Chattisgarh High Court
Xyz vs Romesh Singh Thakur on 13 June, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Acquittal Appeal No.84/2020
(Arising out of judgment of acquittal dated 06.11.2019 passed by Second
Additional Session Judge, Korba (C.G.) in Session Trial No. 110/2018)
XYZ (Victim)
......Appellant
Versus
1) Romesh Singh Thakur S/o Kartar Singh Thakur,
Aged about : 29 Years, R/o Nagar Nigam Colony,
Qt. No. H-3, Korba Chowki Rampur, Police Station :
Kotwali, District : Korba (C.G.)
(Accused)
.......Respondent
2) State of Chhattisgarh, Through : Chowki Rampur,
Police Station : Kotwali, District : Korba (C.G.)
(Prosecution)
........Respondent
For Appellant: Shri Pushpendra Kumar Patel, Advocate
For Respondent No.2/State Shri Saumya Rai, Panel Lawyer,
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ
Judgment On Board
(13.06.2022)
Sachin Singh Rajput, J.
1) Assailing the legality, validity, correctness and judicial propriety of the judgment of acquittal dated 06.11.2019 passed by Second Additional Session Judge, Korba (C.G.) (for short trial court) in Session Trial No. 110/2018, appellant/victim has preferred this appeal under section 372 of Criminal Procedure Code, 1973 (for short Cr.P.C.). By the impugned judgment dated 06.11.2019, the respondent no.1 herein was acquitted from charges under section 376(2)(n), 294, 506 (B) and 313 of the Indian Penal Code, 1860 (for short IPC) by the learned trial court.
2) Shri Pushpendra Kumar Patel, learned counsel appearing for the appellant/victim submitted that the learned trial court is absolutely unjustifed in passing the judgment of acquittal of respondent no.1 herein from all charges under the above- mentioned ofences by recording a fnding which is perverse and contrary to the evidence on record and therefore it is liable to be set aside and the respondent no.1 should be convicted and sentenced for the commission of the above stated ofences. He further submitted that the learned trial court did not appreciate the evidence on record to its proper perspective and erroneously passed the impugned judgment of acquittal which is liable to be set aside and the appeal may be allowed in toto.
3) We have carefully considered the submissions advanced by the learned counsel for the appellant/victim and meticulously examined the evidence available on record. We have also with utmost circumspection perused the impugned judgment in order to ascertain whether fndings recorded are based on proper appreciation of evidence on record or not.
4) Case of the prosecution in brief is that the appellant/victim lodged a report against the respondent no.1 in police chowki Rampur stating that respondent no.1 on the false promise of marriage sexually exploited the appellant/victim from 2011 to 2018 and committed forceful rape. Because of which the appellant/victim became pregnant in February 2016 and August 2017, respondent no.1 forcefully administered abortion pill to her. In the year 2017 appellant/victim became seriously sick and she was admitted to Dr. Rohit Banchhor. Thereafter till 22.07.2018 respondent no.1 continue to have physical relation with appellant/victim on the pretext of marriage and thereafter refused to marry with the appellant/victim. On report being made by the appellant/victim, respondent no.1 spoke abusive words and threatened to kill her. Thereafter the investigation of the above stated ofences was set on motion. After due investigation charge sheet was fled and before the Chief Judicial Magistrate, Korba and after registration of Criminal Case, the same was committed to the Court of Session Judge, Korba. The case was made over to the learned trial court. The learned trial court framed charges under section 376 (2) (n), 294,506 (B) and 313 of the IPC. The prosecution examined as many as 13 prosecution witnesses in order to prove the guilt of the respondent no.1. Respondent no.1 did not examine any defense witness. In statement under section 313 of Cr.P.C., respondent no.1 pleads innocence and false implication. The learned trial court after appreciating oral and documentary evidence available on record proceeded to acquit the respondent no.1. The judgment of acquittal is being challenged before us and we carefully consider the submissions and evidence placed before us. FINDINGS WITH REGARD TO SECTION 294 AND 506 (B) OF IPC
5) Though the learned counsel for the appellant/victim has not seriously attacked the impugned judgment of acquittal of respondent no.1 under sections 294, 506 (B) of IPC during the course of arguments, still we proceed to examine the fndings of the learned trial court and evidence available on record. The learned trial court after appreciating the evidence of appellant/victim came to a conclusion that appellant/victim in her court statement has not specifcally stated the actual abusive words spoken by the respondent no.1 to her. Apart from this it has also come on record that the appellant/victim in her written report ExP-15 nor in her court statement specifed the place where the respondent no,1 has used abusive words. The appellant/victim in her court statement examination in chief has not that the respondent no.1 has threatened her to kill nor it has been stated in her statement under section 164 of Cr.P.C.. Therefore careful scrutiny of evidence on record it is evident that the prosecution has not been able to prove the ofence beyond reasonable doubt. Therefore, the learned trial court acquitted the respondent no.1 under section 294, 506 (B) giving beneft of doubt. The fnding of the learned trial court is based on proper appreciation of evidence and the counsel for the appellant/victim could not point out any glaring illegality in this regard. Therefore on careful appreciation of evidence available we do not fnd it appropriate to take a diferent view. Hence the fndings with regard to acquittal of respondent no.1 from charges under section 294, 506 (B) of IPC are afrmed.
