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Sri Jayanta Tripura vs The State Of Tripura on 31 May, 2019

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HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.31 OF 2017

Sri Jayanta Tripura,
S/o Sri Mantiram Tripura,
Of Vill: Sonaichari, Balibari,
P.S. Belonia, Dist:- South Tripura
….. Appellant

Versus

The State of Tripura
…. Respondent

For Appellant (s) : Ms. R. Purukayastha, Adv

For Respondent(s) : Mr. B. Chowdhury , P.P.

Date of hearing : 25.03.2019.

Date of delivery of
Judgment and order : 31.05.2019.

Whether fit for reporting : YES.

HON’BLE MR. JUSTICE ARINDAM LODH

JUDGEMENT AND ORDER

The instant appeal is directed against the judgment and

order of conviction and sentence dated 02.03.2016 passed by

learned Special Judge, South Tripura, Belonia in Case No.

Special 05(POCSO) of 2015 whereby and whereunder, the

appellant has been convicted under Section 376(1) of Indian

Penal Code as well as under Section 4 of Protection of Children

from Sexual Offences Act, 2012(POCSO) to suffer Rigorous
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Imprisonment for a term of seven years and also to pay a fine

of Rs.5,000/-with default stipulation.

2) Based on a complaint of rape, the Officer-in-

charge of Belonia Police Station registered an FIR being

No.2015/BLN/041 dated 15.03.2015 under Section 363 Section376

of Indian Penal Code and under Section 4 of the Protection of

Children from Sexual Offences Act, 2012. Being endorsed, the

investigating officer started the investigation, arrested the

accused, recorded statements of the relevant witnesses under

Section 161 of CrPC, brought the prosecution before the

Magistrate to record her statement under Section 164(5) of

CrP.C. prepared hand-sketch map and index in separate sheets

of paper and also seized some material objects by preparing a

separate seizure list.

3) The gravamen of the prosecution case is that on

14.03.2015 at about 1600 hours, the convict-appellant

hereinafter referred to as the appellant, kidnapped the minor

sister-in-law of the complainant from Paikhola Bhalluk Tilla,

induced her, allured her and also kept her at Ratanpur, Sharat

Chandra para in the house of one Mani Chandra Uchai and

committed rape upon her several times against her will.

4) After completion of the investigation, the

investigating officer submitted charge-sheet against the

appellant.

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5) Accordingly, the case was committed to the Court

of learned Special Judge, Belonia, South Tripura who has

framed the following charges:-

“Firstly, that you on 14.03.2015 at about
4 p.m. at Paikhola, Bhalluk Tilla under Belonia police
station, kidnapped or abducted minor girl (name is
withheld) with the intent that she will be forced to
seduced to illicit intercourse and that you thereby
committed an offence punishable under Section 366 of
the Indian Penal Code and within the cognizance of this
Court of Sessions.

Secondly, that you on 14.03.2015 at any
time at night at Ratanpur, Sharat Chandra Para in the
house of Sri Mani Chandra Uchai under Belonia Police
Station committed rape upon minor girl (name is
withheld) (Aged about 16 years) and you thereby
committed an offence punishable under Section
376(2)(i) of the Indian Penal Code and within the
cognizance of this Court of Sessions.

Thirdly, that you on 14.03.2015 at any
time at night at Ratanpur, Sharat Chandra Para in the
house of Sri Mani Chandra Uchai under Belonia Police
Station committed penetrative sexual assault upon the
victim girl, aged about 16 years and you have thereby
committed an offence punishable under Section 4 of
Protection of Children from Sexual Offences Act, 2012,
and within my cognizance.

And I hereby direct that you be tried on the
said charges”

6) To substantiate the charge, the prosecutrix has

examined as many as 17 witnesses and also brought on record

the relevant documents (Exbt-1 to 17 and seized school

certificate, Exbt M.O.1). After completion of prosecution

evidence, the defence was noticed about the incriminating

materials against him and the appellant was examined under

Section 313 of CrPC to which he denied the allegation levelled

against him and claimed his innocence.

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7) The learned special Judge, after considering the

evidence and materials on record has proceeded to decide the

case on the basis of the following points:-

“i) That the accused kidnapped the minor victim
girl with the purpose of illicit intercourse?

ii) That the accused called the minor victim girl
to go with him and thereafter, accused has taken the
minor victim girl in a house situated at Uchaipara and
committed rape upon her against her will?

iii) Whether the accused on 14.03.2015 in the
house of Manichandra Uchai situated at Sharat Chandra
Para (Uchaipara) committed aggravated sexual assault
upon the victim girl who is a minor.”

