Afrin vs Dadapeer & Others

J.M. Khazi, J

These two appeals are filed against the judgment and order dated 23.01.2018 in Sessions Case No.71/2017 on the file of the Principal District and

Sessions Judge, Dharwad. Vide the impugned judgment and order, the learned Principal District and Sessions Judge has acquitted the accused for the

offences punishable under Sections 376 and 417 of the Indian Penal Code, 1860 (""IPC"" for short).

Aggrieved by the impugned judgment and order, the complainant has filed Criminal Appeal No.100128/2018 under Section 372 of the Code of

Criminal Procedure, 1973 (""Cr.P.C."" for short). On the other hand, the State has filed Criminal Appeal No.100184/2018 under Sections 378(1) and (3)

of Cr.P.C.

For the sake of convenience, the parties are referred to their rank before the Trial Court and also the complainant is referred to as prosecutrix.

Since these two appeals are arising out of the same judgment and order, they are heard together and disposed of by this common judgment.

The allegations against the accused are that on 23.01.2016, the accused took the complainant near Channammanakere which is situated by the side

of Navalgund Annigeri road and with a promise to marry her, he had sexual intercourse with her and subsequently refused to marry her and thereby

cheated her and committed offences punishable under Sections 376 and 417 of IPC.

After conducting detailed investigation, the Investigating Officer has filed charge sheet against the accused. Charge is framed against the accused

for offences punishable under Sections 376 and 417 of IPC and he has denied the allegations and claimed to be tried.

In support of the prosecution case, 18 witnesses are examined as P.Ws.1 to 18 and Exs.P-1 to 20 are marked. No material objects are marked for

the prosecution.

During the course of his statement under Section 313 of Cr.P.C., the accused denied the incriminating material against him. He has not chosen to

lead any evidence on his behalf. No documents are marked on behalf of the accused.

After hearing the arguments, vide the impugned judgment and order, the learned Sessions Judge has acquitted the accused of all the charges by

holding that the prosecution has failed to prove the allegations against the accused beyond reasonable doubt.

During the course of their argument, the learned counsel representing the complainant/prosecutrix as well as the learned Additional State Public

Prosecutor submitted that the impugned judgment and order is contrary to law, facts and evidence on record and required to be reconsidered. They

have further submitted that the learned Trial Judge has failed to appreciate the evidence of the prosecutrix, who has clearly stated that the accused

deceived her and by promising to marry her, extracted her consent and committed sexual intercourse and subsequently refused to marry her and

thereby committed the offences alleged against him. They have further submitted that the parents, brother and some of the independent witnesses

have supported the prosecution case and the medial evidence is also corroborating the version of the prosecutrix. With this material, it is a fit case to

convict the accused and pray to allow the appeal and pass appropriate orders.

On the other hand, the learned counsel representing the accused submitted that having regard to the fact that at the time of the alleged offences,

the prosecutrix was a major and having regard to the oral and documentary evidence on record, the prosecution has failed to prove the allegations

against the accused. He submitted that at the most, it is the case of prosecutrix being a consenting party and there is no question of extracting her

consent under a promise to marry and that the accused had no intention of fulfilling that promise and prays to dismiss the appeal.

We have heard the learned counsel representing the appellant i.e., complainant - prosecutrix in Criminal Appeal No.100128/2018 and the learned

Additional State Public Prosecutor in Criminal Appeal No.100184/2018 as well as the learned counsel representing the accused and perused the

records.

It is not in dispute that as on the date of the complaint and as well as the alleged incident, the prosecutrix was a major as claimed in the complaint

dated 11.08.2016 which is marked as Ex.P-1, where she has given her age as 22 years. The Investigating Officer has got her statement recorded

under Section 164 of Cr.P.C. by the jurisdictional Magistrate on 16.08.2016, wherein also she has given her age as 22 years.

P.W.8 - Smt.Bhuvaneshwari Hiremath is the In- charge Head Master of the Government Higher Secondary School where the prosecutrix studied.

Based on the entries made in the Admission Register she has issued the extract of the date of birth of the prosecutrix at Ex.P-6. As per this document

her date of birth is 10.07.1994. According to this document also, as on the date of the alleged incident, the prosecutrix was aged 22 years. The

evidence of this witness is not disputed by the defence.

