IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon’ble Justice Debi Prosad Dey
CRA No.48 of 2009
Pradip @ Babu Das
Versus
The State of West Bengal
For the Petitioner: Mr. Souma Chatterjee.
Mr. Shiladitya Banerjee
For the State : Ayan Bose
Heard on : 13.11.2017, 28.11.2017, 13.12.2017, 19.12.2017
Judgment on : 03.01.2018.
Debi Prosad Dey, J. :-
1.
This Appeal is directed against the judgment and order of
conviction dated 09.01.2009 and 12.01.2009 passed by learned
Additional Sessions Judge, Fast Track 2nd Court, Siliguri, Darjeeling
in Sessions Trial No. 09/2005 arising out of Sessions Case No. 6(1)
2005, whereby and whereunder the learned Judge has convicted the
appellant for the offence punishable under Section 376 of the Indian
Penal Code and sentenced the appellant to suffer rigorous
imprisonment for 7 years and to pay a fine of Rs. 3,000/- in default to
suffer rigorous imprisonment for three months.
2. The case of the prosecution as unfolded in the First Information
Report is that the victim used to work as a part-time maid in the
house of the appellant and the appellant forcibly raped the victim on
one occasion and thereafter the appellant allured the victim to marry
her and on the pretext of such assurance of marriage used to have
sex with the victim continuously. As a result of which the victim
became pregnant and ultimately delivered a male child. The victim
thereafter lodged a written complaint and in terms of such written
complaint, Siliguri Police Station Case No. 16 of 2003 dated 9th
January 2003 under Section 376 and 493 of the Indian Penal Code
was started against the appellant which culminated in filing of charge
sheet. Charge under Section 376 of the Indian Penal Code was framed
against the appellant and the appellant pleaded not guilty and
claimed to be tried.
3. In order to bring home the charge against the appellant the
prosecution has examined as many as 9 witnesses. After examination
of the appellant under Section 313 of the Code of Criminal Procedure
and after hearing the learned Advocates for both sides, the learned
Judge convicted the appellant for the offence under Section 376 of the
Indian Penal Code and sentenced him to suffer such imprisonment as
mentioned hereinabove.
4. It would not be out of place to mention in brief about the evidence
of the Prosecution Witnesses. Avimanya Mollick, Prosecution Witness
No. 1 was present at the time of collection of blood samples from the
persons of the appellant as well as the victim including the minor
child of the victim. On 4th March 2003, he was present and he had put
his signatures on some papers marked Exhibit 1/1, 2/1 and 3/1.
Such evidence of Prosecution Witness No. 1 however, does not prove
the case of the prosecution. In his cross examination the Prosecution
Witness No. 1 has admitted that he was not present at the time of
collection of blood from the persons concerned as it was taken behind
the curtain and that he signed on some papers at the request of the
Investigating Officer. Prosecution Witness No. 1 further stated that he
signed on a paper as Dr. Gupta requested him to sign thereon.
5. Smt. Anoara Begam, Prosecution Witness No. 2 is the elder sister
of the victim. According to this witness the victim used to work in the
house of the appellant as domestic-help but suddenly the victim left
her job. One day the victim reported to this witness that she had been
feeling pain in her abdomen then this witness took her to a doctor for
her treatment. The Doctor reported to this witness that the victim was
pregnant. On being asked the victim divulged before this witness that
the appellant has impregnated the victim. The victim further stated
this witness that the appellant used to have sexual intercourse with
the victim in absence of other members of his family and by such act
the victim became pregnant. The prosecution witness No. 2 being
accompanied by her mother went to the house of the appellant and
asked him to marry the victim but the appellant and his family
members flatly denied to such request. Thereafter the matter was
reported to the police. This witness has also stated that the appellant
assured the victim to marry her and with that assurance the appellant
had sexual intercourse with the victim. It is apparent from the cross
examination of this witness that about ten years ago from the date of
occurrence she got married with a Muslim boy and after her marriage
she had no contact with her parents for a considerable period as she
got married with Muslim boy and against the will of her parents. At
that point of time this witness had no knowledge as to where his sister
was working as domestic-help. This witness has categorically admitted
in her cross examination that when the victim was admitted at the
North Bengal Medical College and Hospital for her delivery, at that
point of time only the victim divulged that she had had sex with the
appellant on the assurance of marriage by the appellant. This witness
has also admitted in her cross examination that the victim was not
subjected to any threat or any fear at the time of having such sexual
relationship with the appellant but she was assured by the appellant
that he would marry the victim. Admittedly the sister of the witness
never disclosed before this witness or her husband that she had
sexual intercourse with the appellant with the assurance of marriage
even before filing of this case. The victim disclosed of such fact at the
time, when she was admitted in the hospital. This witness has also
admitted in her cross examination that subsequently the appellant
wanted to marry the victim but the victim refused to marry the
appellant.