8) After hearing the rival arguments, and being

considered the evidence and materials on records, the

learned Special Judge had convicted and sentenced the

accused as aforestated.

9) Aggrieved by, the appellant has preferred this

appeal before this Court.

10) It is now well settled principle that if the

evidence of the prosecutrix inspires confidence, the Court

can convict an accused on the basis of the sole testimony

of the victim girl. Keeping in mind the said principle, I have

proceeded to decide this appeal.

11) In course of investigation, the prosecutrix was

examined under Section 164(5) of CrPC before the

competent Judicial Magistrate, First Class, Belonia, South
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Tripura on 16.03.2015 i.e., within 48 hours of her recovery

from the clutches of the appellant. Though, the statement

under Section 164(5) of CrPC is not substantive piece of

evidence, I have taken note of the said statement only for

the purpose of considering the evidence of the prosecutrix

in course of her examination at the stage of trial. In her

164(5) SectionCrPC statement, the prosecutrix has stated that

about two months back from the date of commission of

offence, she got acquainted with the appellant through

Mobile phone conversation. On 14.03.2015 in the

afternoon, the appellant on promise of marrying took her

away on a motor bike to an unknown place. She was kept

in a house and at night, the appellant Jayanta Tripura

made her to involve in sexual intercourse twice against her

will, and on the following day at noon the mother and

father of the appellant came to that house and said that

Jayanta had already married two women. The prosecutrix

was taken by the parents of the appellant to the residence

when she witnessed one wife of the appellant with child.

Thereafter, she informed the entire incident over phone to

Smt. Champa Rani Tripura, her sister-in-law, as a result of

which her elder brother and sister-in-law went to the

house of the appellant with police and rescued her.

12) The prosecutrix (name suppressed) was

examined as P.W.3. She has stated during her examination

that the appellant was known to her and somehow he
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managed to collect the mobile phone number of her elder

brother and he used to telephone her in that mobile

number. The appellant also introduced himself as an

engineer having rubber garden and other properties. Then,

the appellant allured her and she had fallen in love with

him. On 14.03.2015, the appellant called her through

mobile to go with him to get married. Accordingly, she

came out from her house and the appellant was waiting in

a nearby place. A Bengali boy (P.W.-7) was also called up

by the appellant through mobile who arrived there with a

bike. She could not recognize that boy. Then they went to

Ratanpur by bike. She was taken to a house of P.W.-1 at

Uchai Para where they stayed on that night i.e., on

14.03.2015. The appellant committed rape on several

times against her will during that night. She has further

stated that on the following day in the morning, the owner

(P.W.-1) of that house came but he did not tell any word

to the appellant.

13) In the noon time, the parents of the appellant

came to the house being informed by P.W.-1 and scolded

the appellant telling that why he brought her having his

wife and children, and thereafter, the parents of the

appellant took both the appellant and the prosecutrix to

their house at Bali Para, South Sonaichari. In that house,

she found the wife of the appellant along with two months

old baby. In the afternoon, she rang her sister-in-law,

Smt. Champa Rani Tripura (P.W-2), and at night her
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sister-in-law accompanied by her elder brother and police

came to that house when she was recovered. She was

taken to a Magistrate on 16.03.2015 to give her

statement. She has stated that the police also seized her

school certificate and she was medically examined. The

defence could not demolish the statements of the

prosecutrix. Only in her cross-examination she has stated

that she did not inform anybody of her house about the

growing love affair and also the marriage proposal of the

appellant given to her, which, according to me, will be of

no consequence about the commission of rape upon the

prosecutrix being minor at the time of commission of

offence.

14) P.W.13, Dr. Gopa Pal examined the prosecutrix

medically and in her report, exbt-11 series, she has opined

that the Hymen deflorated, present upto margin. There

was mild inflammation at 8‟ O‟ Clock position at hymen. In

her opinion, there is evidence of sexual intercourse. But

she could not say whether it was recent.

