Madhya Pradesh High Court
Sanjay Kumawat vs State Of M.P. on 3 October, 2007
Equivalent citations: 2007(4)MPHT378
Author: Brij Mohan Gupta
Bench: Brij Mohan Gupta
ORDER Brij Mohan Gupta, J.
1. The instant petition is for impugning the order dated 8-8-07 passed by Third Additional Sessions Judge, Gwalior in S.T. No. 212/07 by which the learned Judge after rejecting an application under Section 227 of Cr.PC filed on behalf of the petitioner, has framed charge punishable under Section 376 of IPC against him. The relevant excerpts of the FIR dated 11th March, 2006 lodged by the prosecutrix against the petitioner are as under:
,d gLrys[kh vkosnu i= is'k fd;k ftl ij vijk/k iathc) dj Fkkuk IzkHkkjh egksn;] Xokfy;j fo"k; Jh lat; dqekor ¼,l-,-,Q-½ dEiuh dek.Mj ds }kjk fd;s x;s d`R; gsrq ckor A mijksDr fo"k; es fuosnu gS fd lat; dqekor dEiuh dek.Mj us foxr 2&3 lkyks ls esjs lkFk laca/k j[ks o foxr vizSy ekg 05 dks 'kknh dk >wBk vk'oklu nsdj esjs lkFk 'kkjhfjd laca/k cuk;s dqN fnuks ckn tc og eq>s Avoid djus yxk rc eSus mlls mldk dkj.k iwNk o 'kknh ds fy, dgk rks mlus dgk fd vki fodykax gS eS vkids lkFk 'kknh ugh dj ldrk A d`i;k eq>s U;k; fnykus dk d"V djsa A (Emphasis supplied) On this report Crime No. 8/06 was registered at Mahila Thana Padav, Gwalior against the petitioner for the offence punishable under Section 376 of IPC. On the same day her statement under Section 161 of Cr.PC was recorded. The relevant excerpts of the statement goes as under:
us nj;kir gktk ij crk;k fd esjh lat; dqekor ls fouk;d dksfpax MkW- fjiqneu ds lkeus yksdks ls ifjp; gqvk FkkA D;ksfd eS ogka ij lu~ 2000 es ih-lh-,l- dh dksfpax es tkrh FkhA lat; dqekor Hkh ogka ij izh dh rS;kjh dj jgs Fks A mDr dksfpax es eqs jkts'k 'kqDyk ikrs Fks A foxr nks rhu lky ls lat; dqekor esjs ?kj vkus tkus yxs o ge Qksu ij ?kaVks ckr djrs Fks A o vf/kdka'k lat; dqekor 'kke dks vkrs Fks vkSj nsj jkr 10&11 cts rd pys tkrs FksA dqN fnu ckn lat; dqekor us esjs lkFk 'kknh dk izLrko j[kk ekg vizSy] 2005 es 'kke dks esjs ?kj vk;s vkSj eqls cksys fd iSls dh O;oLFkk dj yks dqn lkeku ysuk iM+sxk Hkksiky ds fy, vHkh esjs ikl ogka ij dqN lkeku ugh gSA vius jgus ds fy, O;oLFkk djuh iM+sxh vkSj ml jkr dks lat; esjs ?kj ij gh :dk vkSj mlus esjs lkFk 'kkjhfjd laca/k cukus dh dksf'k'k dh euk djus ij mlus dgk fd ge ebZ es 'kknh rks dj gh jgs gS mles vkidks vkifRr D;k gS bl rjg mlus esjs lkFk laca/k cuk;sA ftlds izek.k es rkSfy;k o viuk xkmu is'k dj jgh gSA dqN fnuks ckn lat; eqs Vkyus yxk dkj.k iwNus o 'kknh dk dgus ij cksyk rqe fodykax gks eS rqEgkjs lkFk 'kknh ugh dj ldrk bldh f'kdk;r eSus Mh-th-ih- o vkbZ-th- lksuh lj dks dh A lat; dqekor igys eqls Qksu o eksckby ua- 98262-16834 ls esjs ?kj ds ua- 2365544 ua- ij ?kaVks ckr djrk Fkk ckn eS tc mlus 'kknh ls badkj dj fn;k esjs f'kdk;r djus ds ckn mlus vKkr efgyk ds :i es iqfyl Xokfy;j dks f'kdk;r dh tc mldh tkap gqbZ vkSj lat; dks yxk fd mldk uqdlku gks tk,xk rks mlus dgk fd jkthukek dj yks ge nksusk 'kknh dj ysxs bl ckr ij geus jkthukek dj fy;k ysfdu mlds ckn lat; dqekor viuh ckr ls eqdj x;k lat; us eqs 'kknh dk kalk nsdj ds eq>ls 'kkjhfjd laca/k cuk;s Fks A esjs o lat; ds 'kkjhfjd laca/kks dh tkudkjh esjh cgu rFkk esjh HkkHkh dks Hkh gSS A (Emphasis supplied) The allegations stated by the prosecutrix against the petitioner have been corroborated by witness Poonam and Arti who are the sister and sister-in-law (Bhabhi) of the prosecutrix. During investigation her statement under Section 164 of Cr.PC was also recorded on 27th October, 2006. These statements are more or less similar, so far as the allegation against the petitioner is concerned.