6. Prosecution Witness NO. 3 Sk. Sabul is the husband of
Prosecution Witness No. 2 and he has corroborated the statement of
Prosecution Witness No. 2. Admittedly this witness has had no
knowledge about the occurrence or about such statement since the
victim never stated anything before this witness and he was out of the
premises of the Police Station when the First Information Report was
actually lodged by the victim. The evidence of Prosecution Witness No.
3 thus does not help the case of the prosecution.
7. Prosecution Witness No. 4, Baneswar Das Gupta , scribed the First
Information Report on behalf of the complainant and he scribed the
said First Information Report as per the statement of the victim and
thereafter he read over and explained the contents to the victim, who
admitted the same to be correct and signed thereon accordingly. The
First Information Report has been marked as Exhibit 4. On the date
of filing of such First Information Report this witness was Deputy
Group Commander of Home-Guard at Siliguri and he had scribed very
many First Information Reports. This witness has had no knowledge
about the occurrence and except proving the First Information Report,
I do not find any material in the evidence of Prosecution Witness No.
4.
8. Dr. Rumi Moitra, Prosecution Witness No. 5 examined the victim
on 4th March 2003 in North Bengal Medical College and Hospital and
found that the victim had experience of such sexual intercourse. The
report of the victim has been marked as Exhibit 5. The victim also
stated before the doctor. that at that point of time she was aged about
21 years. This witness also admitted in her cross examination that
she did not find any sign of forcible intercourse at the time of
examination of the victim.
9. Dr. Saibal Gupta, Prosecution Witness No. 6 was posted as
Professor and Head of the Department of Forensic and State Medicine,
North Bengal Medical College on 4th March 2003. On that date he
examined the appellant aged about 21 years in connection with
Siliguri Police Station Case No. 16 of 2003 dated 9th January 2003
and found that the appellant was capable of doing sexual intercourse.
He also did not find injury on the person of the appellant.
10. Smt. Nilu Ghosh, Prosecution Witness No.7 is the victim. In her
examination-in-chief the victim stated that taking advantage of the
absence of other family members one day when she was working as
maid in the house of the appellant, the appellant committed rape
upon her and thereafter the appellant promised her that he would
marry her. Thereafter on very many occasions the victim and the
appellant used to have sexual intercourse in absence of the family
members of the appellant. Following physical relationship with the
appellant the victim became pregnant. She reported of such fact to the
appellant, who assured her that he would marry her and would start
to reside in a separate residence after marriage. As per advice of the
appellant, victim left the job of domestic-help and started residing in
her father’s house. During that period she remain confined in her
father’s house and did not even divulge such fact to any member of
her family or any outsider. Only when she suffered from delivery-
plain, she then divulged the matter to her mother and elder sister that
she was made pregnant by the appellant and she gave birth to a male-
child. She also narrated that she divulge incident of her love affairs
with the appellant followed by sexual relationship with the appellant.
