Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 719 (GAU)

Golap Chouhan v. State of Assam

2009-09-24

I.A.ANSARI

body2009
1. This revision puts to challenge the order dated 29.8.2009, passed by the learned Sessions Judge, Darrang, in Sessions Case No. 120(DMV 2009, whereby the learned court below has framed charges, under sections 448 and 376, IPC, against the present petitioner, as accused, in the case. To the charges, so framed, the petitioner has pleaded not guilty. 2. Heard Mr. T.C. Khatri, learned senior counsel, for the petitioner, and Mr. V.S. Singh, learned Additional Public Prosecutor, Assam. 3. It is contended, on behalf of the accused - petitioner, that there are serious contradictions between the facts as stated by the alleged victim in her statement recorded under section 161, Cr. PC and her statement recorded under section 164, Cr. PC. It is also contended, on behalf of the petitioner, that in the face of these contradictions, the learned court below ought not to have framed any charge. It is pointed out by Mr. Khatri, on behalf of the accused - petitioner, that the allegation of the prosecutrix is that the accused had sexual intercourse with her by giving her assurance that he would marry her and that she had allowed, on the basis of such assurance, the accused to have sexual intercourse with her and that such relationship, in the light of the statements recorded, had allegedly continued for one year. On the basis of such inherently improbable assertions, no charge, according to Mr. Khatri, could have been framed under section 448 and/or section 376, IPC, against the accused - petitioner. 4. While considering the above submissions, made on behalf of the accused - petitioner, it needs to be noted that in respect of an offence which is triable by a Court of Sessions, it is not the function of a Court of Sessions to determine, at the stage of consideration of charges, under section 228 Cr. PC., as to whether the accusations against an accused are or are not believable or are not true. The court has to proceed on the basis of the presumption that the accusations made are correct and, then, determine if, on the basis of such accusations, commission of any offence can be said to have been made out or not. 5. The Indian Penal Code, we must bear in mind, does not define "consent" in positive terms. The court has to proceed on the basis of the presumption that the accusations made are correct and, then, determine if, on the basis of such accusations, commission of any offence can be said to have been made out or not. 5. The Indian Penal Code, we must bear in mind, does not define "consent" in positive terms. There is, however, a negative definition of the word "consent" in section 90 of the Indian Penal Code, which lays down as to what cannot be regarded as "consent" under the Indian Penal Code. The relevant provisions of section 90, IPC read as follows: "90. Consent known to be given under fear or misconception. A consent is not such a consent as is 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................." 6. From a minute reading of section 90, IPC, which explain as to what cannot be regarded as consent for the purpose of the Indian Penal Code, it becomes clear that consent, given under fear of injury, or under a misconception of fact, is not a consent at all it is, however, worth noticing that giving of consent under fear of injury or misconception of fact is not sufficient to hold that no consent existed unless it is further established that the wrongdoer knew, or had reason to believe, that the consent given was in consequence of such fear or misconception. The factors, set out in the first part of section 90, namely, that the consent given by a person under fear of injury or under misconception of fact is not consent are from the point of view of the victim; whereas the factors, set out in the second part of section 90, namely, that the person doing the act knows, or has reason to believe, that consent was given in consequence of such fear or misconception are corresponding provisions from the point of view of the accused. Thus, the second part of section 90 lays emphasis on the knowledge or reasonable belief of the person, who obtains consent, that the consent given by the victim is in consequence of fear of injury or misconception of fact. Thus, the second part of section 90 lays emphasis on the knowledge or reasonable belief of the person, who obtains consent, that the consent given by the victim is in consequence of fear of injury or misconception of fact. What is, however, of paramount importance to note is that the existence of the twin requirements of section 90 must be cumulatively satisfied in order to enable a court to hold that no consent in law existed at the relevant time. In other words, when these two conditions precedent are coexistent in a case, it can be safely held that no consent, as envisaged under the Indian Penal Code, existed. Such a finding can be reached by examining as to whether the person, giving consent, had given the same under fear of injury or misconception of fact and, further, whether the offender knew, or had reason to believe, that but for fear or misconception, consent would not have been given. These aspects of the word "consent", as envisaged under the Indian Penal Code, have been succinctly described in Declip Singh @ Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 . 7. In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear cannot be construed as consented sexual act for the purpose of section 375, IPC, for, section 375, IPC requires voluntary participation by the victim 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. Whether consent existed or not has to be ascertained on the basis of the facts of a given case. [See State of H.R v. Mangoram, (2000) 7 SCC 224 .] 8. However, subtle may be, there is, indeed, a firm and fine distinction between consent and submission. Whether consent existed or not has to be ascertained on the basis of the facts of a given case. [See State of H.R v. Mangoram, (2000) 7 SCC 224 .] 8. However, subtle may be, there is, indeed, a firm and fine distinction between consent and submission. Every consent involves submission, but every submission is not consent and the mere fact that a woman had submitted to the promise of the accused does not necessarily indicate that her consent existed unless the evidence on record establishes that the sexual act, which the prosecutrix had allowed, was accompanied with deliberation after the mind had weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent according to one's will or pleasure. 9. It is also of immense importance to note that though a cursory reading or hurried look into the decision of Uday v. State of Karnataka, (2003) 4 SCC 48, reflects as if the Supreme Court has held that consent, given by a prosecutrix to sexual intercourse with a person with whom she is deeply in love, on the basis of a promise made by such a person that he would marry her on a latter day, can never be said to have been given under a misconception of fact, a careful and cautious reading of the Supreme Court's latter decision, in Deelip Singh (supra), which, if I may point out, has considered and explained the decision rendered in Uday (supra), shows that while a promise to marry without anything more will not give rise to misconception of fact within the meaning of section 90, a representation, deliberately made by the accused with a view to obtaining assent of the victim without having intended to marry her, will vitiate the consent. If the facts of a given case reveal that at the very inception of making of the promise to marry, the accused did not really entertain the intention to marry the victim and the promise to marry, held out by him, was a mere hoax, consent, ostensibly given by the victim, will not exculpate the accused from the ambit of section 375, IPC. 10. 