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2017 DIGILAW 584 (JHR)

Ashok Mahto @ Ashok Kumar v. State of Jharkhand

2017-03-24

RONGON MUKHOPADHYAY

body2017
ORDER : Heard Mr. Nilesh Kumar, learned counsel for the petitioner and Mr. M.B. Lal, learned counsel appearing for the opposite party no. 2. 2. This application is directed against the order dated 09.06.2016 passed by the learned Additional Judicial Commissioner-III cum F.T.C. CAW Ranchi in connection with Sadar P.S. Case No. 128 of 2015, corresponding to G.R. Case No. 1779 of 2015 (S.T. Case No. 90 of 2016) whereby and whereunder the discharge application preferred by the petitioner has been rejected so far as Section 376(2)(n) of the Indian Penal Code is concerned. 3. The First Information Report was instituted by the opposite party no. 2 wherein it was alleged that her marriage was solemnized with one Kulesh Mahto in the year 2000. It is alleged that the petitioner being her brother-in-law had an evil eye over her and finding the opposite party no. 2 alone she was raped by the petitioner which was brought to the knowledge of her in-laws but no case was instituted. It is alleged that a panchayati was held wherein the petitioner had decided to marry the opposite party no. 2 and she continued to stay with the petitioner like her wife and physical relationship was also established as a result of which she became pregnant in the year 2004 but an abortion took place in the year 2005. It is also alleged that the petitioner had demanded some amount for the construction of the house for which the opposite party no. 2 had given Rs. 40,000/- to him. The opposite party no. 2 has also alleged that since 2008 her relationship with the petitioner was normal but sometimes later the petitioner had started assaulting her and the parents of the petitioner had expressed their desire to get the petitioner married to another girl and when it had came to the knowledge of the opposite party no. 2 that the petitioner is indeed solemnizing marriage with another lady a First Information Report was instituted. 4. Based on the aforesaid allegation Sadar P.S. Case No. 128 of 2015 was instituted for the offences punishable u/s 376, 313, 498-A, 323, 504, 406 of the Indian Penal Code. After completion of investigation charge-sheet was submitted against the petitioner for the offences punishable u/s 376(2)(n), 313, 498-A, 323, 504, 506, 406/34 of the Indian Penal Code. 4. Based on the aforesaid allegation Sadar P.S. Case No. 128 of 2015 was instituted for the offences punishable u/s 376, 313, 498-A, 323, 504, 406 of the Indian Penal Code. After completion of investigation charge-sheet was submitted against the petitioner for the offences punishable u/s 376(2)(n), 313, 498-A, 323, 504, 506, 406/34 of the Indian Penal Code. After cognizance was taken the case was committed to the court of sessions wherein an application for discharge was preferred by the petitioner. Vide order dated 09.06.2016 the learned trial court had discharged the petitioner for the offences punishable u/s 313, 498-A, 323, 504, 506, 406/34 of the Indian Penal Code but had refused to discharge the petitioner for the offence punishable u/s 376(2)(n) of the Indian Penal Code. 5. It has been submitted by Mr. Nilesh Kumar learned counsel for the petitioner that no case u/s 376(2)(n) of the Indian Penal Code is made out against the petitioner in view of the fact that the allegation of rape is said to have been committed in the year 2004 and the opposite party no. 2 has kept silent all along for a long period of 11 years. It has also been submitted that so far as establishing physical relationship with the opposite party no. 2 by the petitioner is concerned the same cannot be termed to be rape as there was no misconception of fact on the part of the opposite party no. 2 that the petitioner on the pretext of solemnizing marriage with the opposite party no. 2 had established physical relationship with her. It has been submitted that no case u/s 376(2)(n) of the Indian Penal Code is made out against the petitioner in the facts and circumstances of the case and therefore the petitioner be discharged from being prosecuted under the said provision of law. 6. Mr. M.B. Lal, learned counsel appearing for the opposite party no. 2 has supported the impugned order and has further submitted that apart from the fact that the petitioner had earlier committed rape upon the opposite party no. 2 in the year 2004, he had also subjected her to establish sexual relationship on the pretext of marriage. It has been submitted that the lust of the petitioner having been fulfilled he had decided to solemnize marriage with another girl and the act of the petitioner making the opposite party no. 2 in the year 2004, he had also subjected her to establish sexual relationship on the pretext of marriage. It has been submitted that the lust of the petitioner having been fulfilled he had decided to solemnize marriage with another girl and the act of the petitioner making the opposite party no. 2 believe that he was the legally wedded husband of the opposite party no. 2 and had established physical relationship on the basis of such misconception an offence u/s 376 of the I.P.C., is definitely made out against the petitioner which fact has been properly appreciated by the learned court below before refusing to discharge the petitioner for the offence punishable u/s 376(2)(n) of the Indian Penal Code. 7. It appears from the written report that the husband of the opposite party no. 2 had died in the year 2004 and an allegation has been levelled in the First Information Report that the petitioner who happened to be the brother-in-law of the opposite party no. 2 had committed rape upon her. Mere, statement has been given in the written report that she was prevented in reporting the matter to the Police by her in-laws. A panchayati was held in which the petitioner had agreed to solemnize marriage with the opposite party no. 2 and pursuant to such concession given by the petitioner the petitioner as well as the opposite party no. 2 continued to reside as husband and wife and the petitioner had also frequently established physical relationship with the opposite party no. 2. The learned trial court while discharging the petitioner for the offence punishable u/s 313 of the Indian Penal Code had apart from the other factors had taken into consideration the delay in instituting the First Information Report as the alleged abortion had taken place in the year 2005. The same matrix could have been applied to the offence alleged u/s 376(2)(n) of the Indian Penal Code in view of the fact that the allegation of rape was of the year 2004 which was reported to the Police in the year 2015. Apart from their being a considerable delay in the institution of the First Information Report