Rajen Hembram v. For the State

compass is that the prosecutrix, who is a major lady, lodged an FIR against the present petitioner stating inter alia that about one year ago while she was returning from Raghunathpur Haat to her home, on the way, the present petitioner met her and started eve-teasing. She complained to her parents about this incident, then panchayati was convened in the Village and matter was resolved. Again on

04.11.2009 at about 1:30 A.M., when the prosecutrix was returning after dance on the occasion of Sohrai Festival to her home, meanwhile, the present petitioner caught hold of her on the way and assured her that “she should not worry and petitioner would solemnize marriage with her” and on the pretext of marriage, he established physical relationship for two nights with her. Thereafter, he left her on the way back to her home and fled away. It is further alleged that this incident was again complained to the community members and family members of the petitioner, where petitioner and his family members were also called upon, but father of the accused namely, Durga Charan Hembram, brother Haripad Hembram and Smt. Hembram declined to attend the social Panchayat. Hence, no decision could be taken, thereafter she lodged written report at the police station on 05.12.2009. Accordingly, Nimdih P.S. Case No. 39 of 2009 dated 05.12.2009 was registered for the offence under Sections 376, 354 of the I.P.C. P a g e 2 | 14

4. After completion of the investigation, charge sheet was submitted against the petitioner for the aforesaid offences and case was committed to the court of Sessions and transferred to the court of Assistant Sessions Judge-I, Seraikella-Kharsawan for trial and disposal. Charge was framed against the petitioner for the offence under Section 376 of the I.P.C. on 27.04.2010.

5. In course of trial, altogether 09 witnesses were examined by prosecution namely, Budhani Murmu (P.W.-1), Haldhar Murmu (P.W.-2), Ghasi Ram Manjhi (P.W.-3), Sukhram Murmu (P.W.-4), Prosecutrix / Victim Lady (P.W.-5), Binod Murmu (P.W.-6), Dr. Mita Singh (P.W.-7), Dr. A.N. Dey (P.W.-8) and Lal Mohan Ram (P.W.-9). Apart from oral testimony of aforesaid witnesses, following documentary evidence has also been produced by the prosecution:- Exhibit-1 Exhbit-2 Exhibit-3 : : : Medical Examination Report of Victim. Vaginal Swab Report. Written Report of the Victim. Exhibit-3/1 : Endorsement on written report of the prosecutrix. Exhibit-4 Exhibit-5 : : Formal F.I.R. Requisition for medical examination of victim issued by police officer.

6. On the other hand, petitioner has denied the charges and claimed to be innocent. However, no oral or documentary evidence has been adduced by the petitioner. P a g e 3 | 14

7. Learned trial court has discussed and appreciated the oral testimony of witnesses adduced on behalf of the prosecutrix and documents relied upon particularly the unimpeached categorical statement on oath of the prosecutrix in the light of her medical examination report as well as the attending facts and circumstances of the case and has held that there is consistent evidence of the witnesses including the prosecutrix that she was ravished by the accused (petitioner) forcibly against her will on false promise of marriage. Her consent was vitiated under Section 90 of the I.P.C. The contention on behalf of the accused is that it is a case of consent due to love affairs between prosecutrix and accused and since there is love affairs between the parties, the matter cannot be entertained for the reason that no one can commit rape against the will of the victim in such a scenario and would be liable under the alleged provisions, if the consent of the victim is obtained under false promise of marriage only with intention to take advantage of physical lust without intending to solemnize marriage from the very inception of incident. Accordingly, the trial court has held the petitioner guilty for the offence under Section 376 of the I.P.C. and sentenced as stated above.

8. The learned Sessions Judge while dealing with the Criminal Appeal No. 32 of 2014 has also discussed evidence minutely at a length and examined the testimony of witnesses in thread wire P a g e 4 | 14 manner and found that the theory of consent on account of love affairs is baseless. Defence has brought nothing on record to show the presumption of consent in case of rape when the prosecutrix categorically says that the consent was obtained by playing fraud and under misconception of fact, physical relationship was established under the false pretext of marriage. The question of delay in lodging FIR was also negative and the judgment of conviction and order of sentence was affirmed without any interference in the appeal.

9. Learned counsel for the petitioner, in this revision, has assailed the impugned judgments mainly on the following grounds:- (i) Impugned judgments are bad in law and also on facts, hence, liable to be set aside in exercise of revisional jurisdiction. (ii) The learned courts below have wrongly appreciated the evidence of the prosecution witnesses and arrived at erroneous conclusion that the petitioner is guilty for the commission of offence of rape, although there was admittedly love affair between the petitioner and prosecutrix and the physical relationship was consensual. (iii) There is material contradiction regarding place of occurrence, whereas, as per FIR, the place of occurrence was Village-Murgudih, but P.W.-1 has stated the place of occurrence was Bandh Taand. P a g e 5 | 14 (iv) As per prosecution, the victim stayed with petitioner for two nights and indulged in sexual activities, but did not complain to anybody and FIR was lodged after one month of the said occurrence, which clearly clarifies the prosecution story. (v) The parents of the victim in their evidence have admitted the love affairs and physical relationship between prosecutrix and petitioner from last two years from the date of lodging FIR, therefore, the date of occurrence mentioned in the FIR was manipulated and created for the purpose of lodging the FIR when marriage cannot be materialized between the prosecutrix and the petitioner. (vi) Both the courts below have ignored the material contradictions appearing in the evidence of prosecution witnesses and also opinion of Doctor (P.W.-8), who had found no recent sign of rape, rather the victim was habitual to sexual intercourse, was also ignored. (vii) The material circumstances relied upon by prosecution, which is the basis for conviction of the accused have not been explained to the accused under Section 313 Cr.P.C., hence, the conviction based on unexplained incriminating circumstances is liable to be set aside. P a g e 6 | 14

10. In alternative, it is most humbly submitted that during course of investigation and trial of the case, the petitioner has undergone imprisonment from 06.12.2009 to 02.06.2011 and from 27.03.2014 to 25.08.2015 i.e. about 02 years and 11 months. The offence of rape as alleged in this particular case is on different footing to the case of rape in strict sense as defined under Section 376 of I.P.C. The offence has been alleged to have been committed under pretext of marriage, but no evidence was brought on record showing that from the very inception the accused was not desiring to solemnize marriage with the prosecutrix and he had indulged in sexual activities with the prosecutrix only with intention to satisfy his sexual lust.

