Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Asha Arora
C.R.A. 909 OF 2013
– Versus –
The State of West Bengal.
For Appellant : Mr. Dipanjan Chatterjee, learned
advocate appears as Amicus Curiae
For the State : Ms. Sonali Das, learned advocate
Heard on : 16.07.2019 19.07.2019
Judgement on : 19.07.2019
Asha Arora, J.:
This appeal has been preferred against the judgement and order of conviction and
sentence dated 23rd September, 2013 and 24th September, 2013 passed by the Additional
Sessions Judge, Fast Track Court – 1, Purulia in Sessions Trial No. 01 of 2012 arising out of
Sessions case No. 279 of 2011 whereby the appellant was convicted for the offences
punishable under Sections 376/Section417 I.P.C. and sentenced to suffer rigorous imprisonment
for seven years and to pay fine of Rs. 10,000/- in default to suffer rigorous imprisonment for
one year for the offence punishable under Section 376 I.P.C. The appellant was further
sentenced to suffer rigorous imprisonment for one year for the offence punishable under
Section 417 I.P.C. Both the substantive sentences were ordered to run concurrently.
2. The facts leading to the present appeal may be summarised as follows :
On 26th January, 1994 the defacto complainant/victim lodged a written complaint
at Purulia P.S. alleging that on 3rd Ashar, 1400 B.S. the accused Uttam Mahato came to her
house during the absence of her parents and raped her. When she protested and resisted, he
promised to marry her. Thereafter, the accused would regularly have physical relation with
the victim on the pretext that he would marry her. Due to such physical relation the victim
became pregnant whereupon her parents informed the mother of the accused/appellant and
some respectable people of the village. When the villagers came to know about the incident,
the appellant/accused, in connivance with his family members left the village. It is further
alleged that the appellant would pressurize the victim through some miscreants to restrain
her from lodging a complaint against him. It is contended that taking advantage of the
victim’s simplicity and poverty the accused/appellant enjoyed her physically on the false
assurance that he would marry her. On the basis of the aforesaid written complaint, Purulia
P.S. case No. 17 of 1994 dated 26th January, 1994 under Sections 493/Section376/Section120B I.P.C. was
initiated against the appellant and three co-accused namely, Rukmini Mahato, Raj Kumar
Mahato and Renuka Mahato. Investigation culminated in the submission of the charge-sheet
under Section 493/Section120B I.P.C. against the appellant and two co-accused namely, Raj Kumar
Mahato and Renuka Mahato. The Judicial Magistrate to whom the case was transferred for
trial and disposal found sufficient material for the offence punishable under Section 376
I.P.C. pursuant to which the case was committed to the Sessions Judge, Purulia under
Section 323 of the Code of Criminal Procedure.
3. The trial Court framed charges for the offences punishable under Sections
376/Section493/Section317 I.P.C. against the appellant herein while the two co-accused were charged for
the offence punishable under Section 109/Section376 I.P.C. Being so arraigned, each of the accused
pleaded not guilty in consequence of which trial commenced.
4. In course of trial prosecution examined six witnesses and relied upon some
documents which were tendered in evidence.
5. Defence version in brief as is evident from the trend of cross-examination of the
prosecution witnesses as well as from the examination of the accused under Sectionsection 313 of
the Code of Criminal Procedure is innocence and complete denial of the prosecution case.
6. On the basis of the evidence on record, the trial Court convicted the appellant for
the offences punishable under Sectionsections 376/Section417 I.P.C. and sentenced him as aforesaid while
the co-accused were found not guilty of the offences charged and were accordingly acquitted
of the charges levelled against them.
7. Mr. Dipanjan Chatterjee, learned advocate appearing as amicus curiae submits
that the ossification test report of the prosecutrix reveals that she was not a minor at the
time of the incident. As per the ossification test report (exhibit 4) the victim was found to be
above twenty five years on the date of X-ray examination that is, on 7th March, 1996. So, on
the date of incident she was twenty two years old. Mr. Chatterjee sought to impress that
being a major, she was a consenting party and the physical relationship between the
prosecutrix and the appellant was consensual so the conviction of the appellant was not
justified. It is canvassed that the evidence of P.W. 6 reveals that the appellant was ready to
marry the prosecutrix but his family members had asked him to leave the house so it
cannot be said that the appellant did not have the intention to marry the prosecutrix or that
the consent of the prosecutrix had been obtained on the false promise of marriage.
8. Per contra, learned advocate appearing for the State submits that the evidence of
the victim read with her statement under Section 164 Cr.P.C. is sufficient to prove the
charges levelled against the appellant.
9. Prosecution case hinges mainly on the evidence of the victim who has been
examined as P.W. 1. The testimony of the victim is quoted herein below :
” On 3rd Ashar before 14 years (then says : – 18 years) the incident occurred.
Uttam Mahato came to my house and shut the doors. He touched my breast and other
parts of body. I told him that I will tell this to my parents. But he told me not to
disclose and assured me that he will marry me. He tried to have intercourse with me to
which I protested, then he tore my pant and had intercourse with me. At that time I
was 14 years old.
On completion of intercourse, while he attempted to go to his house he again
assured that he will marry me. Thereafter whenever I used to go to his house his
mother and sister vacated one room for me as they loved me and Uttam had
intercourse with me. As a result I became pregnant.
