Orissa High Court
Jagannath Bithalu vs State Of Odisha on 11 August, 2023
Bench: D.Dash, S.K.Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.695 OF 2022
In The matter of an Appeal under section-374(2) of the Code of Criminal
Procedure, 1973 and from the judgment and order of sentence dated
11.08.2022 passed by the learned Presiding Officer, Special Court under
the SC & ST (PoA) Act, Cuttack in Criminal Trial No.32 of 219.
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Jagannath Bithalu .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
==================================================
For Appellants - Mr. Ramanikanta Pattanaik
Advocate.
For Respondent - Mr. Sonak Mishra,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
DATE OF HEARING : 07.08.2023 : DATE OF JUDGMENT:11.08.2023 D.Dash,J. The Appellant by filing this Appeal has assailed the judgment of conviction and order of sentence dated 11.08.2022 passed by the learned Presiding Officer, Special Court under the SC & ST (PoA) Act, Cuttack in Criminal Trial No.32 of 219 arising out of corresponding to Cuttack Sadar P.S. Case No.154 of 2019.
The Appellant (accused) thereunder has been convicted for commission of offence under section-376(2)(n) of the Indian Penal Code, Page 1 of 25 CRLA No.695 of 2022 {{ 2 }} 1860 (for short called as the IPC). Accordingly, the Appellant (accused) has been sentenced to undergo imprisonment for life and pay fine of Rs.50,000/- in default to undergo rigorous imprisonment for a period of six (6) months.
2. The prosecution case is that in the year, 2013 the victim (P.W.1) was prosecuting her studies in +3 Arts in Govindpur College in the District of Cuttack. The accused developed relationship with her introducing himself to be an ex-student of that College. It is said that the accused having collected the telephone number used to talk with her over phone. One day, when accused suddenly met the victim in the college, which is after four months of their first meet, he offered to give her a lift in his motorcycle at her residence. It is stated that as the victim was then thirsty, the accused offered water from his water bottle to drink. The victim having taken water went with the accused in his motorcycle. On their way, they took cold drinks and 'Kurkure'. It is stated that the accused then took the victim in her motorcycle crossing their house and on being asked, the accused told that he would drop her at the residence after meeting a friend. The victim was then feeling uneasy. After proceeding about 10 km. the accused stopped the motorcycle near a house stating that said house belonged to him. The victim is said to have lost her sense there. After regaining sense, it is stated that the victim found herself Page 2 of 25 CRLA NO. 695 OF 2022 {{ 3 }} sitting on a chair in the room of said house and the accused was there in the said room. The victim then detected the lace of her pant was opened and she to have disrobed. She was also feeling pain in her private part. The victim thus having came to know that she had been raped by the accused, started crying and then it is said that accused asked her not to shout as that would cause harm to her. The accused thereafter brought out vermilion from the puja room and put the same her on her forehead. The accused told her not to disclose the fact to anybody and assured her to complete the formalities of marriage as per their rituals very soon. The accused also threatened the victim that if she would disclose the matter to anybody, harm would be caused to her family. It is stated that out of fear and lowering of reputation; at the same time with the expectation of marriage with the accused, the victim remained silent. The accused thereafter dropped the victim at a short distance away from her house.
After two days, the accused took the victim to Dhankud temple, put vermilion on her forehead. Thereafter, both continued to have conversations over phone. It is said that the accused forced the victim to keep sexual relationship with him and when that was opposed to by the victim, the accused was convincing her that she should keep such sexual relationship as his wife. The victim when was insisting for marriage, the accused was delaying on some pretext or other.
