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2012 DIGILAW 1244 (GAU)

Rita Monideuri @ Rita Deuri v. State of Assam

2012-11-07

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. The judgment and order, dated 9.7.2004, passed, in Sessions Case No. 9 (NL)/2001, by the learned Additional Sessions Judge (Ad hoc), Lakhimpur, stand challenged by the first informant, who is the alleged victim of cheating and rape. The prosecution's case, as unfolded at the trial, may, in brief, be described thus – On 21.10.2000, the accused-opposite party, Suren Deori @ Suren Gogoi, committed rape on the informant's niece, RD, at a paddy field, where she had gone to. As a result of the commission of rape, RD conceived. A First Information Report (in short, FIR) was accordingly lodged, on 28.05.2001, by RD after she (RD) had already conceived. Based on the FIR, a case, under Sections 376/420 IPC, was registered against the accused. During investigation, the alleged victim, RD, was medically examined and her statement, under Section 164 Cr. P.C. was recorded. In course of time, police laid charge-sheet, under Sections 376/420 IPC, against the accused-opposite party No. 2. 2. At the trial, when the charges under Sections 376 and 417 IPC were framed against the accused-opposite party No. 2, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether nine witnesses including the alleged victim, the medical officer and the investigating officer. The accused was, then, examined under Section 313 Cr. P.C. and in his examination aforementioned, he denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of denial. 4. Relying upon the decision of this Court, in Jaleswar Kalita vs. State of Assam, reported in (1988) 1 GLR 128 , wherein a learned Single Judge of this Court had taken the view that chastity of a woman is not a property and, hence, offence of cheating, as defined by Section 415 IPC, which relates to commission of offence of cheating in respect of property and not person, is not attracted to a case of present nature and, consequently, no one can be prosecuted and punished, under Section 417 IPC, in a case of present nature, the learned trial Court concluded that the present case is not triable for the commission of the offence of cheating. 5. 5. Coupled with the above, so far as the offence of rape, punishable under Section 376 IPC, is concerned, the learned trial Court took the view that the alleged victim was above 16 years of age and she was a consenting party to the sexual intercourse, which the accused was alleged to have had with her, and, hence, the act of sexual intercourse, as in the case at hand, would not amount to rape either. 6. On the basis of the conclusions as recorded above, the learned trial Court held the accused not guilty of offences under Sections 376 and 417 IPC and the accused-opposite party was accordingly acquitted. Aggrieved by the acquittal of the accused, the alleged victim RD, as prosecutrix and the informant, has filed this revision. 7. I have heard Mr. M.K. Sharma, learned counsel, for the petitioner, and Mr. KA Mazumdar, learned Addl. Public Prosecutor, Assam. I have also heard Mr. P. Bhattacharjee, learned counsel, for the accused-opposite party No. 2. 8. While considering the present revision, suffice it to point out that a Division Bench of this Court, in Bipul Medhi vs. State of Assam, reported in 2006 (3) GLT 585, has overruled the decision, in Jaleswar Kalita (supra), by taking the view that the law laid down, in Jaleswar Kalita (supra), is not good law and that where an accused dishonestly induces an woman to have sexual intercourse with him on the basis of false promise to marry her, a case of cheating, punishable under Section 417 IPC, is maintainable. 9. Dealing with the question as to whether an accused can be prosecuted for committing the offence of cheating, when he makes to a woman a false promise to marry, which he never intends to carry out, the Division Bench, in Bipul Medhi (supra), observed and held as under:- 36. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to. have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her, with the accused, causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her, with the accused, causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who. so induces the woman by making false representation, would be liable for punishment under Section 417 IPC if the victim's having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would not have permitted sexual act by the accused. In other words, had such a victim not been deceived, she would not have permitted sexual act or would have refrained from allowing such sexual act and, clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation. 37. Since the definition of the offence of cheating indicates, as already pointed out above, that even when no parting of property is occasioned by deception, the deception may still amount to cheating if, as a result of the deception, a woman does anything or omits to do anything, which she would not have, but for such deception, done or omitted to do, it logically follows that when an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to offence of cheating if the act of the woman in letting such a man have sexual intercourse with her or the act of the woman in omitting to resist the act of sexual intercourse by such a man with her causes or is likely to cause damage or harm to the person of such a woman, her mind or reputation. 10. 10. Coming to the question of rape, the Division Bench pointed out, in Bipul Medhi (supra), that the Indian Penal Code 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 or 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. 11. Analyzing the meaning and effect of Section 90 IPC, the Division Bench, in Bipul Medhi (supra), has observed, at para 25, as under:- 25. From a minute reading of Section 90 IPC, which explains 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 tact' 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 hot have been given. These aspects of the word 'consent', as envisaged under the Indian Penal Code, have been succinctly described in Deelip Singh alias Dilip Kumar Vs. State of Bihar, reported in (2005) 1 SCC 88 . 12. What 'consent' means under the Indian Penal Code, the Division Bench, in Bipul Medhi (supra), observed further, at para 26, asunder:- 26. In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear or misconception of fact 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 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.P. Vs. Mango Ram, reported in (2000) 7 SCC 224 ). 