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Madhya Pradesh High Court · body

2016 DIGILAW 314 (MP)

Piyush v. State of M. P.

2016-04-20

JARAT KUMAR JAIN

body2016
ORDER 1. This criminal revision under section 397 read with section 401 of the Code of Criminal Procedure (for short “the Code”) has been filed against the order dated 22.9.2015 passed by Fourth ASJ, Ratlam in S.T. No.161/2015, whereby framed the charges against the applicant for offences under sections 376 and 506 of IPC. 2. Brief facts of this case are that on 22.5.2015 prosecutrix has lodged a report stating that before two years an engagement ceremony of applicant and prosecutrix was performed by their parents and before eight months marriage was also solemnized between them in a Temple. After performing such marriage, applicant used to have physical relationship with the prosecutrix on the pretext that he would perform marriage with the prosecutrix as per the Hindu rites and rituals. Before 12 days the parents of the prosecutrix asked the applicant to perform marriage with the prosecutrix as per Hindu rites and rituals, then the applicant denied the same and also threatened the prosecutrix with dire consequences. On this basis, FIR at Crime No.119/2015 for an offences under sections 376(2)(n) and 506 of IPC has been registered at Police Station Sailana, District Ratlam. After completion of the investigation, final report has been filed against the applicant for the aforesaid offences. Learned ASJ after considering the material on record framed the charges against the applicant for the offence under sections 376 and 506 of IPC. Being aggrieved, the applicant has filed this revision. 3. Learned counsel for the applicant submits that as per the prosecution case the applicant’s marriage was solemnized with the prosecutrix in the Temple, then the applicant/husband cannot be charged for rape on his own major wife under section 376 of IPC. If the allegations of the prosecution are taken on their face value, it reveals that the prosecutrix who is a major girl took a conscious decision after application of mind to have physical relationship with the applicant. There is no evidence to presume that the consent was given on misconception. Hence, the order of framing the charge under section 376 of IPC is erroneous. There is no evidence to presume that the consent was given on misconception. Hence, the order of framing the charge under section 376 of IPC is erroneous. In support of the arguments, learned counsel for the applicant cited judgments of this Court in the case of Sunder Singh v. State of M.P. [ILR (2014) MP 236], Abdul Salam v. State of M.P. [ 2006 CrLJ 4734 ], and the judgments of Hon’ble apex Court in the case of Kaini Rajan v. State of Kerala [ (2013)9 SCC 113 ], Deelip Singh @ Dilip Kumar v. State of Bihar [ AIR 2005 SC 203 ], Uday v. State of Karnataka [ AIR 2003 SC 1639 ], Vinod Kumar v. State of Kerala [ (2014)5 SCC 678 ], and Deepak Gulati v. State of Haryana [ AIR 2013 SC 2071 ], so far as the charge under section 506 of IPC is concerned, there is vague allegation that the applicant has threatened to kill the prosecutrix, therefore, no ground for framing charge under section 506 of IPC. The order of framing charge is bad-in-law. Therefore, it be set aside and the applicant be discharged. 4. On the other hand, learned Government Advocate for the non-applicant No.1/State supports the impugned order and submits that there is no illegality in the order of framing of charge and the plea of defence cannot be considered at this stage. Therefore, no interference is called for by this Court. 5. Learned counsel for the non-applicant No.2 (prosecutrix) submits that from the evidence collected by the prosecution, it is clear that the consent is given by the prosecutrix under a misconception of fact. The applicant had sexual intercourse with the prosecutrix by giving false assurance that he would marry with her but subsequently he has refused to marry. The applicant only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. Thus, the trial Court has rightly framed the charges against the applicant. For this purpose he placed reliance on the judgment of Hon’ble apex Court in the case of State of U.P. v. Naushad [ AIR 2014 SC 384 ]. Hence, there is no merit in this revision. 6. After hearing learned counsel for the parties, perused the record and the precedents cited by learned counsel for the parties. 7. For this purpose he placed reliance on the judgment of Hon’ble apex Court in the case of State of U.P. v. Naushad [ AIR 2014 SC 384 ]. Hence, there is no merit in this revision. 6. After hearing learned counsel for the parties, perused the record and the precedents cited by learned counsel for the parties. 7. Firstly, I would like to refer the scope of section 227 of the Code and the principle which should be keep in mind while framing the charge. Hon’ble apex Court in the case of Union of India v. Prafulla Kumar Samal [ (1979)3 SCC 4 ], after adverting to various decisions, enumerated the following principles: “(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post-office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as it he was conducting a trial.” 8. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as it he was conducting a trial.” 8. Learned counsel for the applicant submits that the prosecutrix has voluntarily given the consent to the applicant for physical relationship; whereas learned counsel for the non-applicants submits that the consent was given under misconception of fact. The consent given by the prosecutrix was voluntarily or under a misconception of fact, is a matter of evidence which can be decided considering the evidence and surrounding circumstances of the case. 9. Hon’ble apex Court in the case of Kaini Rajan (supra), held as under: “12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of section 375, requires voluntary participation not only after the 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 there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. [See : State of H.P. v. Mango Ram [ (2000)7 SCC 224 ].” 10. Hon’ble apex Court in the case of Naushad (supra), held as under : “10. We will answer points No.1 and 2 together as they are related to each other. [See : State of H.P. v. Mango Ram [ (2000)7 SCC 224 ].” 10. Hon’ble apex Court in the case of Naushad (supra), held as under : “10. We will answer points No.1 and 2 together as they are related to each other. Section 376 of IPC prescribes the punishment for the offence of rape. Section 375 of the IPC defines the offence of rape, and enumerates six descriptions of the offence. The description “secondly” speaks of rape “without her consent”. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix “against her consent”. The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of “bad character”. How is “consent” defined? Section 90 of the IPC defines consent known to be given under “fear or misconception” which reads as under : “90. Consent known to be given under fear or misconception. -- A consent is not such consent as it 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;” Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under section 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of Yedla Srinivas Rao v. State of Andhra Pradesh [ (2006)11 SCC 615 ], with reference to similar facts, this Court in para 10 held as under : “10. It appears that the intention of the accused as per the testimony of PW1 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 PWs 1, 2 and 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.” 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 PW1 as well as PW6 who was functioning as panchayat 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. Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact. 11. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under section 375 of the IPC and is liable to be punished for the offence under section 376 of the IPC. The trial Court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial Court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused-respondent guilty of the offence of rape as defined under section 375 of the IPC.” 11. For the reasons stated supra, we have to uphold the judgment and order of the trial Court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused-respondent guilty of the offence of rape as defined under section 375 of the IPC.” 11. From the aforesaid precedents, it reveals that while the Court has to decide whether the prosecutrix’s consent was voluntarily or under a misconception of fact, the Court has to consider the evidence and surrounding circumstances of that case and at the time of framing charge the Court has power to weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, then the Court will be, fully justified in framing a charge and proceeding with the trial. 12. With the aforesaid, I am of the view that the question of consent is a complex question and this cannot be decided at this stage without recording the evidence. Thus, I am unable to convince with the learned counsel for the applicant that this is a case of voluntarily consent and applicant entitled for discharge. 13. Resultantly, in the facts and circumstances of the case, the settled legal position and for the reasons given hereinabove, I do not find any infirmity or illegality in the impugned order that may call for any interference in exercise of the revisional jurisdiction under section 397 of the Code. However, the learned ASJ is directed to specify the charge which comes under sub-section (1) of section 376 of IPC. 14. This revision is devoid of merit and is hereby dismissed.