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2024 DIGILAW 394 (JHR)

Navin Kumar @ Navin Sahu v. State of Jharkhand

2024-04-12

SUBHASH CHAND

body2024
JUDGMENT : SUBHASH CHAND, J. 1. Heard learned counsel for the petitioner and learned Special P.P. for the State. 2. The present criminal revision has been preferred against the order dated 18th August, 2023 passed by the learned Additional Judicial Commissioner-XXI, Ranchi in Misc. Criminal Application No. 2402 of 2023, whereby the discharge petition under Section 227 of the Cr.P.C. filed by the petitioner has been rejected. 3. The brief facts leading to this criminal revision are that the informant-victim had given the written information with the police station concerned with these allegations that accused Navin Kumar came in her contact for the first time in August, 2018 in a birthday party near Radisson Blue Hotel, Ranchi. Thereafter, the said accused began to meet her. One day when she was alone at her house, he came to her house at New Alkapuri, Doranda and raped her. On her weeping he assured that he would marry her. After few days of that occurrence he took her on the pretext to introduce her to his mother in a street in front of Pantaloon, Dangratoli, where he also raped her. He also clicked her photographs. Many times he took her to his house and also told to his family members at the house that he would marry her. He also took her to different hotels and in a room of Mapplewood he sexually exploited her. Occasionally she opposed the said act of accused. In the meantime she also became pregnant. Ultrasound was also done and a fetus of four and half months was confirmed in her womb. On 29th September, 2020 in Laxmi Nursing Home the accused after having put vermilion on the head of victim got abortion done. Still thereafter the accused continued to sexually exploit her and again she became pregnant. He again took her to the doctor, where doctor refused for termination of the pregnancy and the accused after having put vermilion on the forehead of the victim took her to Santevita Hospital posed her to be his wife and the abortion was done on 6th July, 2021. On 30th December, 2021 he took her to Calcutta and told that he would marry her in Kali Mandir and there also he continued to establish physical relation with her in a hotel and ultimately came back to Ranchi without solemnization of marriage in January, 2022. On 30th December, 2021 he took her to Calcutta and told that he would marry her in Kali Mandir and there also he continued to establish physical relation with her in a hotel and ultimately came back to Ranchi without solemnization of marriage in January, 2022. Doubt was created in the mind of the informant and she came to know that the accused had got married on 9th December, 2020 with one Madhu Sahu. When the victim asked the accused in regard to previous marriage he criminally intimidated her and told that he would make all the photographs viral on social media. He also got her signature on several papers on the pretext of marriage. He had cheated her and raped her and the fetus in her womb were also aborted. 4. On this written information, Doranda Sadar P.S. Case No. 107 of 2022 was registered under Sections 417, 376 and 313 of the Indian Penal Code against the accused Navin Kumar @ Navin Sahu. 5. I have heard the learned counsel for the parties and perused the materials available on record. 6. The learned counsel for the petitioner has submitted that as per the allegations made in the F.I.R. which was lodged by the victim herself she came in contact of the petitioner for the first time in August, 2018 and she lodged the F.I.R. after lapse of about four years on 4th May, 2022. As per admission of the informant/victim in the year 2022 she was 26 years old, as such in the year 2018 she was major being 22 years old and from the allegations made in the F.I.R. she was consenting party and she was aware with all the facts in regard to the petitioner. The petitioner never cheated her, even the abortions were also done with her consent, as per allegations made in the F.I.R. itself. Therefore, no alleged offence is made out against the petitioner. 7. On behalf of the State, learned Spl. P.P. and on behalf of the informant learned private counsel opposed the contentions made by the learned counsel for the petitioner and contended that certainly the petitioner was major but the petitioner had allured her to marry and the consent was obtained by playing fraud upon her. As such the consent was not free in view of Section 90 of the Indian Penal Code. As such the consent was not free in view of Section 90 of the Indian Penal Code. The abortions were also done after having put vermilion on the forehead of the victim posing her to be his wife, therefore, this act was also deception played on the part of the petitioner. The consent being obtained under misconception by playing fraud, therefore, the offence under Section 417, 376 and 313 of the Indian Penal Code is made out against the petitioner. As such, the impugned order passed by the learned trial court bears no infirmity. 8. It is the settled law that while framing charge, the Court has to take into consideration the allegations made in the F.I.R. and also the evidence collected by the I.O. i.e. oral or documentary during the investigation. If from the allegations made in the F.I.R. and the evidence collected during investigation, there are sufficient ground to proceed, the Court should decline to allow the discharge application. If from the cumulative evidence i.e. oral and documentary collected during the investigation and the allegations made in the F.I.R. the Court is of the definite opinion that there is no ground to proceed against the trial, the application for the discharge may be allowed. 