Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 788 (JHR)

State of Jharkhand v. Md. Ashif Mudaiya

2012-06-13

H.C.MISHRA

body2012
JUDGMENT H.C. Mishra, J.-Heard learned counsel for the petitioner State and learned counsel for accused-opposite party. 2. The petitioner is aggrieved by the order dated 15.7.2010 passed by the learned Additional Sessions Judge, Fast Track Court-III, Jamshedpur, in S.T. No. 102 of 2010, whereby, in an application filed under Section 227 Cr.P.C., on behalf of the accused-opposite party Md. Ashif Mudaiya, the Court below has held that sufficient ground is not available for proceeding against the accused Ashif Mudaiya for the offences under Sections 376 and 417 I.P.C., and accordingly, the accused was discharged by the Court below. Aggrieved by the said order, the State has moved this Court in the instant Criminal Revision. 3. According to the prosecution story, as given in the F.I.R. in Mango P.S. Case No. 414 of 2009 corresponding to G.R. No. 2936 of 2009, which was lodged on the basis of written application given by the victim lady Rakia Khatoon, it is alleged that opposite party Ashif Mudaiya was a tenant in the house of one Nayyar Asamani for last five years and for the last four years, the accused was in visiting terms with the victim lady. During this period, the accused had called the victim lady in his house on the pretext of some work and offered her snacks and tea. After taking tea, the victim lost her senses, whereupon the accused sexually assaulted her. When the victim gained senses, the accused promised to marry her and on that promise, the accused and the victim continued with the physical relationship, during which the victim even became pregnant, but her pregnancy was aborted by the accused. It is further alleged in the F.I.R. that subsequently, the accused refused to marry the victim and he was going to marry another lady. 4. On the basis of the written application to the aforementioned effect given to the Superintendent of Police, Jamshedpur, Mango P.S. Case No. 414 of 2009 was instituted for the offences under Sections 313, 328 and 376 of the Indian Penal Code and investigation was taken up. After investigation, the police submitted charge sheet against the accused opposite party for the offences under Sections 376 and 417 of the Indian Penal Code and cognizance was taken against the accused for the said offences. After investigation, the police submitted charge sheet against the accused opposite party for the offences under Sections 376 and 417 of the Indian Penal Code and cognizance was taken against the accused for the said offences. The case was committed to the Court of Session and ultimately, it was transferred to the Court of Additional Sessions Judge, Fast Track Court-III, Jamshedpur, for trial, where the accused opposite party filed an application under Section 227 of the Cr.P.C., for discharge, which was allowed by the impugned order dated 15.7.2010, passed by the learned Court below. 5. From perusal of the impugned order, it is apparent that the Court below has taken into consideration the fact that even if the entire allegation in the F.I.R. and the material available in the case diary are taken to be true, there was no mention of the date or time when the first offence of rape was committed. The Court below has also found that post incident conduct of the victim showed that she had been in regular sexual intimacy with the accused allegedly on the ground of promise to marry her. It was not mentioned when the victim became pregnant and when the pregnancy was terminated and the medical report also did not suggest any termination of the pregnancy. The Court below also found that from the F.I.R., it was clear that main grievance of the informant was not that she had been raped and the accused must be punished, rather, her grievance was the denial and refusal to marry by the accused. In the backdrop of these facts the Court below has taken into consideration the decisions of this Court as well as the Hon'ble Supreme Court of India, including the one in Deelip Singh @ Dilip Kumar Vs. State of Bihar, reported in (2005) 1 SCC 88 , and has held that as the prosecutrix was admittedly a major lady, the conduct of the prosecutrix in continuing the sexual relationship with the accused for four years even after the first sexual assault on her showed that she was certainly a consenting party to the sexual act and accordingly, no offence was made out against the accused under Sections 376 and 417 of the Indian Penal Code. The impugned order shows that the Court below was also conscious of the law laid down by the Apex Court that while exercising jurisdiction under Section 227 Cr.P.C., the Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case and the total effect of the evidence and the documents produced before the Court, but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. At this stage, it was only to be seen whether the materials on record were sufficient and adequate for securing the conviction against the accused or not. 6. Learned counsel for the State has submitted that the impugned order passed by the learned