Reyaz Ahmad @ Chunnu @ Md. Riyaz @ ... vs The State Of Bihar
2022 Latest Caselaw 4357 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.1521 of 2017
   Arising Out of PS. Case No.-41 Year-2011 Thana- MADHEPUR District- Madhubani
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Reyaz Ahmad @ Chunnu @ Md. Riyaz @ Munna, Son of Md. Doud, Resident of Pachhi, P.S.- Madhepur, District- Madhubani.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s     :        Mr. Prince Kumar Mishra, Amicus Curiae
For the Respondent/s    :        None

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR ORAL JUDGMENT Date : 08-08-2022 By this appeal, appellant/convicted accused, Reyaz

Ahmad @ Chunnu @ Md. Riyaz @ Munna is challenging the

Judgment and order dated 18.04.2017 and 21.04.2017 passed by

the learned Presiding Officer, Fast Track Court -I, Madhubani,

in Sessions Trial No. 540 of 2012 between the parties, thereby

convicting him of the offence punishable under Section 376 of

the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for four years apart from imposition of fine of

Rs.10,000/- and in default to suffer further rigorous

imprisonment for six months. For the sake of convenience, the

appellant shall be referred to in his original capacity as "an

accused".

2. Facts leading to the prosecution of the accused

projected from the police report can be summarized thus:- Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

A. The prosecutrix, P.W. 5 Ms. K. (identify

concealed) and the accused used to reside at village Pachhi

falling under the jurisdiction of Police Station Madhepur,

District Madhubani in the State of Bihar. It is case of the

prosecution that by making false promise to marry the

prosecutrix (P.W.5), the accused allured her and committed

sexual intercourse with her few days after 15.02.2010 to

28.10.2010. Because of the act of sexual intercourse by the

accused, in the meanwhile, the prosecutirx (P.W.5) become

pregnant. Ultimately the prosecutrix was required to abort her

foetus. On 28.12.2010, the accused approached the prosecutrix

(P.W. 5) and again committed sexual intercourse with her with a

promise to marry her. However subsequently, where the

prosecutrix (P.W. 5) insisted to fix the date of marriage, the

accused refused to marry her and had assaulted her.

B. The prosecutrix (P.W. 5), on 07.01.2011,

approached the learned Additional Chief Judicial Magistrate by

filing the complaint. The learned Magistrate was pleased to pass

an order under Section 156(3) of the Cr.P.C. on the said

complaint directing investigation vide order dated 07.01.2011.

That is how on 08.04.2011, Crime No. 41 of 2011 came to be

registered against the accused at Police Station Madhepur for Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

the offences punishable under Sections 376 and 323 of the

Indian Penal Code.

C. Routine investigation followed. The prosecutrix

was sent to the Sadar Hospital Madhubani for her medical

examination. On conclusion of investigation, the accused came

to be charge sheeted.

D. The learned trial court had framed and explained

the charges for the offences punishable under Sections 376 and

323 of the Indian Penal Code to the accused. He pleaded not

guilty and claimed trial.

E. In order to bring home the guilt to the accused,

the prosecution has examined as many as eight witnesses. P.W. 1

Md. Hussain is a co-villager. P.W. 2 Maksud Alam is uncle of

the prosecutrix. P.W. 3 Ms. S. (identify concealed) is her mother

and P.W. 4 Nanhi Khatoon is her aunt. The prosecutrix Ms. K.

(identify concealed) is examined as P.W. 5. P.W. 6 Dr. Gargee

Sinha, is the Medical Officer of Sadar Hospital, Madhubani.

P.W. 7 is Deo Narayan Choubey is the Investigating Officer.

P.W. 8 Ram Ashish Kamti is another Investigating Officer, who

had filed charge sheet against the accused.

F. The defence of the accused was that of total

denial. He however did not enter in the defeance. Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

3. After hearing the parties, by the impugned

Judgment and order, the learned trial court was pleased to

convict the accused and to sentence him as indicted in the

opening para of this Judgment.

