Calcutta High Court (Appellete Side)

Sujoy Das vs State Of West Bengal on 8 June, 2022

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                              Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri

                        C.R.A. 330 of 2018

                              Sujoy Das
                                 Vs.
                        State of West Bengal

For the Appellant       :   Mr. Sourav Chatterjee, Adv.
                            Mrs. Subhasree Patel, Adv.
                            Ms. Saini Das, Adv.

For the State            : Mr.Anand Keshari, Adv.


Heard on                : 20.05.2022 & 07.06.2022.

Judgment On             : 08.06.2022.

Bibek Chaudhuri, J.

This is an appeal against the judgment and order of conviction

dated 12th June, 2018 and 13th June, 2018 respectively passed by the

learned Additional Sessions Judge, Fast Track, 5 th Court at Alipore in

Sessions Trial No.01(01)09 arising out of Sessions Case No.49(11)08

convicting the appellant under Section(s) 417/376 of the Indian Penal

Code.

The appellant was sentenced to suffer simple imprisonment for a

term of one year for the offence punishable under Section 417 of the

Indian Penal Code with fine and default clause. He was further

sentenced to suffer rigorous imprisonment for 7 years with fine and

default clause for the offence punishable under Section 376 of the Indian

Penal Code. Factual matrix of the case is that the de-facto complainant

and the appellant were students of the same college. Initially the

appellant proposed her but she did not agree. Subsequently on repeated

proposal the de-facto complainant started to have soft corner for the

appellant. They fell in love. Their love affair was known to the parents

of both the families and other family members. Sometimes in the year

2002 the appellant took her to his house when there was no other

person present in the house. It is alleged that the appellant forcibly

committed physical relationship upon the de-facto complainant on the

assurance that he would marry her. The de-facto complainant did not

inform such incident to anybody. However, the family members of the

appellant were not agreeable to give marriage of the appellant with the

de-facto complainant at that point of time as he was unemployed.

Subsequently, he got an employment at Aditya Birla Group situated at

10, Industrial House, Camac Street. The de-facto complainant and her

father then requested to appellant to solemnize marriage between them.

At last the appellant took her to the office of one Ranjit Dhar

Chowdhury, Marriage Registrar. The parents of both the parties were

present. The de-facto complainant and the appellant and their relatives

put signatures on some papers and she was informed that her marriage

with the appellant was performed. The appellant took her to his house

as his wife and stayed together as husband and wife for few days. On

30th March, 2008, the de-facto complainant came to know from the

Marriage Registrar that her marriage with the appellant was not

registered till date. The de-facto complainant informed the matter to the

appellant and his family members but they refused to register her

marriage with the appellant. It is alleged by the de-facto complainant

that till 29th March, 2008, the appellant had physical relationship with her

several times on false assurance that her marriage was solemnized with

the appellant.

On the basis of the said complaint, police registered New Alipore

Police Station Case No.87 dated 24 th April, 2008 against the appellant,

his father namely Sudhir Chandra Das and his mother Bijaya Das under

Sections 120B/376/420 of the Indian Penal Code. The investigation

ended in filing charge-sheet against the accused persons. Trial Court

framed charge against all three accused persons under Sections

120B/417 of the Indian Penal Code and against the appellant also under

Section 376 of the Indian Penal Code. As the accused persons pleaded

not guilty, trial of the case commenced.

During trial prosecution examined 7 witnesses. Amongst them,

the de-facto complainant deposed as P.W.1. P.W.2 and P.W.3 are the

parents of the de-facto complainant. P.W.4 is uncle of the appellant who

turned hostile during trial of the case. P.W.5, Smt. Dipali Das is the aunt

of the appellant. She was also declared hostile by the prosecution.

P.W.6, Shyamal Kundu is a neighbour of the de-facto complainant who

failed to throw any light in the instant incident. P.W.7, Pabitra

Bhattacharjee is the Investigating Officer of this case.

The learned Trial Judge on due appreciation of evidence on record

and argument advanced by the prosecution and defence acquitted

accused Sudhir Das and Smt. Vijaya Das. However, the appellant,

namely, Sujoy Das was convicted under Section 417/376 of the Indian

Penal Code and sentenced accordingly. Hence, the instant appeal.

From the evidence of the de-facto complainant who is the victim of

this case, it is ascertained that she was a student of New Alipore College

of English Honours in B.A. Course. Sometimes in 2001, Sujoy, another

student of the same college proposed her through her friends. She did

not agree to such proposal. Then Sujoy personally proposed her

repeatedly. Finally the de-facto complainant agreed to such proposal

which in course of time developed into a strong love relationship. The

members of both the families knew about such relationship between the

de-facto complainant and the appellant. The appellant informed about

their relationship to the parents of the de-facto complainant. In 2002,

the appellant took her to his house on the plea that his parents had

called her. When the de-facto complainant went to the house of the

appellant, he did not fine anybody. Taking such advantage, the

appellant committed rape upon her. After the incident when she was

crying the parents of the appellant came with another middle aged lady

and they consoled her that the appellant would marry her in future.

