Court: HIGH COURT OF JHARKHAND

Bench: JUSTICE R.R.Prasad, J

Anjana Rashmi Minz vs The State Of Jharkhand on 11 December 2014

Law Point: Consent given under a promise of marriage, based on love, is not a misconception of fact, and is voluntary.

JUDGEMENT

Heard   learned   counsel   appearing   for   the   appellant   and   the  learned   counsel   for   the   State   on   this interlocutory   application,   wherein  prayer has been made to allow the appellant to implead the person, who  has been acquitted under the impugned judgment, as party respondent in  this appeal.

The person, to whom the appellant intends to implead as party,  appears   to   be   necessary   party.   Accordingly,   the   prayer   made   in   this  interlocutory application is hereby  allowed. Let Shera Samson Tirkey be  impleaded as party respondent no. 2 in this appeal.

I.A. No. 5352 of 2014, stands disposed of.

Cr. Appeal (DB) No. 961 of 2013

This   appeal   is   directed   against   the   judgment   dated   21st  September, 2013, passed by the learned Additional Judicial Commissioner­ III­cum­FTC   (CAW),   Ranchi   in   Sessions   Trial   No.   449 of   2012   (T.R.   No.  131/2013),   whereby   the   accused   person,   who   was   put   on   trial   for   the  offence punishable under Sections 376 and 420 of the Indian Penal Code,  was acquitted.

It is the case of the prosecution that the accused/newly added  respondent no. 2, on the pretext of marrying the victim went on having sex  with her, but he subsequently, refused to marry her.

On such accusation, the accused was put on trial, during which  witnesses   were   examined   including   the   prosecutrix   (PW­1),   who   in   her  testimony did testify that the accused promised to marry her and under  that   promise   she   went   on   having   sex   with   him.   But,   subsequently,   he  refused to marry. The prosecutrix is a major and under the circumstances,  whatever act the accused­respondent no. 2, is said to have done that was  done with the consent of the prosecutrix and in that situation the Court  acquitted the accused of the charges framed under Sections 376 & 420 of  the Indian Penal Code. That is under challenge.

According   to   learned   counsel   appearing   for   the   appellant,   the  victim PW 1 though had given consent to the accused­respondent no. 2 to  have  have   sex   with   her,   but   that   consent   was   given   when   promise   had  been made by the accused to marry her and, therefore, it can be said that  the consent was given under misconception of the fact and if it is so then  it can never be said that the accused had had sex with the consent of the  appellant. Learned counsel in support of his submissions has referred to a  decisions   rendered   in   a   case   of   “State   of   U.P.   ­versus­   Naushad,   AIR   2014 SC 384”.

Thus, it was submitted that the trial court committed illegality in  acquitting the accused­respondent no. 2.

The Hon’ble Supreme Court, in the case referred to above, was  pleased to hold that the consent obtained under a misconception of fact as  defined under Section 90 of the Indian Penal Code, cannot be said to be  voluntary consent. But that was held under the facts and circumstances  of the case where the accused having promised the prosecutrix to marry  her,   went   on   having   sex   with   her   and   then   refused  to  marry   when   the  prosecutrix did carry pregnancy.

Here   in   the   instant   case   the   fact   appears   to   be   some   what  different as it is evident from the judgment that the prosecutrix was in love  with the accused and in that situation, when the prosecutrix had fallen in  love with the accused and if the accused makes a promise to marry her  and   under   that   promise   if   the   accused   was   having   sex   with   the  prosecutrix, it cannot be said that the prosecutrix gave consent under a  misconception of fact. In this regard, we may refer to a decision rendered  in  a   case   of  “Uday­   versus­   State  of  Karnataka  [(2003)  4  SCC  46]”,  wherein their Lordships after placing reliance on the decision of “Jayanti   Rani   Panda­   versus­   State   of   W.B.   (1984   Cr.L.J.   1534)”   observed   as  follows:

“It therefore appears that the consensus of judicial opinioin 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. A false promise is   not a fact within the meaning of the Code. We are inclined to agree   with   this   view,   but   we   must   add   that   there   is   no   straitjacket   formula 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 tests laid down   by the courts provide at best guidance to the judicial mind while   considering a question of consent, bu the court must, in each case,   consider the evidence before it and the surrounding circumstances,   before   reaching   a   conclusion,   because   each   case   has   its   own   peculiar acts 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.”

Apparently   it   does   appear   from   the   observation   made   by   the  Hon’ble Supreme Court that the consent given by the prosecutrix on the  promise   made   by   the  accused   to  have  sexual  intercourse  with  a  person  with   whom   she   is   deeply   in   love,   cannot   be   said   to   be   given   under   a  misconception of fact.

Under the circumstances, we do not find any illegality with the  judgment   and   order   under   challenge.  Accordingly,   this   appeal   stands  dismissed.

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