13. One may also note that the Division Bench, in Bipul Medhi (supra), has drawn the distinction between 'consent' and 'submission' in the following words:- 27. However subtle may be, there is, indeed, a firm and fine distinction between 'consent' and 'submission'. (See State of H.P. Vs. Mango Ram, reported in (2000) 7 SCC 224 ). 13. One may also note that the Division Bench, in Bipul Medhi (supra), has drawn the distinction between 'consent' and 'submission' in the following words:- 27. 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. 14. The Division Bench, in Bipul Medhi (supra), has also noted as to what the decisions of the Supreme Court, in Uday vs. State of Karnataka, reported in (2003) 4 SCC 48, and Deelip Singh (supra) convey. Referring to the decisions in Uday (supra) and Deelip Singh (supra), the Division Bench, in Bipul Medhi (supra), observed and held as follows:- 28. It is also of immense importance to note that though a cursory reading or hurried look into the decision of Uday (supra) 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. 29. 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. 30. 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 not 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. 31. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not 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. 31. 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'. 32. 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. 33. 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. 33. 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. 34. 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. 35. Turning to Section 417 IPC, it needs to be noted that Section 417 IPC makes punishable offence of cheating. Cheating has been defined in Section 415 IPC. Similarly, the word 'consent', as is understood in common parlance, may not be, for the purpose of the Indian Penal Code, 'consent' at all. 35. Turning to Section 417 IPC, it needs to be noted that Section 417 IPC makes punishable offence of cheating. Cheating has been defined in Section 415 IPC. The ingredients of the offence of cheating require (i) deception of a person, (ii) whereby, fraudulently or dishonestly, inducing the person, so deceived, to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of a person is common to the second and third requirements of the provisions of Section 415. The ingredients, as pointed out under (i) and (ii) hereinbefore, are alternative to each other and this is made significantly clear by use of disjunctive conjunction or. The definition of the offence of cheating embrace cases in which no transfer of property is occasioned by the deception and also cases in which such a transfer occurs. Deception is the quintessence of the offence. [See Devender Kumar Singla vs. Baldev Krishan Singla, reported in (2005) 9 SCC 15 ]. 15. What is, therefore, necessary, in a case of present nature, to bear in mind is that in order to determine if the prosecutrix was a consenting party to the sexual intercourse, which an accused had with her, it is not only the previous or contemporaneous conduct of the accused, but even his subsequent conduct, which may furnish necessary guide to the Court to reach its own conclusions. If an accused makes a promise of marriage without intending to marry and thereby lures an woman to have sexual intercourse with her and if the woman believes that the promise of marriage has been made bona fide, then, the act of sexual intercourse would be devoid of any 'consent' of the woman inasmuch as the woman, who allows sexual intercourse in such a case, would be acting on the basis of 'misrepresentation of fact' and the 'consent' given by her, in such a case, would still be regarded as devoid of 'consent'. When the sexual is had by an accused without 'consent' of the woman, it would amount to rape. 16. Coupled with the above, Section 114A of the Evidence Act, which stands inserted by the Act 43 of 1983, lays down that in a prosecution for rape, when sexual intercourse by an accused with an woman is proved and the question arises if the sexual intercourse was without the 'consent' of the woman alleged to have been raped and she states, in her evidence before the Court, that she had not consented, the Court shall presume that she had not consented meaning thereby that when the sexual intercourse by a man, with an woman, is proved and the woman, in her evidence before the Court, disclaims that she had given her 'consent' to the sexual intercourse, the Court is bound to presume that the woman had not consented. In consequence of such presumption, it would be for the accused to rebut the presumption either by cross-examining the witness or witnesses of the prosecution or by adducing evidence. 17. In the present case, the learned trial Court has not discussed as to what 'consent' means nor has it taken into account the provisions of Section 114A of the Evidence Act. The learned trial Court, as already noticed above, has also relied upon the decision of Jaleswar Kalita (supra), which has already been held by this Court not a good law. 18. Because of what have been discussed and pointed out above, the acquittal of the accused-opposite party No. 2 by the impugned judgment and order cannot be sustained and must be set aside. 19. In the result and for the reasons discussed above, this revision succeeds. The impugned judgment and order of acquittal of the accused-opposite party No. 2 shall accordingly stand set aside and the case is remanded to the learned trial Court for disposal in accordance with law. 20. Considering the fact that the case was instituted as far back as in the year 2001, the case needs expeditious disposal and, in order to avoid any further delay, the accused-opposite party No. 2 herein is hereby directed to appear, in the learned Court below, on 10.12.2012. 21. 20. Considering the fact that the case was instituted as far back as in the year 2001, the case needs expeditious disposal and, in order to avoid any further delay, the accused-opposite party No. 2 herein is hereby directed to appear, in the learned Court below, on 10.12.2012. 21. Before parting with this revision, it is, however, made clear that the learned trial Court shall remain free to call or recall any witness(s), in accordance with law, for the purpose of reaching effective decision in the present case. 22. With the above observations and directions, this revision shall stand disposed of. Send back the LCR.