Amit Seth @ Bhola Seth @ Amit Kumar vs The State Of Bihar
2023 Latest Caselaw 3401 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.227 of 2019
Arising Out of PS. Case No.-23 Year-2015 Thana- MAHILA P.S. District- Kaimur (Bhabua)
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Amit Seth @ Bhola Seth @ Amit Kumar, Son of Anil Kumar Seth R/o village- Kudra , P.S- Kudra, District- Kaimur (Bhabhua) ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Rajesh Kumar Singh, Sr. Advocate Mr. Manish Kumar Singh, Advocate Ms. Akrity Aishwarya, Advocate Mr. Kundan Kumar, Advocate For the Respondent/s : Mr. Abhimanyu Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 01-08-2023 Heard Mr. Rajesh Kumar Singh, learned Senior

Advocate for the appellant and Mr. Abhimanyu Sharma for

the State.

2. The appellant has been convicted under

Section 376 (2)(n) of the Indian Penal Code and Section 6

of the POCSO Act, 2012 vide judgment dated 22.01.2019,

passed in POCSO Trial No. 06 of 2015 and Reg. No.

Session 379 of 2015, arising out of Bhabhua Mahila P.S.

Case No. 23 of 2015 by the learned Additional Sessions

Judge - 1st -cum- Special Judge, Kaimur at Bhabhua and

by order dated 31.01.2019, he has been sentenced to Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

undergo R.I. for 15 years, to pay a fine of Rs. 50,000/-

and in default of payment of fine to further undergo R.I.

for six months under Section 376 (2)(n) of the IPC.

3. No separate sentence has been awarded under

Section 6 of the POCSO Act, 2012.

4. The victim/P.W. 3 (hereinafter referred to as

'X') had fallen in love with the appellant. The appellant is

stated to be related to the victim, though in a remote way.

They met in a family function held at the neighbours. The

relationship continued from there and existed for about a

year when the promise of marriage was not fulfilled and

the victim was finally made to understand that the

appellant shall not marry her.

5. Hence the case.

6. The victim in her FIR has categorically stated

that she was on visiting terms with the appellant since

January, 2014. Her parents and the parents of the

appellant were aware of the blossoming relationship

between the parties. According to her accusation, both her

and the appellant's parents had, after some time, become Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

agreeable that in future, the victim and the appellant shall

get married with all social sanction. The victim had alleged

that taking advantage of this acceptance of the

relationship, he sexually exploited her. In the beginning,

she protested and impleaded the appellant to wait till

marriage ceremony is performed but ultimately capitulated

to the desire of the appellant to have sexual intercourse.

This continued for a very long time without inviting any

chagrin from any quarter.

7. While narrating her woes in the FIR, she has

expressed her age to be 16-17 years. She has repeatedly

alleged that she was subjected to sexual intercourse only

on the assurance that the appellant shall marry her in due

course.

8. We have noted in the FIR that such

postponement of marriage was not on the ground of age of

the victim or else she would have stated that the marriage

would be performed only when she comes of the age of

marriage. However, after about a year of courtship,

something happened and the appellant refused to go by his Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

promise of marrying her. This led the parents of the victim

to approach the parents of the appellant, seeking their

intercession but to no avail.

9. Ultimately, when the victim was made to

understand that her marriage cannot be solemnized with

the appellant, she filed this case leading to registration of

Bhabhua Mahila P.S. Case No. 23 of 2015 dated

07.05.2015 for the offences under Sections 376, 120B, 34

and 420 of the IPC and Section 4 of the POCSO Act,

2012.

10. The police after investigation submitted

charge-sheet against the appellant and his parents. All

three of whom were put on trial but the Trial Court

acquitted the parents of the appellant and convicted the

appellant as aforesaid.

11. Mr. Rajesh Kumar Singh, learned Senior

Advocate, in defence of his client has submitted that both

the parties got infatuated to each other and even if a

promise was made by the appellant that he shall marry the

woman later and that promise was not fulfilled, he cannot Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

be prosecuted and sentenced for the offence under Section

376 of the IPC read with Section 6 of the POCSO Act,

2012.

