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HIGH COURT OF TRIPURA
AGARTALA

CRL.A.(J) NO.1 OF 2016

Pranay Nath
son of Shri Bijoy Nath
of Jolaibassa, Kadamtala,
P.S. Kadamtala,
District: North Tripura
—-Appellant
Versus
The State of Tripura
represented by the Secretary to the
Government of Tripura,
Home Department, Agartala.
—-Respondent

For the appellant : Mr. Raju Datta, Advocate
For the respondent : Mr. A. Roy Barman, Addl. P.P.

Date of hearing : 03.05.2019.
Date of delivery of
Judgment Order : 31/05/2019.
Whether fit for reporting : YES

HON’BLE MR. JUSTICE S. TALAPATRA
HON’BLE MR. JUSTICE ARINDAM LODH

JUDGMENT ORDER

(Lodh, J.)

Heard Mr. Raju Datta, learned counsel appearing for

the appellant as well as Mr. A. Roy Barman, learned Addl. P.P.

appearing for the State-respondent.

2. The instant appeal is directed against the judgment and

order dated 08.12.2015, passed by the learned Special Judge,

North Tripura, Dharmanagar, in case No. Special (POCSO)

0000001/2014, convicting and sentencing the appellant under

Section 376(2)(i) of IPC to suffer rigorous imprisonment for
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10(ten) years and to pay a fine of Rs.5,000/-, i.d. to suffer

rigorous imprisonment for 6(six) months and also sentencing him

to suffer rigorous imprisonment for 6(six) months for having

committed offence punishable under Section 417 of IPC with a

direction that both the sentences shall run concurrently.

3. The prosecution case, sans details, may be taken up for

discussion here-in-below:

4. The brother of the victim, Dilip Nath(PW5) had lodged a

complaint with the Officer In-charge, Kadamtala Police Station on

05.03.2014 stating, inter alia, that in absence of the house

inmates at home, his neighbour accused-appellant, Pranay Nath

used to commit sexual intercourse upon his minor sister(PW8,

name suppressed) over a period of time. On 18.02.2014, he was

caught red-handed by the house inmates when he was committing

such acts upon his sister at about 8 o‟clock in the night. The FIR

was delayed because the informant wanted their panchayet to

settle the matter. There being no settlement, he reported the

matter to the police.

5. The said complaint was registered as Kadamtala P.S.

Case No.14/2014 under Sections 417 and Section376(2)(i) of IPC and

endorsed the case to the investigating officer. The investigation

was commenced immediately visiting the place of occurrence by

the investigating officer, who examined the material witnesses and

also recorded their statements under Section 161 of CrPC. The

investigating officer arranged medical examination of the
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victim(PW8). He also produced her before the Judicial Magistrate

First Class for recording her statement under Section 164(5) of

CrPC. The wearing apparels and the birth certificate of the victim

were seized which revealed that the victim(PW8) was minor being

her date of birth was 28.09.1998. After completion of

investigation, the investigating officer submitted charge-sheet

against the accused-appellant Pranay Nath under Section 4 of the

Protection of Children from Sexual Offences Act, 2012(in short,

POCSO Act, 2012) and under Sections 376(2)(i) and Section417 of IPC.

6. The cognizance being taken, the learned Special Judge

framed the following charges:-

“Firstly, that you on or about the 18th day of
February, 2014 at about 8 pm and on several other dates
preceding to 18th February, 2014 had penetrated your
genital organ into the vagina of Smt. ….(name withheld),
a minor aged about 15 years 5 months, daughter of Sri
Manoranjan Nath at her house at Jolaibassa under
Kadamtala PS and thereby committed the offence of
penetrative sexual assault upon said Smt……(name
withheld) punishable under Sectionsection 4 of the Protection of
Children from Sexual Offences Act, 2012 and within the
cognizance of this court.

