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Showing contexts for: indian penal code section 376 in Gopal Oyan vs The State Of Madhya Pradesh on 12 May, 2022Matching Fragments
19. Only one judgment of the Patna High Court was brought to our notice, which appears to take a contrary view. (Saleha Khatoon v. State of Bihar [1989 Cri LJ 202 :
1988 BLJR 678 (Pat)] .) However, the observations in that judgment must be understood in the facts and circumstances of that case. That was a case where the Magistrate instead of committing the case to the Court of Session for trial, on similar allegations, proceeded to try the case himself for the charge under Section 498 IPC and declined to commit the accused to the Court of Session for trial for the offence under Section 376 IPC. This order was challenged before the High Court and in those circumstances the Court held that in the facts and circumstances of the case, having regard to the narrow jurisdiction of the Magistrate under Section 209 CrPC, he was not required to balance and weigh the evidence as is done by the trial court. In the facts and circumstances of the case, he ought to have committed the case to the Court of Session for trial under Section 376 IPC. In this background the learned Judge made the following observations: (Cri LJ p. 204, para 8) "The first point which attracts my attention is the second ingredient 'without her consent'. Consent always means free will or voluntary act. In this case consent was obtained on the basis of some fraud and allurement or practising deception upon the lady on the pretext that ultimately she will be married and under that pretext she allowed Opposite Party 2 to have sexual intercourse with her.
9. The present proceedings concern an FIR registered against the appellant under Sections 376, 417, 504 and 506(2) IPC and Sections 3(1)(u), (w) and 3(2)(vii) of the SC/ST Act. Section 376 IPC prescribes the punishment for the offence of rape which is set out in Section 375. Section 375 prescribes seven descriptions of how the offence of rape may be committed. For the present purposes only the second such description, along with Section 90 IPC is relevant and is set out below:
2019 SCC OnLine SC 509], 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 IPC 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 IPC and can be convicted for the offence under Section 376 IPC."
13. In view of the aforesaid enunciation of law, it is clear that no case of Section 376 of IPC is made out against the present petitioner for the reason that the prosecutrix in her statement recorded under Section 164 Cr.P.C. has very categorically admitted that petitioner has not developed any physical relation with her and further it is clear from the documents available on record that she refused to get herself medically examined and no medical opinion is also available so as to ascertain that any physical relation has been developed between the petitioner and the prosecutrix. In absence of any such material indicating that petitioner has developed physical relation forcefully without the consent of the prosecutrix, he cannot be put to trial for an offence of Section 376 of IPC.