Having regard to the fact that as on the date of the alleged incident, the prosecutrix was a major i.e., aged 22 years and she has alleged that she

gave consent to the accused to have sexual intercourse with her as he had promised to marry her, with the aid of Section 90 of IPC, it is for the

prosecution to prove that the prosecutrix had given her consent under a misconception of fact and the accused had a reason to believe that the

prosecutrix had given the consent under such misconception i.e., under a belief that the accused is going to marry her. Now it is to be examined

whether prosecution has proved the allegations against the accused beyond reasonable doubt attracting the provisions of Sections 376 and 417 of IPC

read with Section 90 of IPC.

At the earliest available opportunity i.e., during the course of her complaint at Ex.P-1, the prosecutrix has stated that since 7 - 8 months, the

accused had fallen in love with her and on 23.01.2016 at 12 noon, he took her near the Channammanakere and forcibly had sexual intercourse with

her and this was known to her parents and brother and thinking that he may marry her they kept quite. It has also come in the evidence that after the

first incident, before the complaint was lodged, thrice the accused had sexual intercourse with the complainant at the same place and about 5 - 6 days

prior to the filing of the complaint, when they requested the accused to marry her, he flatly refused and therefore the complaint is filed.

However, during the course of her statement under Section 164 of Cr.P.C. at Ex.P-5, she has stated that she came to know the accused about 7 -

8 months back and they were in love and he had requested her not to disclose the fact to anyone . With regard to first instance of accused forcibly

having sexual intercourse with her, the prosecutrix has stated that the said incident took place about three months prior to her filing the complaint and

stated that the accused called her over phone and took her near Channammanakere and while they were speaking, he invited her to have sexual

intercourse for which she replied that if he is ready to marry her then she will permit him to have sex with her and when he replied that he is going to

marry her, she allowed him to have sexual intercourse with her. Thereafter they returned home. In the said statement, she has further stated that in

these three months period, in all four times he had sexual intercourse with her in the same place. So far as refusal of the accused to marry her, in

Ex.P-5 she has stated that about six days prior to the filing of the complaint, when she requested him to marry her, he flatly refused.

Now coming to her oral testimony before the Court. In her evidence as P.W.1, the prosecutrix has stated that about 7 - 8 months prior to the filing

of the complaint, the accused was saying that he is in love with her and that he will marry her and on 23.01.2016 he took her to Channammanakere

and forcibly had sexual intercourse with her and this was repeated thrice and all the four times he had forcible sexual intercourse with her. At page 2

of her evidence, the prosecutrix has again repeated that even though she repeatedly protested, accused forcibly had sexual intercourse with her.

P.W.1 has been cross-examined by suggesting that unless and until there is love affair between the boy and a girl, they will not go to the extent of

having sexual intercourse which the prosecutrix has admitted. In her cross-examination at page 11, P.W.1 has specifically stated that prior to

23.01.2016, there was no love affair between her and the accused. In this regard, she has volunteered and stated that the accused used to tease her

and trouble her asking her to love him. At para 17 of her evidence, for the first time, the prosecutrix has introduced the fact and deposed that accused

had given her a cell phone and he himself had put a sim to the said cell phone and with his cell phone bearing No.9632987043, he used to call her.

Admittedly, the Investigating Officer could have made some enquiry regarding the way in which the prosecutrix and the accused were communicating

with each other. The investigation on this aspect is lacking.

Regarding the improvements made by her during the course of evidence, the prosecutrix has denied the suggestions that in the complaint or during

the course of her statement under Section 164 of Cr.P.C., she has not stated that the accused used to tease her or force her to marry him and that he

took her to the place of occurrence on motorcycle as well as he had sexual intercourse with her forcibly, while giving her statement before the

Investigating Officer.