Page 3 of 25 CRLA NO. 695 OF 2022 {{ 4 }} In this way, three years passed, the victim went to Bhubaneswar to pursue of her study in MBA by staying with her friend. The accused then serving in the Central Reserve Police Force (CRPF), used to come during holidays and meet the victim in the absence of her friend. The accused was compelling the victim to have sex with him being his wife and the victim was cooperating the accused in having the said relationship. During the last part of the year, 2017, it is stated that the accused kept the victim in a house taken on rent from one Rabindra Tarai at Uttara Puba Sasan, Bhubaneswar. During that period, the accused used to come to the house, stay with the victim and have sexual relationship. The victim then stopped her menstrual cycle which she intimated the accused. It is stated that accused hearing the news expressed his happiness and brought some medical kits to test the conception. The result having found positive, the accused expressed the joy. It is further stated that when the victim had some head reeling and felt uneasy, the accused administered medicine and thereafter miscarriage took place. At the same time, it is said that the accused established cordial relationship with the family of the victim and assured to marry her. The father of the victim had given a sum of Rs.40,000/- to the accused for construction of his house. At a later stage, when the father of the victim was arranging the marriage of the victim somewhere else, the accused came to know about that and he then started Page 4 of 25 CRLA NO. 695 OF 2022 {{ 5 }} threatening the victim in many ways. On 26.10.2018, the accused while serving at Muniguda took the victim and kept her in a hotel, where the accused introduced the victim before the staff as his wife. There also the accused continued to have sexual relationship with the victim and it is said that it was against the will of the victim. When the victim insisted for marriage, the accused abused her uttering her caste. This was informed by the victim to the parents of the accused, who declined to accept the victim as their daughter-in-law on the ground that she was a member of Scheduled Caste Community. It is stated that the accused insisted the victim to stay in the manner he was arranging.
On 14.02.2019, when the victim was staying at Uttara Puba Sasan, Bhubaneswar, accused had come there and had forcible sexual relationship with her when she was undergoing menstruation period. On the next day, the victim returned home and intimated the matter to her parents. The parents with the victim then approached the parents of the accused who then insisted them to leave their house. The victim therefore contacted the higher officials of the accused. When that was known by the accused, the victim was threatened by the accused in many ways. So, finally on 02.04.2019, the victim lodged a written report with the Inspector-In-Charge of Cuttack (Sadar) Police Station under the heading-
"Keeping Sexual Relationship With the False Promise to Marry".Page 5 of 25
CRLA NO. 695 OF 2022 {{ 6 }}
3. Receiving the said written report from the victim (P.W.1), the Inspector-In-Charge (IIC), Cuttack Sadar P.S., treated the same as F.I.R. and registering the case, requested the Assistant Commissioner of Police (ACP) Zone-IV, Cuttack UPD (P.W.31) to take up investigation.
Investigating Officer (I.O.-P.W.31) in course of investigation, examined the Informant (P.W.1). He also recorded her statement under section-161 of the Cr.P.C.. He then seized the incriminating materials from the possession of the victim under seizure list. The victim was sent for medical examination. The I.O. (P.W.31) then visited the spot and thereafter examining the some other witnesses and making seizure of some other articles which according to him were incriminating, arrested the accused, issued letter to the Commandant-38 Battalion CRPF to have detained the accused who was then working as Constable in that organization. He then issued requisition for medical examination of the accused. He also seized some incriminating articles from the possession of the accused. On his transfer, he handover the charge of investigation to the successor in office (P.W.29), who reexamined few witnesses and on completion of investigation, submitted the Final Form placing this accused with his parents namely, Jogendra Baitalu and Morua Baithalu (since acquitted), placing them to face the trial for commission of offence under section-376(2)(n)/417/506(ii)/294 of the IPC read with section- Page 6 of 25 CRLA NO. 695 OF 2022 {{ 7 }} 3(1)(r)(s)/3(2)(v)(vii) of the SC & ST (PoA) Act and section-66-E/67-A of the Information Technology Act.
4. Learned Court below having taken cognizance of the above noted offences and the Trial commenced by framing charge for offence under section-376(2)(n)/417/506(ii)/294 of the IPC read with section- 3(1)(r)(s)/3(2)(v)(vii) of the SC & ST (PoA) Act and section-66-E/67-A of the Information Technology Act against the Appellant (accused).
