'X' v. The State of Jharkhand

HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ------- For the Appellant : Mr. Girish Mohan Singh, Advocate For the State : Mr. Bhola Nath Ojha, APP ------- Oral Order 19th April 2023 Per, Shree Chandrashekhar,J. The prosecutrix is aggrieved of the judgment dated 21st December 2021 passed in Sessions Trial Case No. 185 of 2017.

#2. In Karra PS Case No. 22 of 2017, which was lodged on the basis of the written report of the prosecutrix given to the officer-in-charge of Rania police station, she made a specific allegation against Sohrai Oraon that on a false pretext of marriage he established physical relationship with her and forced her to undergo abortion.

#3. Sohrai Oraon who is the respondent No.2 in the present Acquittal Appeal has been charged under sections 376 and 312 of the Indian Penal Code.

#4. In Sessions Trial Case No. 185 of 2017, the learned trial Judge has held that the prosecutrix was a willing and consensual partner to the sexual relationship with Sohrai Oraon; there is no material to infer that consent of the prosecutrix was obtained on a misrepresentation of facts and; the parents of the prosecutrix had full knowledge of the physical relationship of their daughter with Sohrai Oraon. 2 Acquittal Appeal (DB) No.41 of 2022

#5. The learned trial Judge has held as under: “19. PW1 in his evidence at para 3 has stated that the accused used to come his home and he even supported him in his studies and when after getting a job he refused to marry her and when the talks failed this case was filed by the prosecutrix. At para 14 of his cross-examination he has admitted that the accused established physical relationship with the prosecutrix at his home and he knew this fact since three year ago. Similarly PW2 mother of prosecutrix has stated that the accused kept her daughter for two years at Ranchi but did not marry her. In her cross-examination she has stated that they did not file any complaint during the period her daughter lived with the accused at Ranchi for two years and when the accused refused to marry her, this case was filed. The prosecutrix at para 27 of her evidence has stated that when the accused used to visit her at her home, the fact that he established physical relationship with her was known to her parents. At para 29 she has categorically stated that she used to visit the residence of accused at Ranchi and stayed there from Saturday to Monday and during this period the accused established physical relationship with her consent. She has further stated that her parents knew that she used to visit the accused at Ranchi and that in their presence also she alongwith the accused used to sleep in one room. At para 42 she has stated that she did not file any case against the accused for establishing physical relationship with her, which continued for more than two years. At para 43 she has categorically stated that in the aforesaid two years, the accused established physical relationship with her for tore than 100 times. 20. From careful examination of evidence of the prosecutrix and the remaining prosecution witnesses, it is clear that the prosecutrix was an adult at the time of incident and her relationship with the accused continued for more than two years. It is also clear that the accused established physical relationship with the prosecutrix more than hundred times during the aforesaid period at his residence at Ranchi and at the house of the prosecutrix in her village. It is also clear from the evidence of the prosecution that the parents of the prosecutrix were fully within the knowledge of the fact that the accused and the prosecutrix were in physical relationship with each other and they used to sleep in one room and she frequently visited the place of accused at Ranchi. The prosecutrix has also categorically admitted in her cross- examination that she willingly made physical relationship with the accused. Now this court has to see whether the evidence led by the 21. prosecution as mentioned above makes out a case u/s 375 IPC, punishable u/s 376 IPC. It is clear that the sexual relationship between the prosecutrix and the accused was nor against her will, neither without her consent, as she has admitted that willingly she established physical and sexual relationship with the accused. Moreover as she has stated in her evidence and it has been amply corroborated by the father of the prosecutrix that the accused used to frequently visit her house and slept in the same room and that the prosecutrix visited Ranchi and stayed with the accused, goes to show that the parents and family members of the prosecutrix had no objection to the relationship of the accused and prosecutrix. Had there being any objection, for the period since 2014 to 2017, a case u/s 376 IPC ought to have been filed at the first instance, but only when the accused did not marry the prosecutrix, this case was filed. In these circumstances, where the sexual physical relationship continued for a period of more than two years between 3 Acquittal Appeal (DB) No.41 of 2022 the prosecutrix and the accused continuously, well within the knowledge of the parents of the prosecutrix and her family members, coupled with the fact that the prosecutrix was an adult at the time of incident, makes it crystal clear that the prosecutrix was a wiling and active partner in her physical relationship with the accused, and only when the accused failed to marry the prosecutrix, this case has been filed. It is clearly a case of consensual sexual relationship and by no stretch of imagination, it can be established that the accused forcibly continued to commit rape on the prosecutrix continuously for a period of over two years and the prosecutrix and her parents and family members were silent spectators to the aforesaid act of the accused. For an offence of rape, it is necessary to establish that sexual intercourse took place against the will or without the consent of the prosecutrix. In view of the discussions made above and the evidence led by the prosecution including the evidence of the prosecutrix, fails to prove that the accused committed rape on the prosecutrix, against her will or without her consent. Merely because the accused did not marry the prosecutrix who was an adult at the time of incident, and a willing partner to the physical relationship with the accused, and well within the knowledge of the parents and family members of the prosecutrix, does not make the accused guilty of committing the offence u/s 376 I.P.C.”

