Assurance of promise of marriage does not become rape

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

CRA No. 36 of 1988

Tapan Maity –Appellant/Accused

-versus-

The State of West Bengal & Anr. — Opposite Parties Mr. Himangshu De

Mr. Mrityunjoy Chatterjee

Mr. Suman De … for the Appellant Ms. Faria Hossain … for the State Heard on : 11.04.2013

Judgment on : 11.04.2013.

Toufique Uddin, J. :

This appeal arose out of the judgment and order dated 21.1.1988 passed by the learned Sessions Judge at Midnapore convicting the appellant under section 417 of IPC and sentencing him to suffer rigorous imprisonment for one year and imposing a fine of Rs. 1000/- in default imprisonment for 3 months in Sessions Trial Case No. VIII of May, 1987.

In the background of this appeal, the fact in a nutshell is as follows : One Santosh Kumar Mandal lodged an information at Mayna P.S. on 26.5.1987. The daughter of the complainant one Jharna Mandal was working as a maid in the house of Bankim Maity at Purba Dakshin Mayna for 7/8 years since she was 12/13 years of age. In May, 1986 Jharna broke down in tears to her father and informed that Tapan Maity, 3rd son of Bankim Maity, had committed sexual intercourse with her on promise of marriage and had cohabited with her for about a year and at that time she was pregnant for five months. When the female folk of the house came to know of this they took her to a doctor and got medicine from him to cause abortion. She did not agree. The father of the complainant informed the panchayat. There was a sitting but no fruitful result yielded. Therefore, a complaint was lodged.

On the basis of the complaint, police started a case and after investigation, police submitted charge-sheet against the accused person.

The case was committed to the Court of Sessions by the learned Magistrate. After hearing of both sides, the learned Trial Court framed charge under sections 376/417 of IPC against the accused.

To contest this case the prosecution examined as many as ten witnesses while none was examined on the side of the accused.

On trial the learned Trial Court convicted the present appellant by the impugned judgment. It has to be seen whether the impugned judgment suffers from any infirmity and calls for any interference or not.

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Sections 376 and 417 of IPC read as follows :

“376. Punishment for rape. – (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. …………………………………………………………………………………………………..” “417. Punishment for Cheating. — Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” Amongst others learned Counsel for the appellant contended interalia that at the material point of time the victim girl was around 19 years old and she was a promiscuity. Therefore, the appellant is entitled to get an order of acquittal.

Learned Counsel for the State made his usual submission.

To appreciate the case from a better angle, some relevant pieces of documents are required to be taken into account.

The FIR is exhibit- 1. Keeping a link with the FIR, the victim’s father Santosh Kumar Mandal stated that on the promise to marry the accused co-habituated with his daughter and ultimately he refused to marry and at that time the victim was carrying for five months. It is further evidence of the father of the victim that the accused attempted for causing abortion of the foetus but the victim refused.

P.W.- 2 is the de facto complainant. She stated that earlier she had been living at the house of Bankim Maity to perform household work. She stayed in that place for about four years and in the last year of her stay Tapan Maity, one of the sons of Bankim Maity committed sexual intercourse with her on the promise that he will marry her as she stated that she came from a poor family. For one year he went on committing sexual intercourse with her. He used to force her to agree to such intercourse and he insisted that he would marry her, as her father would be unable to give her in marriage. P.W.- 2 resisted but the accused promised to marry her. She stated that Tapan’s mother when contacted advised her to terminate the pregnancy but she refused. P.W.- 3 is a panchayat Sadasya. He attended the salish. He learned from Ajoy Adak that victim Jharna had become pregnant through Tapan Maity. He claimed that he advised to Bankim Babu that the best course to marry to Jharna. The father of the victim acceded to his advice. The boy also agreed but his parents did not agree.

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P.W.- 4 is a village lady. She attempted to corroborate the prosecution case. Other witnesses are also attempted to corroborate the prosecution case. P.W.- 6 is a student of Homoeopathy. When he examined the victim first, he did not continue her treatment but referred her to some qualified doctor. P.W.- 9 is a doctor. He examined the potency test of the accused and opined that he was capable of formal sexual intercourse.

P.W.- 10 is another doctor. She examined the victim lady and opined that the girl was pregnant for about 30 to 32 weeks.

P.W. -8 is the I/O. After investigation, he submitted prosecution. This is the position of evidence. Therefrom it is established that the victim girl was aged about 18 years at the material point of time and she allowed herself to be a party to the intercourse undertaken by the appellant on the assurance given by the appellant that he would marry her. Learned Counsel for the appellant cited before me some decisions as reported in 1983 (II) CHN page 290 (Jayanti Rani Panda vs. State & Anr.) wherein the Hon’ble Court propounded that “In the instant case the fact alleged is a promise to marry. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid of such a case to pardon the act of the girl and fasten criminal liability on the other unless the Court can be assured that from the very inception the accused really intended to marry her.” Other decision referred by the learned Counsel reported in 1990 Cri.L.J. 650 (Hari Majhi vs. The State) wherein the Hon’ble Court held that “Prosecutrix agreeing to sexual intercourse as accused promised to marry her – On this ground accused could not be held guilty of rape. Further it was held the Accused having frequent sexual intercourse with prosecutrix for more than one year by promising to marry her – No evidence that representation by accused was false to the knowledge of the accused at the time it was made – Accused could not be convicted for cheating under section 417 of IPC.” The last decision cited was as reported in (2003) 1 C Cr LR (SC) 555 (Uday vs. State of Karnataka) wherein it was held by the Hon’ble Court that whether “Prosecutrix is a adult girl – Consented to the sexual intercourse with the appellant – On promise of marriage – Such fact does not constitute misconception of fact – Consent under misconception of fact – Two conditions for applicability are required – A false promise is not such a fact – No offence of rape is committed.”

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Considering the above principles in the light of the materials available in the records, I am of the view that the victim girl being an adult was well aware of the impact of her action in the form of sexual intercourse done with the appellant. It is not her case that she was not in the knowledge of consequence of such thing. She expected to marry the appellant on the promise advanced by him and thereby continued with sexual intercourse with the accused. This does not indicate that there was a misconception of fact.

This being the position, the conviction and the sentence passed by the learned Court below cannot be sustained. Accordingly, appeal is allowed and the conviction order and sentence is set aside. The appellant is reported to be on bail. He be discharged from bail bond and set at free immediately if he is not wanted in any other case.

Let a copy of this judgment along with LCR be sent back to the learned Trial Court immediately. Criminal Section is directed to supply the urgent photostat certified copy of this judgment to the parties, if applied for.

(Toufique Uddin, J.)

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