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2015 DIGILAW 56 (JHR)

Arti Rai v. State of Jharkhand

2015-01-13

R.R.PRASAD, RAVI NATH VERMA

body2015
Order Heard learned counsel appearing for the appellant and learned counsel appearing for the State. 2. This Acquittal Appeal filed under the proviso to Section 372 of the Code of Criminal Procedure by the appellant prosecutrix is directed against the judgment and order dated 19th April, 2014 passed in Sessions Case No.51 of 2013 whereby and whereunder the court having found the opposite party no.2 not guilty for the offence under Section 376 of the Indian Penal Code, acquitted the opposite party no.2 from the charge. 3. The case of the prosecution emerging out from the record is that the prosecutrix P.W. 4 was in love with the opposite party no.2. During that course, opposite party no.2 did promise to marry her. On that pretext, the opposite party no.2 went on having sex with the prosecutrix P.W. 4. Subsequently whenever the prosecutrix asked the opposite party no.2 to marry her, the opposite party no.2 refused to accord her request on one pretext or other. Thereupon, the prosecutrix informed to her father about the said fact. A Panchayti was convened in which the opposite party no.2 though agreed to marry the prosecutrix, but the father of the opposite party no.2 asked to give Rupees One lac and Ten Kathas of land. On such accusation, a case was lodged, which was registered under Section 376 of the Indian Penal Code against the opposite party no.2, who was put on trial. 4. During trial, the prosecutrix examined herself as P.W.4. Other than the prosecutrix, brother, father and mother of the prosecutrix were examined as P.Ws. 1, 2 & 3 respectively. The prosecutrix P.W.4 in her evidence did testify that she as well as the opposite party no.2 were students of same school and were knowing to each other and that she fell in love with the opposite party no.2, who in course of time promised her to marry and under that pretext he went on having sex with her. The other witnesses repeated the same story in their evidences. 5. The court on the said fact, as testified by the witnesses, particularly the prosecutrix P.W.4, did hold that the opposite party no.2 had had sex with the prosecutrix only when she consented to have sexual act. Consequently, it was held that the prosecutrix never consented to have sex under the misconception of the fact. Accordingly, the court recorded the order of acquittal. Consequently, it was held that the prosecutrix never consented to have sex under the misconception of the fact. Accordingly, the court recorded the order of acquittal. Being aggrieved with that, this appeal has been filed on behalf of the prosecutrix under the proviso to Section 372 of the Code of Criminal Procedure. 6. Mr. Rahul Deo, learned counsel appearing for the appellant submits with all vehemence that the fact appearing in this case clearly depicts that the prosecutrix under the misconception of the fact that the opposite party no.2 would marry her had given consent to the opposite party no.2 to have sex with her. As the opposite party no.2 had promised her to marry, the consent given by the prosecutrix would never amount a free consent. In support of his submission, learned counsel has referred to a decision rendered in a case of U.P. Versus Naushad reported in AIR 2014 SC 384 . 7. Thus, the question which does arise as to whether consent given by the prosecutrix to the opposite party no.2 to have sex is under misconception of the fact or not? 8. Before proceeding further in the matter in the context of the facts of the case, one needs to take notice of the provision of Section 90 of the Indian Penal Code which reads 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 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.” 9. The matter relating to indulgence in an act of sexual intercourse on securing consent on a promise of marriage came up for consideration before the Calcutta High Court in a case of Jayanti Rani Panda vs. State of W.B (supra) as to whether consent secured in that manner can be said to have been given under misconception of fact. The matter relating to indulgence in an act of sexual intercourse on securing consent on a promise of marriage came up for consideration before the Calcutta High Court in a case of Jayanti Rani Panda vs. State of W.B (supra) as to whether consent secured in that manner can be said to have been given under misconception of fact. Their Lordships after giving due consideration of the fact and circumstances and also the provision of law did observe as follows: “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 fullgrown 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 of the Indian Penal Code 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.” Their Lordships have gone further to observe: “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.” 10. 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.” 10. Subsequently, when more or less similar matter came for consideration before the Hon’ble Supreme Court in a case of Uday vs. State of Karnataka [ (2003) 4 SCC 46 ], their Lordships after placing reliance on the decision of Jayanti Rani Panda vs. State of W.B. (supra) observed as follows: “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 acts 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.” 11. Thus, it does appear from the observation made by the Hon’ble Supreme Court that the consent given by the prosecutrix to the 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. 12. Thus, it does appear from the observation made by the Hon’ble Supreme Court that the consent given by the prosecutrix to the 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. 12. Here, in the instant case, as we have noticed from the record that as per the evidence of P.W.4, she was in love with the opposite party no.2, under the circumstances, she cannot be said to have had sex with this opposite party no.2 under the misconception of the fact. Moreover, it has also come in the evidence that even in the Panchayati, the opposite party no.2 expressed his desire that he would marry her but father of the opposite party no.2 put objection. 13. The facts of the case over which reliance has been placed by learned counsel appears to be some what different, which would be evident from the observation made in Para 10 of the said judgment which is hereunder: “It appears that the intention of the accused as per the testimony of P.W.1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of P.Ws.1, 2 & 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. Further, in Para 17 of the said judgment, this Court held that: “In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of P.W.1 as well as P.W.6 who was functioning as Panchyat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her.” 14. In that case, their Lordships after taking into account the fact of the case did find that the consent, which had been obtained by the accused, was not voluntary one, which was given by her under misconception of fact that the accused would marry her. 15. But here, as we have noted earlier that the prosecutrix was in love with the opposite party no.2, who along with prosecutrix were studying in the same school and belong to the same caste and under the circumstances, the prosecutrix cannot be said to have given consent under the misconception of the fact that the opposite party no.2 would marry her. Moreover, it has also come that opposite party no.2 even before Panches had expressed his willingness to marry the prosecutrix. 16. In that event, we do not find any illegality with the judgment under challenge. Accordingly, this appeal is dismissed. Appeal dismissed.