@JUDGMENTTAG-ORDER
Aditya Kumar Trivedi, J.@mdashThe victim, (name withheld) a student of Class-VIII in the year of 2009 was pursuing her studies staying at her maternal grandmother''s place perceived frequent visit of one Karan Kamal (petitioner) who developed passion as well as aspiration towards her and subsequently, allured her on account of which they both developed affection toward each other which continued for a year. In the year 2010 (in the month of October) Karan Kamal divulged that it looks difficult to stay away from her and seduced her to slip. However, she resisted stating that without marriage they should not indulge in such thing. However, on his persuasion that they will marry in a way, she accompanied him. During course of journey Karan Kamal put vermillion and said that they have now become spouse. They had gone to Delhi and enjoyed their marital live. Thereafter, they returned back to Kahalgaon and during course of their stay, she became pregnant. One day, mother of Karan Kamal namely, Manju Devi came to her place and persuaded her to abort in the background of fact that the elder brother of Karan Kamal was not married and in the aforesaid background, against her wish and will, the abortion was effected by Karan Kamal in association with his mother. Thereafter, she perceived from their conduct that she has been deceived over which she insisted to have court marriage. Instead of getting court marriage, she was taken to Chaludham Mandir, Kahalgaon where Karan Kamal again put vermillion stating that in the presence of God she is being accepted as his wife as she was in deep love with Karan Kamal, hence fallen in toe. On account of abortion, she became weak and so, she was taken to the place of her mother by the Karan Kamal. While she was staying there, she came to know that Karan Kamal is going to marry again over which she had gone to the house of Karan Kamal where she was prevented to enter into the house and on account thereof, the villagers assembled and forced them to honour her consequent thereupon, they accepted her. However, during her stay, she was badly treated. Then on 9.5.2013 father of Karan Kamal, namely, Niranjan Mandal directed her to call her mother over which she informed. After arrival of her mother they forced her to leave the place and on account thereof, she found herself badly deceived.
2. It has been submitted on behalf of the petitioner that this case has been registered under Sections 376, 316, 504/ 34 of the IPC, but none of Sections whereunder case has been registered is applicable because of the fact that from the narration of the Fard-e-beyan itself, it is evident that the affair was not the game of one day rather both the parties have dwelled into the relationship for one year and then thereafter, whatever event visualized, that was consensual. Therefore, having indulgence in physical intimacy was not a rape rather it was a joint consenting effort of both of them enjoying orgies being erotic acknowledging themselves to be spouse and on account thereof, no offence under Section 376 IPC is made out. It has also been submitted that from the medical report as is evident from para-39 of the case diary the victim has been found more than 18 years on 4.6.2013. The age so ascertained is subject to variance of two years, that means to say, on the date of examination, she was of 20 years and deducing three years thereof, the victim is found 17 years in the year 2010 when she eloped with the petitioner and as she being above 16 years, her consent on that very score permitting indulgence in sexual activity would not attract Section 376 IPC.
3. In similar way, it has been submitted that Section 316 IPC is also not made out because of the fact that there happens to be complete absence of medical report disclosing abortion. It has further been submitted that the grievance of the victim, even if, accepting her version to be truthful, is found guided by Domestic Violence Act whereunder the victim should have proceeded with instead of filing the present case as the conduct suggest being under live-in-relationship purported to be under garb of marriage. It has further been submitted that petitioner happens to be under custody since 24.5.2013.
4. On the other hand, learned Additional P.P. assisted by learned counsel for the victim vehemently opposed the submission made on behalf of petitioner. It has been submitted that argument raised on behalf of petitioner regarding age of the victim as well as divulging the fact that the victim was a consenting party and consequent thereupon, there would not be application of Section 376 IPC is not at all found to be legally maintainable. As per Hindu Marriage Act, the marriage in between male and female, when the female is below 18 years of age happens to be voidable marriage. However, valid marriage is to be perceived in terms of Section 1 of the Hindu Marriage Act whereunder ''Saptapadi'', that has to be performed. Mere putting vermillion while traveling in a jeep or in order to deceive the victim when she insisted for court marriage, coming before an idol and again putting vermillion stating that she is being recognized as his wife, suggest intention of the petitioner who, on account of tender age of the victim fallen under blind love as well as coming from remote place was unable to perceive the same, at the other end shown firm belief over petitioner that he will not show departure and being under impression being spouse of petitioner and on account thereof, consented-as well as indulged in continuing with physical relationship with the petitioner.
