Jharkhand High Court
Dhanu Ram Soren @ Bali Ram Soren Son Of ... vs The State Of Jharkhand on 12 June, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 173 of 2013
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[arising out of Judgment of Conviction and
Order of Sentence dated 21st February, 2013
passed by the Principal District & Sessions
Judge, Seraikella-Kharsawan in Sessions Trial
No.128 of 2011]
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Dhanu Ram Soren @ Bali Ram Soren son of Late Meghram
Soren, resident of Village Salgadih (Salgaria) PO PS Rajnagar,
District Seraikella-Kharswan.
... Appellant
-versus-
The State of Jharkhand ... Respondent
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For the Appellant : Mr. Sanjay Prasad, Advocate
For the Respondent : Mr. Pankaj Kumar, P.P.
Ms. Sharda Kumari, Advocate
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PRESENT: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
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JUDGMENT
Per Ananda Sen, J. The appellant has preferred this appeal against the
Judgment of Conviction and Order of Sentence dated 21st February, 2013
passed by the Principal District & Sessions Judge, Seraikella-Kharsawan in
Sessions Trial No.128 of 2011, whereby the appellant has been held guilty
and convicted for the offence punishable under Sections 376 of the Indian
Penal Code and has been sentenced to undergo rigorous imprisonment for
ten years and a fine of Rs.10,000/-.
2. Learned counsel for the appellant submits that from the
evidence recorded by the prosecution in this case, appellant could not have
been convicted under Section 376 of the Indian Penal Code. Further, it is his
contention that when the Trial Court has acquitted the appellant for the
charge under Section 420 of the Indian Penal Code, then there could not
have been conviction under Section 376 of the Indian Penal Code on the
facts of the case as narrated by the prosecution witnesses. As per the
appellant, admittedly, the victim is major and the sexual relationship which
was entered by the appellant with the victim is consensual. When there is
consensual relationship between the appellant and the victim, the conviction
under Section 376 of the Indian Penal Code is bad.
3. Learned counsel appearing on behalf of the State submits that
though the parties are major, yet by committing fraud, consent for sexual
relationship was obtained, thus, the said consent cannot be treated to be
consent. Since the said consent cannot be said to be consent, the Trial
Court had rightly convicted the appellant under Section 376 of the Indian
Penal Code.
4. We have heard the learned counsel for the appellant and the
learned counsel for the State and have also gone through the records and
the entire evidence.
5. Prosecution case is based on the written report of the informant/
prosecutrix addressed to the Officer-in-Charge, Rajnagar Police Station,
East Singhbhum, stating that sexual relationship was established by the
appellant since last two years on the pretext of marriage. She has stated that
the appellant has on many occasions stayed with the informant in her home
at her village. She has also stayed with the appellant at many places viz.
Tata, Chaibasa and in a lodge. She stated that she has also lived with the
appellant and his sister in his home for 45 days. She has stated that the
appellant has assaulted her on Sunday at 4.00 p.m. and ousted her from his
house. She stated that this happened after false promise of marriage was
given by the appellant.
6. On the basis of the written report of the informant, Rajnagar
Police Station Case 24 of 2010 was registered for offences under Sections
420, 494 and 376 of the Indian Penal Code. Police took up the investigation
and on completion of the investigation, filed chargesheet No.28 of 2011 on
20.06.2011 under Sections 420/376 of the Indian Penal Code. Cognizance
of the offence was taken and case was committed to the Court of Sessions.
Charge under two heads against the appellant was framed on 13.09.2011
for offences under Sections 376 and 420 of the Indian Penal Code. Charge,
so framed, was read over and explained to the appellant, to which he
pleaded not guilty and claimed to be tried, thus the appellant was put on trial.
7. To bring home the charge, the prosecution examined altogether
7 witnesses, namely, P.W.1 the informant/prosecutrix herself, P.W.2 Somay
Tudu, P.W.3 Prasad Tudu, P.W.4 Raju Tudu, P.W.5 Jitmohan Murmu,
P.W.6 Amin Hembram (Investigating Officer) and P.W.7 Mangal Soren.
The prosecution also produced the following documentary
evidence, which were marked exhibits: -
Exhibit 1 Entire Written Report
Exhibit 2 Endorsement on the written report
Exhibit 3 Formal F.I.R.