11. It is further submitted that the occurrence as alleged to have been committed in the year 2009 prior to Criminal Law Amendment Act, 2018 (22/2018) Section 4 by which the sentence portion under Section 376 of I.P.C. has been amended w.e.f. 21.04.2018 adding the minimum sentence of 10 years, but which may extend to imprisonment for life and shall also be liable for fine. Prior to this amendment, the Court has discretion to award the sentence of imprisonment less than 07 years by providing special reasons. The relevant provision is quoted hereinbelow:-

376. Punishment for rape.-(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be les than seven years but which may be for life or for a term which may extend to ten years P a g e 7 | 14 and shall also be liable to fine unless the women rapped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

12. On the other hand, learned counsel for the State as well as learned Amicus Curiae have submitted that there is no illegality and infirmity in the impugned judgments and there are concurrent findings of both Courts below and all the points raised in this revision has already been consistently decided by both the courts below. There remains no doubt that the prosecution has proved the guilt of the accused / petitioner beyond all reasonable doubt and there is no scope for interference by way of this revision, which is devoid of merit and is fit to be dismissed.

13. I have gone through the judgment of trial court as well as appellate court and also considered the arguments raised on behalf of both the sides and perused the record of the case.

14. Before analyzing the points of arguments raised on behalf of petitioner on merits, it would be appropriate to examine the scope and ambit of criminal revision / powers of court under Section 397 / 401 of the Cr.P.C. In this connection, I would like to refer decision of Hon’ble Apex Court in the case of Duli Chand Vs. Delhi Administration reported in (1975) 4 SCC 649, State of Maharastra Vs. Jagmohan Singh Kuldip Singh Anand and P a g e 8 | 14 Others reported in (2004) 7 SCC 659 and State through Deputy Superintendent of Police Vs. R. Soundirarasu etc. reported in AIR 2022 SC 4218.

15. In Duli Chand (Supra), the Hon’ble Apex Court has held as under: “5. …………. The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purpose of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse………………..”

16. In State of Maharastra Vs. Jagmohan Singh Kuldip Singh Anand and Others (Supra), the Hon’ble Apex Court has held as under:- “21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 CrPC. On behalf of the accused, reliance is placed on the P a g e 9 | 14 decision of this Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Appeal No. 523 of 1997 decided on

9.3.2004 [Ram Briksh v. Ambika Yadav]. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, P a g e 10 | 14 read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.”

17. In R. Soundirarasu etc. (Supra), the Hon’ble Apex Court has held as under: “75. In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631, this Court held as under:- "3.....The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record P a g e 11 | 14 as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure.”

18. Now, I will examine the submissions of the learned counsel for the petitioner in the light of grounds taken in this revision petition as highlighted above in the light of legal propositions as discussed hereinabove.

19. In the instant case, the factual aspect of the case regarding commission of rape by the petitioner with the victim, although on account of love affairs has been found to be forceful and against the will of prosecutrix and under misconception of fact due to false promise made by the petitioner to the prosecutrix for solemnizing marriage with her, which was never intended to be performed from the very inception of the promise made by the petitioner. The question of delay in lodging the FIR and other contradictions about the place of occurrence, manner of occurrence etc. has also been decided through concurrent findings of the courts below. Considering the restrictions imposed on the revisional court to interfere in the concurrent findings of facts, I do not feel inclined to enter into the merits on the above factual aspects pointed out by P a g e 12 | 14 learned counsel for the petitioner. Therefore, I do not find any valid reason to take a different view and differ from the concurrent findings recorded by the learned trial court as well as learned appellate court for convicting and sentencing the petitioner for the offence under Section 376 of I.P.C.

20. So far as the alternative plea regarding modification of sentence in view of the fact that the prosecution story has become stale and the nature of offence committed by the petitioner under factual background of love affairs and that both parties have settled in their life and the petitioner has already undergone about 3 years imprisonment during trial of the case, it would not be just and fair for the ends of justice to send the petitioner to undergo remaining period of sentence, rather period of imprisonment already undergone will meet the ends of justice in this case.

21. I have given anxious consideration to the above points against which no serious objection has been raised on behalf of the State and find that the background under which the offence took place emanate from love affairs between the prosecutrix and the petitioner and due to failure of the petitioner to solemnize marriage with the prosecutrix, the petitioner was prosecuted and has been held guilty and sentenced, therefore, the sentence already undergone by the petitioner appears to be sufficient punishment for the offence committed by him. P a g e 13 | 14

22. In view of the aforesaid submissions and reasons, the present criminal revision is dismissed and impugned judgment dated

15.12.2014 passed by the appellate court passed in Cr. Appeal No. 32 of 2014 is hereby upheld, subject to modification in sentence awarded to the petitioner to the extent as mentioned above i.e. the petitioner is awarded sentence of imprisonment already undergone.

23. Petitioner is on bail, as such, he shall also be discharged from the liability of bail bond and sureties.

24. Let a copy of this judgment along with trial court records be sent to the court concerned for information and needful. (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated 19/04/2024 Sunil/-NAFR P a g e 14 | 14