Court below is absolutely illegal, inasmuch, as admittedly the first act of sexual assault upon the victim lady was without her consent and accordingly, the offence was clearly made out under Section 376 I.P.C. against the accused-opposite party. Learned counsel submitted that even the other acts of physical relationship between the accused and the victim were on the false pretext of marrying the victim and accordingly, the consent, if any, given by the prosecutrix for such sexual relationship cannot be said to be a valid consent. Learned counsel for the State accordingly, submitted that on the basis of materials on record, offence under Section 376 I.P.C. is clearly made out against the petitioner. It was further submitted that in view of the fact that the consent of the victim lady was obtained on the false pretext of marrying her, the offence is clearly made out against the accused also for the offence under Section 417 of the I.P.C. Learned Counsel for the State accordingly, submitted that it is a fit case, in which, the accused ought to have been put to trial and he could not have been discharged at this stage in exercise of the power under Section 227 of the Cr.P.C. 7. Learned counsel for the accused-opposite party, on the other hand, has submitted that there is no illegality in the impugned order passed by the Court below worth interference in the revisional jurisdiction and accordingly, this application is fit to be dismissed. Learned counsel for the accused-opposite party, on the other hand, has submitted that there is no illegality in the impugned order passed by the Court below worth interference in the revisional jurisdiction and accordingly, this application is fit to be dismissed. Learned counsel has submitted that the impugned order clearly shows that the Court below was conscious of the fact that first incident of the sexual assault was not with the consent of the prosecutrix, but the precedents relied upon by the Court below clearly showed that even in such cases, where the first act was not with the consent of the prosecutrix, but the accused continued with the sexual relationship with the prosecutrix on the promise of marrying her, the offence is not made out under Section 376 I.P.C. Learned counsel pointed out that in this connection, the Court below has rightly placed reliance on the decision of this Court in Sahdeo Pandit & Ors. Vs. State of Jharkhand & Anr., reported in 2002 (1) East Cr C 358 (Jhr), as also the decision of the Patna High Court, Ranchi Bench in Baldhari Ohdar Vs. State of Bihar, reported in 2000 (2) BLJR 1581 , as also the decisions of the Hon'ble Supreme Court of India, including the one in Deelip Singh’s case (supra), which were fully applicable to the facts of this case, wherein, in similar circumstances, it has been held that the offence cannot be said to be made out under Section 376 I.P.C. and accordingly, discharged the accused-opposite party. Learned counsel has submitted that the impugned order passed by the Court below is a well discussed order based on sound principles of law and the same cannot be interfered with in exercise of the revisional jurisdiction. 8. After having heard learned counsels for both parties and upon going through the material on record, I find that even though the Court below has taken into consideration the various precedents and has also taken into consideration the decision of the Supreme Court of India in Deelip Singh (supra) for coming to the conclusion that in the facts of this case, offence was not made out under Section 376 I.P.C., but I find that the Court below has clearly misdirected itself and has not taken into consideration properly, the law as laid down by the Supreme Court in Deelip Singh’s case (supra). Though it is a fact that in the instant case, the Hon'ble Supreme Court, taking into consideration the evidence brought on record during the trial, has acquitted the accused, but the fact remains that the stage of recording the evidence had not yet reached in the present case. There was nothing before the Court below, except the FIR and the case diary and the Court below appears to have jumped to the conclusions only on the basis of these materials. In Deelip Singh’s case (supra) the Apex Court has taken into consideration the various previous decisions of the Court and has placed reliance, particularly upon the decision of the Division Bench of Culcutta High Court in Jayanti Rani Panda V. State of W.B., as reported in 1984 Cr LJ 1535, which was cited approvingly by the Supreme Court in the case of Uday Vs. State of Karnataka, as reported in (2003) 4 SCC 46 , and has discussed the law as follows:- “27.** ** ** ** ** The discussion that follows the above passage is important and is extracted hereunder: (Cri LJ 1538 para 7) “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. 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”. 