The mother and sister of the victim went to the house of the appellant,
who handed over Rs. 7,000/- to them for taking care of the victim and
thereafter she delivered the said male-child in North Bengal Medical
College and Hospital. The appellant turned down the request of the
victim to marry the victim and thereafter the case under reference was
started at the behest of the victim. In her cross examination the victim
admitted that she did not disclose the fact of her love affairs with the
appellant to anybody or to any friend or her parents or any other
family members. She also suppressed the fact of sexual relationship
with the appellant during that period. She did not even disclose this to
any member of his family. Admittedly when mensuration of the victim
was stopped but she did not feel anything with regard to her
pregnancy and only after 5 months of her pregnancy she could feel
about her pregnancy. During that period the victim did not inform
anyone of her family or any outsider or any neighbours but she
suppressed her pregnancy and remain confined within her family.
Admittedly the victim became pregnant only after one year of her love
affairs with the appellant and she left the job of domestic-help after
4/5 months of her pregnancy. The victim admitted in her cross
examination that she never disclosed the same to the local residents,
local Panchayat Member, para people or to any of her family members.
This victim has admitted in her cross examination that she had
consent in that sexual relationship. She has, however, denied of her
allegation of rape.
11. Smt. Sushila Ghosh, Prosecution Witness No. 8 is the mother of
the victim, this witness has stated that she came to know about the
pregnancy of the victim only when the victim was taken to the Doctor.
This witness has admitted in her examination-in-chief that the
appellant gave Rs. 7,000 in cash for the purpose of medical treatment
of the victim and also admitted the paternity of the child of the victim.
Thereafter the appellant refused to act in terms of his promise and
that is why the case was started. It is apparent from the cross
examination of this witness that she came to know from the Doctor
just prior to delivery of male child by the victim and the victim never
disclosed anything about her affairs with the appellant and about her
pregnancy.
12. The Prosecution Witness No. 9, Sub Inspector Joy Deb Santra,
investigated the case and the Investigating Officer (I.O) of this case.
The I.O. has stated that the victim never stated before him during
investigation that the appellant committed forcible rape on her and
the forensic report has been exhibited as exhibits (a) and (b). I do not
find any substance in such report since the report did not reveal
anything against the appellant.
13. Learned advocate appearing on behalf of the appellant
contended that there was love affairs between two major persons and
as a result of which they were involved in physical relationship which
ultimately made the victim pregnant. The question of forcible
intercourse by the appellant does not appear from the totality of the
evidence on record and the victim suppressed her pregnancy till the
delivery and as a result of which at the instigation of her sister and
her husband the First Information Report was lodged at least after two
years of such alleged occurrence of rape. Learned Advocate for the
appellant further contended that the elder sister of the victim,
Persecution Witness No. 2 has admitted in her cross examination that
the appellant was ready and willing to marry the victim but the victim
refused to marry the appellant. That goes to show that the appellant
was faithful to his alleged promise but the victim did not accept the
appellant as her husband. Learned Advocate for the appellant further
contended that the victim was aged about 21 years at the time of such
occurrence and being aware of the consequences of such unbridled
sex, she gave consent voluntarily and accordingly the learned Trial
Court came to an erroneous finding with regard to such offence of
rape against the appellant and thereby erroneously convicted and
sentenced the appellant for the alleged offence. In support of his
contention the learned Advocate for the appellant has referred the
following decisions:
(i) Uday v. State of Karnataka (2003) 4 SCC 46.
(ii) Jayanti Rani Panda v. State Anr. 1984 Cri. L.J. 1535.
(iii) Krishna Pada Mahato v. State of West Bengal. (2005) 2
CHN 198.
