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2022 DIGILAW 1011 (JHR)

Sukhdeo Oraon v. State of Jharkhand

2022-08-12

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. This revision application is directed against the judgment dated 15.4.2004 passed by learned 1st Additional Sessions Judge, Gumla in Criminal Appeal No.53/1998; whereby the judgment of conviction and order of sentence, both dated 4.9.98, passed by the learned 2nd Assistant Sessions judge, Gumla in S.T. No.66/95, whereby the petitioner was convicted u/s 376 IPC and was sentenced to undergo R.I. for Five years; has been affirmed and the appeal filed by the petitioner was dismissed. 3. The prosecution case in short is that on 6.3.94 the informant was dragged out of her house by the accused persons and was brought to the house of petitioner. At about 10.00 p.m. in the night she was brought back to her home and on the way she was raped by Sukhdeo Oraon. Thereafter, a panchayat was convened but the accused persons disturbed the panchayati. On the basis of the written report, the instant case was registered and after investigation, police submitted charge-sheet. Accordingly, charge was framed against the accused person for which he pleaded not guilty and claimed to be tried and finally the he was convicted. 4. Mr. A.K. Kashyap, learned senior counsel for the petitioner while assailing the judgment contended that though the petitioner has been convicted for the offence under Section 376, however from paragraph 7, 8 & 9 of the deposition of the victim herself, it transpires that the victim was more than 17 years and she was a consenting party at the time of occurrence, for the reason that she had categorically deposed that both to them were living as husband and wife. This categorical statement shows that the occurrence was with consent of the victim herself. Further, the lady herself deposed that since the petitioner failed to marry with her, the criminal case was filed against the petitioner. Learned senior counsel further draws attention of this Court towards the prevailing law at the time of occurrence and submits that though the petitioner has been convicted under Section 376; however, by the Criminal Law Amendment Act (2013); the age of consent for sexual intercourse by a girl, has been increased to 18 years which was earlier 16 years and as such there will not be any offence at the time of occurrence because the victim had herself stated in her deposition that she is 17 years. The other argument of learned senior counsel is that the doctor has not been examined in this case and the entire case is only due to the reason that the petitioner did not marry with the victim and on this ground only the petitioner has been dragged in the criminal proceeding and the conviction order passed by the trial court needs interference. 5. Learned APP opposed the prayer made by the petitioner and submits that there is specific allegation against this petitioner who had committed rape. Further, there is no error in the findings given by the courts below. As such, the conviction cannot be set aside, however he could not defend the submission of the learned senior counsel that the victim was a consenting party and there was a love affair between them. 6. Having heard learned counsel for the parties and after going through the judgments passed by the courts below and the LCR, specifically the deposition of the victim at paragraph nos.7, 8 and 9 it appears that the petitioner as well as the informant were living in relationship as husband and wife. In this regard reference may be made to the case of Uday v. State of Karnataka reported in [ (2003) 4 SCC 46 ], wherein the Hon'ble Apex 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. Relevant paragraph is quoted herein below:- “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. 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.” 7. In the instant case, the prosecutrix/victim was a grown-up girl aged about 17 years at the time of occurrence. She was in love with the petitioner and both of them were living as husband and wife. All these circumstances leads to the conclusion that she freely, voluntarily and consciously consented for having sexual intercourse with the petitioner, and her consent was not in consequence of any misconception of fact. 8. At this stage it is relevant to mention here that by the Criminal Law Amendment Act (2013); the age of consent for sexual intercourse by a girl, has been increased from 16 to 18 years; thus, as per the prevailing law, at the time of occurrence since the age of the victim was 17 years as per her deposition; her consent was not in consequence of any misconception of fact and the petitioner could not be convicted for the charge of Rape when the entire occurrence was with consent. 9. All these aspects have been overlooked by the learned trial court as well as by the learned appellate court and the trial court has mechanically convicted the petitioner and overlooked many vital lacunae in the prosecution case. 10. 9. All these aspects have been overlooked by the learned trial court as well as by the learned appellate court and the trial court has mechanically convicted the petitioner and overlooked many vital lacunae in the prosecution case. 10. Consequently, the judgment dated 15.4.2004 passed by learned 1st Additional Sessions Judge, Gumla in Criminal Appeal No.53/1998 and the judgment of conviction and order of sentence dated 4.9.1998 passed by the learned 2nd Assistant Sessions judge, Gumla in S.T. No.66/95, is hereby, quashed and set aside. 11. The petitioner shall be discharged from the liability of his bail bonds. 12. Accordingly, the instant criminal revision application, is hereby, allowed and disposed of. 13. Let a copy of this order be communicated to the court below and also to the petitioner through the officer-in-charge of concerned police station. 14. Let the lower court record be sent to the court concerned forthwith.