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”. (emphasis supplied) The learned Judges referred to the decision of the Chancery Court in Edgington v. Fitzmaurice and observed thus: (Cri LJ p.1538, para 8) “This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect: ‘There must be a misstatement of an existing fact’. Therefore, in order to amount to a misstatement of fact, the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Section 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact.” After referring to the case-law on the subject, it was observed in Uday at para 21: (SCC pp. 56-57) “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, 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 misconception of fact. It must also weigh 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.” 28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda which was approvingly referred to in Uday case. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1538, para 7)-“ unless the court can be assured that from the very inception the accused never really intended to marry her”.(emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that “a false promise is not a fact within the meaning of the Code,” it cannot be said that this Court had laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out. 29. Having discussed the legal aspects bearing on the interpretation of the term “consent” with special reference to Section 90 IPC, we must now turn our attention to the factual aspects of the case related to consent. 30. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the ailed question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday case the burden is on the prosecution to prove that there was absence of consent. Of Course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. 31. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer the lack of consent on the part of the prosecutrix is it the ultimate point to be decided”. (Emphasis supplied). 9. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. 31. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer the lack of consent on the part of the prosecutrix is it the ultimate point to be decided”. (Emphasis supplied). 9. Thus, from the law laid down by the Supreme Court in Deelip Singh’s case (supra), it is apparent that whether in the facts of this case, the consent given by the prosecutrix was the result of misconception created in her mind as to the intention of the accused to marry her, is a question which had to be decided on the basis of analysis of the evidence. In the present case, the stage of adducing evidence by the prosecution had not yet been reached, as the trial had not yet commenced. The Court below only on the basis of the allegations made in the F.I.R. and the materials in the case diary jumped to the conclusion that on the basis of materials on record, there was no ground for proceeding for the offences under Sections 376 and 417 IPC. In my considered view, without looking into the evidence that may come during the trial, in the facts of this case, it could not have been inferred that continuing in physical relationship with the victim by the accused on the promise of marriage clearly showed that she was a consenting party to the sexual act. The question whether the accused really entertained the intention of marrying her while making such promise, or the promise to marry made by him was a mere hoax, cannot be decided at this stage without looking into the evidence which may be adduced at the trial. Similarly, whether the consent of the prosecutrix was a valid consent in terms of Section 90 of the IPC, or it was given under the misconception created in her mind as to the intention of the accused to marry her, is also a question of fact to be decided on the basis of evidence adduced during trial and no inference can be reached at this stage only on the basis of the allegations made in the FIR and the materials collected during investigation by the police. Though the Court below was conscious of the law that at this stage, it was only to be seen whether the materials on record were sufficient and adequate for securing the conviction against the accused or not, but the Court below has clearly misdirected itself in making a roving enquiry into the pros and cons of the matter and weighing the materials collected during investigation, as if it was conducting a trial. 10. For the foregoing reasons, I am of the considered view that the Court below has committed material illegality and irregularity in discharging the accused at this stage. It is a fit case in which the charge ought to have been framed against the accused opposite party and he ought to have been put to trial. As such, the impugned order cannot be sustained in the eyes of law. 11. Accordingly, the impugned order dated 15.7.2010 passed by the learned Additional Sessions Judge, Fast Track Court-III, Jamshedur, in S.T. No. 102 of 2010 is, hereby, set aside and the Court below is directed to proceed against the accused opposite party in accordance with the law as discussed above. Let this order be communicated to the Court concerned forthwith, which shall take all appropriate steps for ensuring the presence of the accused opposite party and shall proceed against him in accordance with law as expeditiously as possible. This Criminal Revision is, accordingly, allowed with the directions as above.