12. The reason for saying so is that for some

reason or the other, the appellant may not have found

himself to be in a position to fulfill the promise that he had

made but he definitely never had any idea that the victim

was less than 18 years of age nor was it ever

communicated to him by her.

13. There could be many reasons for a promise

not being fulfilled but from the circumstances narrated

through the mouth of the victim as also her family

members, there does not appear to be any reason to

believe or suspect that the appellant had, since the

beginning, no intention to fulfill his promise and that the

liaison was only to satisfy his carnal lust.

14. That being so, then even accepting that there

were physical relationship between the parties a number of

times, the offence under Section 376(2)(n) does not get

attracted.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

15. Secondly, it has been submitted that if at all

the victim was a minor, the first step of the prosecution

ought to have been to determine her age for the appellant

to be subjected to prosecution under the POCSO Act, 2012

and for that, necessarily the Rules in that regard had to be

followed.

16. Mr. Singh has argued that the procedure

under which the test of juvenility is made is applicable

under POCSO Act, 2012 also. A juvenile could either be

the perpetrator of the crime or the victim of the crime.

17. No effort has been made by the prosecution

at all to ascertain the real age of the victim.

18. The victim herself states that she is 16-17

years of age whereas her medical examination indicates

that she could be between 15-17 years.

19. Since no procedure was followed as ordained

under the Juvenile Justice (Care and Protection of

Children) Act, 2015 and the Rules appended thereto

especially Rule 12, the medical opinion is not to be taken

as the ultimate opinion regarding the age of the victim. Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

20. Thus, the sum and substance of the argument

of Mr. Singh is that by no stretch of imagination can it be

said that the victim consented under any misconception of

fact and therefore, the physical relationship between the

appellant and the victim was voluntary and with her

consent without having any inkling that the victim is less

than 18 years of age.

21. As opposed to the afore-noted contentions,

Mr. Abhimanyu Sharma, learned APP has submitted that

decidedly the victim had not come of age to enter into any

sexual relationship with any person and therefore there is

a pre-supposition that she agreed for sex with the

appellant only on the misconception that the appellant shall

later marry her, notwithstanding the fact that this may

have had the sanction of the parents of both the parties.

22. There could be no more gross case of a

misconception of fact. And therefore, every sexual

encounter of the victim with the appellant constituted a

series of action inviting the mischief of Section 376(2)(n)

of the Indian Penal Code.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

23. Under the aforesaid circumstances, Mr.

Sharma contends that the conviction and the sentence

imposed upon the appellant is justified and is not required

to be interfered with.

24. Before we analyse the evidence and come to

any definitive finding, we would consider it apposite to

examine the very concept of consent in such cases.

25. Section 90 of the Indian Penal Code provides

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; 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.

26. The Indian Penal Code, as we have seen,

does not define consent in any positive terms. Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

27. Section 90 only provides what is not a

consent. If a consent is given under fear of injury or under

a misconception of fact, that is no consent at all. In

Deelip Singh alias Dilip Kumar v. State of Bihar

(2005) 1 SCC 88, the Supreme Court very eruditely

analyzed that the first part of Section 90 is from the point

of view of the victim and, the second part deals with

corresponding provision from the point of view of the

accused.

28. A bare reading of Section 90 would envisage

that the accused too should have the knowledge or should

have reasons to believe that the consent was given by the

victim in consequence of fear of injury or misconception of

fact.

29. We may, for the moment, focus on the

second part of the Section which lays emphasis on the

knowledge or the reasonable belief of the person, who

obtains the so called "tainted" consent. The requirement of

both the parts of Section 90 has perforce to be

cumulatively satisfied.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

30. What does this mean?

31. The Court is thus, required to see whether the

person giving the consent has given it under fear of injury

or misconception of fact, but simultaneously the Court

should also be satisfied that the person doing the act in the

capacity of an offender is conscious of the fact or should

have the reasons to think that but for the fear or

misconception the consent, consent would not have been

given. It is only then that the negative covenant of Section

90 IPC operates with its full swing. This perhaps is the

scheme of Section 90 which starts with a negative

covenant.