15) Significantly, Madhu Debnath, the person who

brought the motor bike at the request of the appellant was

examined as P.W.7. In course of investigation, the

statement of the said witness was also recorded under

Section 164(5) of CrPC. The said witness has stated in his

evidence that the appellant was working with him as a
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„labourer‟. On 14.03.2015, while he was working at

Shibpur, the appellant called him in the afternoon through

mobile phone and requested him to give him a lift by bike

as he was returning from his father-in-law house. At the

request, he went there and found the appellant with the

prosecutrix and she was introduced by the appellant as his

wife, they went to Ratanpur. His bike was also seized by

the police.

16) P.W. 1, Sri Mani Chandra Uchai is the person in

whose house the appellant stayed on 14.03.2015 at night

with the prosecutrix. He has stated that the appellant was

known to him being the son of his friend. He has stated

that on 14.03.2015 he was engaged at the funeral function

of his elder brother and there was no inmate in his house

on that day. The appellant rang him up and told him that

he need shelter in his house as he did not get vehicle on

the way to his house. Accordingly, the said witness allowed

him to stay in his house. On the following morning, he

returned to his house, and found the appellant with an

unknown girl i.e., the prosecutrix. He has further stated

that he knew the wife of the appellant and so he asked

him about the identity of the girl. Thereafter, the said

witness rang up the parents of the appellant who came to

his house and took them away from his house.
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17) P.W.2, Smt. Champa Rani Tripura, is the wife of

the elder brother of the prosecutrix who lodged the FIR.

She has stated that the prosecutrix was aged about 17

years and on 14.03.2015, she was found missing from

their house and thereafter, they searched her in their

village, but, she was not found. On being informed by

someone, they along with the police personnel and other

rushed to the house of the father of the appellant by hiring

a jeep. After arrival at the house of the appellant, they

found one wife of the appellant having a child. They also

found the prosecutrix. The said witness has stated that on

being asked, the prosecutrix told them that the appellant

used to converse with the prosecutrix over phone

introducing himself as an engineer. She further stated

that, gradually, their relation grew up through mobile and

on 14.03.2015 being allured she was taken to a house at

Ratanpur where the appellant committed rape upon her

sister-in-law. On that date itself, the said witness produced

the school certificate of her sister-in-law i.e., the

prosecutrix to the police at Belonia Police Station which

was seized.

18) P.W.4., Sri Ratan Tripura is the elder brother of

the prosecutrix. In his examination, he corroborated the

statements of P.W.2 and P.W.3.

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19) P.W.5, Sri Dhirenjoy Uchai appears to the

neighbour of Manichandra Uchai (P.W.1). He has stated

that on 15th March, 2015 morning he found the appellant

with the prosecutrix in the house of the P.W.1. He has

stated that both the appellant and the prosecutrix stayed

in that house on the previous night.

20) P.W.6, Smt. Madhu Tripura is one of the most

vital witnesses who appears to be the first wife of the

appellant. She has straightway stated in her examination

that the appellant was her husband and he married her

about eight years back. Due to their wedlock she gave

birth to one male child and one female child but the

appellant married another woman and she was driven out

from his house after assault and at the time of

examination she was residing in her father‟s house along

with her children.

21) P.W.8, P.W.9, P.W.10, P.W.11 and P.W.12 are

the formal seizure witness being police personnel.

22) P.W.16, Sri Ishan Tripura in his examination

has supported that Smt. Madhu Tripura was the first wife

of the appellant.

23) P.W.17, Smt. Rubibala Baidya Sinha is the

investigating officer who has stated that being informed
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through wireless set she reached to the house of the

appellant and found that the appellant was detained by the

local people and one girl, i.e. the victim-prosecutrix was

crying. She received the written ejahar (Exbt-1/2) and

started investigation.

24) A close scrutiny of the evidence as culled out

hereinabove, if juxtaposed, then, it would be evident that

the chain of circumstances starting from taking away the

girl from her house by a bike and staying at the house of

Manichandra Uchoi (P.W.-1) at Ratanpur, and therefrom,

the detention of the appellant and the prosecutrix at the

house of the appellant is found to be complete. In

furtherance thereof, the prosecutrix has categorically

stated that being allured by the promise of marriage, the

appellant being an engineer having other properties she

went away with the appellant, but, later on, she found that

the appellant was a married person which was concealed

to her by the appellant.

25) Ms. R. Purukayastha, learned counsel appearing

for the appellant has vehemently argued before this Court

that it was not a case of rape since the prosecutrix had

fallen in love with the appellant, and out of that love affairs

they involved in sexual intercourse, and it would not be

fair to say that there was no consent of such sexual

intercourse on behalf of the prosecutrix.
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26) In support of her contention, Ms. Purukayastha

has placed reliance upon the decision of the Apex Court in

Uday vs. State of Karnataka reported in (2003) 4 SCC

46.

