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2020 DIGILAW 351 (GAU)

Taring Tamuk v. State of Arunachal Pradesh

2020-03-05

PARTHIVJYOTI SAIKIA

body2020
JUDGMENT Parthivjyoti Saikia, J. - Heard Mr. R. Sonar, learned counsel for the petitioner. Also heard Mr. J. Tsering, learned Public Prosecutor, Arunachal Pradesh, for the State respondent No. 1 and Mr. J. Techi, learned counsel for the private respondent No. 2. 2. By filing this petition under Section 482 of the Cr.P.C., the petitioner has prayed for quashing of the F.I.R. dated 18.02.2019, pertaining to Itanagar Women P.S. Case No. 24/2019, registered under Sections 376/417 of the Indian Penal Code. 3. The brief facts of the case can be put in nutshell as follows. 4. The petitioner, herein, is now pursuing his Post Graduate studies in Medicine. While he was studying in Class-10, he developed relationship with a girl of his class and thereafter had physical relationship with her. Their physical relationship continued for several subsequent years. 5. Now, the aforesaid girl has lodged an F.I.R. on 18.02.2019 before the Police stating that in the month of March 2007, the petitioner had forcibly committed sexual intercourse with her at mid night in a house of her relative located at Yazali. Thereafter, one day while she was staying in the rented house of her classmate, the petitioner arrived there at mid night and started to touch her private parts without her permission. As to how he entered into the house, the victim girl has explained that at that time she did not know that the petitioner was knocking at the door. She thought that someone else was knocking the door and therefore she had to open the door and the accused came in and did that act with her. The victim girl further stated that on that day, the petitioner again had forcible sexual intercourse with her. But this time, the petitioner told her that he really loved her and would marry her in future. The victim girl has stated that she was carried away by the false promise of the petitioner and started to have regular physical relationship with him for many subsequent years. In the year 2011, the petitioner went to Ukraine to pursue his further studies. The victim girl has alleged that from some reliable source, she came to know that the petitioner had fallen in love with another Arunachali girl who was also staying at Ukraine. The victim confronted the petitioner on this issue and the petitioner denied that fact. 6. In the year 2011, the petitioner went to Ukraine to pursue his further studies. The victim girl has alleged that from some reliable source, she came to know that the petitioner had fallen in love with another Arunachali girl who was also staying at Ukraine. The victim confronted the petitioner on this issue and the petitioner denied that fact. 6. By that time, the victim girl started to develop a fear that the petitioner might not marry her. Therefore, she informed her family about the aforesaid fact. Her family then contacted the family of the petitioner and both the sides had discussions about that matter. In one of such meetings, the petitioner again promised that he would marry her when his studies are over. 7. The victim girl has further stated that very slowly, the petitioner started to ignore her but his family members assured her that after completion of studies the petitioner would surely marry her. Thereafter, on one occasion, the petitioner had come to Itanagar and again had sexual intercourse with her. 8. By that time, the petitioner had completed his studies from Ukraine and returned to New Delhi where he started to do his internship. But the victim girl was disturbed by the behavior of the petitioner as he was allegedly ignoring her. Finally, on 13.12.2018, the victim girl had gone to New Delhi to meet the petitioner but on seeing the victim girl there, the petitioner became angry and allegedly beat her also. After that, the petitioner brought her to a place called Gautam Nagar at New Delhi and deserted her there. Next day, she returned to Itanagar. 9. The victim girl has claimed that after an 11 years old relationship, the petitioner cheated her on a false promise of marriage and thereby had physical relationship with her. 10. With the aforesaid allegations, the victim girl lodged the F.I.R. on 18.02.2019. 11. Mr. Sonar, the learned counsel for the petitioner, has submitted that there is a difference between false promise and breach of promise. Mr. Sonar, learned counsel, has further submitted that the petitioner was aged about 15 years when he was in Class-10 and in that age, he had developed physical relationship with the victim girl, who was his classmate. The learned counsel has questioned whether at that time the petitioner had a criminal mind to make a false promise of marriage. Mr. Sonar, learned counsel, has further submitted that the petitioner was aged about 15 years when he was in Class-10 and in that age, he had developed physical relationship with the victim girl, who was his classmate. The learned counsel has questioned whether at that time the petitioner had a criminal mind to make a false promise of marriage. He has submitted that for the next 11 years he continued to have his relationship with the victim girl. He never ditched her. According to Mr. Sonar, learned counsel, the victim girl, herein, is over possessive and that is why she has roped the petitioner in this case. 12. Mr. Sonar, learned counsel for the petitioner, has relied upon following 2 (two) decisions of the Supreme Court in support of his case. wxyz (1) Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., (2007) 12 SCC 1 ; and zyxw wxyz (2) Pramod Suryabhan Pawar Vs. State of Maharashtra & Ors., (2019) 9 SCC 608 zyxw 13. In Inder Mohan Goswami (supra), the Supreme has held as under - wxyz 32. In State of Haryana v. Bhajan Lal7 this Court in the backdrop of interpretation of various relevant provisions of CrPC under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: (SCC pp. 378-79, para 102) zyxw wxyz 102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 378-79, para 102) zyxw wxyz 102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. zyxw wxyz (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. zyxw wxyz (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. zyxw wxyz (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. zyxw wxyz (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. zyxw wxyz (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. zyxw wxyz (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. zyxw 14. In Pramod Suryabhan Pawar (supra), the Supreme Court has held as under - wxyz 18. To summarise the legal position that emerges from the above cases, the consent of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. zyxw 