Jharkhand High Court
Sunil Dhibar Son Of Late Durbadal Shyam ... vs The State Of Jharkhand on 28 April, 2025
2025:JHHC:13704
Criminal Appeal (S.J.) No. 161 of 2008
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[Against the judgment of conviction dated 25.01.2008 and
the order of sentence dated 28.01.2008 passed by learned
Additional Sessions Judge (F.T.C.) II, Seraikella in Sessions
Trial Case No. 34 of 2004.
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Sunil Dhibar son of Late Durbadal Shyam Dhibar @ Chuttu
Dhibar resident of village Adardih P.S. Ichagarh District
Seraikella- Kharswan. ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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For the Appellant : Mr. R.C.P. Sah, Advocate
For the State : Mr. Prabir Kumar Chatterjee, Spl.P.P.
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PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
JUDGMENT
C.A.V. on 27.02.2025 Pronounced on 28.04.2025
1. Heard Mr. R.C.P. Sah, learned counsel appearing on
behalf of the appellant and Mr. Prabir Kumar Chatterjee,
learned Spl.P.P. for the State.
2. This appeal is directed against the judgment of
conviction dated 25.01.2008 and the order of sentence dated
28.01.2008 passed by learned Additional Sessions Judge
(F.T.C.) II, Seraikella in Sessions Trial Case No. 34 of 2004
arising out of Ichagarh P. S. Case No. 49 of 2002,
corresponding to G. R. Case No. 764 of 2002 for the offence
under Sections 376 and 493 of the Indian Penal Code to
undergo R.I. for seven years and the period of detention
undergone by the appellant as under trial shall be set off
towards the period of the sentence.
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3. In nutshell, the case of prosecution is based upon the
written report of victim who stated therein that eight nine
months back appellant's sister who was friend of the victim
came to the house of victim and took her to the house of
appellant and after having interaction for some time she went
somewhere leaving victim alone in the room and victim
started waiting for her, in the meanwhile appellant came
inside the room and bolted the door and started doing bad
acts which was objected by victim but without her consent
he established physical relation with her. When victim
started weeping and putting emphasis to divulge this fact to
villager, then appellant made promise to her for marriage,
thereafter appellant's mother and sister reached there and
victim shared the bad act of appellant to them, then they also
given assurance to her for marriage with appellant.
4. It has further alleged by victim that thereafter
appellant frequently started meeting with victim and also
making physical relation with her and when she started
putting pressure on appellant for marriage then appellant
was giving assurance to her and one day victim was taken to
Seraikella Registry Office for the purpose of marriage and
office persons told her to come after a month.
5. It has further been stated that the appellant started
keeping victim in the village as his wife and have had sex
with her and thereafter, she was taken to Shankosie at
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Jamshedpur and there also he made physical relation with
her. When victim repeatedly asked appellant visit to
Seraikella to complete the formality of marriage, then one day
he got angry and started abusing and beating her and she
was also kicked out from the house and said that there was
no solemnization of marriage between them. Victim claimed
that she was deceived on the false pretext of marriage by the
appellant and he made physical relation and sexually
exploited her. She was thrown out of house by giving
beatings and appellant also extended threat to her family
member. Upon aforesaid allegations of written report of
victim an F.I.R. being P.S. case no. 49 of 2002 date
06.12.2002 under Sections 363, 376 of Indian Penal Code
got registered against appellant.
6. After due investigation, charge-sheet being Charge-
Sheet No. 53 of 2002 dated 31.12.2002 has been filed under
Sections 493 and 376 of Indian Penal Code and cognizance
was taken by the Court for the offence under Sections 493
and 376 of Indian Penal Code. Thereafter, case was
committed to Sessions Court. Charge has been framed under
Sections 376 and 493 of I.P.C. and read over and explained
to the accused to which he pleaded not guilty and claimed to
be tried.