27) In the present case in hand, we find that first of

all, the accused-appellant misled the girl representing

himself as an engineer having rubber garden and other

properties.

28) The learned counsel appearing for the appellant

has painstakingly argued that out of love affairs, the

prosecutrix had given consent to the accused-appellant to

have physical relationship with her.

29) It leads me to find out the meaning of “consent”

as defined in Section 90 of Indian Penal Code which reads

as under:-

” 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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30) In Deepak Gulati Vs. State of Haryana,

reported in 2013 (7) SCC 675, the Apex Court has

amplified the concept of „consent‟ at para 21:-

“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 where the prosecutrix
agrees to have physical relationship on account of her
love and passion for the accused, and not solely on
account of mis-representation 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.”

31) In the case in hand, appellant was successful to

impress the prosecutrix that he was an engineer having

rubber garden and the prosecutrix, as of natural

consequence, was impressed upon the appellant

considering the fact that the appellant being an engineer

having rubber garden, etc., promised to marry her.

32) After appreciating the evidence on record, it is

evinced that the prosecutrix left her parental house only

being allured by the appellant that he would marry her.
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The appellant in his examination under Section 313 of

CrPC never stated that he had ever divulged the fact of his

earlier two marriages and having children out of those two

wed-locks to the prosecutrix. Accordingly to me, the

appellant being successfully convinced the prosecutrix that

he is an engineer having other properties pacified her to

elope with on the promise that he would marry her and

naturally on strong belief that the appellant was a person

of purity would marry her soon, surrendered her esteem to

the sexual desire of the appellant

33) Now, in the above circumstances, the test is

whether the „consent‟ given by the prosecutrix is „consent‟

on account of her love and passion for the accused or the

„consent‟ was actuated by the fact of promise of marriage

by the appellant being styled himself or, in other words, by

way of misrepresentation/misconception of facts that he

was an engineer having other properties

34) In a recent judicial pronouncement, in the case

of Anurag Soni Vs. State of Chhatisgarh, Criminal

Appeal No.629 of 2019, arising out of SLP(Criminal)

No.618 of 2019, the Apex Court at Para 18 has held

thus:-

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

“90. Consent know to be given under fear
or misconception.- A consent is not such a 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
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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.”

35) In the case in hand, what I find from the

evidence on record is that, at the first stage, the appellant

somehow after collecting the mobile number of her elder

brother had started to allure the prosecutrix and

ultimately, he became successful to convince her that he

was an engineer having other properties would marry her,

and also was able to take her away from the parental

house with the promise of marriage. In course of trial, it is

the clear statement of the prosecutrix (P.W.-3) that “On

14.03.2015 Jayanta called me through mobile to go with

him and he will marry me, accordingly, I came out from

my house………..” She has further stated that the parents

of Jayanta, the accused- appellant scolded him telling that

why he brought the prosecutrix having his wives and

children. Thereafter, the parents brought them to their

house at South Sonaichari. The prosecutrix has specifically

stated in her evidence that “in the house, I found his wife

along with two month old baby”. From the said statement,

it is noon-like clear that he did not divulge at any point of

time in their one year relationship, that, he was a married

man and father of three children out of two wed-locks.

According to me, from the very inception, the acts and

conduct of the accused-appellant proved that he was not
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an honest and fair person. P.W.16, the neighbour of the

appellant has deposed that the name of the first wife of

Jayanta (appellant) is Madhuri Tripura but, she does not

reside with him due to bad character and conduct of

Jayanta.

36) In the Deepak Gulati (Supra), the Apex Court

had an occasion to make reference to the case of Deelip

Singh Vs. State of Bihar, reported in (2005) 1 SCC 888

wherein in para-22 it has been observed as under:-

“19. The factors set out in the first part of Section
90 are from the point of view of the victim. The
second part of Section 90 enacts the corresponding
provision from the point of view of the accused. It
envisages that the accused too has knowledge or
has reason to believe that the consent was given by
the victim in consequence of fear of injury or
misconception of fact. Thus, the second part lays
emphasis on the knowledge or reasonable belief of
the person who obtains the tainted consent. The
requirements of both the parts should be
cumulatively satisfied. In other words, the court has
to see whether the person giving the consent had
given it under fear of injury or misconception of fact
and the court should also be satisfied that the
person doing the act i.e. the alleged offender, is
conscious of the fact or should have reason to think
that but for the fear or misconception, the consent
would not have been given. This is the scheme
of Section 90 which is couched in negative
terminology.”