14. Learned Advocate for the State vehemently contended that
the aforesaid decisions are not applicable in the context of the given
facts and circumstances of this case for the sole reason that the victim
was subjected to such sexual relationship on the false assurance of
marriage and thereby the appellant had obtained the consent of the
victim with the false assurance of marriage. Learned Advocate for the
State further contended that promise of marriage deliberately made by
the appellant with a view to obtain consent of the victim without
having any intention or inclination to marry her and that would vitiate
the consent and the appellant should be punished for the offence
under Section 375 of the Indian Penal Code. Relying on the decision
reported in (2007) 5 SCC 918 Pradeep Kumar @ Pradeep Kumar Verma v.
State of Bihar and Anr. learned Advocate for the State drew the attention
of the Court with regard to the statement whereby and whereunder
the victim stated that on the first occasion the appellant committed
rape on the victim taking advantage of the absence of the family
members. It is submitted that such statement of the victim clearly
reveals that the victim was subjected to sexual relationship with the
appellant forcibly. On that score the learned trial Court was justified
in convicting and sentencing the appellant under Section 376 of the
Indian Penal Code.
15. Accordingly having scrutiny of the entire evidence of the victim
it transpired that the victim had sexual relationship with the appellant
for a long period and the victim had love affairs with the appellant for
a substantial period of time. This fact has been admitted by the victim
during her examination before the trial Court. Admittedly the victim
came to know about her pregnancy and thereafter she left the work of
domestic-help from the house of the appellant. The victim confined
herself in her father’s house and when the victim was suffering from
delivery pain, at that point of time only she divulged before her mother
and sister that the appellant is the author of such pregnancy or the
appellant is responsible for her pregnancy. Thereafter the victim gave
birth to a male-child at North Bengal Medical College and Hospital
and the matter was brought to the notice of the Police. The
investigating Officer PW 9 has admitted in his cross examination that
in fact the victim never stated before the Investigating Officer during
the period of investigation that the appellant had committed forcible
rape on her against her consent and will. It is, therefore, apparent
from such evidence of prosecution witness No. 9 that the victim
developed her testimony during trial and such statement of the victim
cannot be looked into. Had there been any such forcible rape on the
person of the victim, victim ought to have and should have divulged
such fact before the Investigating Officer. That having not been done,
such statement of the victim cannot be looked into for a just decision
of this case. Secondly, it is crystal clear from the evidence of the victim
that she had love affairs with the appellant and she being a major lady
had definite knowledge about the consequence of such unbridled sex
with the appellant. Therefore she did not even report her pregnancy to
any member of her family and kept herself confined in her father’s
house till the delivery of such child. The evidence of prosecution
witness No. 2, elder sister of the victim reveals that the victim herself
refused to marry the appellant. It is also apparent from the evidence of
the mother and elder sister of the victim that the appellant paid Rs.
7,000/- to them for taking care of the victim and her child.
16. On careful scrutiny of the entire materials on record it
transpired that a major lady gave consent to such unbridled sex with
the appellant and thereafter she became pregnant and gave birth to a
male-child. Subsequently, the victim refused to marry the appellant.