8. P.W.1 is the informant/prosecutrix. She has identified her
signature on the written report, which has been marked Exhibit 1. She has
stated that she has filed case against the appellant. She has stated that the
appellant told her that he will marry her and when she asked whether he is
married or not, he told that he is unmarried. She had accompanied him to
Krishnapur Mela and had gone to his home. They had stayed in a Lodge at
Jadugora on that night. He had established physical relationship with her.
They continued physical relationship for two years. Thereafter on one day,
she went to Jadugora and asked the appellant to take her to his home to
marry her, which he started evading. He left her in midway. Thereafter she
went to his home in the night where she could come to know that the
appellant is married and he has two children. Thereafter she stayed with the
sister and mother of the appellant for about 1 ½ month. Thereafter they fled
away locking their home. Thereafter she went to the village Pradhan Somai.
From the house of village Pradhan she called the appellant on several times,
but he did not come. When no decision could be reached, she has filed the
case. After the case was lodged, the appellant along with his wife and
children assaulted her and ousted her from the house. She has identified the
appellant in Court.
P.W.2 Somai Tudu is the village pradhan. He has stated that he
knows the appellant. A girl had come to his house, who is the informant. She
was staying in the house of the appellant, but someone locked the door,
thereafter she went to the house of pradhan. He had asked the informant to
go to her home and he will do to the extent possible. He identified the
appellant in Court. In cross examination, he stated that the appellant is a
constable and works in police. He along with his wife and children stays in
Chaibasa. He has further stated that he is not acquainted with the informant
from before. He stated that no written document was prepared for
panchayati rather oral panchayati was conducted. He stated that the
informant stayed at his home for about a month. He denied the suggestion
that he has illicit relationship with the informant and on being asked by her,
he has given false evidence.
P.W.3 Prasad Tudu has been declared hostile. He stated that a
girl had come to the house of the appellant about a year ago and she was
staying in his house. She stayed in the house of the appellant for about three
months.
P.W.4 Raju Tudu has stated that the occurrence is of 2 ½ years
ago. A girl had come to their village. She used to visit the house of the
appellant. He does not know the name of the girl. The girl stayed in the
house of the appellant for about 1 ½ month, whereafter she went to the
house of village pradhan. He does not know as to why the girl went to the
house of village pradhan. He identified the appellant in the Court.
P.W.5 Jitmohan Murmu has stated that the occurrence is of 2 ½
years ago. A girl had come to the village. She was staying in the house of
the appellant. What was the relationship of the girl with the appellant is not
known to him. He does not know as to for how many days the girl lived in the
house of the appellant. The girl stayed in the house of the appellant for some
days and when the house was locked, she went to the house of village
pradhan. There was a panchayati in the village wherein the appellant had
not come, upon which the villagers had imposed a fine of Rs.50,000/- on the
appellant, which the appellant did not pay. He identified the appellant in
Court.
P.W.6 Amin Hembrom is the investigating officer. He identified
the endorsement made on the First Information Report, which has been
marked Exhibit 2. He has identified the signature of ASI Mumtaz Khan over
the formal F.I.R., which has been marked as Exhibit 3. He has narrated the
place of occurrence along with boundaries thereof. He has stated about
recording of statements of Somai Tudu, Prasad Tudu, Jitmohan Murmu,
Raju Tudu, Mangal Soren, who all supported the occurrence. On the basis of
the case diary and the statement of the witnesses and on the basis of
inspection of the place of occurrence, he had submitted the chargesheet
against the appellant.
P.W.7 Mangal Soren has been declared hostile.
9. After closure of the prosecution evidence, appellant was
examined under Section 313 of the Code of Criminal Procedure.
10. The Trial Court, after hearing the arguments of the parties and
after going through the evidence, by a Judgment of Conviction and Order of
Sentence dated 21st February, 2013 passed in Sessions Trial No.128 of
2011, has held the appellant guilty and convicted and sentenced him for the
offence as detailed in paragraph 1 hereinbefore.
11. Challenging the aforesaid conviction and sentence, the
appellant has preferred this appeal on the grounds mentioned in paragraph
2 of this judgment.
12. We have gone through the evidence and the entire records.
13. From the evidence, it is clear that both the parties are major. It
is admitted that they had entered into physical relationship, but the question
is whether the consent for entering into physical relationship can be said to
be free or voluntary.
