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2012 DIGILAW 273 (GAU)

Supratim Sadhanidar v. State of Assam

2012-02-28

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. None has appeared on behalf of the petitioner, who is accused in Gaurisagor Police Station Case No. 54 of 2009 (Corresponding to GR Case No. 965 of 2009), wherein charge-sheet has been submitted against the petitioner for his prosecution under Sections 493/420, IPC. However, heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I may pause here to point out that though a cursory reading or hurried look into the decision of Uday v. State of Karnataka, reported in 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 later 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 Dilip Singh @ Dilip Kumar v. State of Bihar, reported in 2005 1 SCC 88 , 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, IPC, a representation deliberately made by the accused with a view to obtaining consent of the victim without having intended to marry her will, indeed, 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 376, IPC. 2. 2. Elaborately explaining as to what the decision in Uday (supra) conveys, or should be read as, the Supreme Court, in Dilip 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 or not 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. 3. It has also been clearly pointed out, in Dilip Singh (supra), by the Supreme Court, 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 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 by the accused was a mere hoax to obtain consent or was it an honestly made promise of marriage, which could not be, or had not been kept by the accused. 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. 4. 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. 5. 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. 6. While considering the present application, made under Section 482, Cr PC, presently lying in the Court of learned Chief Judicial Magistrate, Sivasagar, seeking to get the charge-sheet, submitted in GR Case No. 965 of 2009, set aside and quashed, it needs to be noted that prosecution's case would stand or fall on the basis of the version of the informant, who is alleged to be the victim. Her statement, therefore, recorded by the police under Section 161, Cr PC is of greatest relevance. In substance what has stated, read thus : The informant is aged about 28 years, the accused is her co-villager and that she had been maintaining physical relation with the accused for the last three years, because both of them were in love with each other and that the accused had promised to marry her. In substance what has stated, read thus : The informant is aged about 28 years, the accused is her co-villager and that she had been maintaining physical relation with the accused for the last three years, because both of them were in love with each other and that the accused had promised to marry her. She conceived twice and, with the willingness of both the accused and the informant, the informant underwent abortion. On 16-08-2009, at about 10.30 p.m. the accused, as usual, came to her house and when they were in compromising position, the informant's elder brother appeared there and, on seeing what the accused and the informant had been doing, caught hold of the accused, he raised cries for help and, in consequence thereon their co-villagers assembled, whereupon and agreement was executed, whereunder the accused promised to marry the informant. Thereafter, the accused carried her to the house of his parents; but his parents did not allow them to enter into the house, The accused, then, carried the informant to the house of his cousin, where they stayed for two days and, then, the accused went with the informant to Simolugiri Tinali, but leaving her at Tinali, the accused went looking for a rented house and never came back. 7. From a bare reading of the above statement made by the informant, what becomes abundantly clear is that the informant had been having sexual intercourse with the accused-petitioner willingly and it was not because of the fact that the accused had made a promise to marry her. This apart, while both the informant and the accused were secretly having sexual intercourse, they were caught by the informant's brother, whereupon the accused did try to take the informant to his parents house, but his parents did not allow both of them to enter his house. From the statement, so recorded, nothing transpires to show that the accused had, fraudulently or dishonestly, induced the informant to have sexual intercourse with him. 8. As already indicated above, the alleged victim's statement does not reveal that the accused had fraudulently or dishonestly, induced the informant to have sexual intercourse with him. Situated thus, it becomes clear that no case for prosecution of the accused either under Section 493, IPC or under Section 420, IPC can be said to have been made out. 8. As already indicated above, the alleged victim's statement does not reveal that the accused had fraudulently or dishonestly, induced the informant to have sexual intercourse with him. Situated thus, it becomes clear that no case for prosecution of the accused either under Section 493, IPC or under Section 420, IPC can be said to have been made out. Situated thus, there can be no escape from the conclusion that the charge-sheet, which has been submitted against the present petitioner, under Sections 493/420, IPC needs to be set aside and quashed. 9. Considering the matter in its entirety and in the interest of justice, this application, made under Section 482, Cr PC, is hereby allowed and the charge-sheet, in question, laid against the accused-petitioner, is hereby set aside and quashed. Send forthwith a copy of this order to the learned Court below along with the LCR. Application allowed.