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2019 DIGILAW 271 (ORI)

Basanta Kisan v. State Of Orissa

2019-04-03

D.DASH

body2019
JUDGMENT : D. Dash, J. The petitioner, by filing this revision, has assailed the judgment dated 16.07.2018 passed by the learned Additional Sessions Judge, Deogarh in Criminal Appeal No.09 of 2018/04 of 2018 confirming the judgment of conviction and order of sentence dated 22.2.2018 and 7.3.2018 respectively passed by the learned Assistant Sessions Judge (S.T.C.), Deogarh in Sessions Trial No.46/14 of 2015. The petitioner has been convicted for offence under section 376(1) of the Indian Penal Code (in short, 'the IPC') and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for three months. The appellate court, being moved by the petitioner-accused, has refused to interfere with the said finding of the conviction recorded by the trial court, so also the order of sentence. 2. The prosecution case, in short, is that the accused and the victim come from the same caste. The accused once having forcibly committed sexual intercourse with the victim; she became pregnant and when was carrying five months of pregnancy, the accused, who had then promised to marry her, refused to go for marriage. So, a meeting was convened in the village and as nothing could be decided, ultimately the victim (P.W.4) lodged the F.I.R. (Ext.6). 3. The defence plea is that of complete denial and false implication. 4. The trial court, on analysis of evidence of eleven witnesses examined from the side of the prosecution as against nil from the side of the defence as also the documents more importantly the F.I.R., Ext.6; the medical examination report of the victim (Ext.7), besides other documents, has come to conclude that the accused is liable for commission of offence under section 376 IPC for his act of having forcible sexual intercourse with the victim with the promise of marriage, which led to her pregnancy. With such finding, the accused has been convicted. The lower appellate court has also taken the same view on analysis of evidence at its level while judging the sustainability of the finding of the trial court. 5. Learned counsel for the petitioner submitted that the finding of the courts below that the accused is guilty of commission of offence under section 376(1) of the IPC has not been the outcome of just and proper appreciation of evidence. 5. Learned counsel for the petitioner submitted that the finding of the courts below that the accused is guilty of commission of offence under section 376(1) of the IPC has not been the outcome of just and proper appreciation of evidence. It is his submission that even as per the evidence of the victim and keeping in view the surrounding circumstances, which emanate from the evidence of the victim (P.W.4) and other witnesses, if it is accepted that the accused had the sexual relationship with the victim, which has led to her pregnancy, the same clearly appears to be with consent of the victim (P.W.4) knowing fully well about consequences. He thus submits that the findings of the conviction, as has been recorded by the court below, are perverse and unsustainable. Learned counsel for the State submits that when it has been proved by the prosecution through clear, cogent and acceptable evidence that the accused having forcibly committed sexual intercourse upon the victim on the promise of marriage which has ultimately been breached by him, the courts below have rightly convicted the accused for commission of offence under section 376 of the IPC. 6. In order to address the rival submission, let us straight way proceed to have a look at the evidence of the victim (P.W.4). It is her evidence that she and accused had known each other since the year 2009. The elder sister of the accused is married to a distant relation of the victim. They used to talk when the accused used to come to her village. It has been stated by her that the accused, by telephoning, asked her to come to witness Lulang Dussehera festival to which she agreed and accordingly, she with her parents, sister and other guests went. It is her further evidence that when she was in the festival field with others, the accused called her by giving a ring on her mobile to the kenduleaf godown situated near the said field. Responding and accepting to the call, she went near the kenduleaf godown when she found the accused to be present. It has been further stated that she and the accused entered into the godown when her sister remained outside. Responding and accepting to the call, she went near the kenduleaf godown when she found the accused to be present. It has been further stated that she and the accused entered into the godown when her sister remained outside. The allegation is that inside the godown, the accused disrobed her to which she objected and then the accused having told that he would marry her, had sexual intercourse without her consent. Thereafter, all returned to the festival field. After few months of the said act, it came to the light that the victim has become pregnant, which her parents could know and on asking by her mother, the incident was narrated. It is next stated that her father, having come to know about it, he with others went to the village of the accused to settle the matter and convened a meeting of their caste people where the accused flatly denied to have any involvement in the matter. Police having been reported about the incident, the case has been initiated. This is all the evidence of the victim. So, here is a case where the victim states to have finally participated in having the sexual relationship with the accused as if placing belief upon his promise as to marriage. Such relationship is said to be on that solitary occasion. The conduct of the victim as has been expressed by her are that she went to village to the festival field on the request of the accused over phone and then leaving the family members there in the field, proceeded with her sister to the kenduleaf godown on being asked by the accused giving her a ring in her mobile. She went inside into the godown with the accused leaving of her sister outside. All these go to show that till her move inside the godown, it was on her own accord and there was no force, compulsion or instigation for that. The victim is aged around 23 years. It is her evidence that when the accused disrobed her, she raised the protest and then the accused told her that they would marry. Next, it is said that the accused committed rape on her without her consent. The sister of the victim has not been examined. The victim is aged around 23 years. It is her evidence that when the accused disrobed her, she raised the protest and then the accused told her that they would marry. Next, it is said that the accused committed rape on her without her consent. The sister of the victim has not been examined. The sister of the victim, who during the incident, was outside the godown and who after the incident again returned to the field with the victim has not been examined to say as to the hearing about the said protest said to have been raised by the victim or to say as to if the victim had told all these developments which took place inside the godown and more particularly, as to under what circumstance the victim moved to the godown with the accused. Admittedly the F.I.R. has been lodged after five months of the said incident. 