9. The Hon’ble Apex court in the case of Palwinder Singh vs. Balwinder Singh and Others, (2008) 14 SCC 504 at paragraph 13 has held as under: “13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa vs. Debendra Nath Padhi wherein it was held as under: “23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. This aspect of the matter has been considered by this Court in State of Orissa vs. Debendra Nath Padhi wherein it was held as under: “23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. [Satish Mehra vs. Delhi Admn.] holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.” 10. The Hon’ble Apex Court in the case of CBI vs. Mukesh Pravinchandra Shroff, (2009) 16 SCC 429 at paragraph 2 has held as under: “2. By the impugned order, the Special Court has discharged the accused Raghunath Lekhraj Wadhwa, Jitendra Ratilal Shroff and Mukesh Pravinchandra Shroff from Special Case No. 4 of 1997. From a bare perusal of the impugned order, it would appear that the Special Court has virtually passed an order of acquittal in the garb of an order of discharge. It is well settled that at the stage of framing of the charge, what is required to be seen is as to whether there are sufficient grounds to proceed against the accused. In our view, the Special Court was not justified in discharging the aforesaid accused persons.” 11. The Hon’ble Apex Court in the case of Vikram Johar vs. State of Uttar Pradesh, AIR 2019 SC 2109 at paragraph 19 has held as under: “19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.” 12. The Hon’ble Apex Court in the case of P. Vijayan vs. State of Kerala and Another, 2010 (2) SCC 398 at paragraphs 11 and 25 has held as under: “11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 25. As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that “there is not sufficient ground” for proceeding against the accused. In other words, his consideration of the record and documents at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time when a prima facie case was not disclosed and to save the accused from avoidable harassment and expenditure.” 13. The F.I.R. of this case was lodged by the victim herself and she has disclosed her age as 26 years on the date of lodging of the F.I.R. which was lodged in the month of May, 2022 and as per allegations made in the F.I.R. the accused/petitioner came in her contact for the first time in August, 2018. As such in August, 2018, the victim was 22 years old. Though in the F.I.R. no specific date is mentioned when for the first time the rape was committed, yet it is mentioned that after August, 2018, the accused/petitioner used to visit her and one day he came to her house and raped her. When she wept, after commission of rape, she was assured that he would marry her. From the very averment, it is found that allurement of marriage was given by the petitioner subsequent to commission of rape. It is alleged in the F.I.R. itself that again he took her in a street in front of Pantaloon, Dangratoli he raped her and clicked her photograph. From the very averment, it is found that allurement of marriage was given by the petitioner subsequent to commission of rape. It is alleged in the F.I.R. itself that again he took her in a street in front of Pantaloon, Dangratoli he raped her and clicked her photograph. It is also alleged that the petitioner took her to different hotels, where he sexually exploited her. In the year 2020, abortion was also done in Laxmi Nursing Home, where she was posed as wife, since the accused had put vermilion on her forehead. Again she became pregnant and in the same way abortion was also done posing her to be his wife but when she was posed to be wife, the victim did not opposed this act of petitioner. As such she had given her acquiesce being posed to be the wife of the petitioner. Thereafter she was also taken to Kolkata in the year 2021 on the pretext of marrying in Kali Mandir but thereof she was raped in hotel and came back in January, 2022. 14. Since August, 2018 to January, 2022 the thorough conduct of the victim who was major who had visited several hotels with the petitioner wherein she was allegedly raped, her act and conduct is found consensual. Thereafter she came to know that he had already married with another lady. From the very allegations made in the F.I.R., it is found that there is breach of promise on the part of the petitioner not marrying with her who had subsequently assured her after commission of first rape upon the victim. Admittedly the victim consensually established physical relation with the petitioner continuously for four years, though under impression that he would marry her. The victim being major was well aware with the consequence of establishing physical relation without solemnization of marriage as is evident from the allegations made in the F.I.R. 15. The victim in her restatement under Section 161 Cr.P.C. in paragraph 3 of the case-diary reiterated all those allegations which were made in the F.I.R. itself. In paragraph 7 of the case-diary, the father of the victim also stated that the accused used to come to meet his daughter. On being asked his daughter used to tell him that he was her friend and she wanted to marry with him. In paragraph 7 of the case-diary, the father of the victim also stated that the accused used to come to meet his daughter. On being asked his daughter used to tell him that he was her friend and she wanted to marry with him. He also made his daughter to understand but his daughter told that their friendship developed into physical relation at several places and his daughter told him in regard to his former marriage when she came from Calcutta. 