High Court
Case Details
CRL.A(J) 9/2008 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI This appeal is directed against the judgment and order, dated 30.10.2007, passed , in Sessions Case No.105 (J-J) of 2005, by the learned Additional Sessions Judg e, FTC, Sivasagar, convicting the accused-appellant under Section 376 IPC and Se ction 417 IPC and, in consequence thereof, the accused-appellant has been sente nced to undergo, for his conviction under Section 376 IPC, rigorous imprisonment for seven years with fine of rupees twenty thousand and, in default of payment of fine, suffer rigorous imprisonment for six months and also to undergo, for hi s conviction under Section 417 IPC, rigorous imprisonment for one year with fine of Rs.5,000/- and, in default of payment of fine, suffer imprisonment for one m onth, both the sentences having been directed to run concurrently. The learned t rial Court also directed that the fine, if realized, shall be paid to the prosec utrix. 2. (i)
Legal Reasoning
The prosecution’s case may, in brief, be described as under: RP, hereinafter referred to as the prosecutrix, aged about 25 years, and the accused-appellant were in love with each other and, because of their love a ffair, the accused-appellant, often, visited the house of the prosecutrix. In fa ct, the house of the aunt of the prosecutrix is near the house of the prosecutri x and the prosecutrix and the accused-appellant, very often, used to meet at the house of the aunt of the prosecutrix. Having promised to marry her, the accused -appellant had sexual intercourse, on several occasions, with the prosecutrix, a t the house of her aunt. As a result of occasional sexual intercourse, which the accused-appellant had with the prosecutrix, the prosecutrix became pregnant, bu t she did not reveal her state of pregnancy to anyone including her mother. Howe ver, the prosecutrix informed the accused-appellant that she had already been ca rrying pregnancy of about four months, whereupon the accused-appellant came to t he house of the prosecutrix and took her to his house and making her wait saying that he would be coming back by changing his clothes, the accused-appellant lef t. As the accused-appellant did not come out, prosecutrix entered into his house ; but she was told by the inmates of the house of the accused-appellant that the accused-appellant had not been to his house for the last three to four days. As the members of the family of the accused-appellant did not allow the prosecutri x to stay at the house of the accused-appellant, the prosecutrix remained outsid e the house of the accused-appellant. This information reached the family of the prosecutrix and her mother lodged an Ejahar. Based on the said Ejahar and treat ing the same as First Information Report (in short, FIR), Jorhat Police Station Case No.314/2005, under Sections 376/493/506/324 IPC, was registered against the accused-appellant. (ii) During investigation, police got the prosecutrix medically examined and, on completion of investigation, laid charge sheet against the accused-appellant under Sections 417 and 376 IPC. At the trial, when charges, under Sections 376 and 417 IPC, were framed 3. against the accused-appellant, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 9 witnesses. T he Court also examined one witness as a Court Witness. The accused was, then, ex amined under Section 313 Cr.PC and, in his examination aforementioned, the accus ed denied that he had committed the offences, which were alleged to have been co mmitted by him, the case of the defence being that of denial. The accused-appell ant also took the plea of alibi in the sense that according to him, at the time of the alleged occurrence of his having sexual intercourse with the prosecutrix, he was not present in his village. 5. Having, however, found the accused-appellant guilty of the offences unde r both the penal provisions aforementioned, the learned trial Court convicted hi m accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which have been passed against him, the accuse d-appellant has preferred this appeal. 6.
Legal Reasoning
I have heard Mr. A. Das, learned amicus curiae, and Mr. K.A. Mazumdar, l earned Additional Public Prosecutor, Assam. 7. Considering the fact that it is the evidence of the prosecutrix (PW2), a round which revolves the entire case of the prosecution and it is her evidence, which has become the basis for conviction of the accused-appellant, this Court n eeds to closely scrutinize the evidence of PW2 for ascertaining the truthfulness or veracity of her evidence. 8. With regard to the above, it is pertinent to note that according to the evidence of PW2, she and the accused belong to the same village, they had been i n love with each other for a long time and, because of the love affair, which th ey had been carrying on, the accused used to visit her house and they also often met each other at the house of her aunt, which is near her parental house. It i s in the evidence of PW2 that having promised to marry her, the accused, despite resistance from her, had sexual intercourse with her and as a result of their h aving such physical relationship, she became pregnant and when she had been car rying pregnancy of about four months, she informed the accused about her pregnan cy, whereupon the accused came to her house one day at about 8 O’ clock at night and took her (the prosecutrix) to his house and making her stand outside the ho use, he (the accused) went inside his house saying that he would return back by changing his dress, but the accused did not come back for a long time and when s he went inside the house of the accused, the inmates of the house of the accused did not allow her to stay at the house of the accused and informed her that the accused had not been to his home for the last three or four days. It is further in the evidence of PW2 that since the inmates of the house of the accused did n ot allow her to stay at the house of the accused, she stayed outside the house o f the accused and, as she had not returned home, her mother, her aunt and others came looking for her to the house of the accused and when no solution to the pr oblem could be reached, her mother lodged an Ejahar, on the following day, at th e Police Station and the case, in question, was registered. While considering the present appeal, it needs to be noted that the le 9. arned trial Court is correct in pointing out that if a woman, believing in the p romise of marriage made by a man, consents to the promisor having sexual interco urse with her, the promisor would be liable for having committed the offence of rape if the Court finds, on examination of the materials on record, that the pro mise of marriage, made by the promisor, was really a hoax to obtain ’consent ’ o f the woman, for, such a ’consent ’ given by the woman would not, in the light o f the provisions of Section 90 IPC, amount to ’consent ’ in law and that the sex ual intercourse by such a promisor with a woman, so induced, would constitute of fence of rape. The learned trial Court has also, relying upon the decision in Bi pul Medhi Vs. State of Assam, reported in (2007) 2 GLR 200, correctly concluded that killing of a man is, ordinarily, conceived as murder by a common man; but i n law, every killing does not amount to murder and, similarly, the word ’consent ’, as is understood in common parlance, may not at all be, for the purpose of t he Indian Penal Code, ’consent’. 