37) Again, in the case of Deepak Gulati (Supra),

the Apex Court referring the case of Pradeep Kumar Vs.

State of Bihar, reported in (2007) 7 SCC 413 had made

the following proposition:-

“23. This Court, while deciding Pradeep Kumar,
placed reliance upon the judgment of the Madras
High Court in N. Jaladu, In Re, wherein it has been
observed(Pradeep Kumar case, SCC pp. 418-19. Para

11)
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“11. “26. …..”….. We are of opinion that the
expression “under a misconception of fact” is broad
enough to include all cases where the consent is
obtained by misrepresentation; the misrepresentation
should be regarded as leading to a misconception of
the facts with reference to which the consent is
given. In Section 3 of the Evidence Act Illustration

(d) states that a person has a certain intention is
treated as a fact. So, here the fact about which the
second and third prosecution witnesses were made to
entertain a misconception was the fact that the
second accused intended to get the girl married……..
“thus … if the consent of the person from whose
possession the girl is taken is obtained by fraud, the
taking is deemed to be against the will of such a
person”. … Although in cases of contracts a consent
obtained by coercion or fraud is only voidable by the
party affected by it, the effect of Section 90 IPC is
that such consent cannot, under the criminal law, be
availed of to justify what would otherwise be an
offence.”

38) At para 24 of the case of Deepak Gulati

(Supra), the Apex Court has held:

“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.”

39) At para-25 in the case of Deepak Gulati

(Supra) the Apex Court has further held that:-
Page 18 of 27

“25. The instant case is factually very similar to the
case of Uday, wherein the following facts were found
to exist:

25.1. The prosecutrix was 19 years of age and had
adequate intelligence and maturity to understand the
significance and morality associated with the act she
was consenting to.

25.2. She was conscious of the fact that her marriage
may not take place owing to various considerations,
including the caste factor.

25.3. It was difficult to impute to the accused,
knowledge of the fact that the prosecutrix had
consented as a consequence of a misconception of
fact, that had arisen from his promise to marry her.

25.4. There was no evidence to prove conclusively,
that the appellant had never intended to marry the
prosecutrix.”

40) Keeping in mind, the aforesaid analogy, if we

analyse the evidence of the present case, then, the

following points are found to exist:-

40.1) Prosecutrix indisputably was aged about 17

years i.e. below the consenting age of 18 years [in view of

the SectionCriminal Law (Amendment) Act, 2013]

The defence could not raise any objection to the

contents of the birth certificate (Exbt-3) which was

produced by the sister-in-law (P.W.-2, wife of elder

brother). So under this Act, even the consent of the

prosecutrix would not be of any help to the appellant.

40.2) Evidence of the prosecutrix clearly reveals that

for the first time, she came to know that the accused-

appellant had wives and children when she was taken to

the house of the appellant by his parents.
Page 19 of 27

The accused-appellant made promise to the

prosecutrix to marry her and called the prosecutrix to

come out of her parental house. The appellant styled

himself as an engineer having rubber garden. On the basis

of this representation of fact, she came out of her house

with the honest hope and trust that the accused-appellant

would marry her, and on that night, on the basis of the

promise of marriage, surrendered her chastity to satisfy

his lust.

40.3) From the very beginning, the accused-appellant

knowingfully well having his wives and children, it was not

possible for him to marry the girl, he promised that he

would marry the prosecutrix and obtained the consent of

physical relationship from the prosecutrix.

40.4) Accused-appellant has failed to show or suggest

that there was any reasonable cause which made him

impossible to marry the prosecutrix.

41) In view of the aforesaid circumstances, I am of

the view that the prosecutrix had left her house on the

misconception of fact that the accused-appellant was an

engineer having landed property/building/rubber garden

and was further impressed that the accused-appellant

would marry her.

42) From The evidence of P.W.7, Madhu Debnath, it

is evident that the accused-appellant worked with him as a

labourer.