Secondly, that you on or about the dates, time
and place as mentioned in the preceding charge you
committed rape upon Smt…..(name withheld) and
thereby committed an offence punishable under Sectionsection
376(2)(i) of the Indian Penal Code and within the
cognizance of this court.

Thirdly, that you on the dates, time and place as
mentioned in the preceding charge cheated Smt…..(name
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withheld) by dishonestly inducing her to have sexual
intercourse with you on false assurance of marriage which
she would not do if she was not so induced and such act
of you caused damage and harm to her body, mind and
reputation and you thereby committed an offence
punishable under Sectionsection 417 of the Indian Penal Code
and within the cognizance of this court.

And I hereby direct that you be tried by this court
on the said charges.”

7. The appellant pleaded not guilty to the charges and

claimed to stand the trial.

8. In order to prove the charges framed against the

appellant, the prosecution had examined as many as 11(eleven)

witnesses including the victim and her brother, the medical officer

and the investigating officer. After completion of prosecution

evidence, the accused-appellant Pranay Nath was put to

examination under Section 313 of CrPC, where he pleaded his

innocence, but declined to adduce any evidence on his defence.

9. After hearing the arguments of both the sides, the

learned Special Judge convicted the accused-appellant and

declared sentence as afore-stated.

10. Aggrieved by, the appellant has preferred this appeal.

11. Let us examine first what prompted the learned Special

Judge to convict the appellant. In his findings, the learned Special

Judge had appreciated the evidence of Smt. Namita Nath(PW9)

who was the eyewitness to the commission of rape upon the

victim(PW8). We also have taken note of her evidence in course of
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trial. She has stated that on the fateful day there was some

ceremony in their house and she was cooking food for the

invitees. To bring some material she went to the room of

Dilip(PW5) and when the door being pushed she saw that accused

Pranay and her niece i.e. the victim(PW8) were having sexual

intercourse. Horrified by the scene, she called the victim‟s mother.

Being asked, the victim told her that she allowed the accused-

appellant to have sexual relationship with her because the accused

assured to marry her. There is no material cross-examination.

12. The said statement of PW9 has taken us to consider the

evidence of the victim(PW8). She has stated that both the victim

and the appellant were known to each other and they had love

affairs for the last one year. She has categorically stated that the

appellant assured her that he would marry her and, on his

assurance she allowed the appellant to have sexual relationship

with her. On such assurance, he committed sexual intercourse

upon her for 9/10 times. Lastly, on 18.02.2014, the appellant

came to their house being an invitee of a sraddha ceremony in her

house. All the family members were busy on that time. The

accused-appellant took the opportunity and committed sexual

intercourse upon her in the southern viti hut of their house. She

also had supported the version of PW9, Namita Nath that

she(PW9) suddenly entered into the room and saw them having

sexual intercourse. Then, the appellant fled away. But, their

relationship was exposed. She told her parents and relatives that

they were having physical relationship for the last one year
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preceding to 18.02.2014. Evidently, there was a village meeting

which was held to settle their marriage. But according to her

statement, in course of trial, the accused and his family members

did not attend the said village meeting. Under compelling

circumstances, her brother(PW5) lodged the complaint to the

police.

13. In her cross-examination, her attention was drawn to

the police statement and it was found that in her 161 statement

she told to police that “After our relationship was exposed my

parents made contact with accused Pranay Nath through our

relatives for a settlement. But Pranay denied his involvement and

refused to marry me. Being helpless my brother lodged the case.”

The prosecutrix being denied to have made such statement to

police, her statement is marked as Exbt.A(subject to confirmation

by the I.O.). In her further cross-examination, she stated to

Magistrate that Pranay tried to commit sexual intercourse in a

vacant room in their house and she clarified that by saying so she

meant to say that before Pranay completed sexual intercourse,

her aunt came and noticed it. She denied the suggestion that

Pranay did not assure to marry her.

14. Mr. Raju Datta, learned counsel appearing for the

appellant has painstakingly submitted that it was a consensual

sex, out of love affairs between the appellant and the prosecutrix.