2. During investigation, towel and gown presented by the prosecutrix were seized and sent for chemical examination. Vide report dated 6-10-06, no semen or spermatozoa was found. Admittedly, Dr. M.K. Dudhariya is also being prosecuted as a co-accused for the offence causing disappearance of evidence or giving false information to screen the offence punishable under Section 201 of IPC.
3. Shri Mody has placed reliance on the judgments of the Apex Court and Calcutta High Court rendered in:
(1) Pradeep Kumar Verma v. State of Bihar and Anr. 2007 AIR SCW 5532.
(2) Uday v. State of Karnataka .
(3) Jayanti Rani Panda v. State of West Bengal and Anr. 1984 Cr.LJ 1535 Para 7.
and has submitted that in identical facts, the Apex Court and Calcutta High Court has observed that in such facts, no offence of rape is made out, as the sexual act was performed with the consent of the prosecutrix, which was obtained without any misconception of facts.
4. Per contra, Shri Pateriya appearing on behalf of the complainant Ku. Sanju Yadav has submitted that six witnesses including the prosecutrix have been examined. Although on the request of the defence cross-examination of the prosecutrix has been stayed, yet rest of the five witnesses Dr. Dinesh Kumar Sharma, Chandar Singh, Rajendra Singh, Neelam Sharma and Kamlesh Sharma have been examined and cross-examined. Considering this fact that the trial is proceeding, it will be appropriate to get the case decided on merits. He has further drawn attention at Para 5 of the statement of the prosecutrix recorded during trial and has submitted that vide this para she has stated that rape has been committed by the petitioner.
5. Shri Chaturvedi for the State has endorsed the contentions of Shri Pateriya.
6. The pronouncement of the Apex Court in the case of Pradeep Kumar (supra), appears to be latest in which aforementioned two cases cited on behalf of the petitioner alongwith other cases have been referred and considered on the point. Hence, the relevant extracts of the case of Pradeep Kumar containing brief facts alongwith the observations on the disputed point are required to be quoted here in below:
3. A brief reference to the factual aspects would suffice.
Respondent No. 2 lodged the First Information Report (in short the FIR) alleging that with an assurance that the accused-appellant would marry her, he had sexual relationship with her. When this went on for some time, the informant had been taken to a temple where in the presence of deity he accepted her to be his wife and there was an agreement of marriage entered into. Alleging that the accused was likely to get married with some other lady, an FIR was lodged. Investigation was undertaken and statement of the informant was recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short 'the Code') wherein it was accepted that first with a promise of marriage, the accused had physical relationship with the informant and then, had married her. Since the accused disowned having ever married the informant and much less having ever had any physical relationship with her, she was forced to file the FIR. After investigation, charge-sheet was filed wherein it was indicated an offence punishable under Sections 376 and 406 of IPC was made out. An application was filed by the present appellant before the Trial Court for discharge in terms of Section 227 of the Code. By order dated 21-7-05 the same was rejected. It was inter alia noted as follows:
...As a matter of fact the poor victim Binita Kumari was put under misconception of fact as promise to marry her by the accused and in this light the accused has done sexual intercourse with her. The accused had done such act with other girls also and further the accused has made a Akrarnama for marriage with the victim. The love letters and Akrarnama photocopy are also with the case diary and the same are on the record. From the case diary it is also clear that the accused has taken consent of the victim girl on a false promise of marriage and further a Akrarnama is also made here. Hence the consent is not with free will or voluntary act. Hence there are sufficient grounds for framing charge against the accused person.
4. Charges were framed for offences punishable under Sections 376 and 406 of IPC. As noted above, the order was challenged before the High Court which rejected the application in summary manner holding as follows:
The learned Judge finding sufficient material showing petitioner's complicity in the crime rejected his prayer for discharge.
I do not find any error in the same. Application stands dismissed.
... ... ...
8. As rightly submitted by learned Counsel for the State, Sections 376 and 406 prima facie do not appear to have any application. It would have been appropriate for the High Court to deal with various submissions and consider their acceptability. That apparently has not been done. This is not a case where the application should have been dismissed in a summary manner.
9. The crucial expression in Section 375, which defines rape as against her Will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained by Section 90 which reads as follows: Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all.
That is what is explained in first part of Section 90. There are two grounds specified in Section 90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in first part of Section 90 are from the point of view of the victim and second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent has given it under fear or misconception of fact and the Court should also be satisfied that the person doing the act, i.e., the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. As observed by this Court in Deellip Singh @ Dilip Kumar v. State of Bihar , Section 90 cannot be considered as an exhaustive definition of consent for the purposes of IPC. The normal connotation and concept of consent is not intended to be excluded.