5. In the Trial, the prosecution had examined in total thirty one (31) witnesses as P.Ws.1 to 31. As already stated the victim who is the Informant in the case and had lodged the written report, Ext.1 is P.W.1. P.W.5 is the father of P.W.1 whereas P.W.7 is the uncle of P.W.1. The mother of the victim (P.W.1) has been examined as P.W.8; P.W.2 and P.W.9 are her brothers. The aunt of the P.W.1 is P.W.10 and the maternal brother of P.W.1 is P.W.11. Another aunt of P.W.1 has been examined as P.W.18; whereas P.W.16 is one of her classmates and neighbour like P.W.17. The Doctors who had examined the victim are P.W.23 and P.W.30. P.W.28 is the Tahasildar, who had given the Caste particulars of the parties. The two Investigating Officer are P.W. 29 and P.W.31.
6. The case of the defence is that of complete denial. The accused however has not tendered any evidence in support of the defence. Page 7 of 25 CRLA NO. 695 OF 2022 {{ 8 }}
7. Before the Trial Court, this accused stood charged for commission of offence under section-376(2)(n)/417/506(ii) /294 of the IPC read with section-3(1)(r)(s)/3(2)(v)(vii) of the SC & ST (PoA) Act and section-66- E/67-A of the Information Technology Act. The parents of the accused namely, Jogendra Baithalu & Marua Baithalu stood charged under section-294/34 of the IPC read with section-3(1)(s)/3(2) (va) of the SC & ST (PoA) Act. The parents of this accused have been acquitted of all the charges and this accused has been acquitted on all the charges except the offence under section-376(2)(n) of the IPC. Accordingly, he has been convicted thereunder and visited with the sentence as aforestated.
8. Mr. Ramanikanta Pattnaik, learned Counsel for the Appellant (accused) assailing the finding of the Trial Court holding this accused guilty for commission of offence under section-376(2)(n) of the IPC, taking pain has placed the entire deposition of the victim examined as P.W.1. Referring to her evidence alone, he contended that the Trial Court has committed grave error in holding the accused guilty for commission of offence the offence of rape upon the victim (P.W.1). According to him, a reading being given to the deposition of the victim (P.W.1), clearly go to show that it was a case of consensual sexual relationship and not that the accused was having a sexual intercourse with the victim against her will. According to him, the first incident having taken place in the year, Page 8 of 25 CRLA NO. 695 OF 2022 {{ 9 }} 2013, when it is said that the accused without the consent of P.W.1, sexually exploited her; no information was given by P.W.1 to anybody and thereafter for a long period stretching over six years, the sexual relationship between the victim and the accused continued and the F.I.R. has been lodged in the year, 2019 with the heading which is important to be taken note of that "Keeping sexual relationship on the false promise of marriage". He, therefore, submitted that the evidence of P.W.1 as well as her parents and other relations being viewed cumulatively, it can never be said to be a case of rape in saying that the accused was having the sexual relationship with the victim (P.W.1) against her will and without her consent and it being a consensual, it was only when the accused did not agree for marriage, the case has been foisted against him that he had committed rape upon the victim. He submitted that the Trial Court has completely failed to appreciate the evidence of P.W.1 in its proper perspective and having ignored all those facts and circumstances emanating therefrom in support of a case of establishment of continuance of sexual relationship between them for a period about six years has erroneously come to a conclusion that the accused is guilty of committing the offence under section-376(2)(n) of the IPC.
9. Mr. Sanak Mishra, learned Additional Standing Counsel submitted all in favour of the finding of guilt against the accused as has been Page 9 of 25 CRLA NO. 695 OF 2022 {{ 10 }} recorded by the Trial Court. He submitted that when there is no reason to disbelieve the victim (P.W.1) that first in the year 2016, the accused committed the sexual intercourse with her without her consent by carrying her in a motorcycle to a distance place on the pretext of giving a lift up to her residence and thereafter, as the accused by giving the promise of marrying her has gone on keeping the sexual relationship, the victim (P.W.1) cannot be said to be a consenting party to the same. He submitted that under the peculiar factual setting, the consent cannot be termed as free and voluntary but it was with a hope of getting the accused married and thereafter, save herself humiliation in the society and carrying the stigma.
10. Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and we have also extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 31 and marked Exts.1 to 40 from the side of the prosecution have been perused.
