Thursday, 16 March 2017

Whether girl maintaining sexual relation with married person can claim that she was raped on promise of marriage?

Thus, from the statement of the prosecutrix and her
parents it is found that the prosecutrix and accused were in
love and having relationship for the last four years. During
this period the prosecutrix had physical relations with the
accused. She lived with the accused in his house openly for
long time.
9. Prosecutrix and accused are residents of same village.
Accused was living with his wife and children in his house.
Prosecutrix in cross-examination para 14 admitted that she
had visited the house of accused and met his mother and
wife also. The statement of prosecutrix that the accused had
introduced his wife to her as maid servant, does not inspire
confidence. It is not possible that in the same village, where
prosecutrix and accused are living since birth, prosecutrix
could not get information of the fact that the accused was a
married person having children. During four years of
relationship, it is not stated by the prosecution witnesses
when prosecutrix or her parents asked the accused or his
parents for marriage of prosecutrix with the accused. There
is not even a whisper that they approached the respondent or
his family members for marrying the prosecutrix. If
prosecutrix was having relationship with the accused on
promise of marriage, then it would be natural for her to make
demand of performance of marriage within reasonable time.
For four years not making any demand for marriage is not
natural. Thus the conduct of the prosecutrix creates doubt on
her evidence.

10. The finding of the trial Court in the present case is
correct that the prosecutrix was aware that the respondent
was already married person.It is not proved that accused had
concealed the fact of his marriage from prosecutrix. The
prosecutrix made sexual relations with the
respondent/accused knowingly that he was a married person.
It is not believable that the accused gave a false promise to
marry her and persuaded her to make sexual relationship
with him. It is also not proved that consent of prosecutrix has
been obtained by misrepresentation and misconception of
facts. Prosecutrix is a major woman, competent to give
consent as per her will. For the offence of rape, it is
necessary to prove beyond reasonable doubt that the sexual
intercourse was committed against her will or without her
consent.
HIGH COURT OF MADHYA PRADESH, JABALPUR
Misc. Criminal Case No.22431 of 2015
State of Madhya Pradesh
Vs
Gulab Chand Kahar
Present : Hon. Shri Justice S.K.Gangele
 Hon. Shri Justice Anurag Shrivastava

O R D E R
(8.3.2017)