Learned counsel has candidly submitted that it is a case of

acquittal and the accused-appellant should be acquitted from the

charges leveled against him.

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15. Per contra, Mr. A. Roy Barman, learned Addl. P.P. has

submitted that the case is well proved, beyond any shadow of

doubt and the statements of the prosecutrix(PW8) as well as PW9

are quite consistent, corroborating and trustworthy and on the

basis of such evidence the accused can safely be convicted for the

charges. The learned Addl. P.P. has defended the findings of the

learned trial Judge.

16. It is now well settled that, the sole testimony of a

victim of rape can form the basis of conviction. The submission of

learned counsel for the appellant leads us to take note of the

meaning of the expression „consent’.

17. Section 90 of IPC defines the expression „consent’,

which is reproduced here-in-below, for convenience:-

“90. Consent known to be given under fear or
misconception.–A consent is not such a consent as it
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or

Consent of insane person.–if the consent is given by a
person who, from unsoundness of mind, or intoxication, is
unable to understand the nature and consequence of that
to which he gives his consent; or

Consent of child.–unless the contrary appears from the
context, if the consent is given by a person who is under
twelve years of age.”

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18. Section 375 of IPC reads as under:

375. Rape.–A man is said to commit “rape” if he–

(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do
so with him or any other person; or

(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; or

(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with
him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person,

under the circumstances falling under any of the
following seven descriptions:-

First.–Against her will.

Secondly.–Without her consent.

Thirdly.–With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.

Fourthly.–With her consent, when the man knows that
he is not her husband and that her consent is given
because she believes that he is another man to whom she
is or believes herself to be lawfully married.

Fifthly.–With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
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through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.

Sixthly.–With or without her consent, when she is under
eighteen years of age.

Seventhly.–When she is unable to communicate consent.

Explanations 1.–For the purposes of this section,
“vagina” shall also include labia majora.

Explanation 2.–Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any
form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act;

Provided that a woman who does not physically
resist to the act of penetration shall not by the reason
only of that fact, be regarded as consenting to the sexual
activity.

Exception 1.–A medical procedure or intervention shall
not constitute rape.

Exception 2.–Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years
of age, is not rape.”

19. In our opinion, Section 90 of IPC has a direct bearing

upon the definition of „rape’ when both are put to correlate each

other. In the case at hand, it is clear that there was a love affair

between the prosecutrix and the appellant. The appellant assured

the prosecutrix to marry her and the prosecutrix on that

assurance surrendered her to fulfill the sexual desire of the
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appellant. So, the appellant represented himself to the prosecutrix

as a person, who would marry her.

20. According to us, it is on this backdrop, the present case

is to be tested on the basis of the facts and circumstances and

also considering the evidence on record whether the accused-

appellant is guilty of committing the offence of rape under Section

376 of IPC, as held by the learned Special Judge.

21. As we already have held that, in the context of the

present case Section 90 of IPC has a direct bearing upon the

definition of Section 375 of IPC, which also has to be related. At

this juncture, it would be apposite to take note of some of the

judicial pronouncements on Section 90 and Section 375 of IPC and

further on the aspect of consent consensual sex to arrive at a

reasonable decision in the context of the present case.

22. In the case of SectionState of Uttar Pradesh vs. Naushad,

(2013) 16 SCC 651, the Apex Court while considering the

various features for commission of offence under Section 376 of

IPC has held as under: [SCC pp 657, 658 paras 17, 18 19]

“17. Section 376 IPC prescribes the punishment for
the offence of rape. Section 375 IPC defines the offence
of rape, and enumerates six descriptions of the offence.
The description “secondly” speaks of rape “without her
consent”. Thus, sexual intercourse by a man with a
woman without her consent will constitute the offence of
rape. We have to examine as to whether in the present
case, the accused is guilty of the act of sexual intercourse
with the prosecutrix “against her consent”. The
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prosecutrix in this case has deposed on record that the
accused promised marriage with her and had sexual
intercourse with her on this pretext and when she got
pregnant, his family refused to marry him with her on the
ground that she is of “bad character”.