11. In order to judge the sustainability of the finding of guilt of the accused as has been recorded by the Trial Court by addressing the rival submission, the first and foremost need arises to scrutinize the evidence of P.W.1 (victim).
Page 10 of 25 CRLA NO. 695 OF 2022 {{ 11 }} The F.I.R. (Ext.1), lodged by P.W.1 finds mention of the heading as under:-
"Mote Thaki Bahaghara Prolobhan Dekhai Saririka Samparka Rakhiba Sambondhe" (Relating to cheating, promising to marry me and Keeping sexual relationship).
After the narrations as to the first incident, it contains further narration that the victim (P.W.1) out of shame, fear and in anticipation of marriage maintained silence. But then also it is indicated that she and the accused went on having regular conversation over phone and thereafter, continued with the sexual relationship and went on to live as husband and wife while residing in the house taken on rent. It is further stated that the accused was coming on leave, he was staying there and in this way, the relationship became stronger and stronger. It is also stated that the victim became pregnant and she faced abortion because of the administration of some medicine by the accused. It has been stated in the F.I.R. that there after both went to the service place of the accused and there they continued with the same relationship as husband and wife by so posing before all.
12. This F.I.R. (Ext.1) has been proved by the P.W.1 who had stated to have herself typed out the same. Before lodging this report, P.W.1 has not made any complaint before any one. In fact that sexual relationship Page 11 of 25 CRLA NO. 695 OF 2022 {{ 12 }} between them was not disclosed for a long period by the victim even to her parents and other relations.
13. The Hon'ble Apex Court in the case of Deepak Gulati Vs. State of Haryana; AIR 2013 SC 2071 has held as under:-
''18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. '' Page 12 of 25 CRLA NO. 695 OF 2022 {{ 13 }}
14. In the case of Tilak Raj Vs. State of Himachal Pradesh; AIR 2016 SC 406, the Hon'ble Supreme Court has held as under:-
''19. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.''
15. The Hon'ble Supreme Court further in the case of Uday Vs. State of Karnataka; (2003) 4 SCC 46 has held as under:-
''21. 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, Page 13 of 25 CRLA NO. 695 OF 2022 {{ 14 }} 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 weigh 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.
23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant.
She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.
Page 14 of 25 CRLA NO. 695 OF 2022 {{ 15 }}
25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens in such cases, when Page 15 of 25 CRLA NO. 695 OF 2022 {{ 16 }} 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 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.''
16. The Hon'ble Supreme Court in the case of Solu @ Subhash Kumar Vs. State of U.P. & Another; AIR 2021 SC 1405 has held as under:-
''11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant Page 16 of 25 CRLA NO. 695 OF 2022 {{ 17 }} to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.''
17. The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra & Another;(2019) 3 SCC (Cri.)903 has held as under:-
''14. In the present case, the "misconception of fact" alleged by the complainant is the Appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh, this Court held: (SCC para 12).
"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the Accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the Accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the Indian Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined Under Sections 375 of the Indian Penal Code Page 17 of 25 CRLA NO. 695 OF 2022 {{ 18 }} and can be convicted for the offence Under Section 376 IPC."
Similar observations were made by this Court in Deepak Gulati v. State of Haryana ("Deepak Gulati"): (SCC p.682, para 21).
"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether that was made, at an early stage a false promise of marriage by the Accused....
16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman Under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: (SCC pp.682-84, paras 21 & 24).
21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the Accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the Accused, and not solely on account of misrepresentation made to her by the Accused, or where an Page 18 of 25 CRLA NO. 695 OF 2022 {{ 19 }} Accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the Accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 Indian Penal Code cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the Accused had never really intended to marry her.
18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise Page 19 of 25 CRLA NO. 695 OF 2022 {{ 20 }} itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
18. The Hon'ble Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vrs. Naval Singh Rajput and others; 2019 (3) MPLJ (Cri.) SC 52 has held as under:-
''20. Thus, there is a clear distinction between rape and consensual sex. The Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 of the Indian Penal Code.