Page 20 of 27

43) In other words, the accused-appellant being

styled as an engineer having landed property had

influenced the prosecutrix and with the further promise of

marriage she got involved in physical relationship for that

night with the accused-appellant. In reality, from the

evidence, it is clear that the accused-appellant is mere a

labour who worked with the said witness.

44) Since the accused-appellant never disclosed

about his earlier marriages, and otherwise also, there was

no evidence on record that the prosecutrix had any such

occasion to get any information about the past life of the

accused-appellant, according to me, it cannot be said or

rather should not be said that the present case is a case

where the prosecutrix knowingfully well that it might not

be possible for the accused-appellant to marry her, had

love affairs culminating to indulgence of sexual

intercourse. So, as stated here, clearly, proves that the

„consent‟ given by the prosecutrix was not a „consent‟ of

her love and passion, but surrendered to

misrepresentation of facts and false promise of marriage

and thus fulfills the first part of Section 90 of IPC and

comes within the meaning and term “misconception of

facts”.

45) Secondly, from the evidence available on

record, it is very clear that from the very inception, the

accused appellant seemed to be a fraud. To induce the

prosecutrix who was minor, by posing that he was an
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engineer having other landed property and knowingfully

well his marriages with two different women and having

children too, had made false promise of marriage to the

prosecutrix. So, with this kind of act and conduct of the

accused-appellant, I can conclusively reach to a decision

that at the very threshold, the intention of the accused-

appellant was malafide and that he had clandestine

motive.

46) In my opinion, if the accused-appellant had

really an intention to marry the prosecutrix, then, he

would have disclosed the fact of his earlier marriages

having children to the prosecutrix and could discuss with

the prosecutrix freely and frankly how to give an

materialistic and meaningful end to their relationship

before being indulged to physical relationship.

47) Thus, it can safely be said that the accused had

full knowledge and belief that it was not possible for him to

marry the girl, but obtained consent of being indulged in

physical relationship, the „consent‟ was nothing but tainted

one and should not be termed to be a voluntary

participation in the sexual intercourse by the prosecutrix.

48) If the prosecutrix had any knowledge of the fact

that he was a married person having his wives and

children and not at all an engineer, she would not have

developed the love affairs and question of given consent of

physical relationship would not have come. Thus, the

second part as set out in Section 90 of IPC also is fulfilled
Page 22 of 27

which envisages that the accused-appellant had knowledge

and had reason to believe that the consent was given by

victim in consequence of the “misrepresentation of facts”

and the prosecutrix had surrendered to his lust of

“misconception of facts”

49) In my firm view, the requirement of both the

parts has been cumulatively satisfied, thus, fulfill the entire

scheme of Section 90 of IPC. In that view of matter, I may

arrive at the conclusion that the sexual intercourse

between the accused-appellant and the prosecutrix was

occasioned without the “consent of the prosecutrix” which

comes within the purview of definition of Section 375 of

IPC.

50) In Anurag Soni (supra), the Apex Court had

an occasion to make reference to the case of SectionYedla

Srinivasa Rao V. State of A.P. reported in (2006) 11

SCC 615, wherein in para-10 it has been observed as

under:-:-

“10. It appears that the intention of the accused as
per the testimony of PW 1 was, right from the
beginning, not honest and he kept on promising that
he will marry her, till she became pregnant. This kind
of consent obtained by the accused cannot be said to
be any consent because she was under a
misconception of fact that the accused intends to
marry her, therefore, she had submitted to sexual
intercourse with him. This fact is also admitted by the
accused that he had committed sexual intercourse
which is apparent from the testimony of PWs 1, 2 and
3 and before the panchayat of elders of the village. It
is more than clear that the accused made a false
promise that he would marry her. Therefore, the
intention of the accused right from the beginning was
not bona fide and the poor girl submitted to the lust
of the accused, completely being misled by the
Page 23 of 27

accused who held out the promise for marriage. This
kind of consent taken by the accused with clear
intention not to fulfil the promise and persuading the
girl to believe that he is going to marry her and
obtained her consent for the sexual intercourse under
total misconception, cannot be treated to be a
consent…..”

51) The learned trial court has convicted the

accused-appellant under Section 376(1) of IPC as well as

under Section 4 of The Protection of Children from Sexual

Offences Act, 2012.