FINDINGS WITH REGARD TO SECTION 313 OF IPC
6) We have carefully and meticulously examined the oral and documentary evidence available on record. The appellant/victim in paragraph 3 of her examination in chief stated that she got pregnant in the year 2016 and 2017 from respondent no.1 and respondent no.1 brought tablet saying that at present they will not take the child and tablet was taken by her. But it has not been stated by the appellant/victim respondent no.1 has forcefully administered the tablet and she was not willing to take the abortion pill. It is not evident from evidence that the respondent no.1 administered abortion pill without the consent of appellant/victim thereby causing miscarriage. There is no evidence on record to show the name and nature of the pill which the appellant/victim has taken therefore it is quite vivid that prosecution was unable to prove the charge under section 313 of IPC. The fnding recorded by the learned trial court is based on the proper appreciation of evidence on record and does not require any interference hence afrmed.
FINDINGS WITH REGARD TO SECTION 376 (2) (n) OF IPC
7) The case of the prosecution is based on the fact that the respondent no.1 committed sexual intercourse with the appellant/victim with a false promise to marry and therefore there was no valid consent of the appellant/victim. In order to appreciate that whether consent of appellant/victim was under misconception or not section 90 of the IPC is relevant and is quoted below:-
"90. Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.-- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
Similarly section 114 A of Evidence Act, 1872 is of great importance with regard to presumption of absence of consent in certain prosecution of rape which is quoted below"
[114A. Presumption as to absence of consent in certain prosecution for rape. -- In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
Explanation. In this section, "sexual intercourse"
shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860).]
8) In Jayanti Rani Panda Vs. State of West Bengal, reported in 1984 Criminal Law Journal 1535, a Division Bench of Calcutta High Court held that the failure to keep the promise to marry at a future uncertain date, due to reasons not very clear from the evidence, does not always amount to a misconception of fact at the 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 diferent 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 of fact. Section 90 IPC cannot be 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." Hon'ble Supreme Court in a case reported in AIR 2003 SC 1639 Uday Vs. State of Karnataka in paragraph 21 & 25 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 strait jacket 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 weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the ofence, absence of consent being one of them.
"25.There is yet another difculty which faces the prosecution in this case. In a case of this nature two conditions must be fulflled 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 difcult on account of caste considerations. The proposal was bound to meet with stif 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, is permitted only to a person with whom one is in deep love. It is also not without signifcance 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 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 signifcance, particularly when they are over come with emotions and passion and fnd 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 difcult 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.
Similarly in case reported in (2013) 7 SCC 675 Deepak Gulati Vs. State of Haryana the Hon'ble Supreme Court observed as under:-
"21. 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 fde motives, and had made a false promise to this efect 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 fulflling 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 mis-representation 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 diferently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fde, and that he had clandestine motives.
"24. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at 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 IPC 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."
At this juncture it is noteworthy to refer to a recent judgment of the Hon'ble Supreme Court reported in (2019) 9 SCC 608 Pramod Suryabhan Pawar Vs. State of Maharashtra. In this judgment the Supreme Court in paragraph 18 observed as under:-
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve and 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 itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.
In this judgment Hon'ble Supreme Court observed that appellant's failure in 2016 to fulfll his promise made in 2008 cannot be construed to mean the promise itself was false.
In a case reported in (2020) 10 SCC 108 Maheshwar Tigga Vs. State of Jharkhand in paragraph 14 held as under:-
14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest.
The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her."
The Hon'ble Supreme Court has categorically held in this judgment that misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years.
09) It is true that in the light of pronoucement of the Hon'ble Supreme Court it is evident that there is no strait-jacket 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 test 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 weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the ofence, absence of consent being one of them.
