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2009 DIGILAW 1239 (JHR)

Satyendra Kumar v. State of Jharkhand

2009-09-03

PRASHANT KUMAR

body2009
Judgment This application is for quashing the order dated 25.10.2006 passed by learned C.J.M., Koderma in Koderma P.S. Case No. 381 of 2006 corresponding to G.R. Case No. 565 of 2006 whereby and whereunder he took cognizance of the offence under section 366A/376/420/406 of the Indian Penal Code and U/s 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act. Whereas the aforesaid Cr. Revision has been directed against the order dated 24.7.2008 passed by 1st Additional Sessions Judge-cum-Special Judge, Koderma in S.T. No. 16 of 2007 whereby and whereunder he rejected the application of petitioner for discharge. 2. It is relevant to mention that S.T. No. 16 of 2007 arose from Koderma P.S. Case No. 381 of 2006 corresponding to G.R. No. 565 of 2006. Since both the cases arose from same P.S. Case and similar point arose for determination, therefore, they were heard together and are being disposed of by this common order. 3. It is submitted by Sri. Anil Kumar learned counsel for the petitioner that from perusal of FIR, no case under section 376, 420 and 406 of the IPC and also under section 3(xii) of the Schedules Casts and Schedules Tribes (Prevention of Attrocities) Act is made out, hence both the orders are not sustainable in the eye of law. It is submitted that FIR shows that the prosecutrix is an employee of Civil Court, Koderma, thus, she is major. It is further clear from the FIR that the prosecutrix had submitted herself to the petitioner for sexual intercourse out of her own free will, thus no offence of rape is made out against the petitioner. It is further submitted that no property entrusted to the petitioner, thus the question of committing the offences of criminal breach of trust and/or mischief does not arise. It is also submitted that no offence under section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act is made out. 4. On the other hand, learned counsel for the O.P. No. 2 Sri Saurabh Arun, submits that the intention of petitioner is not honest and he kept on promising that he will marry the prosecutrix, but later on he refused to marry her. It is submitted that the petitioner is married from before, but concealing the same he made a false promise to marry the prosecutrix and obtained her consent for sexual intercourse. It is submitted that the petitioner is married from before, but concealing the same he made a false promise to marry the prosecutrix and obtained her consent for sexual intercourse. Therefore the consent given by the prosecutrix is under a misconception and wrong belief that petitioner will marry her. The said consent is no consent as per section 90 of the IPC. It is further submitted that the intention of petitioner from the beginning itself is dishonest knowing full well that he will not fulfill his promise because he was married from before. It is further submitted that on the basis of false promise, petitioner induced the prosecutrix to deliver a portion of her salary to him and the said money never returned to her. Under the said circumstances, the offence under section 406 and 420 of the IPC is made out. It is further submitted that the prosecutrix belongs to scheduled tribes community and by making a false promise of marriage the petitioner exploited her sexually. Under the said circumstance, offence under section 3(xii) of S.C./S.T.(Prevention of Attrocities) Act is made out. 5. Having heard the submission, I have gone through the record of the case. It appears from FIR that the prosecutrix and petitioners joined as Assistant in Civil Court, Koderma in the year 2002. It is further alleged that the petitioner disclosed to the prosecutrix that he is unmarried and assured her that he will marry her, because both are working in the same establishment. It is further alleged that the prosecutrix believed the petitioner and submitted herself for sexual intercourse. It is further alleged that during that period petitioner also induced her for giving her salaried money which she used to give him believing that he will ultimately marry her. However, in the year 2006 when she put pressure on the petitioner for marriage then a joint application for marriage was filed before the Marriage Registrar, Koderma. It is further stated that the Marriage Registrar issued notice for objection as per the provision of special Marriage Act. It is then alleged that a lady appeared before the Marriage Registrar and lodged an objection by saying that she is legally married wife of petitioner. It is further stated that the Marriage Registrar issued notice for objection as per the provision of special Marriage Act. It is then alleged that a lady appeared before the Marriage Registrar and lodged an objection by saying that she is legally married wife of petitioner. It is further alleged that