18. How is “consent” defined? Section 90 IPC defines
consent known to be given under “fear or misconception”
which reads as under:

“90. Consent known to be given under fear or
misconception.–A consent is not such consent as is
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent
was given in consequence of such fear or
misconception.” (emphasis supplied)

Thus, if consent is given by the prosecutrix under a
misconception of fact, it is vitiated.

19. In the present case, the accused had sexual
intercourse with the prosecutrix by giving false assurance
to the prosecutrix that he would marry her. After she got
pregnant, he refused to do so. From this, it is evident that
he never intended to marry her and procured her consent
only for the reason of having sexual relations with her,
which act of the accused falls squarely under the
definition of rape as he had sexual intercourse with her
consent which was consent obtained under a
misconception of fact as defined under Section 90 IPC.
Thus, the alleged consent said to have obtained by the
accused was not voluntary consent and this Court is of
the view that the accused indulged in sexual intercourse
with the prosecutrix by misconstruing to her his true
intentions. It is apparent from the evidence that the
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accused only wanted to indulge in sexual intercourse with
her and was under no intention of actually marrying the
prosecutrix. He made a false promise to her and he never
aimed to marry her.”

23. In a recent case of SectionAnurag Soni vs. State of

Chhattisgarh being Criminal Appeal No.629 of 2019 arising

out of SLP(Criminal) No.618/2019 decided on 09.04.2019, we

find reference of paragraphs 21 and 24 of the case of SectionDeepak

Gulati vs. State of Haryana, (2013) 7 SCC 675. At para 10.2,

we find a reference which reads as under:-

“10.2 In the case of SectionDeepak Gulati v. State of
Haryana (2013) 7 SCC 675, this Court observed and held
in paragraphs 21 and 24 as under:

“21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear
distinction between rape and consensual sex and in a
case like this, the court must very carefully examine
whether the accused had actually wanted to marry
the victim, or had mala fide motives, and had made a
false promise to this effect only to satisfy his lust, as
the latter falls within the ambit of cheating or
deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether
there was made, at an early stage a false promise of
marriage by the accused; and whether the consent
involved was given after wholly understanding the
nature and consequences of sexual indulgence. There
may be a case whether the prosecutrix agrees to
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have sexual intercourse on account of her love and
passion for the accused, and not solely on account of
misrepresentation made to her by the accused, or
where an accused on account of circumstances which
he could not have foreseen, or which were beyond his
control, was unable to marry her, despite having
every intention to do so. Such cases must be treated
differently. An accused can be convicted for rape only
if the court reaches a conclusion that the intention of
the accused was mala fide, and that he had
clandestine motives.

24. Hence, it is evident that there must be
adequate evidence to show that at the relevant time
i.e. at the initial stage itself, the accused had no
intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure to
keep a promise made with respect to a future
uncertain date, due to reasons that are not very clear
from the evidence available, does not always amount
to misconception of fact. In order to come within the
meaning of the term “misconception of fact”, the fact
must have an immediate relevance”. Section 90 IPC
cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten
criminal liability on the other, unless the court is
assured of the fact that from the very beginning, the
accused had never really intended to marry her.”

24. In para 15 of the case of Anurag Soni(supra) the Apex

Court had observed and held as under:

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“15. Now, so far as the submission on behalf of
the accused-appellant that the accused had marriage
with Priyanka Soni on 10.06.2013 and even the
prosecutrix has also married and, therefore, the
accused may not be convicted is concerned, the same
cannot be accepted. The prosecution has been
successful by leading cogent evidence that from the
very inception the accused had no intention to marry
the victim and that he had mala fide motives and had
made false promise only to satisfy the lust. But for
the false promise by the accused to marry the
prosecutrix, the prosecutrix would not have given the
consent to have the physical relationship. It was a
clear case of cheating and deception.

