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2019 DIGILAW 1594 (JHR)

Sarfaraj Ansari v. State of Jharkhand

2019-09-13

DEEPAK ROSHAN

body2019
JUDGMENT : 1. The instant application is directed against the judgment dated 21.05.2013 passed by the learned Principal Sessions Judge, Sahibganj in Criminal Appeal No. 41 of 2013, whereby the learned appellate court dismissed the appeal preferred by the petitioner and affirmed the judgment of conviction and order of sentence, both dated 13.03.2013, passed by the learned Principal Magistrate, Juvenile Justice Board, Sahibganj in connection with G.R. No. 296 of 2011 (E. No. 34 of 2013) arising out of Rajmahal (Ranga) P.S. Case No. 33 of 2011, whereby the petitioner has been found guilty for offence under Section 376 of the Indian Penal Code and has been sentenced to undergo imprisonment for two and half years and was directed to serve the sentence in the Juvenile Special Home, Dhanbad. 2. The prosecution case in brief is that the informant-Afsana Khatoon alleged that the accused-petitioner had proposed her by saying that he would marry her in future and after that cohabited her on several occasions and further alleged that the aforesaid act of cohabitation on false assurance to marry her in future was continued for about eight months before registration of First Information Report. It has further been alleged that when the victim girl became pregnant and was carrying pregnancy of six months then pressure was put on the accused-petitioner to marry her but the petitioner had refused to marry her and pursuant to that the prosecution case has been lodged. 3. After lodging of FIR, the case was investigated and after due investigation, charge-sheet under Section 376 of the Indian Penal Code was submitted and cognizance was taken. The petitioner pleaded not guilty and sent up for trial. 4. In order to substantiate its case, the prosecution examined altogether four witnesses and exhibited certain documents. Based upon the evidences, both oral and documentary, laid before him, the learned trial court found the petitioner guilty for the offence under Section 376 of the Indian Penal Code and convicted him for a period of two and half years and directed the petitioner to serve the sentence before Juvenile Special Home, Dhanbad. 5. Being aggrieved, the petitioner challenged the order of learned trial court before the learned Principal Sessions Judge, Sahibganj in Criminal Appeal No. 41 of 2013, who after concurring with the finding of the learned trial court affirmed the conviction and sentence as passed by the learned trial court. 6. Ms. 5. Being aggrieved, the petitioner challenged the order of learned trial court before the learned Principal Sessions Judge, Sahibganj in Criminal Appeal No. 41 of 2013, who after concurring with the finding of the learned trial court affirmed the conviction and sentence as passed by the learned trial court. 6. Ms. Jaswinder Mazumdar, learned counsel for the petitioner, vehemently argued that it is a concocted story put by the prosecution and as a matter of fact the victim girl was adult and much mature than the petitioner, who was admittedly a juvenile and there was no force or misrepresentation committed by the petitioner and it was the girl who had given the consent to sexual intercourse with the accused-petitioner with whom she was deeply in love. The entire allegation of committing rape upon victim girl is false and fabricated story and has been cooked up. Admittedly, the petitioner is a juvenile and is quite innocent and has committed no offence. She lastly submits that this is a fit case for setting aside the judgment/order of learned courts below. 7. Per contra, the learned A.P.P. appearing on behalf of the State has defended the impugned judgment passed by the courts below and has submitted that all the prosecution witnesses have fully supported the prosecution case specially PW-1 who is the victim girl. She has categorically stated that the petitioner had cohabitated her on a false promise and assurance to marry her in future but after that when she became pregnant, the petitioner refused to marry her. This is a case fit case where the petitioner shall not be granted any relief, whatsoever, by this Court. 8. Heard learned counsels for the parties. 9. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and capable of consenting but the act is done against her will and the second, where it is done without her consent; the third, fourth and fifth, when there is consent but it is not a consent as excuses the offender, because it is obtained by putting her, or 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. 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 mind of a person to permit the doing of the act complained of. 10. In the instant case admittedly the petitioner was a juvenile and aged about 16 years and the victim girl was adult and aged about 20 years. This clearly goes to show that the victim girl was much more mature than the petitioner. Further it has been categorically admitted by the PW-2, who is the mother of the victim girl, that her daughter wanted to marry the petitioner and that all the family members were knowing the petitioner very well. It has also come in the evidence of the victim girl that there were only three rooms and the victim girl was residing along with her father and mother and three brothers and one sister so it cannot be inferred that the petitioner was having cohabitation without the knowledge of other family members. 11. In my considered opinion a consent was given by the victim girl to sexual intercourse with the petitioner with whom she was deeply in love on a promise that he would marry her on a later date cannot be said to be given under the misconception of fact. It has been held by the Hon’ble Apex Court in the case of Uday vs. State of Karnataka, (2003) 4 SCC 46 that a false promise is not a fact within the meaning of the Code. Recently, the Hon’ble Apex Court in the case of Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2018) SCC Online SC 3100 has discussed the issue at hand in details. For better appreciation of the instant case, paragraphs 15, 16, 17, 18 and 19 are quoted herein below: “15. Section 375 defines the offence of rape and enumerates six descriptions of the offence. For better appreciation of the instant case, paragraphs 15, 16, 17, 18 and 19 are quoted herein below: “15. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the 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, or 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 mind of a person to permit the doing of the act complained of. 16. Section 90 of the IPC defines “consent” known to be given under fear or misconception: “Section 90: Consent known to be given under fear or misconception - A consent is not such a 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.” 17. Thus, Section 90 though does not define “consent” but describes what is not “consent.” Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. 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 also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. 18. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. 18. In Uday vs. State of Karnataka, (2003) 4 SCC 46 , this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus:- “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. 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant and her consent was not in consequence of any misconception of fact.” 19. In Deelip Singh alias Dilip Kumar vs. State of Bihar, (2005) 1 SCC 88 , the Court framed the following two questions relating to consent:- “(1) 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? (2) 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?” 12. In this view of the matter, I am having no hesitation in holding that the learned court below have not taken into consideration the evidences in its right perspective and misdirected itself in sentiments. In this view of the matter, I am having no hesitation in holding that the learned court below have not taken into consideration the evidences in its right perspective and misdirected itself in sentiments. In view of the aforesaid facts and circumstances and the judicial pronouncements discussed herein above, the instant revision application is allowed and the judgment dated 21.05.2013, passed by the learned Principal Sessions Judge, Sahibganj in Criminal Appeal No. 41 of 2013 and the judgment of conviction and order of sentence both dated 13.03.2013 passed by the learned Principal Magistrate, Juvenile Justice Board, Sahibganj in connection with G.R. No. 296 of 2011 (E. No. 34 of 2013) arising out of Rajmahal (Ranga) P.S. Case No. 33 of 2011 are, hereby, set aside. 13. The petitioner is discharged from the liability of his bail bond. 14. Let the lower court record be sent to the court concerned forthwith.