P.W.13 - Dr.Fouzia Masarath is the Medical Officer, who has examined the prosecutrix and given the report at Ex.P-12. As per this document,

her hymen was ruptured but no injuries were found on her person. Since there were no biological materials found on her clothes, her clothes were not

sent to forensic science laboratory for testing. During the course of her cross-examination, she has admitted that while jumping, riding cycle and also

the women who does hard work, there is possibility of rupture of hymen. Corresponding to this, during the course of cross-examination of the

prosecutrix, it is elicited that she does coolie work like plucking chillies and cotton from the lands and also she travels in tractors, which involves heavy

physical activity. While cross-examining the prosecutrix as well as the Medical Officer regarding the heavy work carried out by the prosecutrix as a

land labourer, the defence is indicating that the possibility of the rupture of hymen of the prosecutrix is due to these activities. However, through the

evidence of the Medical Officer the prosecution has not extracted information as to the circumstances in which the prosecutrix has lost her hymen by

suggesting that it may be due to the accused having sexual intercourse with her. Moreover in the absence of any biological material pertaining to the

accused, such as semen stains and spermatozoa on the person of the prosecutrix or her clothes, there is no material to connect the accused to the

alleged crime as well as the loss of hymen by the prosecutrix is on account of the accused having sexual intercourse with her.

Moreover the oral and documentary evidence placed on record by the prosecution is quite contrary to the case putforth by it that the prosecutrix

has consented to have sexual intercourse with the accused on account of his promise that he is going to marry her and she gave that consent under a

misconception of fact. Having regard to the fact that the prosecutrix was a major as on the date of the alleged incident, the case of the prosecution

could be attracted only under Section 90 of IPC, wherein it is for the prosecution to prove that right from the beginning, accused had no intention of

marrying prosecutrix, but he extracted her consent for having sexual intercourse by making a false promise of marrying and prosecutrix and that she

gave her consent under a misconception of the said promise.

If at all the prosecutrix has given her consent in a misconception of fact, then the question of accused using force against her could not arise. If

the case of the prosecution that accused had forcible sexual intercourse is to be accepted, then the question of the prosecutrix giving her consent

under a misconception would not arise. These two aspects are contrary to each other and they are mutually destructive.

In support of the case of the prosecution, the learned Additional State Public Prosecutor has relied upon the decision in the matter of Anurag Soni

Vs. State of Chhattisgarh reported in AIR 2019 SC 1857, wherein it is held that whether the prosecutrix has given her consent for physical relationship

with the accused, based on a false promise of marriage it amounts to consent on misconception of fact and as such, accused is liable to be convicted.

However, in the present case, the prosecution has failed to establish that there was promise by the accused to marry the prosecutrix and as such, she

gave her consent based on such promise. On the other hand, the prosecution case is highly inconsistent wherein at one breathe the prosecutrix claim

that accused had promised to marry her and at the other reathe she says that accused forcibly had sexual intercourse with her and after the first

incident, on three more occasions, accused took her to the same place and had forcible sexual intercourse with her. The facts and circumstances of

the present case are totally different from the facts based on which the above decision the Hon'ble Apex Court was rendered. Therefore, this decision

is not applicable to the case on hand.

On the other hand, the learned counsel representing the accused has relied upon the decisions in the matter of Sonu @ Subhash Kumar Vs. State

of Uttar Pradesh and another reported in 2021 AIAR (Criminal) 409 and in the matter of Uday Vs. State of Karnataka reported in (2003) 4 SCC 46,

wherein it is held that whether the prosecutrix is a major and consenting party, the provisions of Section 376 of IPC is not attracted. These two

decisions are aptly applicable to the case on hand.

The learned counsel representing the accused has also relied upon the decision of the Hon'ble Apex Court in the matter of Anwar Ali and another

Vs. The State of Himachal Pradesh reported in 2021 AIAR (Criminal) 80, wherein it is held that in case of an appeal against acquittal, where two

views are possible, the Appellate Court should not ordinarily set aside a judgment of acquittal and the benefit of it shall go to the accused. In the

present case, the prosecution has failed to prove the allegations against the accused and there is no question of interfering with the impugned judgment

and order.

Taking into consideration these aspects and also relying upon the decisions of the Hon'ble Supreme Court, the Trial Court has rightly held that the

prosecution has failed to prove the charges against the accused beyond reasonable doubt. The conclusions arrived at by the prosecution is consistent

with the evidence placed on record and we find no perversity and this is not a fit case to interfere with the conclusions arrived at by the Trial Court.

Consequently, both the appeals filed by the complainant/prosecutrix as well as the State fails and they stand dismissed.