The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.870 of 2012 (Against the Judgment of conviction dated 31.07.2012 and order of sentence dated 03.08.2012, passed by learned District and Addl. Sessions Judge 1st, Dumka, in Sessions Trial No.312 of 2000 (Ramgarh P.S. Case No.69 of 2000). Sumant Kumar Sen …. Appellant Versus Respondent The State of Jharkhand. ….. P R E S E N T HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. Mr. R. S. Mazumdar, Sr. Advocate Mrs. J. Mazumdar, Advocate Ms. Nehala Sharmin, SPP ….. By Court:- Heard learned counsel for the appellant and learned counsel for the For the Appellant For the State : : State. The instant Criminal appeal is directed against the Judgment of conviction 1. dated 31.07.2012 and order of sentence dated 03.08.2012, passed by learned District and Addl. Sessions Judge 1st, Dumka, in Sessions Trial No.312 of 2000 (Ramgarh P.S. Case No.69 of 2000, whereby the sole appellant has been convicted for the offence under Section 376 of the Indian Penal Code and sentenced to undergo RI for 7 years as well as fine of Rs.35,000/- and in case of default, to further undergo SI for six months. 2. As per the written report lodged on 03.08.2000 by the prosecutrix/informant herself that she was a minor aged about 15 years and her father was street vendor in Hat Bazar. The accused/ appellant was having a small Manihari shop in front of her house. It is alleged that on the last “Baisakh” (day of Purnima), 2000, when she had gone to his shop to purchase some articles, the appellant/accused forcibly committed sexual intercourse with her. When she opposed this, a proposal of marriage was given. This continued on several occasions and on her insistence of marriage, he started making one excuse or the other. Consequently, she became pregnant, and when she disclosed to her father and on 28.07.2000, a meeting was held in the Village in which the appellant/accused refused to marry her. 3.
Legal Reasoning
On the basis of the aforesaid written report of the informant, First Information Report being Ramgarh P.S. Case No. 69 of 2000 under Sections 493 and 376 IPC. 4. 5. 6. 7. 8. 2 The Police on investigation found the case to be true and submitted charge- sheet and the accused /appellant was put on trial for the offence under Section 376 IPC. Altogether 15 witnesses were examined on behalf of the prosecution and Exhibits 1 to 13 were adduced into evidence. The statement of the accused/ appellant was recorded under Section 313 Cr. P. C. The defence is of innocence and pleads in defence. The impugned judgment of conviction and sentence is assailed on the ground that there was delay of about two and half months in lodging the case for which no plausible explanation has been given. The incidence was in fact concealed even from her parents as per her account and only when she became pregnant and started vomiting then she disclosed this to her parents and the same has come in the deposition of her father (P.W.1) at Para-11. It is further argued that the victim was major above 16 years at the time of incidence which will be evident from Para-14 of her father’s deposition wherein he has stated that in her restatement he had stated her age to be 16 years. It is submitted that the Doctor (P.W.13) in Para-8 stated that she examined the victim on 04.08.2000 and found her age to be 17 to 18 years. This incidence took place in 2000, before 2013 amendment came into force and under Section 375 IPC, age of consent was of 16 years. The victim was major at that time, therefore, in case of consensual relationship, the offence of rape will not be made out. The consensual relationship between the appellant and the victim is a writ large from her deposition. In Para-24, the prosecutrix (P.W.8) has stated that consensual intercourse took place on several dates sometime in her house and sometime outside the house. In para-28, she has deposed that she wanted to marry the accused. 9. It is submitted that with regard to the first date of incidence, there is major contradiction in the FIR, she deposed that the first incidence took place on the full moon day of Baisakh. The said month of the Hindi calendar of that year corresponds with English Calendar from 19th April to 18th May. The victim was examined on 04.08.2000 by the Doctor (P.W.13) had deposed in Para-12 that she was carrying pregnancy of 5 to 5½ months. From this it shall be evident that the consensual physical relationship with the victim had commenced much before the stated date. Learned counsel has further submitted that in similar fact and situation, Hon’ble the Supreme Court in 3 the case of Tilak Raj vs. State of Himachal Pradesh, AIR 2016 SC 406 acquitted the accused as the prosecutrix was in relationship with the appellant for the last 2 years prior to the incidence and the appellant used to stay overnight at the residence. Learned counsel has placed reliance on (i) K.P. Thimmappa Gowda v. State of Karnataka, (2011) 14 SCC 475 wherein a case of consexual physical relationship it was held that no offence under Section 376 was made out, because sex with a woman above 16 years of age with her consent is not rape.(ii) Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191. 10. Learned APP for the State has defended the impugned judgment of conviction and sentence. It is submitted that it is a definite case of the prosecutrix that the prosecutrix was seduced on the first occasion on a false promise of marriage. It is not a case where the promise was given subsequent to the incidence, but where the consent was obtained under a false promise. 11. On collective reading of the testimony of witnesses and the material, will leave no doubt to any mind that physical relationship between the appellant and the victim girl continued for months together at different places, some time in the house and some time outside. This continued unabated and unprotested without knowledge to the parents or other family members. Matter got reported when she became pregnant and as per the Doctor she was carrying a foetus of 5and half month at the time of her examination. 12. Consent of a minor is immaterial in a criminal prosecution under Section 376 of the IPC. At the time of the incidence the age of majority was 16 years and the Doctor has opined that victim was aged about 17-18 years of age. Her father admits that he had stated before the police that the age of his daughter was 16 years. Medical assessment of age and the evidence of father leaves little doubt that the victim was more than 16 years at the time of incidence and therefore Section 375(6) shall not apply. 13. Coming to the question whether the consent of the minor was obtained by fraud or was given under misconception of fact that it will not come within the meaning of free consent under Section 90 of the IPC. As has been held in Dhruvaram Murlidhar Sonar case (supra), when the consent is obtained on a false promise of marriage it will be no consent and Section 376 will be attracted. When such promise of marriage is given after the physical relationship, offence of rape will not be made out. Whether the promise of 4 marriage preceded or followed consensual physical relationship is a question of fact that will depend on facts and circumstance of each case. 14. It is indeed difficult to fathom what transpired in the intimate relationship, what words were spoken and what promises made, in those moments of promiscuity. What can be gathered from the attending circumstances is that the relationship continued for days and months together in secrecy without any knowledge to the outer world. Had there been any promise, the breach of it should have been immediately protested and brought in public. The promise as per the statement of the prosecutrix was made on the very first occasion that was about 5 months before the matter was reported. Breach of promise in normal circumstance should have logically been reported to the family. These circumstance discount the probability of promise to marriage having been given before the physical relationship. Under the circumstance, this Court is of the view that accused is entitled to benefit of doubt. Accordingly, Judgment of conviction and order of sentence passed by the learned Court below is set aside. Appeal is allowed. Sureties are discharged from the liabilities of their bail bonds. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 14.03.2024. sandeep/