4. I heard Mr. Prince Kumar Mishra, the learned

Amicus Curiae appointed to represent the accused/appellant at

the cost of the State. He vehemently argued that even according

to the case of prosecution, the prosecutrix was major at the time

of the alleged incident. The sexual relations in between the

parties were consensual in nature and the provision of Section

90 of the Indian Penal Code is not applicable to the case in

hand. The prosecutirx was indulging in the act with her free

consent and free will. In support of these submissions, apart

from relying on evidence of the prosecutrix, Mr. Prince Kumar

Mishra, the learned Amicus Curiae relied on Judgment in the

matter of Dr. Dhruvaram Murlidhar Sonar V. State of

Maharashtra and others reported in AIR 2019 (SC) 327,

ANURAG SONI V. STATE OF CHHATTISGARH reported

in (2019) 13 SCC 1 and DEELIP SINGH @ DILIP KUMAR

V. STATE OF BIHAR reported in (2005) 1 SCC 88.

5. As usual none appeared for the State.

6. I have carefully considered the submissions so Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

advanced and also perused the record and proceedings including

oral as well as documentary evidence adduced by the

prosecution.

7. According to the prosecution case, by making a

false promise to marry her, the accused had committed sexual

intercourse with the prosecutirx and this act amounts to rape as

the consent of the prosecutrix was an outcome of misconception

of fact. Therefore, evidence of the prosecutrix is of prime

importance in the case in hand. The case set out in the FIR

which was registered in consequent to the order passed by the

learned Magistrate under Section 156(3) of the Cr.P.C. is to the

effect that on 15.02.2010, the accused met the prosexutrix and

requested her to be with him and he will marry her. Initially the

prosecutrix refused to accede to this request of the accused but

after few days she succumbed to the tactics of the accused

because of his false promise to marry her. On the backdrop of

this case of the prosecution, it is in evidence of the prosecutrix

that on the day of the incident she was sleeping at her house. In

the midnight, the accused came and wake up the prosecutrix.

The prosecutrix further deposed that then the accused allured

her by promising to marry her and committed rape on her. She

stated that thereafter such incidents of sexual intercourse Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

continued for the long and she become pregnant. Thereafter, as

per her version, the accused gave some medicines to her and

then her pregnancy came to be terminated. She testified that

then the accused threatened her not to disclose this incident to

anybody. As per evidence of the prosecutrix then there was

meeting of the Panchayat in the village and in that meeting the

accused refused to marry her.

8. The cross-examination of the prosecutrix is

important. She has admitted in her cross-examination that even

prior to the first incident of sexual intercourse stated by her

which happened in her house at the midnight, she had sexual

intercourse with the accused on earlier occasions also. This

admission of the prosecutrix makes it clear that the sexual

relations between the parties was not established as a

consequence of promise by the accused to marry her. It seems to

be a consensual act of two adult persons. This fact is clear from

cross-examination of the prosecutrix. She has also stated that

when the accused came to her house in the midnight, her parents

as well as two sisters were sleeping near her. Evidence of

Investigating Office P.W. 7, Deo Narayan Choubey shows that

house of the prosecutrix was of a small house comprising of

three rooms. The prosecutrix is very specific in stating that her Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

two sisters were sleeping with her at the time of the incident of

the accused coming to her house in the midnight. Element of

doubt as such creeps up in the version of the prosexutrix

because of such fact situation prevalent on the spot of the

incident at the time of alleged incidence of sexual intercourse at

her house by the accused.

9. While in the witness box in February, 2013, the

prosecutirx has stated in her age as 18 years. While lodging the

complaint before the learned Magistrate 07.01.2011, she has

stated her age as 17 years. As per her complaint, the first

instance of sexual relations between her and the accused took

place few days after 15.06.2010. This implies that at the time of

this first act, the prosecutrix was more than 16 years of age. The

incident took place lastly on 28.08.2010. In the year 2010, age

of consent as per provisions of Section 375 of the Indian Penal

Code was 16 years. Thus the prosecutrix was an adult lady

having attained the age of consent at the time of alleged first

sexual intercourse by the accused. Her evidence that the accused

provided her medicines for termination of her pregnancy came

on record by way of omission, no such facts have stated by her

in her complaint. Therefore, this improvement needs to be

discarded.

Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

10. P.W. 6 Dr. Gargee Sinha was one of the

member of the Medical Board which has examined the

prosecutirx on 11.07.2011. As per her evidence, the prosecutix

was 16 to 17 years of age and the Medical Board has not found

any evidence of commission of rape on her. Thus, medical

evidence is also not corroborating the version of the prosecutirx.

On the contrary, it is indicating that the prosecutrix was major at

the time of the alleged incident.

11. Now let us examine whether the prosecution

has proved that the consent of the prosecutrix was procured by

the accused under misconception of the fact by giving false

promise to marry her. At this juncture, it is apposite to quote in

paragraph 20 of the Judgment in the matter of Dr. Dhruvaram

Murlidhar Sonar (supra) reads thus:

"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 Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

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 IPC."

Similarly in paragraph 12 of the Judgment in the

matter of Anurag Soni (supra) following are the observations

of the Hon'ble Supreme Court:

"12. The sum and substance of the aforesaid

decisions would be that if it is established and Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

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

Section 375 IPC and can be convicted for the

offence under Section 376 IPC."

Similarly in the matter of Deelip Singh @ Dilip

Kumar (supra), following are the observations of the Hon'ble

Supreme Court in paragraphs 16, 17, 18 and 19 reads thus:

"16. The concept and dimensions of "consent" in

the context of Section 375 IPC have been viewed

from different angles. The decided cases on the

issue reveal different approaches which may not

necessarily be dichotomous. Of course, the

ultimate conclusion depends on the facts of each

case.

Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

17. The Indian Penal Code does not define

"consent" in positive terms, but what cannot be

regarded as "consent" under the Code is explained

by Section 90. Section 90 reads as follows:

"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;......."

18. Consent given firstly under fear of injury and

secondly under a misconception of fact is not

"consent" at all. That is what is enjoined by the

first part of Section 90. These two grounds

specified in Section 90 are analogous to coercion

and mistake of fact which are the familiar grounds

that can vitiate a transaction under the

jurisprudence of our country as well as other Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

countries.

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 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." Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

12. It is thus clear that the promise to marry is

required to be proved to be false at the time when it is made.

The prosecution is required to adduce evidence to the effect that

consent of the prosecutrix was obtained under misconception of

fact by making a promise which was false to the knowledge of

the accused at the time when it was made. No such evidence is

forthcoming in the instant case. On the contrary, the prosecutrix

herself has stated that even before making such promise by the

accused, she was keeping sexual relations with the accused.

13. Other witnesses examined by the prosecution

which are near and dear ones of the prosecutrix such as co-

villager PW 1 Md. Hussain, her uncle PW 2 Maksud Alam, her

aunt P.W. 4 Nanhi Khatoon and her mother P.W. 3 Mrs. S. have

deposed about sexual relations between the prosecutrix and the

accused on the basis of information received by them and in

unison they have stated that the accused refused to marry the

prosecutrix in the meeting of the Panchayat. This evidence is of

no assistance to the prosecution to establish the charge. The

Investigating Officers have deposed about the line of the

investigation conducted by them.

14. The net result of forgoing discussion requires

to be hold that the prosecution has failed to prove that the Patna High Court CR. APP (SJ) No.1521 of 2017 dt.08-08-2022

accused had committed sexual intercourse with the prosecutrix

against her will and without her consent. Therefore, the charge

for the offence punishable under Section 376 of the Indian Penal

Code must fail. In the result, the following order:-

a. The appeal is allowed.

b. The impugned Judgment and order of the

learned trial court is quashed and set aside. The accused is

acquitted of the offence alleged against him. He be released

forthwith if not required in any other case.

15. We put on record words of appreciation for the

able assistance rendered by Mr. Prince Kumar Mishra, learned

Amicus Curiae, to this Court in arriving at the proper

conclusion for deciding in that appeal. We direct the High

Court Legal Services Authority to pay an amount of Rs.5,000/-

to Mr. Prince Kumar Mishra, learned Amicus Curiae, for

service rendered by him.

(A. M. Badar, J) Bhardwaj/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          10.08.2022
Transmission Date       10.08.2022