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19. On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375, IPC, was dealt with by a Division Bench of the Calcutta High Court in Jayanti Rani Panda v. State of WB 1984 Cr.LJ 1535. The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday's case (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at Para 7:
Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is...why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.
The discussion that follows the above passage is important and is extracted hereunder:
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at that inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception fact. Section 90, IPC cannot called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her....
After referring to the case-law on the subject, it was observed in Uday's case (supra):
It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weight the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
20. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause second. ... By making the solitary observation that a false promise is not a fact within the meaning of the Code, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out.
21. These aspects have been elaborately dealt with in Deelip Singh's case (supra), the stage of analyzing the factual materials was yet to be undertaken. But as rightly contended by the appellant if on a bare reading of the FIR, it shows that no offence had been made out for proceeding situation would be different. It would have been proper for the High Court as noted above to deal with the matter elaborately. That apparently has not been done. Therefore, without expressing any opinion on the merits of the case, we set aside the order of the High Court and remit the matter to it for fresh consideration.
(Emphasis supplied)
7. On perusal of the judgment cited in general and the extracts quoted hereinabove of the judgment of the Apex Court in the case of Pradeep Kumar (supra), in particular, it appears that in every case when sexual intercourse is performed after obtaining the consent or permission of the female partner concerned on a promise to marry her, despite the fact that subsequently, the male partner does not fulfill his promise, he cannot be held responsible for the offence of rape, as in every such case, it cannot be said that the consent was obtained simply to perform the sexual intercourse without having the intention to fulfill the promise later on. Courts are required to consider and evaluate the material and evidence available on record or produced before it as to whether since very inception, the intention of the male partner was to deceive the female partner and the consent/permission was obtained merely on a false promise having no genuine and bonafide intention to fulfill the same in future. The first highlighted part in Para 20 of the judgment in the case of Pradeep Kumar (supra), is very material to see which contains the same observation of the Apex Court.
8. In the present case, at the time of framing of the charge as per the material available before the learned Judge was for one side that a grown-up educated lady of 32 years of age has relationship with the petitioner since last 2-3 years, usually permits him to remain in her residence upto 10/11 in the night and on the relevant date she permitted him to stay at her residence and allowed him to perform sexual intercourse with her on a promise that in the next month they are going to be married. Not only this, all these facts were known to her sister and sister-in-law (Bhabhi), who are also residing in the same house. Thereafter on refusal by the petitioner, complaint was sent to his senior officers, compromise was arrived at and when subsequently as per the promise/compromise marriage was not performed, report was lodged near about 10-11 months after performing of the aforementioned sexual intercourse. This is one aspect of the case which favours the petitioner. The another aspect, which appears to be distinguishable from the facts of the other cases cited including the facts of the case of Pradeep Kumar (supra), is that as per the allegation, the petitioner refused to marry her on the ground that she is a handicapped lady. This fact was very much in the mind of the petitioner since very beginning even at the time of making promise to marry her. It is not a new ground or a compulsion arose subsequently prohibiting the petitioner to fulfill his promise, despite his willingness. If this is the only ground on which the performance of the promise has been refused, as per the allegation of the prosecutrix, this fact cannot be lost sight of and cannot at this stage outrightly be negated that the same fact being in the mind of the petitioner since very beginning, even at the inception, he might be having an intention not to fulfill the promise, but merely to seek the permission, consent or willingness for fulfilling his lustful desire, the promise was extended. Nothing can be concluded nor required at this stage. It all requires evidence and evaluation thereof.
9. Presently, this Court is to consider the legality, propriety or correctness of the impugned order which has been passed rejecting the application filed by the petitioner under Section 227 of Cr.PC alongwith an order framing of the charge. As provided by Sections 227 and 228 of Cr.PC, it appears that if upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge him while recording the reasons therefor. But if after such consideration and hearing, a Judge forms an opinion that there is a ground for presuming that the accused has committed an offence, he can frame a charge. In the aforementioned facts, particularly the observation with regard to the alleged ground of refusal to marry the prosecutrix, the impugned order cannot be said to be erroneous.
10. It is observed in the last para in the case of Pradeep Kumar (supra), that it would have been proper for the High Court to deal with the matter elaborately. As the same has not been done, the matter was remitted back for reconsideration. Facts being different as observed hereinabove if this case is remitted back, the same difficulty may arise before the learned Judge to conclude the material point, as to whether since very inception of making of promise, the petitioner did not really entertain the intention of marrying the prosecutrix and the promise to marry advanced by him was merely a hoax. As submitted by Shri Pateriya, the learned Counsel for the complainant, statements of five witnesses have been examined during trial including examination-in-chief of the complainant and trial is proceeding. One more co-accused is also being prosecuted as aforesaid. As observed hereinabove, in particular set of the facts of this case, without evidence and consideration thereof, it is very difficult to conclude the aforementioned important point merely on the documents available at the time of framing of the charge. After considering as a whole, in my considered opinion, trial is required in this case to conclude this material point effectually on merits.
11. Consequently, the revision is dismissed.