7. Learned counsel for the appellant submitted that it is
alleged that it is the victim who visited the house of
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appellant of her own will, where appellant established
physical relation with her without her consent but when
promise of marriage was made then everything was alright
and she remained at the house of appellant for 2-3 days. It
is not in dispute that victim was above 18 years of age and
at the best it can be said that it is consensual sex and there
is no iota of material which could remotely suggest that it is
the false promise of marriage extended by appellant to the
victim.
8. Per contra learned Spl. P.P. submitted that victim was
ravished at the first instance without her consent which is
very evident from testimony of victim and her written report
and thereafter false promise of marriage was extended by
appellant therefore, there is no consent in the eyes of law.
As such, no interference is required by this appellate
court in the findings passed by the learned trial court.
9. Heard the rival submissions of the parties and
perused the trial court record.
10. To conceal the identity and parentage of the victim
and her relatives their names are not being disclosed in this
Judgment. It seems that to prove its case, prosecution has
examined as many as ten witnesses in the present case.
11. P.W. - 1 is the victim, P.W. - 2 is victim's mother, P.W.
- 3 is the victim's father, P.W. - 4 is the sister of the victim
and P.W. - 5 Pad Lochan Gope @ Padma Lochan Gope-
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Mukhia, P.W.-6 Senapati Mahato and P.W.-7 Naktul Mahato
are villager who got hostile in the present case, whereas
P.W.-8 Ramesh Gope, nana of victim who has been tendered
by the prosecution, P.W.-9 Dr. Ragini Singh is the doctor
who examined the victim on 12.12.2002 at Sub-Divisional
Hospital at Seraikella and P.W.-10 is Rabindra Mohan who
is a formal witness.
12. P.W. - 1 is the victim who has deposed that it was
4:00 P.M. in the evening when her friend who happens to be
the sister of appellant came to her house to call her and she
was taken to appellant's house where she interacted with
her and thereafter appellant's sister went out and she was
alone in the house and at that very time her friend's elder
brother (appellant) came there and bolted the door and
committed rape on her person without her consent.
13. It is further stated by victim that when she tried to
forbade him then she was given assurance by appellant that
he would marry with her and when this fact was conveyed
to parent of appellant then they also agreed for the same
and she also narrated this fact to her parent when came to
her house. When her parent told the parent of appellant,
then appellant took the victim to his house and she was
kept there for two-three months and appellant used to say
victim that she is his wife and when she asked for marriage
she was taken to the Registry Office, Seraikella and her
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signature was taken on a paper and appellant asked her
that they would have to come after a month and thereafter
she was again taken to his house and victim was kept as his
wife thereafter again victim was taken to Shankosie at
Jamshedpur and there also appellant kept her as a wife.
Despite insisting of victim to visit Seraikella for marriage,
she was not taken there and appellant did not solemnize
marriage with her and lastly she was kicked out after
abusing her. Then victim visited Seraikella with her father
and after contacting lawyer she narrated incident and it was
got typed and the same was read over to her, thereafter she
put her thumb impression on it and said application was
given in police station and Police sent her for medical
examination.
In cross-examination she has stated that she has not
divulged fact of rape to the villager and after first incident of
rape she started meeting with appellant of her own will and
accord and started establishing physical relation with him.
She further stated that she left the house of appellant two
years back and she is residing in TATA. She denied the
suggestion that at TATA similar case has been lodged by her
against one Budheshwar Gope and appellant asked victim
to solemnize marriage but she left his house and came to
Jamshedpur of her own. She has further stated that
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Budheshwar Gope has kept her in the rented house of one
Sahu.
14. P.W.-2 is the mother of victim, she has deposed what
victim has stated to her. However, in cross- examination she
has stated that she told police that she and her husband
went to the parent of appellant for the proposal of marriage
and police was intimated two-three days after the incident of
rape. She has stated that victim used to reside at the house
of accused and she has also denied suggestion of defence
that when appellant was ready to get married with victim
then she was taken to TATA by them. She also showed her
ignorance about the present place of stay of victim.