when the prosecutrix wants to know the truth from petitioner then he disclosed that the said lady is his wife and he will not marry with a fool scheduled tribe girl. Thereafter the prosecutrix filed the present case. 6. Thus, from the allegations made in the FIR, it is apparent that the petitioner was married from before but he wrongly disclosed to the prosecutrix that he is unmarried and made a false promise to marry her and on that pretext he established sexual relation with her. It further appears that if the petitioner would not have disclosed to the prosecutrix that he was unmarried, she might not consented for the sexual intercourse. Thus prima-facie it appears that the said consent was given by the prosecutrix under a misconception of fact. Section 90 of the IPC provides that:-. “90. Consent known to be given under fear or misconception.-A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or…….” Thus, as per section 90 if a consent is obtained from a person under a misconception of fact then the said consent is no such consent as is intended under the provisions of IPC. 7. The contention of learned counsel for the petitioner that the prosecutrix is a grown up lady, therefore knowing the consequences of the same, she submitted for sexual intercourse out of her own free will, then the offence of rape as defined under section 375 of the IPC is not made out. In my view, the aforesaid contention cannot be accepted at this stage. It has been held by their Lordships of Supreme Court in Yedla Srinivasa Raw Vs. In my view, the aforesaid contention cannot be accepted at this stage. It has been held by their Lordships of Supreme Court in Yedla Srinivasa Raw Vs. State of Andhra Pradesh reported in (2006)11SCC615 that it is always a matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intended to fulfill. It is further held that what is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony one has to see the factors like age of the girl, her education, her status in the society and the social status of the boy. Thus, in view of the aforesaid decision of their Lordships of Supreme Court whether consent of the prosecutrix was obtained voluntarily or not will depend upon the scrutiny of evidence adduced by the parties during the trial. Under the said circumstances, at the stage of framing of charge and/or cognizance it cannot be held that no offence under section 376 of the IPC is made out only because prosecutrix is major. In that view of the matter, I find that the court below had rightly come to the conclusion that prima-facie an offence under section 376 of the IPC is made out for taking cognizance against the accused as well as for framing the charge against him. 8. As noticed above, in the FIR it is alleged by the prosecutrix that by making a false promise the petitioner had induced the prosecutrix for delivering part of her salary. If the petitioner would not had made such false promise, she might not have delivered the said money. It is also clear that the petitioner had not returned the said money. It further prima-facie appears that the petitioner had fraudulent or dishonest intention at the time of making promise, because he was married from before. Under the said circumstance, prima-facie, offence under section 406 and 420 of the IPC is made out against the accused petitioner. 9. Section 3(xii) of the Scheduled Casts and Scheduled Tribes( Prevention of Attrocities) Act provides that if any person who is in position to dominate the will of a woman belonging to a scheduled tribes, exploited her sexually to which she would not have otherwise agreed, is punishable under the said section. 9. Section 3(xii) of the Scheduled Casts and Scheduled Tribes( Prevention of Attrocities) Act provides that if any person who is in position to dominate the will of a woman belonging to a scheduled tribes, exploited her sexually to which she would not have otherwise agreed, is punishable under the said section. In the instant case, it is admitted position that the prosecutrix belongs to the community of scheduled tribes. It further appears that the accused who is the member of forward class had made a false promise to marry the prosecutrix and thereby dominated the will of prosecutrix and exploited her sexually. If the accused-petitioner would not have made the false promise, the prosecutrix would not have agreed or consented for sexual intercourse with him. Under the said circumstance, I find that prima-facie offence under section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act is made out against the petitioner. Thus the learned court below had committed no illegality in taking cognizance as well as framing charge against the accused under the aforesaid sections. 10. In view of the discussion made above, I find no merit in the aforesaid Cr. Miscellaneous Application as well as in the Cr. Revision Application. Accordingly, both the applications are dismissed.