14. In Pramod Suryabhan Pawar (supra), the Supreme Court has held as under - wxyz 18. To summarise the legal position that emerges from the above cases, the consent of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the consent was vitiated by a misconception of fact arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman s decision to engage in the sexual act. zyxw 15. Per contra, the learned counsel for the victim girl has submitted that this is not a fit case for exercising the power under Section 482 of the Cr.P.C. In order to buttress his point, the learned counsel relied upon a decision of the Supreme Court rendered in Rajiv Thapar Vs. Madan Lal Kapoor, (2013) 3 SCC 330 . In paragraph 30 of the judgment, the Supreme Court has held as under wxyz 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- zyxw wxyz 30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? zyxw wxyz 30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. zyxw wxyz 30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? zyxw wxyz 30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? zyxw wxyz 30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? zyxw wxyz 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. zyxw 16. The word rape is defined by Section 375 of the Indian Penal Code. It states that whoever has sexual intercourse with a girl without her consent then the said person will be punishable by law. Explanation 2, appended to Section 375 of the Indian Penal Code, states that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act. 17. The Section 90 of the IPC has defined the word consent as under - wxyz Section 90. Consent known to be given under fear or misconception zyxw wxyz 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 ; or zyxw wxyz Consent of insane person zyxw wxyz 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 zyxw wxyz Consent of child zyxw wxyz unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. zyxw 18. zyxw 18. In the case of Uday v. State of Karnataka, (2003) CriLJ 1539 , the Apex Court considered the earlier decisions on the subject and held as follows: wxyz 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 always 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. zyxw wxyz There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90, IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The, question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o''clock in the night. It usually happens in such cases, when two young person are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment succumb to temptation of having sexual relationship. This is what appears to have happened in this case as well as, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent. zyxw 19. In the case of Dilip Singh Alias Dilip Kumar v. State of Bihar, (2005) AIR SC 203 , the question before the Apex Court was as to whether consent given by a woman believing a man''s promise to marry her is a ''consent'', which excludes the offence of rape. The decision in Uday (supra) was further explained by the Apex Court, in Dilip Singh (supra), as follows: wxyz The first two sentences in the above passage need some explanation. ''While we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Ram Panda, which was approvingly referred to in Uday case. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1530, para 7) -"unless the court can be assured that from the very inception the accused never really intended to marry her", (emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an act of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be said that this court has laid down the laws differently. The observations following, the aforesaid sentence are also equally important. The court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case as a whole, we do not understand the court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused''s intention to marry cannot be ruled out. zyxw 20. In Bipul Medhi v State of Assam, reported in 2007 (2) GLR 200 , this Court has, in a similar matter, held wxyz If a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the Court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain consent of the woman, for, such a consent given by the woman would not, in the light of the provisions of Section 90 IPC, amount to consent in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under Section 417 IPC if the victim''s having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would not have permitted sexual act by the accused. zyxw 21. One year later, after Bipul Medhi (supra), in Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar and Anr., (2007) AIR SC 3059 , the Supreme Court has again dealt with the subject. The facts of the case before the Apex Court are as under wxyz Respondent No.2 lodged the First Information Report (in short the ''FIR'') alleging that with an assurance that the accused-appellant would marry her, he had sexual relationship with her. When this went on for some time, the informant had been taken to a temple where in the presence of deity he accepted her to be his wife and there was an agreement of marriage entered into. Alleging that the accused was likely to get married with some other lady, an FIR was lodged. zyxw 22. In Pradeep Kumar @ Pradeep Kumar Verma (supra), the Supreme Court has held and laid down the ratio as under wxyz A promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, I.P.C., it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, I.P.C. clause second. zyxw 23. zyxw 23. Thus the law is very clear that a promise to marry without anything more will not give rise to wxyz misconception of fact within the meaning of Section 90, I.P.C. In the instant case, the victim claimed that she was promised by the accused that he would marry her and on that promise he had sexual intercourse for the next eleven years. She had not disclosed the matter to anyone for many years. But she had already attained sufficient maturity. Moreover she waited eleven years to file allegation that the petitioner had cheated her by a false promise of marriage. zyxw 24. So far as offence of cheating is concerned, the aforesaid law is quietly applicable. Now, I have reasons to hold that there is no prima facie case under Sections 376 & 417 of the Indian Penal Code against the petitioner. The probability of future conviction of the petitioner in the trial is bleak and remote. I am of the opinion that allowing the proceeding to continue in the Trial Court would be nothing but an abuse of the process of the Court. Therefore, the F.I.R. dated 18.02.2019, pertaining to Itanagar Women P.S. Case No. 24/2019, registered under Sections 376 & 417 of the Indian Penal Code, stands quashed. 25. The criminal petition is, accordingly, disposed of.