32. The Supreme Court was conscious of the fact

that Section 90 cannot be construed as an exhaustive

definition of consent for the purposes of Indian Penal

Code. The normal connotation and concept of consent is

not intended to be excluded. It is precisely for this reason

that Courts of all hierarchy in different cases have come

out with different hypotheses with respect to consent or

lack of consent or tainted consent.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

33. The etymology of the word "consent" needs

be further analyzed.

34. Strout's Judicial Dictionary defines consent as

an act of reason accompanied with deliberation, the mind

weighing, as in a balance, the good and evil on each side.

Some other Jurists have defined it as containing three

different facets viz. a physical power, a mental power and

a free and serious use of them.

35. To clarify, if a consent is obtained by

intimidation, force, circumvention, surprise or undue

influence, such consent is synonymous with delusion and

cannot be said to be the outcome of weighing the pros and

cons in a balanced manner.

36. So far as consent for sexual act is concerned,

especially on the part of a female, (for the purpose we are

presuming that the victim is an adult) the question is

whether she is understanding the nature and consequence

of sexual act and whether such understanding is an

intelligent understanding. Then only, it can qualify to be

called her consent.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

37. The most rudimentary and yet most

conclusive way to test whether there was a consent which

was untainted is to discover whether it was voluntary or

vitiated by the grounds that we have noted above.

38. In one of the celebrated cases of the

Supreme Court of 1950s, Rao Harnarain Singh Sheoji

Singh vs The State, AIR 1958 Punjab 123, the

Supreme Court engaged itself in spelling out a difference

between consent and submission and ultimately came up

with the proposition that every consent involves a

submission but the converse does not follow and a mere

act of submission does not involve consent.

39. It would be the guiding principle for us now to

determine whether the victim had consented for sex or had

submitted to sex only on being satisfied that she had a

future with the appellant and that the appellant would not

leave her high and dry. This test however would be

subsequent to our finding that the victim was of the age of

giving such consent.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

40. Thus, the first exercise of ours in a case of

this kind is to see whether the victim was of 18 years of

age to have taken an intelligent decision of submitting

herself to sexual desires of the appellant. This only would

satisfy the test that she was not under any misconception

of fact so that her decision comes out of the mischief of

Section 90 and be treated as consent for all practical

purposes.

41. So far as the age of the victim is concerned,

though after the relationship had soured, she had stated in

her fardbeyan statement that she is 16-17 years of age

but the records are completely silent about her educational

qualification which would have been the primary test for

deciding whether she is a major or a minor.

42. While going through the evidence, we found

that Dimple Seth (P.W. 2), her aunt, forbade her for

sometime from engaging with the appellant as she was not

of age but that may not be taken as a definite evidence of

the victim not being of age. It would have been for all we

know the ministrations of an aunt in order to protect her Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

niece and such advise cannot be taken to mean positively

that the victim was not a major.

43. This has to be seen in the context of

practicality that there is no magical change in a person's

mind on completing 18 years of age. Can the mind of a

person be said to be deficient in any respect if he or she

has not attained the age of 18 years and is only short by a

month or two.

44. Thus, a practical view of the whole aspect has

to be taken before coming to any definite conclusion

especially when somebody is being charged for raping a

minor girl successively for him to be prosecuted under

Section 376(2)(n) of the Indian Penal Code. This being the

state of records as far as the age of the victim is

concerned, we would not be far off the mark in holding

that the victim was of age to take a conscious decision.

45. We may also refer to the deposition of the

Doctor, who examined her and found that she could be

between the age group of 15-17 years.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

46. The other factor which plods us to think in

that direction is the complete approval of the parents of

both sides for the parties to continue with their

relationship. When the parents of the victim were once

made to understand that the victim had been subjected to

sexual intercourse, the issue was taken very lightly and the

victim was made to understand that it does not matter as

she is ultimately going to marry the appellant. These set of

facts in the evidence further lend assurance to us that the

victim was not a minor and was absolutely capable of

taking her own decisions regarding her life.