Subsequently the parents of the de-facto complainant also requested the

appellant to marry the de-facto complainant but the appellant wanted

time on the ground that he was unemployed. Then he got a job at

Hutchison Essar Limited. Subsequently he left the said job and joined

Aditya Birla Group. At that point of time, the appellant agreed to marry

her and insisted upon the de-facto complainant to leave her job. She

left her job. But subsequently the appellant started avoiding the de-

facto complainant. Finally on 29t h February, 2008 she was taken to the

office of one Ranjit Dhar Chowdhury, Marriage Registrar, the father of

the de-facto complainant and father and uncle of the appellant were also

present there. They put some signatures on some papers and the de-

facto complainant was convinced that her marriage was registered with

the appellant. On the same date the appellant took her to his house.

The de-facto complainant started to lead her conjugal life with the

appellant believing that her marriage was really solemnized with the

appellant under Special Marriage Act. However, during her stay in the

house of the appellant she was assaulted by the appellant as well as his

parents on demand of money. On 30 th March, 2008 she came to know

that no marriage was actually solemnized between the parties and she

was deceit by the appellant. The parents of the de-facto complainant

also deposed in the same tune except certain minor contradictions with

regard to the dates, which the Trial Court rightly ignored. On careful

perusal of evidence on record this Court has no hesitation to hold that

both the de-facto complainant and the accused had love relation. If the

evidence of the de-facto complainant is accepted on its face value, it

would be found that the appellant co-habited with the de-facto

complainant for the first time in 2002. Though it is alleged by the de-

facto complainant that the appellant committed rape upon her on a day

in 2002, she did not lodge any complain against the appellant Sujoy Das

immediately after the occurrence. It is also found from her evidence

that she informed the matter to her parents but her parents also not

take any action against the appellant on the ground that the de-facto

complainant had love relation with the appellant and in future, they

would marry. Thus, thus Court can safely hold that the incident that

took place in 2002 was consensual sex. Both de-facto complainant and

the appellant are major and she knew the result and effect of such

physical relationship with the appellant. Therefore, the allegation that

the de-facto complainant was raped sometimes in 2002 by the appellant

does not have any leg to stand.

At this juncture it is to be considered as to whether the

relationship between the appellant and the de-facto complainant,

arrangement of fake marriage with the de-facto complainant and staying

together from 29th February, 2008 to 29th March, 2008 as husband and

wife proved the charge under Section 417/376 of the Indian Penal Code.

In Deelip Singh @ Dilip Kumar Vs. State of Bihar reported in

(2005) 1 SCC 88, it was held by the Hon'ble Supreme Court as

hereunder:-

"............whether the promise to marry, if made by the accused, was

false to his knowledge and belief from the very inception and it was

never intended to be acted upon by him. As pointed out by this Court in

Uday's case the burden is on the prosecution to prove that there was

absence of consent. Of course, the position is different if the case is

covered by Section 114A of Evidence Act. Consent or absence of it could

be gathered from the attendant circumstances. The previous or

contemporaneous acts or the subsequent conduct can be legitimate

guides."

Section 415 defines cheating in the following words:-

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to

cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Plain reading of this section shows that if an offender by deceiving

any person fraudulently or dishonestly induces such person to do or

omitting to do anything which he would not do or omit if he were not so

dissent, and which act or omission causes or likely to cause damage or

harm to that person in body, mind, reputation or property is said to

cheat.

The case of the de facto complainant in this regard is that the

appellant by deceiving the de facto complainant fraudulently or

dishonestly induces her to have co-habitation believing the de facto

complainant to be her lawful husband and the said act on the part of the

appellant caused damage or harm to her body, mind and reputation.

It is needless to say that from the written complaint as well as the

evidence on record, the de facto complainant or her parents did not

produce any evidence to prove the above point of cheating. In Uday vs.

State of Karnataka reported in (2003) 4 SCC 46, the Hon'ble

Supreme Court observed as hereunder:-

"25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact.

Secondly, it must be proved that the person who obtained the

consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak

moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

In the instant case, the de facto complainant did not allege that

her consent was obtained under misconception of fact. The act of co-

habitation between the appellant and de facto complainant after 29th

February, 2008 was done on free consent of both the parties. Therefore,

the ingredients of offence under Section 415 of the IPC cannot be said to

be proved against the appellant. Since there is also no evidence that the

victim was ravished without her will and against her consent, he also

cannot be convicted under Section 376 of the IPC.

Considering such aspect of the matter, this Court is of the opinion

that the learned Trial Judge was wrong in convicting the appellant to the

charge of Section 417/376 of the IPC.

For the reasons stated above, the instant appeal is allowed on