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Pradip @ Babu Das vs The State Of West Bengal on 3 January, 2018

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.)

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