52) At this juncture, I may revisit the provision of

Section 375 of IPC that defines „rape‟ and Section 4 of the

POCSO Act which are as follows:-

“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 women or makes her to do so
with him or any other person; or

c) manipulates any part of the body of a women so
as to cause penetration into the vagina, urethra,
anus or any part of body of such women 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 description:-

Firstly.- 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 of hurt.
Fourtly.- 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 through another of any stupefying or
unwholesome substance, she is unable to understand
Page 24 of 27

the nature and consequence of that to which she
gives consent.”

“4. Punishment for penetrative sexual assault.-
Whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a
term which shall not be less than seven years but which
may extend to imprisonment for life, and shall also be
liable to fine.

53) Thus, from the very definition, a man is said to

commit ‘rape‟ if it is without the consent of any women.

Further, the „consent‟ is of no consequence if the woman is

under 18 years of age.

54) In the instant case, the prosecutrix, (P.W.3) in

her evidence has categorically stated that “………. and

Jayanta committed rape on several times against my will

in that house.”

55) In view of such categorical statement and

evidence, I may take note to the amendment of Section

114A of the Evidence Act being carried out by Act 13 of

2013 w.e.f. 03.02.2013. Section 114A of the said Act was

substituted, and the presumption has been drawn as to the

absence of consent in certain cases of “rape”.

Section 114A reads as under:-

“114A. Presumption as to absence of consent in
certain prosecutions for rape.–In a prosecution for
rape under clause (a), clause(b), clause(c), clause(d),
clause(e), clause(f), clause(g), clause(h), clause(i),
clause(j), clause(k), clause(I), clause(M) or clause(n) of
sub-section (2) of Sectionsection 376 of the Indian Penal Code
(45 of 1860), where sexual intercourse by the accused
is proved and the question is whether it was without
the consent of the woman alleged to have been raped
and such woman states in her evidence before the
court that she did not consent, the court shall presume
that she did not consent.

Page 25 of 27

Explanation.- In this Section, “sexual intercourse” shall
mean any of the acts mentioned in clause(a) to (d) of
Sectionsection 375 of the Indian Penal Code (45 of 1860)”

56) In the case in hand, the statement of the

prosecutrix to the effect “Jayanta committee rape on

several time against my will in that house” clearly reveals

that initially, she was not consenting party at all and she

did not voluntarily participate in the sexual intercourse

with the accused-appellant.

57) Again in Anurag Soni (supra), the Apex Court

making reference to the case of Yedla Srinivasa

Rao(supra) in para-16 has observed thus:-

“16. If sexual intercourse has been committed by the
accused and if it is proved that it was without the
consent of the prosecutrix and she states in her
evidence before the court that she did not consent,
the court shall presume that she did not consent.
Presumption has been introduced by the legislature in
the SectionEvidence Act looking to atrocities committed
against women ……….”

58) In the instant case, P.W.3 (Prosecutrix) has

clearly stated that she was raped by the appellant against

her will, that means without her consent. By way of

substituting provision of Section 114A of Evidence Act (by

amending the Act of 13 of 2013), the legislature intended

to drawn presumption as to the absence of consent in

certain cases of „rape‟ taking into consideration the

stepping up of on-going atrocities committed against the

women.

Page 26 of 27

59) After above discussions on law and facts being

scanned in entirety, then it will be evident without any

shadow of doubt that the consent given by the prosecutrix

is of „misconception of facts‟. The prosecutrix would not

have left out from her house and indulged in physical

relationship though it was against „her will‟ without „her

consent‟, if she was not misled or influenced by the

representation of fact that the accused-appellant was an

engineer having landed properties.

60) The Apex Court in Anurag Soni (Supra) has

observed that:-

” 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………”

61) In the instant case, more frightening is that of

late, sexual offences against children have increased

alarmingly, which, in my opinion, in one way demolishes

and dislodges the basic social frame work of the country

and the Courts should keep this in mind and decide this

cases in nature of such kind of heinous crime with great

care and caution and in strict compliance of the principles

laid down in various judicial pronouncement by various

High Courts and Apex Court as well.

62) After considering and appreciating the evidence

and materials on record, the learned Trial Judge has
Page 27 of 27

convicted the accused-appellant under Section 376 of IPC

and as well as Section 4 of POCSO Act, since the victim is

below the age of 18 years, to suffer R.I for Seven years

with default stipulation.

I find no infirmity in the findings returned by

the learned Special Judge. The judgment and order of

conviction dated 02.03.2016 is hereby affirmed and upheld

and consequently, the instant appeal fails and thus

dismissed.

JUDGE

Suhanjit

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