15. P.W.-3 is father of the victim who has stated about the
fact that sister of appellant called victim to appellant's
house and she went there and she returned from there after
a lapse of two days and victim stated regarding the incident
which took place with her.
In cross-examination he has stated that he has heard
about the incident from her daughter (victim) and when he
made commotion about the incident then villager assembled
however, he was not able to tell the name of villager and
second day of the incident he visited to police station but
police didn't turn up. He is also unaware about the present
place of stay of his daughter (victim).
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16. P.W.-4 is the sister of the victim who has also
narrated the same fact what is stated by her father but she
has stated that her sister (victim) returned from the house
of appellant after a lapse of three days, and when she came
back then she narrated the incident. She further stated that
her sister (victim) was kept by appellant for six months and
he did not marry with her and victim was thrown out of his
house.
In cross-examination she has stated that appellant
house is half minute away from her house and there is no
house in between both the houses. She also stated that
when her sister did not returned for three days then they
given intimation in police station and said intimation was
given by her father but they did not make hue and cry in
the village. She also showed her ignorance about the
present place of stay of victim.
17. P.W.-9 Dr. Ragini Singh who examined the victim on
12.12.2002 and has stated that report of vaginal smear
examination of the victim showed presence of a few heads of
spermatozoa. She has also stated that age of victim was
above 18 years as shown by x-ray report and there was no
mark of injury on her body or private part and she found
evidence of sexual intercourse committed with the victim
and she has identified her writing and signature of medical
report which is marked as Exhibit- 1.
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18. From perusal of evidence of victim, it transpires that
she has stated that appellant committed rape in the evening
in his own house without her consent. She has further
stated that she tried to forbade him from doing so then
appellant gave her assurance that he would marry her but
in written report she has stated that in the room at the
house of appellant, appellant established physical relation
with her without her consent and when victim started
weeping and putting emphasis to divulge this fact to villager
then appellant made promise to her for marriage.
In the evidence of P.W.- 3 (father of the victim) and
P.W.- 4 (sister of the victim), it is come in their respective
testimony that after the first incident victim remained at the
house of appellant for 2-3 days. P.W.- 4 has also stated that
her house and house of the appellant is just half minutes
away and there is no house in between both the houses.
From perusing above stated testimony of witnesses,
this Court finds that even on first occasion physical relation
between appellant and victim was made on the promise of
marriage which has been extended by appellant to the
victim. Thereafter victim herself and her mother, father and
sister have stated in their respective testimony that victim
stayed with appellant in the village as well as at
Jamshedpur for couple of months. Victim has stated in her
testimony that physical relation was established with her
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own consent. Victim has also deposed in her evidence that
she was taken Seraikella Registry Office for the purpose of
marriage where they were told to come after a month. By
way of giving suggestion accused had taken a plea that it is
the victim who has not agreed for marriage and left the
house of appellant.
19. Hon'ble apex court in the judgment rendered in the
case of Deepak Gulati v. State of Haryana, reported in
(2013) 7 SCC 675 has reiterated the issue of rape and
consensual sex and acquitted the accused where the
prosecutrix was 19 years of age capable of understanding
the complications and issues surrounding and had left her
home voluntarily, of her own free will to get married having
adequate intelligence and maturity to understand the
significance and morality associated with the act she was
consenting to. Relevant para of the judgment is quoted
hereunder: -
17.4. The physical relationship between the parties had clearly developed with
the consent of the prosecutrix, as there was neither a case of any resistance, nor
had she raised any complaint anywhere at any time despite the fact that she had
been living with the appellant for several days, and had travelled with him from
one place to another.
18. Section 114-A of the Evidence Act, 1872 (hereinafter referred to as "the
1872 Act") provides, that if the prosecutrix deposes that she did not give her
consent, then the court shall presume that she did not in fact, give such consent.