#6. There are as many as eight witnesses who were produced in the Court in support of the charge under sections 376 and 312 of the Indian Penal Code. PW1 who is the father of the prosecutrix has stated in the Court that the respondent No.2 has been regularly visiting his house and he had knowledge about physical relationship of his daughter with the respondent No.2 in the past three years. Similarly, PW2 who is the mother of the prosecutrix has also admitted in the Court that her daughter was staying with the respondent No.2 in his house at Ranchi for two years. She has also admitted that the respondent No.2 was regularly visiting her house and she had knowledge about physical relationship of her daughter with him.

#7. Both these witnesses have, however, tried to justify the charge under section 376 of the Indian Penal Code by saying that when the respondent No.2 got employment in the Railways he flatly refused to marry their daughter. As PW4, prosecutrix has stated in the Court that on making a promise that he would marry her the respondent No.2 continued sexual relationship with her since 2015. However, she has admitted in her cross- examination that she was a willing partner with the respondent No.2 to have sexual relationship with him. She has further admitted that the respondent No.2 had been frequently visiting her house and both were sleeping in the same room. 4 Acquittal Appeal (DB) No.41 of 2022

#8. Notwithstanding that, the learned counsel for the prosecutrix would submit that the act of the respondent No.2 in seducing her for sexual relationship on a promise to marry her would fall under clause (n) to sub- section (2) of section 376 of the Indian Penal Code.

#9. Having regard to the admissions of the prosecutrix and her parents in their cross-examination, there can be no doubt that consent of the prosecutrix for sexual intercourse as envisaged under Explanation 2 to section 375 of the Indian Penal Code was unequivocal and voluntary. Explanation 2 to Section 375 of the Indian Penal Code provides that 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. The expression 'consent' is not defined under the Indian Penal Code but this expression finds mention under section 13 of the Indian Contract Act, 1872. It is provided therein that two or more persons are said to consent when they agree upon the same thing in the same sense. The conduct of the prosecutrix in living together with an unmarried man in his house for years together with intimate physical relationship with him must be construed as if she had the same purpose and intention as the respondent No.2 had in his mind for continuing with sexual relationship. The sexual relationship of the prosecutrix who was of mature age of 27-28 years over a period of three years and having two abortions must be held voluntary and consensual. There was no doubt in her mind when she decided to permit the respondent No.2 to have sexual intercourse with her–may be marriage with the respondent No.2 was one of the considerations.

#10. In “Maheshwar Tigga v. State of Jharkhand” (2020) 10 SCC 108 the Hon'ble Supreme Court has held as under: “20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday are considered relevant : (SCC p. 58, para 25)” “25. … It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all 5 Acquittal Appeal (DB) No.41 of 2022 significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”

#11. In the circumstances of the case, a broken promise to marry shall not attract the offence of rape as defined under section 375 of the Indian Penal Code.

#12. Over a period of time, by judicial pronouncements certain parameters have been laid down by the Hon'ble Supreme Court before the Appellate Court decides to interfere with the judgment of acquittal. In “Sheo Swarup v King Emperor” AIR 1934 PC 227(2) it has been held that the Appellate Court dealing with a challenge to the judgment of acquittal must bear in mind (i) views of the trial Judge as to credibility of the witnesses (ii) right of the accused to the benefit of any doubt and (iii) presumption of innocence in favour of the accused. The learned trial Court has meticulously examined every aspect of the matter and rendered the judgment of acquittal in Sessions Trial Case No. 185 of 2017.

#13. Having regard to the facts and circumstances in the case, we find no merit in this Acqittal Appeal and, accordingly, Acquittal Appeal (DB) No. 41 of 2022 is dismissed.

#14. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 19th April, 2023 Sharda/Nibha-N.A.F.R