10. Explaining as to what the decision in Uday (supra) conveys, or should be read as, the Apex Court, in Deelip Singh (supra), has pointed out that in Uday (supra), the court was cautious enough to add that no straight - jacket formula can be evolved for determining whether the consent was given under a misconception of fact and, in the ultimate analysis, it is on the basis of the facts of each case, as may be discernible from the evidence on record and the surrounding circumstances, that the court has to decide the question as to whether the consent given was voluntary or was under a misconception of fact. 11. The Apex Court has also emphasized, in Deelip Singh (supra), that for the purpose of determining as to whether consent existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether consent existed or not, the court has to take into account not only the previous or contemporaneous act of the accused, but also his subsequent conduct. To put it a little differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the court determine as to whether the offer of marriage, made by the accused, was a mere hoax to obtain consent or was it an honestly made promise of marriage. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will n6t be sufficient proof, in the absence of anything more, that the promise, made by the accused, was never intended to be acted upon by him. 12. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will n6t be sufficient proof, in the absence of anything more, that the promise, made by the accused, was never intended to be acted upon by him. 12. Referring to its observations, made in the case of Uday (supra), that it is the prosecution's burden to prove presence of a valid consent in order to attract the ingredients of the offence of rape, the Apex Court, in Deelip Singh (supra), has clarified that while reading its said observations made in Uday (supra), the courts must remember that this proportion would not apply if a case is covered by the provisions of section 114A of the Evidence Act, which we may notice, lays down that in a prosecution, for rape under sub - section (2) of section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states, in her evidence before the court, that she did not consent, the court shall presume that she did not consent. 13. What transpires from the above observations made in Deelip Singh (supra) is that in a prosecution under section 376(2), IPC, when sexual intercourse by the accused with the prosecutrix is proved to have taken place and the prosecutrix, in such a case, claims, in her evidence before the court, that she had not consented to the sexual act, the court shall draw a presumption that she had not consented to the sexual act and the burden would, then, shift to the accused to prove that his sexual act with the prosecutrix was with her consent. The burden on the accused to discharge such presumption would, however, not be as heavy as on the prosecution if the prosecution, in a given case, is required to prove that the consent did not exist. 14. The burden on the accused to discharge such presumption would, however, not be as heavy as on the prosecution if the prosecution, in a given case, is required to prove that the consent did not exist. 14. It may, however, be borne in mind that even if a prosecutrix had consented believing in the words of the accused that the promise for marriage made to her by the accused is honest and genuine, this will not be sufficient to hold that no consent existed for the purpose of section 90, IPC unless it is further established that the accused, at the time, when he had made the promise, did not have the intention of keeping to his promise. In a given case, thus, even a strong probability, if revealed from the materials on record, that the accused intended to marry the prosecutrix at the time, when he had made the promise for marriage, may absolve the accused, for, in such a case, it cannot be said that the consent was given under a misconception of fact and that the accused knew, or had reason to believe, that the consent given was under such misconception of fact. 15. Conversely, if a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain consent of the woman, for, such a consent, given by the woman, would not, in the light of the provisions of section 90, IPC, amount to consent in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. What is imperative to bear in mind, in such cases, is that killing of a man is, ordinarily, conceived as murder by a common man; but in law, every killing does not amount to murder. Similarly, the word 'consent', as is understood in common parlance, may not be, for the purpose of the Indian Penal Code, consent at all. 16. In the present case, it is the specific accusation of the complainant (informant) that the accused had promised to marry her and induced by such promise, she had allowed the accused to have sexual intercourse with her. 16. In the present case, it is the specific accusation of the complainant (informant) that the accused had promised to marry her and induced by such promise, she had allowed the accused to have sexual intercourse with her. The subsequent conduct, of the accused, however, shows, if found to be true, that he never intended to marry the complainant (informant) and by making such promise, he had induced her to have sexual intercourse with him. No 'consent', in law, can be said to have existed if the complainant (informant) had allowed the accused - petitioner to have sexual intercourse with her believing that the accused petitioner had intended to marry her; whereas the accused petitioner had no intention to marry her. Whether, as a matter of fact, the accused petitioner had made such a promise or whether the complainant (informant) had believed such a promise to be true and whether or not the accused - petitioner had intended to marry her, when he had made the promise, are all questions of fact, which can, now, be determined at the trial. 17. In the light of the position of law as indicated above, when the statements of the alleged victim are considered dispassionately; it becomes clear that according to the prosecutrix, she, believing in the promises made by the accused - petitioner that he would marry her, had allowed him to have sexual intercourse with her; whereas the subsequent conduct of the accused - petitioner revealed that the accused bad no intention to marry her, when he had made the said promise. The statements, so made by the prosecutrix, may not be true; but her statements, at the stage of consideration of charges, have to be assumed to be true. If so assumed, her statements do make out commission of offence of rape by the accused - petitioner. In such circumstances, the learned trial court was wholly within the ambit of its power, when it framed the said charges. I find no infirmity, factual or legal, in the order framing charges against the accused - petitioner. 18. Because of what have been discussed and pointed out above, I do not find any merit in this criminal petition. This criminal petition fails, the same is not admitted and the same shall accordingly stand dismissed.