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2011 DIGILAW 123 (JHR)

Shambhu Ram v. State of Jharkhand

2011-02-24

D.K.SINHA

body2011
JUDGMENT DK Sinha, J.-The instant Criminal Revision is directed against the order impugned dated 17.6.2010 passed in Sessions Trial No. 487 of 2009 by which the learned Additional Judicial Commissioner, F.T.C.-X, Ranchi rejected the petition filed under Section 227 of the Code of Criminal Procedure of the petitioner for the alleged offence under Sections 376/313 of the Indian Penal Code arising out of Doranda P .S. Case No. 137 of 2009. 2. The prosecution story in short was that the informant-Opposite Party No. 2 by filing a written complaint before Doranda Police on 13.4.2009 alleged that the petitioner on false promise that he would marry to her established sexual relationship and continued for the last two years and when she conceived, the petitioner took her to 'Kantatoli' Hospital where drug was administered and after termination of pregnancy her D.N.C. was held as a result of which she became very weak. She further alleged that the petitioner-Shambhu Ram even thereafter continued sex with her with the assurance that he would marry to her only after marriage of his elder brother. Whenever she insisted for marriage, she alleged further, the petitioner refused to marry her. She then informed the matter to the "Mukhia" of her society and that a meeting was about to be convened on this issue but she chose to report the matter at the Police Station. She presented a written report by concluding the allegations that she was threatened that she and her family would be ruined in case she would convey the termination of her pregnancy to any of the members of her family. 3. A case was registered under Sections 313/376 of the Indian Penal Code against the petitioner and the I.O. after investigation submitted charge-sheet in the same Sections of offence and the case was committed was received on transfer in the Court of Additional Judicial Commissioner, F.T.C.-X, Ranchi where the petitioner filed a petition for his discharge on the ground that the informant was a major girl and she was a consenting party to the sex with him and therefore, the offence did not come within the ambit of Section 376 of the Indian Penal Code. It was further stated that there was no material or evidence regarding terminating of pregnancy of the informant- O:P. No.2 so as to attract the offence under Section 313 of the Indian Penal Code. 4. It was further stated that there was no material or evidence regarding terminating of pregnancy of the informant- O:P. No.2 so as to attract the offence under Section 313 of the Indian Penal Code. 4. The learned Counsel further submitted that the prayer of the petitioner for his discharge under Section 227 Code of Criminal Procedure was not only rejected by the impugned order but the Trial Court observed that in the facts and circumstances the offence under Sections 417/ 506 of the Indian Penal Code were also attracted and therefore the petitioner was called upon to stand charged under Sections 376/313/417/506 of the Indian Penal Code, though cognizance of the offence was not taken under Section 417/506 I.P.C. 5. Learned Counsel appearing for the petitioner assailed the impugned order on the ground that the petition for the discharge was rejected by the learned A.J.C. by relying upon the decision reported in 2007(4) Eastern Criminal Cases 230 and the learned A.J.C. observed: "Consent given by the victim pursuant to false representation that the accused intends to marry could be regarded as consent given under misconception of fact and as such no consent in law." 6. I find that the decision referred to above has been reported in (2007)7 Supreme Court Gases 413 wherein altogether different proposition has been given by interpreting the consent with reference to Section 90 of the Indian Penal Code. This section deals with 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 cannot be held to be a free consent. It was propounded that the consent given under fear of injury or under a misconception of fact could not be a consent at all" The Apex Court further held: "In most of the decisions in which the meaning of the expression 'consent' under the Penal Code was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary; Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. and other legal dictionaries. Stroud defines consent as 'an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side'. Jowitt, while employing the same language added the following: 'Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind." 7. While deliberating the issue of consent the Apex Court relied upon its earlier decision with respect to "Uday vs. State of Karnataka", reported in (2003)4 S.C.C. 46 and to quote: "Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is........why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even - if he had held out any promise at all as alleged." 8. The Apex Court further held in Uday's case (supra): '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 act 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." 9. The Apex Court further added: "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 mis-conception of fact. It must also weight, 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 ' 10. On the other hand, learned Counsel appearing on behalf of the Opposite Party No.2 submitted that the Trial Court was not required to go into the details of the materials collected during course of investigation but to find out a prima facie case as to whether charge could be sustained as recommended in a charge-sheet on the materials in the case diary and on the record. Holding of a mini-trial at the time of framing of charge was deprecated by the Apex Court in "Indujain vs. State of Madhaya Pradesh & Others", reported in" (2008)15 Supreme Court Cases 341. 11. Heard learned A. P. P. on behalf of the State. 12. I find that the prosecutrix was a quite grown-up girl having sufficient intelligence to understand the significance of her participation and the moral value, she was consenting to the petitioner to establish sex, may be on the inducement and promise of marriage and therefore, her consent for sex, cannot come within the purview of Section 376 of the Indian Penal Code. However, there appears prima facie elements for constituting an offence of cheating defined under Section 415 of the Indian Penal Code which attracts punishment under Section 417 of the Indian Penal Code against the petitioner. With regard to allegation under Section 313 of the Indian Penal Code for the termination of the pregnancy of the prosecutrix, I find it to be an issue based on facts which can only be determined by the Trial Court on evaluation of the evidence, Without forming any opinion Oh the proposed charge under Section 313 of the Indian Penal Code this Criminal Revision is dismissed, yet, I find, for the reasons stated above that no offence under Section 376 of the Indian Penal Code is attracted against the petitioner. The Trial Court is directed to proceed in accordance with law after framing of charge against the accused under Sections 313 and 417 of the Indian Penal Code.