15.1 In paragraph 8 of the case-diary Arwind Kumar Bhagat and in paragraph 9 of the case-diary Rajesh Kacchap have also stated that they had seen the victim with the petitioner going to several places and it was come to know that both would marry. 15.2 In view of paragraph 46 of the case-diary in Sadar Hospital, Ranchi, the victim was medically examined. The victim stated in regard to the physical relation between her and the petitioner but no recent sign of establishing physical relation was found on the date of examination of the victim. 15.3 In paragraph 55 of the case-diary, the records of hotel Maplewood were checked, wherein Nawin Kumar has shown himself to be the husband of Ruby Kumari. 15.4 As per medical papers pregnancy of 10 weeks 6 days was also detected on 29th August, 2020. At that time victim was 23 years old. In the case-diary, the prescription of 11th August, 2020 of Laxmi Nursing Home shows the name of Ms. Ruby Kumari daughter of Late Chandrika Prasad. In the prescription dated 29th September, 2020 of Laxmi Nursing Home, the name of patient is shown Ruby Kumari wife of Mr. Naveen Kumar. The cash bill of Santevita Hospital is in name of Mrs. Ruby Sahu. 16. From all these documentary evidence this fact is corroborated that the petitioner was shown as husband of victim. From the allegations made in the F.I.R. factum of showing victim being wife of petitioner is proved but this act is not found on the part of the petitioner to be fraudulent as victim was also consenting party because she was posing herself to be the wife of the petitioner. As such the thorough conduct of the victim is found consensual and the consent of the victim is found vitiated in view of Section 90 of the Indian Penal Code. 17. As such the thorough conduct of the victim is found consensual and the consent of the victim is found vitiated in view of Section 90 of the Indian Penal Code. 17. Herein Explanation 2 of Section 375 of the Indian Penal Code is relevant which is reproduced as under: “Explanation 2 - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.” 18. The Hon’ble Supreme Court in the case of Pramod Suryabhan Pawar vs. State of Maharashtra and Another, (2019) 9 SCC 608 has held at paragraph No. 21 as under: “21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred.” 18.1 The Hon’ble Supreme Court in the case of Mandar Deepak Pawar vs. State of Maharashtra and Another, 2022 Live Law (SC) 649 has held as under: “The appellant and respondent No. 2 were undisputedly in a consensual relationship from 2009 to 2011 (or 2013 as stated by the respondent No. 2). It is the say of the respondent No. 2 that the consensual physical relationship was on an assurance of marriage by the appellant. The complaint has been filed only in 2016 after three years, pursuant whereto FIR dated 16.12.2016 was registered under Section 376 and 420, IPC. On hearing learned counsel for parties, we find ex facie the registration of FIR in the present case is abuse of the criminal process. The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. - 5 - Thereafter also three years passed when respondent No. 2 decided to register a FIR. The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 16.12.2016 and bringing the proceedings to a close. Permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself. We are fortified to adopt this course of action by the judicial view in Pramod Suryabhan Pawar vs. State of Maharashtra and Another, (2019) 9 SCC 608 where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860.” 18.2 The Hon’ble Supreme Court in the case of Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra and Another, (2019) 18 SCC 191 at paragraph Nos.20 and 21 has held as under: “20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus: [Deelip Singh vs. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253, SCC p. 106, Para 35] “35. The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW-12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW-12 that “later on”, the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday vs. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775 at Para 24 come to the aid of the appellant.” 21. In Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660, the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old busstand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused.” 19. In view of the allegations made in the F.I.R. the cumulative evidence collected by the I.O. during investigation i.e. oral as well as documentary and the settled propositions of law as laid down by the Hon’ble Apex Court as referred hereinabove, there are no sufficient grounds to proceed with trial against the accused. In view of the allegations made in the F.I.R. the cumulative evidence collected by the I.O. during investigation i.e. oral as well as documentary and the settled propositions of law as laid down by the Hon’ble Apex Court as referred hereinabove, there are no sufficient grounds to proceed with trial against the accused. As such, the impugned order dated 18th August, 2023 passed by the learned trial court rejecting the discharge application of the petitioner needs interference by this Court. 20. Accordingly, this criminal revision is, hereby, allowed and the aforesaid impugned order passed by the learned trial court is hereby set aside. The petitioner is discharged from the offence under Sections 376, 313 and 417 of the Indian Penal Code. 21. Let a copy of this order be communicated to the court concerned through ‘FAX’.