The facts of the instant case do not warrant that the provisions of Section 114-A of
the 1872 Act be pressed into service. Hence, the sole question involved herein is
whether her consent had been obtained on the false promise of marriage. Thus, the
provisions of Sections 417, 375 and 376 IPC have to be taken into consideration,
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along with the provisions of Section 90 IPC. Section 90 IPC provides that any
consent given under a misconception of fact, would not be considered as valid
consent, so far as the provisions of Section 375 IPC are concerned, and thus, such
a physical relationship would tantamount to committing rape.
19. This Court considered the issue involved herein at length in Uday v. State
of Karnataka [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775
: AIR 2003 SC 1639] , Deelip Singh v. State of Bihar [Deelip Singh v. State of
Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253 : AIR 2005 SC 203] , Yedla
Srinivasa Rao v. State of A.P. [(2006) 11 SCC 615 : (2007) 1 SCC (Cri) 557]
and Pradeep Kumar v. State of Bihar [Pradeep Kumar v. State of Bihar, (2007) 7
SCC 413 : (2007) 3 SCC (Cri) 407 : AIR 2007 SC 3059] and came to the
conclusion that in the event that the accused's promise is not false and has not
been made with the sole intention to seduce the prosecutrix to indulge in sexual
acts, such an act(s) would not amount to rape. Thus, the same would only hold that
where the prosecutrix, under a misconception of fact to the extent that the accused
is likely to marry her, submits to the lust of the accused, such a fraudulent act
cannot be said to be consensual, so far as the offence of the accused is concerned.
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 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.
22. In Deelip Singh [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005
SCC (Cri) 253 : AIR 2005 SC 203] it has been observed as under : (SCC p. 99,
para 19)
"19. The factors set out in the first part of Section 90 are from the point of view of the
victim. The second part of Section 90 enacts the corresponding provision from the
point of view of the accused. It envisages that the accused too has knowledge or
has reason to 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
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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 had given it under fear of
injury 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."
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 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.
20. Considering the above legal proposition and from
perusal of evidence as well as written report of victim it is
not clear that on which date or month she left the house of
appellant but she has stated that she was kicked out when
she insisted for marriage. It is also stated by the victim that
she was also abused. Medical examination of victim
suggests that spermatozoa was found in vaginal swab
examination and Doctor (P.W.-9) has stated in her cross-
examination she found evidence of sexual intercourse
committed with the victim. One question which cropped up
in the mind of this Court that when appellant refused to
marry and had given bad treatment to victim then there was
no occasion for making physical relation with victim. Even
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victim has stated that on one occasion she was taken to
Seraikella Registry Office for marriage but on second
occasion victim was not taken to Seraikella Registry Office.
In cross-examination of victim appellant has given a
suggestion to the victim that appellant had asked victim for
solemnization of marriage but she left his place. At the time
of her evidence she has stated that one Budheshwar Gope
has kept her in a rented house of one Sahu.
21. Considering the totality of aforesaid evidence, it cannot
be inferred that from the very inception of relationship with
victim, appellant was having no intent to solemnized the
marriage with victim.
22. This Court is of considered view that prosecution has
not able to prove beyond reasonable doubt that appellant
had committed rape on the person of victim on false pretext
of marriage.
23. In view of discussion in preceding paragraph and
legal proposition propounded by Hon'ble Supreme Court,
this Court is of considered view that appellant is entitle for
benefit of doubt, as such, judgment of conviction dated
25.01.2008 and order of sentence dated 28.01.2008 passed
by learned Additional Sessions Judge (F.T.C.) II, Seraikella
in Sessions Trial No. 34 of 2004 arising out of Ichagarh P.S.
Case No. 49 of 2002, is hereby set aside.
24. Resultantly, this appeal is allowed.
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25. Since, the appellant is on bail, he is discharged from
the liability of his respective bail bonds.
26. Let the trial court record be sent back to the court
concerned forthwith.
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 28th day of April, 2025
Abhishek/- A.F.R.
