The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 207 of 2020 -------- Rajendra Soren, Aged about 25 years, son of Naran Soren @ Narayan Soren, resident of Village-Pochakhali, P.O.- Dandudih, P.S.-Barsole, Town-Jamshedpur, District-East Singhbhum (Jharkhand). The State of Jharkhand Versus --------- .......Appellant .......Respondent CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the Resp.-State ---------
Legal Reasoning
: Mr. Amit Kumar Das, Adv. Mr. Preetam Mandal, Adv. : Mr. Tarun Kumar, A.P.P. --------- 10/Dated:-05.07.2024 Heard learned counsels for the parties. 2. The instant criminal appeal is directed against the impugned Judgment of conviction dated 23.01.2020 and order of sentence dated 28.01.2020 passed by the learned Additional Sessions Judge-II, at Ghatshila, in Sessions Trial Case No. 178 of 2019, arising out of Barsole P.S. case No. 26 of 2018, whereby the appellant has been convicted for the offences under Section 376 of the Indian Penal Code and the appellant has been sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.20,000/- out of which Rs.10,000/- be paid as compensation to the prosecutrix and in default of payment of fine, simple imprisonment for one year. 3. The brief fact as it appears from the Memo of appeal is that this prosecution case was registered on the basis of a written information given by the informant on 07.10.2018 wherein she had stated that five months prior to the institution of the case the appellant allegedly promised to marry her and on that pretext, took her to his house and kept her for five months during which period they established physical relation, but later on, he started torturing her, for which a panchayati was held; wherein both parties were directed to stay together, but the appellant ousted her. Later on, chargesheet was submitted under Sections 376 and 417 of the I.P.C. and the appellant pleaded not guilty and claimed to be tried and finally trial court convicted the appellant under Section 376 of the I.P.C. 4. Learned counsel for the appellant submits that the appellant is innocent and he has been falsely implicated in the case and the learned trial Court has failed to take into consideration that the prosecutrix, during course of her cross- examination, admitted that she was already married to Vikram and the said marriage was never legally dissolved. In this view of the fact, the question of the appellant establishing physical relation on promise of marriage does not arise. Learned counsel further submits that learned trial Court has failed to take into consideration that the prosecutrix being a married lady could not have expected a 2nd marriage without dissolution of the first marriage and the very genesis of the case gets falsified. He further submits that the learned trial court has failed to take into consideration that there are serious contradictions amongst the statements of the prosecution witnesses which cast serious doubt in the entire prosecution story and that there is no material to hold the appellant guilty under Section 376 of the Indian Penal Code. He lastly submits that the learned trial Court has failed to take into consideration that none of the independent witnesses being PWs 1, 2 and 3, have supported the case of the prosecution; as such, in view of the above submissions, the appellant may be acquitted form the charges levelled against him. 5. Learned A.P.P. submits that the learned trial court has rightly convicted the appellant and as such no interference is required. 6. Having heard learned counsels for the parties and after going though the lower court records, it transpires from the 2 deposition of prosecutrix/victim itself that in her cross- examination she admitted that she was already married to Vikram and the said marriage was never legally dissolved. In this view of the fact, the question of the appellant establishing physical relation on promise of marriage does not arise. 7. In this regard it is profitable to quote the judgement passed by Hon’ble Apex Court in case of Naim Ahamed vs State (NCT DELHI) reported in 2023 SCC OnLine SC 89, wherein at para 21 it has been held as under: “21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as ‘rape’ by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused….. ……... Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC.” 8. It is a settled principle of law, if the prosecutrix is already married, she cannot expect a second marriage without dissolution of the first marriage and the allegation of establishing physical relation on the promise of marriage in such circumstances is neither trustworthy nor legally permissible for constituting an offence under Section 376 of the Indian Penal Code. 9. Even if the allegation levelled in the F.I.R. is taken to be true in its entirety, no offence under Section 376 of the Indian Penal Code is made out and apparently, physical relation has been established with consent of both major parties which does not constitute an offence under Section 376 of the Indian Penal Code 3 as it transpires from the deposition of the victim itself in her examination-in-chief at para 2 which is extracted herein below: “म(cid:7289)ने यह केस लगभग एक वष(cid:6981) पूव(cid:6981) (cid:7408)कया था। राजे(cid:7008)(cid:7076) ने मुझसे कहा (cid:7408)क तु(cid:7013)ह(cid:7286) अपने घर ले जाय(cid:7286)गे और अ(cid:6994)छे से रख(cid:7286)गे । उसके बाद राजे(cid:7008)(cid:7076) मुझे अपने घर ले गया और वहां मुझे छह माह तक रखा।……….. ……वह बोलता था (cid:7408)क तुमको हम अपने घर म(cid:7286) ठीक तरीके से प(cid:7360)ी क(cid:7409) तरह रख(cid:7286)गे और यही कहकर वह मेरे साथ शारी(cid:7407)रक संबंध बनाता था।” 10. From the deposition of victim, it clearly transpires that the appellant never promised her that he would marry her; as such, it can not be said that on the assurance of promise of marriage, he has made physical relationship. 11. In view of the aforesaid findings, this Criminal appeal stands allowed and the judgment of conviction & Order of sentence dated 23.01.2020 & 28.01.2020, respectively, passed by the learned Additional Sessions Judge-II, at Ghatshila, in Sessions Trial Case No. 178 of 2019 arising out of Barsole P.S. Case No.26 of 2018, is hereby, quashed and set aside. 12. As the appellant is currently on bail, he is discharged from the liability of his bail bonds. 13. Let the lower court records and copy of this order be sent back to the court concerned. vikas/- AFR (Deepak Roshan, J.) 4