In any view of the matter it cannot be said that the victim was
subjected to forcible sexual intercourse by the appellant without her
consent and will. Therefore, the decision reported in 2007 (5)
Supreme 918 (Supra) does not fit to the facts and circumstances of
this case. The promise of marriage was not the only reason for having
sex between the victim and the appellant but they involved in such
physical relationship out of the love affairs between themselves. This
fact has been admitted by the victim in her cross examination. In view
of the circumstances stated above, it cannot be said that that the
physical relationship between the parties was developed with the
assurance of marriage. It is apparent from the evidence of Prosecution
Witness No. 2 that the appellant had even expressed his willingness
to marry the victim but the victim refused to marry the appellant. In
the decision reported (2005) CHN 198 (Supra) it has been held that
there was no misconception of fact and the victim being a full-grown
lady voluntarily consented to have sexual intercourse with the
appellant. In that view of this case, it cannot be said that the
appellant forcibly committed rape on the person of the victim but the
victim was a consenting party and her conduct was nothing but an act
of promiscuity on her part. Learned Judge relied on a decision of
Uday v. State of Karnataka (Supra), Jayanti Rani Panda v. State
Anr (Supra) and the decision reported in (1990) Cr. L.J. 650
17. The Hon’ble Supreme Court in Uday v. State of Karnataka
(supra) has also enunciated the self-same principle of law. It has been
observed by the apex Court in the aforesaid decision in paragraphs
21, 22 and 23 as follows:
“21. It therefore appears that the consensus of judicial opinion is in
favour of the view that the consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply in love on a promise
that he would marry her on later date, cannot be said to be given under
a misconception of fact. A false promise is not a fact within the
meaning of the Code. We are inclined to agree with this view, but we
must add that there is no straitjacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is voluntary, or
whether it is given under a misconception of fact. In the ultimate
analysis, the tests laid down by the courts provide at best guidance to
the judicial mind while considering a question of consent, but the court
must, in each case, consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because each case has its
own peculiar facts which may have a bearing on the question whether
the consent was voluntary, or was given under a misconception of fact,
it must also weigh the evidence keeping in view the fact that the
burden is on the prosecution to prove each and every ingredient of the
offence, absence of consent being one of them.
22. The approach to the subject of consent as indicated by the Punjab
High Court in Rao Hamarain Singh and by the Kerala High Court in
Vijayan Pillai has found approval by the Court in State of H.P. v. Mango
Ram. Balakrishnan, J. Speaking for the Court observed:
‘ The evidence as a whole indicates that there was resistance by
the prosecurtix and there was no voluntary participation by her
for the sexual act. Submission of the body under the fear of
terror cannot be construed as a consented sexual act. Consent
for the purpose of Section 375 requires voluntary participation
not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act but
after having fully exercised the choise between resistance and
assent. Whether there was consent or not, is to be ascertained
only on a careful study of all relevant circumstances.’
23. Keeping in view the approach that the court must adopt in such
cases, we shall now proceed to consider the evidence on record. In the
instant case, the prosecutruix was grown-up girl studying in a college.
She was deeply in love with appellant. She was, however, aware of the
fact that since they belonged to different castes, marriage was not
possible. In any event the proposal for their marriage was bound to be
seriously opposed by their family members. She admits having told so
to the appellant when he proposed to her the first time. She had
sufficient intelligence to understand the significance and moral quality
of the act she was consenting to. That is why she kept in a secret as
long as she could. Despite this, she did not resist the overtures of the
appellant, and in fact succumbed to them, she thus freely exercised a
choice between resistance and assent, she must have known the
consequences of the act, particularly when she was conscious of the
fact that their marriage may not take place at all on account of caste
considerations. All these circumstances lead us to the conclusion that
she freely, voluntarily and consciously consented to having sexual
intercourse with the appellant, and her consent was not in consequence
of any misconception of fact.”
18. It is therefore, apparent from the totality of the evidence of the
victim that she being a major lady had love affairs with the appellant
and thereafter they used to enjoy sex. The victim became pregnant but
she did not even divulge such fact till the date of her delivery of a
male-child. That goes to show that the learned trial Court erroneously
convicted the appellant for the offence punishable under Section 376
of the Indian Penal Code.
19. In the premises set forth above the order of conviction dated 9th
January 2009 and order of Sentence dated 19th January 2009 passed
by the learned Additional Session Judge, Fast Track 2nd Court, Siliguri
in Sessions Trial No. 9/2005arising out of Sessions Case No. 6(1)
2005 against the appellant are set aside. The appellant Pradip @
Babu Das is found not guilty to the charge under Section 376 of the
Indian Penal Code and he is acquitted from the said charge. The
appellant is thus discharged from his bail bond. The appeal stands
allowed.
20. Let copy of this order be forwarded to the trial Court along with
copy of this judgment for information and necessary action.
21. Parties will be at liberty to get the photostat certified copy of this
order upon completion of all requisite formalities.
(Debi Prosad Dey-J.)