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2020 DIGILAW 415 (JHR)

Mohshin Ansari v. State of Jharkhand

2020-02-28

DEEPAK ROSHAN

body2020
ORDER : This revision application has been preferred by the petitioner challenging the judgment dated 6th March, 2014 passed by the learned Judicial Commissioner VI, Ranchi in Cr. Appeal No. 220 of 2013, whereby the appeal preferred by the petitioner has been dismissed and the order dated 21st August, 2013, passed by the learned Principle Magistrate, Juvenile Justice Board, Ranchi in connection with S.T. Case No. 270 of 2011, corresponding to G.R. No. 738 of 2011, whereby the petitioner was convicted under Section 376/506 of the I.P.C. and was directed to go to special home for the period of three years for the offence under Section 376/506 of the I.P.C., has been affirmed. 2. The brief facts of the case is that the petitioner had made physical relationship with the victim on false assurance of marriage and whenever the victim asked him to marry, the petitioner used to ignore the said request and finally when the victim forced him to marry, the petitioner stop talking with her and refused to marry. 3. Mr. K.K.Singh, learned counsel appearing for the petitioner submits that the petitioner was a juvenile and as such he was not having full knowledge of the things. He further contended that there are catena of judgments, wherein it has been held that, if the victim had consented for physical relationship then the said act will not amount to rape as defined under Section 376 of the I.P.C. To buttress his argument, he relied upon the judgments passed by the Hon’ble Apex Court in the case of Deepak Gulati Vs. State of Haryana, reported in (2013) 7 SCC 675 and Pramod Suryabhan Pawar Vs. State of Maharashtra and another, reported in (2019) 9 SCC 608 , wherein it has been categorically held by the Hon’ble Apex Court that a breach of promise cannot be said to be a false promise. He further relied upon the judgment of this Court in the case of Subrato Ghosh Vs. The State of Jharkhand & Anr. reported in 2011 SCC Online Jhar 395, wherein this Court has allowed the revision application filed by the petitioner on the ground that the informant who was head T.T.E. in the Indian Railway had sufficient intelligence to understand the significance and moral quality of the act and she was consenting to the petitioner, who was much younger to her. reported in 2011 SCC Online Jhar 395, wherein this Court has allowed the revision application filed by the petitioner on the ground that the informant who was head T.T.E. in the Indian Railway had sufficient intelligence to understand the significance and moral quality of the act and she was consenting to the petitioner, who was much younger to her. He concluded his argument by submitting that the learned appellate court has erred in not appreciating that it was not an offence under section 376 of the I.P.C. rather it was the case of breach of promise where offence under Section 376 is not attracted. 4. Per contra, learned A.P.P. supports the impugned judgments and submits that though the petitioner was declared juvenile, but at the time of incident he was 17 years 11 months 29 days old that is only one day short from getting major as such, he was quite matured to understand the implication of the offence and there is no error in the impugned judgment and the same should be sustained. However, relying upon the counter affidavit, he fairly submits that the case of the petitioner has been verified by the local police station and as per the verification report it has been found that the petitioner is not involved in any other criminal case and there is no criminal antecedent of the petitioner as such his sentence may be modified in lieu of fine. 5. Heard learned counsel for the petitioner and learned A.P.P for the State. From perusal of the case record, it appears that the petitioner was just one day short of 18 years as such, I am in agreement with the argument advance by the learned A.P.P. inasmuch as the petitioner was quite matured to know the implication of the offence under Section 376 of the I.P.C. The record further transpires that the victim had categorically deposed that while she had gone to bring water from hand-pipe the petitioner came there and established physical relationship with her. She further stated in her deposition that when she objected then the petitioner made a promise that he will marry her at the appropriate time. She further stated in her deposition that when she objected then the petitioner made a promise that he will marry her at the appropriate time. The record also transpires that the victim has been cross-examined at length by the defence and the fact came out that the mother of the victim was working as maid-servant in the house of the petitioner where he had established physical relationship with her for the first time. It also appears from the record that the victim herself was below 16 years. The order dated 21.08.2013 speaks in unequivocal term that the victim was examined by the doctor on 13.02.2011 and was found to be 16-17 years old, so at the time of incident the victim was below 16 years. This particular fact that the victim was below 16 years at the time of occurrence distinguishes the instant case with the cases relied upon by the petitioner. In all those cases the victim was major and quite matured to give consent having full knowledge of the implication whereas in the instant case a girl who was below 16 years of age cannot be said to be that mature that she would understand the implication and far reaching effect of the incidence. This aspect of the matter has been clearly appreciated by the learned Principle Judge, Juvenile Justice Board, Ranchi as well as the appellate court. 6. After going through the entire records of the case, in my considered opinion there is no error committed by the courts below and the judgments relied upon by the petitioner is having no implication in the instant case. The petitioner has failed to point out any error in the procedure or any perversity in the order so as to warrant any interference by this Court. As such the order passed by the learned Juvenile Justice Board, Ranchi and the judgment passed by the appellate court, are hereby, sustained. 7. However, so far as sentence is concerned there is no record to show that after the incidence there was any adverse conduct report of the petitioner. He also remained in special home for 867 days and after being released he never misused the privilege of bail. The counter affidavit filed by the State clearly transpires that the petitioner has got no other criminal antecedent save and except the present case in which he has been convicted. He also remained in special home for 867 days and after being released he never misused the privilege of bail. The counter affidavit filed by the State clearly transpires that the petitioner has got no other criminal antecedent save and except the present case in which he has been convicted. As such in my considered opinion sending the petitioner back to prison will not serve any fruitful purpose rather interest of justice would be sufficed if the order of the juvenile justice board is modified to the extent that the petitioner is sentenced to undergo for the period already undergone. 8. Ordered accordingly. 9. Let the lower court record be sent to the court concerned forthwith. 10. Let this order be communicated to the learned trial court, and also to the petitioner through Officer-in Charge of concerned police station. Revision dismissed.