Being aggrieved by the judgment of acquittal dated
14.05.2015, passed by Special Sessions Judge, SC/ST
(Prevention of Atrocities) Act, 1988, Anuppur, in Special Case
No.66/2013, whereby the respondent/accused has been
acquitted of the offences under Sections 376(2)(n), 506(Part-
2) of IPC and section 3(2)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989, this
petition for grant of leave to appeal under Section 378(3) of
Cr.P.C., has been preferred by State.
2. The case of prosecution in brief is that on 10.8.2013 the
prosecutrix lodged a report in police station Ajak, Anuppur
stating that about four years ago when prosecutrix was sitting
in the backyard of her house, the respondent/accused came
there and forcefully took her to nearby field and committed
rape on her without her consent. She tried to make a hue
and cry, but was silenced by the accused by threatening her
and also by making her believe that he would marry her.
Even after this incident, he had sexual relations with her on
more than one occasion for last four years on the pretext of
marriage. Some days before lodging of report, when
prosecutrix repeatedly made demand for marriage, the
respondent denied to marry her. Prosecutrix came to know
that the respondent was already married and had children.
Thereafter, the prosecutrix lodged the complaint before police
as stated above.
3. On complaint of prosecutrix a FIR Ex.P-1 has been
recorded and an offence under section 376(2)(n), 506(Part-2)
of IPC and section 3(2)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been
registered against the respondent and after usual
investigation a charge-sheet has been filed in the Court. The
trial Court framed the charges under section 376(2)(n),
506(Part-2) of IPC and section 3(2)(v) of the Scheduled
Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989 against the respondent, he abjured guilt. After
recording of evidence the trial Court passed the impugned
judgment and acquitted the respondent on the ground that
the prosecutrix is a consenting party and no offence has
been found proved beyond reasonable doubt against the
respondent.
4. It is argued by learned counsel for the petitioner/State
that from the statement of prosecutrix, it is proved that the
accused had committed rape and thereafter had sexual
intercourse with the prosecutrix on several occasions during
last four years on the false pretext of marriage. The
respondent/accused was already married having children.
The consent of the prosecutrix was obtained on false
representation and promise. Therefore the trial Court had
wrongly acquitted the accused treating the prosecutrix as
consenting party. The findings of the trial Court are
erroneous, arrived at on wrong appreciation of evidence and
liable to be set aside. Thus, the leave to appeal may be
granted.
5. Considering the arguments of learned counsel for State
and on perusal of record, it appears that the main allegation
against the accused is that he obtained the consent of
prosecutrix on false representation that he intends to marry
her. Therefore, this aspect of case whether the prosecutrix
has made relations with the accused on her free will or
whether her consent was obtained on false representation
has to be considered.
6. In the case of Deelip Singh Vs. State of Bihar [(2005)
1 SCC 88] Hon'ble Apex Court while defining the consent
under section 90 of IPC in para 12 and 14 observed that :
"Section 90 IPC, though, does not
define "consent", but describes what is not
consent. It says that a consent is not such a
consent as is intended by IPC (Sections 375
and 376 IPC in this case) if it is given under a
misconception of fact. A misrepresentation as
regards the intention of the person seeking
consent i.e. the accused, could give rise to the
misconception of fact. The consent given
pursuant to a false representation that the
accused intends to marry, could be regarded
as consent given under misconception of fact.
But a promise to marry without anything more
will not give rise to "misconception of fact"
within the meaning of Section 90 IPC."
7. The prosecutrix lodged the report after four years of the
first instance of alleged rape. From the statement of
prosecutrix P.W.1 and eye witness P.W.5, it appears that on
the same day, when accused committed rape on prosecutrix
first time, this fact was brought into the notice of mother of
prosecutrix, but no report of this incident had been lodged to
police. Prosecutrix (P.W.1) in her statement admits that she
had relations with the accused/respondent for the last four
years, because the accused had made a promise to marry
her. The parents of the prosecutrix P.W.6 (mother) and
P.W.11 (father) also admitted this fact and stated that they
knew that the prosecutrix and accused had sexual relations.
Prosecutrix (P.W.1) in cross-examination para 14 has
admitted that her relationship with the accused was known to
everybody in the village and when village community
objected to it and outcasted her, she had started living with
the accused.
8. Thus, from the statement of the prosecutrix and her
parents it is found that the prosecutrix and accused were in
love and having relationship for the last four years. During
this period the prosecutrix had physical relations with the
accused. She lived with the accused in his house openly for
long time.
9. Prosecutrix and accused are residents of same village.
Accused was living with his wife and children in his house.
Prosecutrix in cross-examination para 14 admitted that she
had visited the house of accused and met his mother and
wife also. The statement of prosecutrix that the accused had
introduced his wife to her as maid servant, does not inspire
confidence. It is not possible that in the same village, where
prosecutrix and accused are living since birth, prosecutrix
could not get information of the fact that the accused was a
married person having children. During four years of
relationship, it is not stated by the prosecution witnesses
when prosecutrix or her parents asked the accused or his
parents for marriage of prosecutrix with the accused. There
is not even a whisper that they approached the respondent or
his family members for marrying the prosecutrix. If
prosecutrix was having relationship with the accused on
promise of marriage, then it would be natural for her to make
demand of performance of marriage within reasonable time.
For four years not making any demand for marriage is not
natural. Thus the conduct of the prosecutrix creates doubt on
her evidence.

10. The finding of the trial Court in the present case is
correct that the prosecutrix was aware that the respondent
was already married person.It is not proved that accused had
concealed the fact of his marriage from prosecutrix. The
prosecutrix made sexual relations with the
respondent/accused knowingly that he was a married person.
It is not believable that the accused gave a false promise to
marry her and persuaded her to make sexual relationship
with him. It is also not proved that consent of prosecutrix has
been obtained by misrepresentation and misconception of
facts. Prosecutrix is a major woman, competent to give
consent as per her will. For the offence of rape, it is
necessary to prove beyond reasonable doubt that the sexual
intercourse was committed against her will or without her
consent.
11. Therefore, the trial Court has rightly held the
respondent not guilty of the alleged offence of rape. Thus
there is no substance in this appeal. 
12. Consequently, the prayer for leave to appeal is
dismissed.
(S.K.GANGELE) (ANURAG SHRIVASTAVA)
 JUDGE JUDGE
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