10) In light of the above authoritative judgments of the Hon'ble Supreme Court now we proceed to analyse the evidence available on record particularly the evidence of the appellant/victim with utmost circumspection. The appellant/ victim in paragraph 2 of her examination in chief stated in year 2011-12 after acquaintance she has gone to the house of respondent no.1 where he used force on her. However she did not in clear words said that respondent no.1 committed forceful intercourse. She further states thereafter love relations between them continued. In paragraph 3 of her examination in chief she stated that respondent no.1 committed rape on the false pretext of marriage. This relationship continued till middle of year 2016. In paragraph 13 of the cross examination appellant/victim has admitted that she has not lodged any complaint in police station between years 2011-2018. Here it is worthwhile to add that physical relation between appellant/victim and respondent no.1 was established in 2011 and the appellant/victim did not complain about it to police. Rather love relation between them grew. The appellant/victim in paragraph 11 of her cross examination admitted that on 25 and 26 February 2018 made a written complaint against respondent no.1 in Rampur police chowki. The certifed copy of the same is Ex-D-9. She further admits that it mentioned in the report that her afair with respondent no.1 was continued for the 7 years. It is pertinent to mention here that in ExD-9 the appellant/victim has not mentioned that respondent no.1 forcefully or without her consent established physical relation or committed rape with her. It is important to add here from close scrutiny of appellant/victim statement it is evident till 25.02.2018 no report of rape against the respondent no.1 was lodged by appellant/victim in police station.
11) The appellant/victim in paragraph 6 of her cross examination admitted that she was married to Vijay Singh Thakur in the year 2005 and she has a daughter from him. She has denied the suggestion that she is married and said that she is divorced. In paragraph 6 of her cross examination she has stated that she has divorced socially with Vijay in the year 2013. However, she has not divorced Vijay in any court she further admitted that she has not fled any divorce deed. One more important aspect which is required to be mentioned here that appellant/victim in paragraph 9 of her cross examination admitted she enter into compromise with her husband on 23.11.2013 to live together in a case before the Family Court, Korba. Copy of such decree is ExD-4 and consent application is ExD-5. It is also admitted by appellant/victim that in ExD-4 it is written that both party want to live together and lead a happy life. Likewise in paragraph 10 of her cross examination she has admitted that in a report against Syed Imamuddin (ExD-7) and her statement under section 164 Cr.P.C. (ExD-8) she has stated her husband name Vijay Singh. From the above evidence it is crystal clear that the appellant/victim is a married woman and she has not been legally divorced.
12) From deep analysis of the evidence of the following broad facts emerged for decision making of the present appeal:-
A) That the appellant/victim is a major educated lady of 32 years capable of understanding of well being of herself.
B) The appellant/victim was married and she has not been legally divorced.
C) There is report/complaint made by the appellant/victim from 2011 till 25.02.2018.
D) Respondent No.1 is younger than the appellant/victim.
E) There is considerable delay in lodging the First Information Report.
F) There was a love relationship between the appellant/victim and respondent no.1.
G) The appellant/victim was not truthful with regard to her marital status.
H) It is not evident on record that the respondent no.1 from the inception was not willing to marry.
13) As stated already, the sequence of events mentioned above would go to show that the intercourse between the respondent no.1 and the appellant/victim was purely consensual in nature. There is nothing on record to show that the respondent no.1 had made a false promise only to satisfy his lust. No question of promise to marry arises inasmuch as the appellant/victim is a married woman and she knew that a legal marriage with her was not possible under law.
14) From deep analysis of the oral and documentary evidence available on record and in light of authoritative pronouncement of Hon'ble Supreme Court as stated above, we have no hesitation to hold that appellant/victim was a consenting party. The consent was not given under fear of injury or under a misconception of fact. The presumption under section 114A of evidence has been successfully rebutted by the respondent no.1. The prosecution has not been able to prove the charges against the respondent no.1 beyond reasonable doubt. Therefore, we do not fnd any good grounds for interference in this acquittal appeal and thus, we do not consider it a ft case for admitting the acquittal appeal. Accordingly, the acquittal appeal is dismissed at the admission stage without notice to other side.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Pawan prajapati
Head Note
There is nothing on record to show that the respondent no.1 had made a false promise only to satisfy his lust. No question of promise to marry arises inasmuch as the appellant/victim is a married woman and she knew that a legal marriage with her was not possible under law.
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