47. The purpose of any act viz. the provisions of

the Indian Penal Code and the POCSO Act, 2012 is to

protect the children who are below 18 years of age. It is

only for this that the POCSO Act, 2012 provides strict

punishment against an act of sexual indulgence with a girl

below 18 years of age. The rigors of POCSO Act, 2012

operates proprio vigore under the Indian Penal Code also

in its Section 376 IPC where consent of a girl below the

age of 16 years is immaterial.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

48. The POCSO Act, 2012 and the Indian Penal

Code target sexual exploitation of children, male or female,

but undoubtedly it has also resulted in, at times,

criminalizing consensual adolescence/teenage relationship

and while deciding a case, we do reckon that we have to

be very very conscious about not exceeding the line

provided under the Statutes and also not to come to any

conclusion which would adversely impact the actual

functioning of the legislation. We need not delve into the

sexual anatomy of male and female at a particular age and

its development and the so called infatuation of the

opposite sexes which is at its peak at teenage/adolescence

but we need to keep ourselves abreast of the different

behavioral experimentation by an adolescent, male or

female.

49. Coming back to the narrative about the age of

the victim, there being complete absence of any record of

her being a minor, especially the non-examination of the

parents of the victim who could have been the best

persons in the absence of any other documentary evidence Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

to tell us as to when was the victim born, we feel justified

in holding that the victim was a major and had been taking

conscious decision, of course with the aid and advise of her

parents and others.

50. The discussion now ought to be made on the

more metier aspect of the consent; whether she submitted

herself to sexual desire and consented to pre-marietal sex

on the promise of the appellant to marry her in future or

her own vision of future with the appellant or under a

misconception that the promise was genuine.

51. This inquiry can begin from the circumstances

disclosed during the trial. Whether the appellant was

serious in promising a marietal life to the victim from the

beginning or was he only adroitly creating a situation

whereby a teenager infatuated with him, would submit to

his sexual desires.

52. The evidence in this regard is very specific.

53. There was a marriage function in the house of

one Kanhaiya Seth, a neighbour of the victim. In the

family of Kanhaiya Seth, the cousin of the appellant was Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

married. The victim and the appellant met at Kanhaiya

Seth's house. According to the deposition of witnesses, it

was a love at the first sight. The parties continued to meet

each other. The parents of both the parties were happy to

note that the relationship between them was very very

compatible, otherwise they would have forbade either of

the parties to continue with that relationship. The victim is

said to have visited the appellant alone in the house of the

appellant whenever the appellant so desired.

54. During the entire period of courtship, there

was no apprehension in the mind of parents of the either

side that the appellant was only posing as a lover. All of

them saw him as a prospective groom. The parents of the

appellant liked and appreciated the ways of the victim. She

was also told by the parents of the appellant that she

would be brought in their house as their daughter-in-law.

55. Was this all a sham and pretence? Had it

been only at the behest of the appellant, we could have

agreed for such proposition but not when the parents are

also involved.

Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

56. Though the victim in her deposition has said

that when the relationship soured and the parents of the

victim went to the parents of the appellant for an

intervention in the matter, the appellant and the parents

made an about-turn and said that the marriage cannot be

performed, but this appears to be a statement in disgust

and in anger. There was no evidence as against the

parents of the appellant and precisely for this reason they

have been acquitted of all the charges.

57. This, therefore, gives us an idea that

something must have gone wrong between the relationship

of the appellant and the victim and the appellant broke his

promise. Did he develop a cold feet in entering the family

life? We have no evidence that the appellant got

employment or was offered a better bargain in the

marriage market. That could have been one reason for

castigating such breach of promise. But no, there is

nothing on record to indicate that the appellant got into

any lucrative job and therefore was placed high in the Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

marriage market and therefore chose to forget the old

relationship with the victim.

58. What happens between a man and a woman

in their private lives is not easy to fathom. Had it been so

easy to guess, there would have been lesser cases of

break-down of marriages. What repels two persons and

what brings them close is very subjective.

59. Under the aforesaid circumstances, would it

not be too much for a Court of law to necessarily dub this

about-turn and somersault of the appellant to be a

deliberate breach of promise with the mischievous

intention of having satisfied his carnal lust and then

abandoning the victim.