the other point which has to be considered by this Court is to whether the act of the petitioner in establishing physical relationship with the opposite party no. Apart from their being a considerable delay in the institution of the First Information Report the other point which has to be considered by this Court is to whether the act of the petitioner in establishing physical relationship with the opposite party no. 2 was in fact on account of misconception of fact as defined in Section 90 of the Indian Penal Code. Section 90 of the Indian Penal Code reads as under:- “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 that to which he gives his consent; or Consent of insane person-if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child-unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” 8. Much stress has been laid by the learned counsel appearing for the opposite party no. 2 that the consent given by the opposite party no. 2 in establishing physical relationship with the petitioner was on a misconception of fact in as much as the opposite party no. 2 was made to believe that the petitioner is her husband which subsequently got diluted in view of the attempt made by the petitioner in solemnizing marriage with another lady. 9. A plethora of judgments have been cited by the learned counsel for the parties in support of their contentions which are referred to in the following paragraphs:- 10. In the case of Arti Rai versus State of Jharkhand & Anr. reported in (2015) 2 JBCJ 605 in an Acquittal Appeal the factual aspects revealed that the prosecutrix was in love with the accused who was studying in the same school and belonging to the same caste and therefore it was concluded by their Lordships’ that the prosecutrix cannot be said to have given consent under the misconception of fact that the accused would marry her. 11. 11. In the case of Tilak Raj versus State of Himachal Pradesh reported in (2016) 4 SCC 140 , it was held as follows:- “16. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and the relevant provisions of the Penal Code, 1860 (in short “IPC”). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of the incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in a relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After perusal of a copy of the FIR and the evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.” 12. In the case of Shambhu Ram versus The State of Jharkhand and Anr., 2011 (2) JLJR 156 (in Criminal Revision No. 702 of 2010), it was held by this Court “that the prosecutrix was a quite grown up lady having sufficient intelligence to understand the significance of her participation and the moral value, she was consenting to the petitioner to establish sex may be on the inducement and promise of marriage and therefore, her consent for sex cannot come within the purview of Section 376 of the Indian Penal Code.” 13. Recently, in the case of Md. Kalim Ansari @ Md. Kalimulla Ansari versus The State of Jharkhand and Anr., 2015 (4) JLJR 302 (in Criminal Revision No. 314 of 2015), it was held that being an adult matured lady the prosecutrix was a consenting party in establishing physical relationship and therefore no ingredients to constitute an offence u/s 375 of the Indian Penal Code is made out. 14. In the case of State of Uttar Pradesh versus Naushad reported in (2013) 16 SCC 651 , it was held as follows:- “21. 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 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. 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 IPC and is liable to be punished for the offence under Section 376 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 respondent-accused guilty of the offence of rape as defined under Section 375 IPC.” 15. What could be culled out from the aforesaid judicial pronouncements is that if physical relationship is established with the prosecutrix on a misconception of fact and on a futuristic act of solemnization of marriage and on such anticipation if the prosecutrix agrees to the advances made by the accused and subsequently establishes physical relationship with her the same can be termed to be an offence punishable u/s 376 of the Indian Penal Code as it would come within the definition of a misconception of fact as envisaged in Section 90 of the Indian Penal Code. However, it is not in all cases that such allegation has to be taken on its face value as there may be instances as has been depicted in some of the judgments referred to above where the prosecutrix being an adult having sufficient intelligence had consented to establish physical relationship with an accused and such circumstance definitely cannot attract an offence of rape as defined in Section 375 of the Indian Penal Code. The proximity of indulging in sexual act and deserting the women has a nexus since the same can be an important factor in arriving at a conclusion whether it is a misconception of fact or not. 16. The facts of the present case as has been repeatedly stated above represents an altogether different scenario as the informant had stayed with the petitioner for almost 11 years. The informant was earlier married to the elder brother of the petitioner and started living as husband and wife with the petitioner pursuant to the decision of the panchayat. The informant therefore was a matured lady of sufficient intelligence and the pitfalls of establishing physical relationship with the petitioner must have been known to her. Instituting a First Information Report after staying with the petitioner for about 11 years cannot be said to be used as ruse by the petitioner in establishing physical relationship with the informant. The circumstances definitely points to the fact that the informant was well aware of the legal status and being a matured adult lady had willingly succumbed to the advances made by the petitioner and such situation cannot be said to be on account of a misconception of fact as has been greatly stressed by the learned counsel appearing for the opposite party no. 2. The circumstances enumerated above would thus lead to a solitary conclusion to the effect that no offence of rape can be alleged against the petitioner and the learned trial court while refusing to discharge the petitioner for the offence punishable u/s 376(2)(n) of the Indian Penal Code had not properly appreciated the factual and legal aspects as has been enumerated above. 17. Consequent to what has been stated above, this application is allowed and the impugned order dated 09.06.2016 passed by the learned Additional Judicial Commissioner-III cum F.T.C. CAW Ranchi in connection with Sadar P.S. Case No. 128 of 2015, corresponding to G.R. Case No. 1779 of 2015 (S.T. Case No. 90 of 2016) is hereby, set aside. 18. The petitioner is discharged from the prosecution case.