7. Let us now come to the legal position holding the field. 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. Section 90 of the IPC defines "consent" 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. 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. In Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 , the Apex 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"? 8. In case of Vijayan V- State of Kerala, (2008) 14 SCC 763 , the prosecutrix who was aged about 17 years was the neighbour of the accused. In her testimony the prosecutrix set up the case that accused has raped her when no one else was there in the house and she was raped in the house. The accused-appellant was alleged to have been told that she need not worry as he will marry her. She did not give any complaint either to her parents and police in view of the promise. She became pregnant and while she was carrying a child of 7 months, she requested the accused to marry her. The accused declined. Thereafter a complaint was filed after 7 months. On these fact sthis court noted that no complaint or grievance was made either to the police or the parents thereto. The explanation for delay in lodging the FIR was noted namely that the accused promised to marry her and therefore the FIR was not filed. The accused declined. Thereafter a complaint was filed after 7 months. On these fact sthis court noted that no complaint or grievance was made either to the police or the parents thereto. The explanation for delay in lodging the FIR was noted namely that the accused promised to marry her and therefore the FIR was not filed. The Apex Court held as follows: "............In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape andthat the appellant-accused was responsible for the said child. In the face of lack ofany other evidence, it is unsafe to convict the accused." In the case of Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 , on 17.9.1997 at about 8.30 a.m. it was alleged the prosecutrix was raped at a site which was by the side of a public road. It was the case of the prosecutrix that she tried to make hue and cry but was silenced by the accused by stating tha the would marry her. Even after this incident he hadsexual intercourse on more than one occasion. The prosecutrix became pregnant, gave birth to a child and accused did not keep his promise to marry her. It is thereafter that on 26.7.1998 nearly 10 months after the alleged rape that a case was registered. The Court referred the Vijayan's case (supra), took note of the place being on the side of a public road, the aspect of delayed filing of the report and also the behavior of the parents of the prosecutrix in not approaching the family members of the accused for marrying the prosecutrix and instead lodging the report. The Court referred the Vijayan's case (supra), took note of the place being on the side of a public road, the aspect of delayed filing of the report and also the behavior of the parents of the prosecutrix in not approaching the family members of the accused for marrying the prosecutrix and instead lodging the report. The Court also found that having regard to the site, if the prosecutrix has made any resistance or made hue and cry it would have attracted large number of people from the locality. The appeal filed by the accused was allowed. 9. In the present case, the victim is 23 years old and the age of the accused is around 24. She has passed Class-IX. It is her specific evidence that she had not agreed for the marriage although it was so proposed by the accused in the kenduleaf godown. The accused and the victim hail from the rural background with their house in two different villages at a distance of 2 km apart. It is not stated by the victim in her evidence that after meeting, she and the accused had any further met or they had such relationship any more. The pregnancy was detected five months after the meeting between them in the godown. It is said that when the pregnancy was detected, the accused being contacted, denied to be the author of the same for which the F.I.R. was lodged at the police station. 10. There is a delay of seven months. This becomes clear from the evidence of doctor (P.W.9) who has stated that as on the date of examination of the victim, she was pregnant and the height of the uterus was of seven months of pregnancy. On a plain reading of the evidence of the victim, it does not appear to be a case that the accused had forcibly raped her. If her evidence as to the happened events in a chronological manner is tracked, it appears to be her consensus decision after active application of mind to the things that had happened. It is not her evidence that basing upon the promise of marriage given by the accused, she surrendered to his demand. If her evidence as to the happened events in a chronological manner is tracked, it appears to be her consensus decision after active application of mind to the things that had happened. It is not her evidence that basing upon the promise of marriage given by the accused, she surrendered to his demand. Rather she states to have given her dissenting note to the said proposal of marriage given by the accused, which on the face of her evidence is not acceptable more so when her sister present during the incident in the godown has been withheld from the witness box. Having indulged in a closer look at the evidence in the proceedings having regard to the need to do so in view of this long delay in making the complaint, it is seen that there was tacit consent and the tacit consent given by her was not the result of a misconception created in her mind or believing in good faith, any misrepresentation. The view taken by the lower appellate court that the predominant reason that weighed with the victim (P.W.4) in agreeing with sexual intimacy with the accused was the hope generated in her about the prospect of marriage with the accused is not in consonance with the evidence of P.W.4 and other surrounding circumstances, which emanate from evidence coupled with the conduct of the victim. In view of all the above, the evidence adduced by the prosecution in my considered view falls short of the test of reliability and acceptability and as such it is highly risky to act upon it even in seisin of this revision. Thus, I am led to hold that the prosecution has failed to establish a case against the accused that he has committed rape upon the victim and the finding of the trial court, as has been confirmed by the lower appellate court, as such cannot be sustained being not the result of just and proper appreciation of evidence in the touchstone of the settled position of law holding the field of commission of the offence as alleged in such given facts and circumstances. 11. 11. Accordingly, the judgment dated 16.07.2018 passed by the Additional Sessions Judge, Deogarh in Criminal Appeal No.09 of 2018/04 of 2018 confirming the judgment of conviction and order of sentence dated 22.2.2018 and 7.3.2018 respectively passed by the learned Assistant Sessions Judge (S.T.C.), Deogarh in Sessions Trial No.46/14 of 2015 is set aside. 12. Resultantly, the CRLREV is allowed. The accused, if is in custody, be set at liberty forthwith in case his detention is not so required in any other case.