60. The answer to this poser is in the negative.

61. On the specific question whether the consent

obtained on the basis of promise to marry which was not

acted upon, could not be regarded as consent for the

purposes of Section 375 IPC, we have taken guidance

from a decision of the Division Bench of Calcutta High Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

Court in Jayanti Rani Panda vs State of West Bengal

And Anr., 1984 CriLJ 1535.

62. In the afore-noted case, a person had

promised the victim girl to marry and had thereafter raped

her which made her pregnant. She was dragged out of the

house and because of that, she suffered miscarriage. A

complaint was filed under Section 156(3) Cr.P.C.,

whereupon a regular case was instituted for investigation

for various offences including Sections 376, 313 and 419

of the Indian Penal Code.

63. The Court, on finding that no School Leaving

Certificate or Birth Certificate or Ossification Test was

brought on record to demonstrate that the victim was a

minor, concluded that she was a major and that she was a

consenting party. While coming to that conclusion, the

Court took into account the knowledge of the father of the

victim about the love affairs between the parties.

64. It was in this context that the case was

decided. The failure to keep the promise at a future

uncertain date due to reasons not very clear on the Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

evidence, the Bench held that it did not always amount to

a misconception of fact at the inception of the act itself.

65. In order to come within the meaning of

misconception of fact, the fact must have an immediate

relevance. The matter would have been different, the Court

observed, if the consent were obtained by creating a belief

that they were already married. In such a case, the

consent could be said to be the result from a

misconception of fact but there the facts alleged was a

promise to marry, but when, was not known to the parties.

66. The Court must be assured that from the very

inception, the accused never really intended to marry her.

This and the other cases of the same ilk were earlier

discussed in Uday v. State of Karnataka, (2003) 4

SCC 46, where it was observed that "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." Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

67. The Bench, however, agreed that there can

be no straight-jacket formulae 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 Courts 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 offence, absence of consent being one of

them.

68. From the records of this case, we do not find

it to be a case of passive submission of the victim in face

of any psychological pressure or allurement made by the

appellant. She was fully conscious and knew the nature Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

and consequences of the act that she was asked to indulge

in.

69. We do not find that the tacit consent given by

her was the result of misconception created in her mind as

to the intention of the appellant in marrying her.

70. We have given our anxious consideration to

the issue whether the appellant, right from the beginning

was cheating on the victim. We can only come to that

conclusion if we have some materials in the shape of

evidence to infer that the appellant had made a promise

which was false and it was never intended to be acted

upon by him.

71. The continuance of the relationship with the

consent of the parents of both sides lends assurance to us

that the appellant was not cheating from the beginning.

The relationship was not continuing under cloak and

dagger; the families knew about it. Would it then be

appropriate for us to infer that the parents of the appellant

were abetting their son to sexually exploit a woman

without harbouring any intention of marrying her? Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

72. In the absence of any evidence regarding

such proposition, we cannot but reject the hypothesis

suggested by the prosecution that the appellant had been

cheating on the victim right from the beginning.

73. A brief reference of Section 114A of the

Evidence Act would be necessary to complete the

discussion. Section 114A which has been inserted in the

Indian Evidence Act, 1872 in the year 1963 puts reverse

burden with respect to presumption of absence of consent

in certain prosecutions for rape. In a prosecution for rape

under Clauses A, B, C, D, E, G of Sub-Section 2 of Section

376 of the Indian Penal Code 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 she states in her evidence before the Court that

she did not consent, the Court shall presume that she did

not consent.

74. In the present set of facts, we have seen that

there is no denial of consent by the victim. She only Patna High Court CR. APP (DB) No.227 of 2019 dt.01-08-2023

asserts that she agreed to the overtures of the appellant in

the hope that she one day would marry him.

75. The reverse presumption can be triggered

only when the prosecution proves its case, which in the

present case does not appear to have been done.

76. These reasons, therefore, compel us to reject

the hypothesis of the Trial Court.

77. We set aside the judgment and order of

conviction and sentence and acquit the appellant.

78. The appellant is stated to be on bail. His

liabilities under the bail bonds stands discharged.

79. The appeal stands allowed.

                                                                          (Ashutosh Kumar, J)


                                                                          (Vipul M. Pancholi, J)
krishna/sanjay

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          04.08.2023
Transmission Date       04.08.2023