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Uttam Mahato vs The State Of West Bengal on 19 July, 2019

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Asha Arora

C.R.A. 909 OF 2013

Uttam Mahato
– 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.:

1.

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

cross-examination.

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

Court.

17. Urgent photostat certified copy of this judgement, if applied for, be given to the

applicant upon compliance of requisite formalities.

(Asha Arora, J.)

P.M.

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