21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Page 20 of 25 CRLA NO. 695 OF 2022 {{ 21 }} Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow.
She has specifically stated that as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each others company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, Page 21 of 25 CRLA NO. 695 OF 2022 {{ 22 }} the complaint registered under section 376(2)(b) cannot be sustained.''
19. Bearing in mind the principle as aforenoted, the evidence of P.W.1 being carefully gone through, it is seen that she has stated that at the first instance, the accused had the sexual intercourse upon her without her knowledge which she meant to say that she being then not in sense, it was so done. First of all, it be stated that the said incident as regards the accused having the sexual intercourse with the victim without her consent which is of the year, 2013 is not believable when without stating the time gap, she states the accused had administered something leading to her loss of sense and then she found herself to have been disrobed and feeling pain. It is also in her evidence that even before that they were engaged in conversation over phone and the two were meeting with each other. Accepting that to be true for a moment, her evidence would reveal that thereafter, the accused and the victim continued with the sexual relationship for a period of more than five years. The F.I.R. is lodged only in the year 2019 and for a long period since then, the matter as to that first incident had not come to light and that P.W.1 disclosed sometime before lodging F.I.R. to her parents. When it is said by P.W.1 that accused first of all had the sexual intercourse without her consent by putting her under medication leading to loss of her sense; she however says to have continued with such sexual relationship thereafter for a period of five Page 22 of 25 CRLA NO. 695 OF 2022 {{ 23 }} years in regular intervals and in different places. But she says that it was so as the accused promised to marry which she believed. All these being together viewed, it is extremely difficult to believe for a moment that consent of P.W.1 was obtained by misconception of fact. Only a false promise to marry made with an intention to deceive a woman would vitiate the woman's consent being obtained under misconception of fact, but mere breach of promise cannot be said to be a false promise. Near about more than one year time is sufficient for a prudent woman to realize as to whether the promise of marriage made by the accused is false from its very inception and only with a view to save himself from the process of law for the wrong done at the first instance or there is a possibility of breach of promise. When as per the version of the victim (P.W.1), the accused was not acceding to her request for marriage from time to time; waiting for such a long period from the year 2013 till lodging of the F.I.R. in the year, 2019 rather shows that the victim (P.W.1) was having consent for said relationship with a hope to marry him and when that has been breached, the F.I.R. came to be filed. But it cannot be said that she so continued to engage with the accused who with an intention to deceive her had obtained the consent under misconception of fact.
For the aforesaid discussion of evidence of victim (P.W.1) in our considered view, it is not the case that accused had given promise to the Page 23 of 25 CRLA NO. 695 OF 2022 {{ 24 }} victim (P.W.1) to marry which at the inception was false and on the basis of which the victim (P.W.1) was induced into sexual relationship. The evidence of victim (P.W.1) which narrates her relationship with the accused for more than five years, when cumulatively viewed with all other circumstance emanating therefrom; we are not in a position to say that, but for the false promise by the accused to marry, victim (P.W.1) had given the consent to have sexual relationship for all these period in different places under different environment. The victim (P.W.1) was very well knowing the pros and cons of the relation. It is not the case that false promise of marriage was given at the inception and the victim (P.W.1) was aware of the nature and consequence of sexual indulgence.
In that view of the matter, the finding of the Trial Court holding accused guilty of commission of the offence under section-376(2)(n) of the IPC cannot be sustained. Therefore, we hold that the judgment of conviction and the order of sentence impugned in this Appeal are liable to be set aside.
20. In the wake of aforesaid, the Appeal stands allowed. The judgment of conviction and order of sentence dated 11.08.2022 passed by the learned Presiding Officer, Special Court under the SC & ST (PoA) Act, Cuttack in Criminal Trial No.32 of 2019 are hereby set aside. Page 24 of 25 CRLA NO. 695 OF 2022 {{ 25 }} Since the Appellant (accused) namely, Jagannath Baithalu is in custody, he be set at liberty forthwith, if his detention in custody is not so required in connection with any other case.
(D. Dash), Judge.
Dr.S.K.Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 11-Aug-2023 19:38:58
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