Thereafter I informed about the incident to my family members, to the family
members of Uttam and to the villagers. Then Uttam along with his mother and sister
admitted that Uttam will marry me. But till date he has not married me. I have given
birth to said child who is a son of 18 years. My parents told Uttam and his family
members for marriage and they agreed to the same. Still after admission within a night
Uttam was shifted outside the village by his family members namely Renuka,
Rajkumar and Dukhumoni.”
It has emerged in the cross-examination of P.W. 1 that initially she had talking terms with
Uttam but since Ashar, love affair developed between them. Mr. Chatterjee pointed out that
the victim stated in her cross-examination that before the first intercourse between her and
Uttam in the month of Ashar, she had love affair with him but curiously enough in her
statement recorded under Section 164 Cr.P.C. the victim made no such assertion. On the
contrary, her statement under Section 164 Cr.P.C. is in complete conformity with her
evidence in Court. She contended in her statement under Section 164 Cr.P.C. that Uttam
entered her room, closed the door and raped her in spite of her protest and resistance. A
futile suggestion was given to P.W. 1 in cross-examination that she had sexual relation with
many men and she became pregnant by some other person so the negotiation of marriage
with the appellant could not be finalised. It is significant to mention that no such assertion
was made by the appellant/accused during his examination under Section 313 Cr.P.C. It is
well settled that a victim of sexual assault is the best witness in the sense that she is least
likely to shield the real offender and implicate an innocent person. The evidence of such a
witness is entitled to great weight, absence of corroboration notwithstanding. In the case in
hand, the prosecutrix/victim had no axe to grind against the appellant/accused so as to
invent a false charge of rape against him. Nothing could be elicited in the cross-examination
of the victim to render her evidence untrustworthy. Her evidence remained unscathed in
10. P.W. 2 the father of the victim corroborated her assertion that when she became
pregnant, he went to the house of Uttam and the family members of Utttam as well as Uttam
himself agreed to marry the victim but after some days Uttam was shifted somewhere else.
P.W. 2 was quizzed in cross-examination whether there was love affair between the appellant
Uttam and the victim but curiously enough, during his examination under Section 313
Cr.P.C. the accused/appellant made no such assertion of love affair between him and the
victim. P.W. 6 is a co-villager who corroborated the evidence of P.W. 1 to the extent that due
to physical relationship between the victim and the appellant, the victim became pregnant
and subsequently she gave birth to a male child. P.W. 6 also supported the prosecution case
regarding the fact that there was a meeting in the village to settle the dispute and Uttam
admitted his guilt in the said meeting and stated that he is ready to marry the victim. This
witness further stated that Uttam left his house thereafter since his family members asked
him to do so. It has surfaced in the cross-examination of P.W. 6 that the meeting was held in
the house of Uttam and this witness (P.W. 6) along with others attended the meeting. P.W. 6
is an independent witness who had no interest to depose falsely against the accused. No
motive could be attributed to this witness for deposing falsely against the appellant/accused.
11. It is clear from the evidence herein above discussed that despite the resistance and
protest of the victim, she was sexually assaulted by the appellant on the assurance that he
would marry her. Subsequently, the victim submitted to sexual intercourse and physical
relation with the appellant in lieu of his promise to marry her. It is evident that the victim
agreed to physical relationship with the appellant since she was induced to believe that the
accused/appellant would marry her. The question here is whether the consent of the
prosecutrix/victim had been obtained on the false assurance of marriage. Where the victim
under a misconception of fact that the accused is likely to marry her, submits to sexual
intercourse, such an act cannot be said to be consensual so far as the victim is concerned.
Admittedly the victim and the accused resided in the same village. In fact they were
neighbours. There is nothing on record to indicate that the victim was a girl of easy virtue or
was in the habit of having sexual relation with other men so the defence suggestion in cross-
examination to the victim that she became pregnant through some other person is of no
avail. It is clear from the evidence on record that the victim belonged to a poor family having
no education. The appellant/accused developed physical relation with the victim on a
promise of marriage but he never intended to marry her. This fact is evident from the
testimony of the victim (P.W. 1), her father (P.W.2) as well as an independent witness
examined as P.W. 6. A meeting was held in the house of the accused/appellant where he
admitted his guilt and agreed to marry the victim but ultimately he left the village. The
financial status of the family of the accused/appellant was obviously better than that of the
victim’s family. The appellant should have known and he knew very well that his parents
would not agree to his marriage with the victim but he continued to have physical intimacy
with her by inducing her to believe that he would marry her. The consent of the victim was
obviously obtained in lieu of a promise of marriage given by the accused/appellant who knew
from the very inception that the promise was a false one and hence the consent of the victim
was not a free consent. It was rather a consent under a misconception of fact within the
meaning of Section 90 of the Indian Penal Code and as such the act of the accused
amounted to an offence under Section 375 I.P.C. committed “without her consent” as
mentioned in “secondly” of Section 375 I.P.C.
12. For the reasons aforestated, I am of the firm view that the judgement and order
impugned warrant no interference.
13. Before parting with this matter, I record my appreciation for the able assistance
rendered by Mr. Dipanjan Chatterjee as the amicus curiae.
14. Consequently the appeal fails and is accordingly dismissed.
15. The appellant shall surrender before the trial Court within one month from this
date to serve out the sentence in default of which the trial Court shall take appropriate steps
against the appellant/accused for execution of the sentence in accordance with law.
16. A copy of this judgement along with the lower court records be sent to the trial
17. Urgent photostat certified copy of this judgement, if applied for, be given to the
applicant upon compliance of requisite formalities.
(Asha Arora, J.)