Vijay Kerketta Vs. The State of Jharkhand and Anr - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2685 of 2014 ----------- Vijay Kerketta, Son of Suraj Kerketta, Resident of village-Dunduriya, P.O. and P.S. Sadar Gumla, District-Gumla. …..Petitioner Versus 1. The State of Jharkhand.

2. Jeni Tirkey, Wife of Siom Tirkey, Resident of Station Toli Lohardaga, P.O. & P.S. Lohardaga, District-Lohardaga. ….Opposite Parties ----- Coram: HON’BLE MR JUSTICE RONGON MUKHOPADHYAY ----- For the Petitioner : Mr. Nilesh Kumar, Advocate For the Opposite Party No. 1 : APP For the O.P. No. 2 : Mr. Jitendra Nath, Advocate ----- C.A.V. On 19.2.2015 Pronounced on_11/3/2015 Heard learned counsel for the parties. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Lohardaga (Mahila) P.S. Case No. 23/14, corresponding to G.R. No. 299/14 instituted for the offence punishable under sections 376 (C) /506 of the Indian Penal Code. An FIR was instituted on the basis of fardbeyan of one Jeni Tirkey, in which it was alleged that she was having love affairs with the petitioner and on the assurance of marriage, physical relationship was also established. It was also alleged that subsequent thereto, the petitioner refused to marry the informant resulting in institution of the FIR. Learned counsel for the petitioner has submitted that admittedly the informant is a major lady aged about 23 years and even if it is assumed that the petitioner had established physical relationship with her, the same would be on account of her consent without there being any threat or coercion. It has been submitted that in her statement recorded under section 164 Cr.P.C. the informant had categorically stated that there was a love affair between the petitioner and the informant and in such circumstances when admittedly there was consent on behalf of the informant, no case under section 376 (C) of the Indian Penal Code is made out and as such the entire criminal proceeding including the FIR is liable to be quashed. In this context, learned counsel for the petitioner has referred to the judgements rendered in the case of Prashant Bharti -2- Vs. State of NCT of Delhi, passed in Cr. Appeal No. 175 of 2013, Uday Vs. State of Karnataka, passed in Appeal (Crl) No. 336 of 1996. Learned counsel for opposite party no. 2 while relying on the counter affidavit filed by her stated that in course of investigation, the allegations levelled against the petitioner were found to be true and the factum of the commission of rape on the assurance of marriage has also been supported by the witnesses examined in course of investigation. It has also been submitted that the informant had also given birth to a child and to prove the fact that the biological father of the child is the petitioner, DNA Test has to be undergone, which the petitioner is avoiding on one pretext or the other. It has also been submitted that in view of the specific allegations against the petitioner of allurement to indulge in sexual relationship with the informant on the pretext of marriage having been proved, no interference in criminal proceedings is warranted. After hearing learned counsel for the parties and after going through the records, I find that in the FIR the only allegation which has been levelled against the petitioner by the informant is on the pretext of solemnizing marriage, the petitioner had established physical relationship with the informant. Admittedly the petitioner is a major lady and it is to be gathered from the facts and circumstances of the case as well as from the judicial pronouncements as to whether establishing physical relationship on the pretext of marriage will come within the definition of rape. In the case of Uday Vs. State of Karnataka ( supra), it was held as follows:-

“25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the -3- case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o’clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent. In the case of Prashant Bharti Vs. State of NCT of Delhi (supra), it was held as follows:- “21Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge-sheet dated 28-6-2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 CrPC" In the case of State of Uttar Pradesh Vs. Naushad, reported in (2013) 16 SCC651 while considering the question as to whether on the pretext of marriage if a person establishes sexual relationship whether the same would come within the definition of a consent as envisaged under section 90 of the IPC and the same was answered in the following manner:-

“2. 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 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 IPC and is liable to be punished for the offence under Section 376 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 -4- accused for the offence of rape, by reversing the judgment and order of the High Court. We find the respondent-accused guilty of the offence of rape as defined under Section 375 IPC. 23 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." What would fall from the judicial pronouncements quoted above is that if on the pretext of marriage or on the false assurance or promise of marriage if a person in order to satisfy his lust indulges in physical relationship with a woman, the same cannot be construed to mean that there was tacit consent on the part of the woman to allow the person concerned to fulfill his desire. In such circumstances, a person cannot escape from the clutches of the law as such act would clearly come within the definition of rape. Moreover, as it appears from the counter affidavit filed by the opposite party no. 2, the investigation is still in progress and several witnesses have supported the incident alleged by the informant and in such circumstances when the investigation has not come to a logical conclusion, it would not be appropriate to interfere with the criminal proceedings by quashing the FIR. Accordingly, in view of the totality of the discussions made above both factual and legal, the present case does not call for any interference by this Court and accordingly there being no merit in this application, the same is hereby dismissed. (Rongon Mukhopadhyay,J) Rakesh/