It is also in the evidence that she stayed in Chandel Farm of Ajit Singh about a month where there were eight persons living in the said house. She has not stated this fact to them also. Thereafter, they went to the farm of Hardayal Singh where they stayed for about 10 to 12 days and this fact was not narrated to them also. She has not stated this fact to them also. Thereafter, they went to the farm of Hardayal Singh where they stayed for about 10 to 12 days and this fact was not narrated to them also. It is also in the evidence that the appellant worked there as a labourer in the farm. The prosecutrix had sufficient opportunity to tell about the aforesaid fact of abduction to other persons and she could have been easily saved by number of persons who met her but she did not narrate the said story to any person available at the different places. All these circumstances lead me to take the conclusion that the prosecutrix was a consenting party to do the sexual intercourse with the appellant. The consent can be inferred from the circumstances and not by any other ways or other means unless it is specifically stated by the prosecutrix herself. In view of the above, I am of the view that the prosecutrix was a consenting party to the sexual intercourse committed by the appellant. 13. The next pivotal question arises for consideration is as to whether the consent of having the sexual intercourse with the prosecutrix was with the free consent as emphasized under Section 90 I.P.C. According to the prosecution even if she was a consenting party, the consent was obtained by fraud and misconception. Therefore, the appellant was liable to be convicted u/s 376 I.P.C. It is the prosecution case that the appellant came to the house of the prosecutrix and he has stated that he wants to marry with her. The appellant visited 4-5 times in between 03.01.2005 to 06.01.2005 in the house of the prosecutrix. Thereafter, she came to Ramnagar market from where she was taken to different places for about three months and subjected to sexual intercourse by the appellant. It is also of the prosecution case that the appellant wanted to marry with her but he did not marry with the prosecutrix, as such, the consent of the intercourse was obtained under misconception of fact. The prosecutrix has stated in her evidence that when she was at Bareilly, she asked appellant to get married with her but the appellant refused. As I have pointed out that the prosecutrix was firstly took to Garjia temple thereafter Rudrapur where she remained in a hotel for a day. The prosecutrix has stated in her evidence that when she was at Bareilly, she asked appellant to get married with her but the appellant refused. As I have pointed out that the prosecutrix was firstly took to Garjia temple thereafter Rudrapur where she remained in a hotel for a day. The prosecutrix was also taken to some village where they stayed some times. They also remained in the Chandel Farm for few days. Lastly they went in the farm of Hardayal Singh. It is evident from the evidence that the appellant worked as a labourer in the farm. If he had been a constable in B.S.F., he would have taken the prosecutrix to his unit instead of taking her to different places. As admitted by the prosecutrix, she was aged about 20 years and she was conscious of the fact that the appellant had been working as a labourer in the farm. It is also evident from the evidence that she submitted herself before she stated to get married. Now, it is to be seen as to whether the mere fact of promise to marry with the prosecutrix was sufficient u/s 90 I.P.C. Perusal of Section 90 I.P.C. shows that consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. It is no consent if the submission of her body under the influence of fear or terror. Consent of the prosecutrix in order to relieve an act of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure. Thus the consent presupposes three things – physical power, a mental power and a free and serious use of them. Failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of act, the fact must have an immediate relevance. The Hon’ble Apex Court while acquitting the accused in the case of Udai Vs. Failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of act, the fact must have an immediate relevance. The Hon’ble Apex Court while acquitting the accused in the case of Udai Vs. State of Karnataka 2003 SCC (Cri.) p/775 has observed in para 16 and 21 as under :- “16. The High Court of Calcutta has also consistently taken the view that the failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. In Jayanti Rani Panda v. State of W.B. 1984 CRILJ p/1535 the facts were somewhat similar. The accused was a teacher of the local village school and used to visit the residence of the prosecutrix. One day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her. The prosecutrix was also willing and the accused promised to marry her once he obtained the consent of his parents. Acting on such assurance the prosecutrix started cohabiting with the accused and this continued for several months during which period the accused spent several nights with her. Eventually when she conceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later. Since the proposal was not acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house. A Division Bench of the Calcutta High Court noticed the provisions of Section 90 of the Indian Penal Code and concluded : (CRILJ 1538, para 7) “The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the fact of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.” 21. It therefore appears that the consensus of judicial opinion is 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, cannot 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 straitjacket 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 the offence, absence of consent being one of them.” 14. 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 the offence, absence of consent being one of them.” 14. Keeping in view the aforesaid legal proposition of law in mind, I would like to proceed further to consider the evidence on record. In the case in hand the prosecutrix was grown up girl. She was quite aware what is good and what is bad while discharging any of the functions. There is no positive evidence of the prosecution that there is only isolated and vogue averments in the cross-examination that when she wanted to marry with the appellant, he refused to marry. According to the prosecution this evidence infers that she was under the promise that she would be going to be married with the prosecutrix. It is in the evidence that when the appellant met her at grass mandi in Ramnagar, she was taken to tea stall where they took tea for about one hour in the restaurant. It is not disputed that there was any intimidation or fear in the mind of the prosecutrix. Thereafter, she was taken to Garjia temple without fear and intimidation. Thus, it reveals that there was an intimacy in between them. It is usually happens in such cases when two young persons are moving particularly when they are in the zone of marriage or in love or under the promise that they will get married. Under these circumstances, the promise loses its significance particularly when they are overcome with emotions and passion and find themselves succumb to the temptation of having sexual relationship. It is not in the evidence that intercourse was committed on the believe of marriage. 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. It would not be possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were reasons then one for her to consent. In the case of Udai (Supra) the appellant and the prosecutrix wanted to marry with each other and they were madly in love with each other. The appellant committed sexual intercourse upon the prosecutrix on the pretext that he would marry with her. In the case of Udai (Supra) the appellant and the prosecutrix wanted to marry with each other and they were madly in love with each other. The appellant committed sexual intercourse upon the prosecutrix on the pretext that he would marry with her. Later on, the appellant refused to marry with her and she was found pregnant. The appellant also refused to take her with him. Thereafter, the report was lodged. The Hon’ble Apex Court holding that there was no misconception of fact arising from his promise. Failure to keep the promise on a future date due to reason not very clear does not always amount to misconception of fact at the inception of the act itself. The Hon’ble Apex Court acquitted the accused/appellant. 15. In view of the foregoing discussion and on the basis of the aforesaid evidence, I am of view that it would not be safe to convict the appellant. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting and sentencing the appellant. The judgment and order dated 25.07.2006 passed by the Additional Sessions Judge in S.T. No. 88 of 2005 is set aside and the appeal is allowed. Appellant Joga Ram is acquitted from the charges leveled against him. He shall be released forthwith, if not wanted in any other case. 16. Let the lower court record be sent back to the court concerned.