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2011 DIGILAW 397 (MP)

SANDHYA d/o BALKRISHNA UPAM v. STATE OF M. P.

2011-03-29

PRAKASH SHRIVASTAVA, S.K.SETH

body2011
JUDGMENT : S. K. SETH, J. 1. This is an appeal under section 372 of the Code of Criminal Procedure against the judgment passed by the Special Judge, Indore in Sp. S. T. No. 5/2004. 2. Respondent No. 2 herein was charged for having committed offences punishable under sections 420, 376, 294, 506 Part II of the Penal Code read with section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Prosecution case, as unfolded before the trial Court was that while respondent No. 2 was doing P. G. Course in the Government Cancer Hospital Indore, he had an affair with prosecutrix who was working as a staff nurse in the same Hospital. Respondent No. 2 not only dishonestly induced her to part away cash amounting Rs. 45,000/- but also cohabited with her on false promise of marriage. Prosecutrix noticed that her age and custom or charms staling and respondent No. 2 started taking interest in a lady doctor, she demanded return of money. It not only led to registration of false case against prosecutrix and Hemant Acharya (P.W.2), at the instance of respondent No. 2 but he also filthily abused prosecutrix in a public place and intimidated her with death or grievous hurt. According to prosecution, all these offences were committed because prosecutrix belonged to Scheduled Caste. On 25-9-2003, on the complaint of prosecutrix, FIR (Ex.P. 16) was registered in AJK Police Station, Indore. After completing investigation, charge-sheet was filed against respondent No. 2 and upon his denial of charges, he was put to trial. On analysis of evidence trial Court found respondent No. 2 not guilty of any offence, as a result he was acquitted. Hence this appeal by the prosecutrix under section 372 of the Code. 4. Counsel for appellant has taken us through the prosecution evidence and submitted that trial Court failed to understand and appreciate that prosecutrix submitted herself to sexual advances under false representation of marriage which led to misconception of facts and as such consent, if any, was invalid. Learned counsel placed reliance on decisions of the Supreme Court in the case of Yedla Srinivasa Rao vs. State of A. P., (2006)11 SCC 615 and Zakir Ali S. K. vs. State of W. B., 2009 Cri.L.J. 1324. 5. Learned counsel placed reliance on decisions of the Supreme Court in the case of Yedla Srinivasa Rao vs. State of A. P., (2006)11 SCC 615 and Zakir Ali S. K. vs. State of W. B., 2009 Cri.L.J. 1324. 5. It is an admitted fact that the affair lasted from May, 2001 to March 2003; that the prosecuterix was a woman of mature age having two grown up children from the previous marriage; as long as the affair lasted, they visited various hotels and stayed together as husband and wife; during the said period prosecutrix did not disclose to any one prospect of marriage with respondent No. 2, but continued with the love affair. 6. After going through the evidence on record, especially the evidence of the prosecutrix, we feel that she behaved like Cleopatra of ancient Egypt, who seduced Julius Caesar and later on had long affair with Mark Antony. It cannot be said that respondent No. 2 held out a promise of marriage and if he did, there is no evidence that at that time the accused had no intention of keeping that promise. Failure to keep a promise at an uncertain future date 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 consent could be said to result from a misconception of fact. In the case in hand, prosecutrix is a divorcee with two grown up children when the affair started between her and respondent No. 2. When a mature and full grown woman like prosecutrix consents to the sexual intercourse on a promise to marry and continues to indulge in such activity, it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of Indian Penal Code cannot be called in support of such a case to fasten criminal liability on the accused, unless the Court is assured that from the inception the accused never really intended to marry. It is now well settled that a misstatement of intention of doing an act may be misstatement of a fact, if the other side is misled by it. It is now well settled that a misstatement of intention of doing an act may be misstatement of a fact, if the other side is misled by it. Therefore in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. No such evidence is on record of the case in hand. In absence of such evidence, section 90 cannot be invoked to hold that consent of the prosecutrix was obtained on a misconception of fact. In the present case, the act of filing of complaint by the prosecutrix was more like a retaliation of jilted person who found that her charm was becoming ineffective so as to retain her lover before he completely slipped away. 7. We thus find that trial Court on proper appreciation of evidence rightly held that on the facts of the case, consent was real and not vitiated by misconception of fact as claimed and submitted by counsel for appellant in this appeal. We find no wrong with the judgment of trial Court acquitting respondent No. 2 of all charges. In this view of the matter, reliance placed on decisions of the Supreme Court supra being distinguishable does not advance case of appellant. 8. We find no merit and substance in this appeal. Accordingly it fails and is hereby dismissed.