14. In this case, the appellant is charged for committing offence
punishable under Section 376 of the Indian Penal Code. Section 376 of the
Indian Penal Code is punishment for rape. Rape has been defined in Section
375 of the Indian Penal Code, which reads as under: -
"375. Rape. - A man is said to commit "rape" if he -
(a) Penetrates his penis, to any extent into the vagina,
mouth urethra or anus of a woman or makes her to do
so with him or any other person; or
(b) Inserts, to any extent, any object or a part of the body,
nothing being the penis, into the vagina, the urethra
or anus of a woman or makes her to do so with him or
any other person; or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do
so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person, under the circumstances falling under any of
the following seven descriptions:-
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - With her consent when her consent has
been obtained by putting her or any person in whom
she is interested, in fear of death or of hurt.
Fourthly. - With her consent, when the man knows
that he is not her husband and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
Fifthly. - With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature
and consequences of that to which she gives consent.
Sixthly. - With or without her consent, when she is
under eighteen years of age.
Seventhly. - When she is unable to communicate
consent.
Explanation 1. For the purposes of this section, "vagina"
shall also include labia majora.
Explanation 2. - 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:
Provided that a woman who does not physically
resist to the act of penetration shall not by the reason
only of that fact, be regarded as consenting to the sexual
activity.
Exception 1. - A medical procedure or intervention shall
not constitute rape.
Exception 2. - Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years
of age, is not rape."
15. What is "consent" is explained in Explanation 2 to Section 375
of the Indian Penal Code. As per Explanation 2, consent should be
unequivocal voluntary agreement. Proviso to this explanation also clarifies
that merely by not physically resisting to the act of penetration cannot be
said to be "consent".
16. Thus, from the aforesaid provision of law, it is clear that
"consent" should be unequivocal and voluntary.
17. Section 90 of the Indian Penal Code provides as under: -
"90. Consent known to be given under fear or
misconception. - A consent is not such a consent as is
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."
18. As per Section 90 of the Indian Penal Code, if a consent is
given by a person under a 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 under such fear or in consequence of such misconception, then
the same cannot be said to be a consent.
19. In the instant case from the evidence we find that prosecutrix
had clearly stated that she intends to marry the appellant provided the
appellant was unmarried. It has also come in evidence that she was made to
believe by the appellant that the appellant is unmarried. This fact is evident
from the statement of the prosecutrix. Prosecutrix / victim at paragraph 2 of
her evidence, has stated that she was made to believe by the appellant
expressly that the appellant is unmarried, so she consented for the physical /
sexual relationship. Admittedly, later on it was found that the appellant was
married and was having two children. This fact that the appellant was
married has not been denied by the appellant and there is no proof to the
contrary also. This clearly suggests that the consent of sexual relationship
was obtained from the victim by playing fraud and under misconception of
fact. This type of consent under misconception of fact cannot be said to be
voluntary free consent by the victim. Thus, the conclusion would be that the
sexual intercourse, even though victim was major, was without her consent.
When this sexual intercourse is without the consent, Section 375 of the
Indian Penal Code gets attracted. There is no denial of the fact about the
sexual relationship between the appellant and the victim. Witnesses also
admit that this victim stayed in the house of the appellant.
20. The Hon'ble Supreme Court in the case of State of Uttar
Pradesh versus Naushad reported in (2013) 16 SCC 651 has held that
consent on the basis of misconception cannot be said to be a consent and
sexual relationship on the basis of consent on misconception will definitely
come within the definition of Section 375 of the Indian Penal Code,
punishable under Section 376 of the Indian Penal Code.
21. In view of what has been discussed and held above, we find
and hold that the Trial Court has rightly convicted and sentenced the
appellant for the offence under Section 376 of the Indian Penal Code. The
Judgment of Conviction and Order of Sentence dated 21st February, 2013
passed by the Principal District & Sessions Judge, Seraikella-Kharsawan in
Sessions Trial No.128 of 2011 do not call for any interference by this Court.
This appeal is, accordingly, dismissed. Pending interlocutory applications, if
any, stand disposed of.
22. Let the Trial Court Records be sent back to the Court concerned
forthwith along with a copy of this judgment.
(Ananda Sen, J.)
(Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated, the 12th June, 2024
Kumar/Cp-03