As observed hereinabove, the consent given by
the prosecutrix was on misconception of fact. Such
incidents are on increase now-a-days. Such offences
are against the society. Rape is the most morally and
physically reprehensible crime in a society, an assault
on the body, mind and privacy of the victim. As
observed by this Court in a catena of decisions, while
a murderer destroys the physical frame of the victim,
a rapist degrades and defiles the soul of a helpless
female. Rape reduces a woman to an animal, as it
shakes the very core of her life. By no means can a
rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim. Rape is a
crime against the entire society and violates the
human rights of the victim. Being the most hated
crime, the rape tentamounts to a serious blow to the
supreme honour of a woman, and offends both her
esteem and dignity. Therefore, merely because the
accused had married with another lady and/or even
the prosecutrix has subsequently married, is no
ground not to convict the appellant-accused for the
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offence punishable under Section 376 of the IPC. The
appellant-accused must face the consequences of the
crime committed by him.”

25. In the present case, what we have seen till now are

that:

(i) The prosecutrix and the accused-appellant were known

to each other, being neighbour.

(ii) Relationship between the two was ripened and both

were involved in love affairs.

(iii) A clear assurance of marriage was given by the

accused-appellant to the prosecutrix.

(iv) One day in a ceremony, the aunt of the prosecutrix had

witnessed their sexual intercourse all on a sudden and that

had exposed the extent of their relationship.

(v) At that moment itself, the prosecutrix divulged that she

made herself involved in sexual intercourse only after the

assurance of marriage by the accused-appellant.

(vi) A village meeting was arranged to settle the matter

with the purpose of marriage of the prosecutrix with the

appellant but, despite repeated attempts, neither the

appellant nor the parents of the accused-appellant were

turned up in the said meeting, rather, they refused to

participate in the process of settlement.

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26. Keeping in mind the law, as enunciated in the

authorities discussed supra, we are of the opinion that, non-

participation or non-attending in the process of settlement makes

the prosecution story believable that the accused-appellant had

committed rape upon the prosecutrix. In our considered view, the

accused-appellant allured the victim-prosecutrix that, he would

marry her and the said assurance was made only to satisfy his

lust. The prosecutrix, being minor, as evinced from the evidence

that she is below the consenting age of eighteen years[in view of

the Criminal LawSection(Amendment) Act, 2013 w.e.f. 03.02.2013] had

surrendered her precious esteem and dignity to the sexual desire

of the accused-appellant, as he represented himself as a person,

who would marry her. The conduct of the appellant to keep

himself away from participating in the settlement process makes it

clear that he was not having any willingness or intention to marry

the prosecutrix at any point of time. But the accused-appellant by

way of misrepresentation of the fact that he would marry the

prosecutrix, ensured to grow the relationship between him and the

prosecutrix and, ultimately, obtained consent to involve in sexual

intercourse and the girl also surrendered herself on that

misconception of fact.

27. It cannot be said, in the facts and circumstances of the

present case that, the prosecutrix made herself involved in sexual

intercourse voluntarily, as we have already stated that the

prosecutrix had given her consent on the basis of misconception of

fact and, therefore considering Section 90 of IPC, such a consent
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cannot be said to be a consent and, therefore, the accused-

appellant had committed the rape as defined under Section 375 of

IPC and thereby has committed an offence punishable under

Section 376 of IPC.

28. We have taken note of the evidence of PW3, Dr. Ashis

Das Kanango of Kadamtala PHC who examined the victim on

06.03.2014, i.e. about after 16(sixteen) days of the occurrence.

He deposed that the prosecutrix used to be involved in repeated

sexual intercourse. His report has been marked as Exbt.3.

29. From the evidence of Dr. Mriganka Datta Biswas, PW4

it is found that the accused-appellant is capable of performing

sexual intercourse.