5. Consent, in terms of Section 90 of the IPC read with Section 375 of the IPC is to be gathered from the conduct of the party. There was no occasion or justification for the petitioner to put vermillion during course of traveling in Bolero Jeep as well as before an idol which the petitioner very well know leading no legal obligation rather rituals of ''Saptapadi'' in terms of Hindu Marriage Act or court marriage in terms of Special Marriage Act would have been the right procedure for acknowledging the status of victim as spouse. Therefore, elopement of the victim at the instant of petitioner, till then the victim had not given consent for physical relationship and subsequent event was to be taken into consideration in the background of vermillion put by the petitioner in the vehicle followed with their presence in Delhi where they stayed and consummated the so-called marital life and subsequently thereof, returned to Kahalgaon and continuing with the aforesaid relationship for some time and then therefore, allurement followed with elopement was under deception as well as criminal intention to malign the body as well as soul of the victim as the offence of rape, as defined and held by Hon''ble Apex Court times without number is not only physical violence rather it happens to be a death knell in the Indian social fabric.
6. Now coming to the application of Section 316 IPC, it has been submitted that the victim was examined by the doctor after more than a year and on account thereof, it was difficult for the doctor to ascertain. It has also been submitted that the witnesses have supported the case of the prosecution in toto.
7. After hearing rival submissions as well as after going through the case diary along with pleading of the petitioner, the allegation is found bifurcated in two parts, (A) whether there was valid marriage, (B) if not, then its repercussion.
8. From the pleadings as well as from the rival submission, it is apparent that neither marriage was solemnized in terms of Section 7 of the Hindu Marriage Act nor was Court marriage in accordance with Special Marriage Act. Therefore, the status of the parties though they might construe like so but legally could not be accepted as spouse.
9. In the aforesaid background, now the other events have to be seen. Before elopement in the month of October 2010, there happens to be no disclosure that petitioner as well as the victim had indulged in physical relationship. Though, the victim eloped with the petitioner but that was under subsequent event of marriage which the petitioner had disclosed to be solemnized subsequently and then putting belief upon him, even though the Vermillion was put in Bolero jeep while they were moving, she accepted even and transposed herself to be legally married wife of petitioner and the aforesaid activity, persuading victim to give consent or being a consenting party while indulging in sexual activity/performance was under the guise of legal marriage and its continuance was under the aforesaid theme and so, the consent in whichever form may be, happens to be within the purview of Section 90 of the IPC and on account thereof satisfy one of the ingredients of rape as defined under Section 375 of IPC. It is apparent from the conduct of the petitioner that he induced the victim to accept her status to be the wife of petitioner allowing, permitting, indulging actively co-operating during sexual intercourse, one of the ingredients of marriage, which the petitioner since its inception knew that neither it was a valid marriage nor he had intention to marry with the victim in accordance with law, custom.
10. Not only this, as per own assertion the victim was minor at the time of elopement and the consent, in the aforesaid background is of a minor having no legal identify. Indulgence under sexual act by the petitioner even under garb of consent will not spare him as he was well aware of status of victim being minor.
11. Recently, the Hon''ble Apex Court has an occasion to deal with similar situation in the
"10. We will answer point Nos. 1 and 2 together as they are related to each other. Section 376 of IPC prescribes the punishment for the offence of rape. Section 375 of the IPC defines the offence of rape, and enumerates six descriptions of the offence. The description "secondly" speaks of rape "without her consent". Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix "against her consent". The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of "bad character".
How is "consent" defined" Section 90 of the IPC defines consent known to be given under "fear or misconception" which reads as under:--
"90. Consent known to be given under fear or misconception.--A consent is not such consent as it 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; xxxx"
Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated, in the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of
"10. It appears that the intention of the accused as per the testimony of P.W. 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs-1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent."
Further, in para 17 of the said judgment, this Court held that:--
"In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of PW-1 as well as PW-6 who was functioning as Panchayat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her."
Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact.
10. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under Section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused-respondent guilty of the offence of rape as defined under Section 375 of the IPC.
11. A woman''s body is not a man�s plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it. Prayer for bail is rejected.