10. The learned trial Court is also correct in pointing out, relying upon th e decision, in Bipul Medhi (supra), that when an accused makes a false promise t o 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 ca use, damage or harm to her body, mind or reputation, the act of the accused woul d amount to ’cheating’. 11. Thus, as correctly held in Bipul Medhi (supra), when a woman is induced to part with her chastity or virginity, which is the most valued possession of h ers, 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 int ercourse, with such a person, causes or is likely to cause harm to her body, min d or reputation, for, in such a case, unless so deceived, the victim would not h ave permitted sexual act by the accused. To put it a little differently, had suc h a victim not been deceived, she would not have permitted sexual act or would h ave refrained from allowing such sexual act and, hence, clearly, in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation. 12. What follows from the above discussion is that if a prosecutrix gives co nsent to sexual intercourse on the basis of misrepresentation of fact, the cons ent , which she might have given, would not constitute consent inasmuch as the consent given, on the basis of misrepresentation of fact, would not be consent within the meaning of Section 90 IPC. This apart, if, as a result of the consen t, which a prosecutrix gives, the accused has sexual intercourse with her, makes her pregnant and thereby she, eventually, sustains damage or injury to her repu tation, an offence of cheating is also made out. As regards the propositions of law, so noted by the learned trial Court in the impugned judgment and order, the re is, in fact, no dispute in this appeal. 13. What is, however, crucial to note is that the categorical evidence of th e prosecutrix, in the present case, is that both, the accused as well as the pro secutrix, had been in love with each other, they used to meet not only at the ho use of the prosecutrix, but also in the nearby house of the aunt of the prosecut rix. There is nothing in the evidence of the prosecutrix to show that she had be en threatened, coerced or forced to give consent to the sexual intercourse, whi ch the accused-appellant allegedly had with her. 14. The prosecution’s case really is that the accused-appellant never intend ed to marry the prosecutrix and that is why, the promise of marriage, made by hi m, was nothing, but a hoax and a misrepresentation of fact, which the prosecutri x, unfortunately, relied upon. Support for the submission that the accused-appel lant never intended to marry the prosecutrix is sought to be drawn from the fact that the accused-appellant had, on coming to know of the pregnancy of the prose cutrix, taken the prosecutrix to his house, but disappeared in the manner as has been deposed to by the prosecutrix. 15. Though conduct of an accused, prior to an occurrence or subsequent to th e occurrence, is a relevant factor, what cannot be ignored, in the present case, is that the evidence of the prosecutrix shows that both, the prosecutrix as wel l as the accused, were in love with each other. This apart, it is also the evide nce of the prosecutrix that ’having been in love with her’, the accused promised to marry her. In the face of such evidence, which none but the prosecutrix has herself given, merely because of the fact that the accused had subsequently run away, would not make the consent, which the prosecutrix had, otherwise, given to the sexual intercourse, non-existent and her having sexual intercourse with the accused would not amount to sexual intercourse without her consent. 16. Coupled with the above, it is of prime importance to note that the cruci al stage, for the purpose of determination of the question as to whether consent , within the meaning of Section 90 IPC, has or has not been given by a prosecut rix to sexual intercourse with an accused, is the time, when she gives the conse nt . When a man, intending to marry a girl, makes a promise of marriage and has, on the basis of such a promise, sexual intercourse with her, he can neither be held responsible for rape nor can he be held liable for punishment for an offenc e under Section 417 IPC merely because he either changed his mind at a latter st age or he ran away from the responsibility of marrying the woman, whom he had in tended to marry. 17. In the case at hand, when the categorical evidence of the prosecutrix, a s already indicated above, is that (cid:28)having been in love (cid:29) with her, the accused p romised to marry her, the learned trial Court could not have held that the accus ed made a misrepresentation of fact and/or that he had not intended to marry the prosecutrix at the time, when he had promised to marry her. 18. In the backdrop of the evidence, which has been discussed above, it beco mes clear that the finding of the learned trial Court that no consent, in law, had been given by the prosecutrix to the sexual intercourse is not correct. 19. It, thus, becomes more than abundantly clear that the findings of guilt, which the learned trial Court has arrived at against the accused-appellant, are not supported by any evidence on record and cannot, therefore, be sustained. Th e learned trial Court, in the facts and attending circumstances of the present c ase, ought to have, at least, given benefit of doubt to the accused-appellant. 20.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction and the sentences, passed against the accused-appellant by the judgment and order under appeal, are hereby set aside. The accused-appel lant is held not guilty of the offences, which he has been convicted of, and he is acquitted of the same under benefit of doubt. 21. uired to be detained in connection with any other case. 22. le assistance rendered to the Court. 23. Let the learned amicus curiae be paid a sum of Rs.5,000/- for his valuab Let the accused-appellant be set at liberty, forthwith, unless he is req Send back the LCR.