30. The prosecution has also led evidence to prove the age

of the victim. Her birth certificate issued by the Registrar of Births

Deaths has been admitted into evidence and the photocopy

after comparing with the original has been marked as Exbt.2.

31. PW1 Gouranga Nath, elder brother of the victim

produced the original birth certificate in court during trial which

was seized in his presence during investigation. According to that

certificate, the date of birth of the victim is 28.09.1998. The

accused allegedly committed sexual intercourse with her lastly on

18.02.2014. The prosecutrix was aged about 15(fifteen) years at

the time of commission of the offence, i.e. the last date of sexual

intercourse.

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32. The prosecution also had produced PW7 Prsanta Kumar

Chowdhury, who was the Headmaster of Jolaibasa S.B. School,

where the victim read upto Class VIII. The PW7 testified during

trial and proved the school certificate of the victim which was

issued by him on 29.03.2014 in consultation with the admission

register of the school and the school certificate was issued on the

basis of the date of birth of the prosecutrix as 28.09.1998.

33. The neighbours of the accused were also aware of the

physical relationship of the victim and the accused. PW2 Subodh

Ranjan Nath who was present in a village baithak, which was

gathered after the occurrence. In his cross-examination, he has

stated that the accused denied his involvement in the alleged

offence.

34. PW5 Dilip Nath, being the brother of the prosecutrix

had deposed that the relationship of the prosecutrix and the

accused-appellant was first subjected and exposed by Namita

Nath(PW9), aunt of the victim. He has further stated that keeping

in mind the future of his sister, the prosecutrix herein, a marriage

proposal was given to the accused, who refused to marry the

victim and, thereafter he filed the FIR, Exbt.5 which was scribed

by PW6, Niranjan Nath.

35. PW10 Pradip Kumar Laskar, Officer In-charge of

Kadamtala Police Station received the FIR and registered

Kadamtala P.S. Case No.14/2014 and endorsed the case to PW11,

Asis Kr. Das, who confirmed that he recorded the statements of

the material witnesses and arranged medical examination of the
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prosecutrix as well as the appellant. He also arranged the

recording the statement of the prosecutrix under Section 164(5)

of CrPC in course of investigation and finally submitted the

charge-sheet.

36. The accused-appellant in his examination under Section

313 of CrPC has denied his involvement and claimed that false

charges have been foisted against him.

37. In view of the evidence discussed here-in-above, such

plea of the accused does not stand to reason. It is quite

improbable that the elder brother of the prosecutrix and her close

relatives would have exposed her to such scandal and put her

future at stake by bringing false allegations of rape against the

accused.

38. We have perused the findings of the learned Special

Judge about the examination of the accused under Section 313 of

CrPC. The learned trial Judge has observed that “There is no

evidence that the victim or his informant brother or his aunt

Namita Debnath had any animosity towards the accused.

Therefore there is no reason of false implication of the accused”.

After perusal of the examination of the accused under Section 313

of CrPC, we find that the accused-appellant has only stated that

he was innocent and he has been falsely implicated with the case

for no vile of him. The accused-appellant has denied to adduce

any evidence to prove his innocence.

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39. In our considered view, had the accused-appellant

appeared before the village meeting and participated the process

of settlement, then, the case would have been looked upon

otherwise, but, in the context of the present case, it is aptly

proved that the accused-appellant obtained the consent of the

prosecutrix by way of misrepresentation of fact that he would

marry her and, thereby, the argued case of the appellant that it

was consensual sex, is repelled in view of Section 90 of IPC.

Accordingly, in our judicial conscious, we find no infirmity in the

finding returned by the learned Special Judge while declaring the

conviction and sentence against the accused-appellant and it does

not call for any interference by this Court.

40. Consequently, the instant criminal appeal fails, and

thus, dismissed.

Send down the LCRs.

(A. LODH, J) (S. TALAPATRA, J)