Calcutta High Court (Appellete Side)
Pritam Das vs The State Of West Bengal & Anr on 17 March, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.A 510 of 2017
With
IA NO. CRAN 2 of 2019 (Old No. CRAN 742 of 2019)
Pritam Das
Vs.
The State of West Bengal & Anr.
For the Appellant: Mr. Swapan Kumar Mullick,
Mr. Kazi K. Rahman.
For the State: Mr. Ranabir Roy Chowdhury,
Ms. Faria Hossain,
Ms. Baisali Basu.
With
C.R.A 350 of 2018
Smt. Baby Biswas @ Baby Mandal Biswas
Vs.
The State of West Bengal & Anr.
For the Appellant: Mr. Kazi Safiullah
For the State: Mr. Ranabir Roy Chowdhury,
Ms. Faria Hossain,
Ms. Baisali Basu.
Heard on: 22 March, 2021.
Judgment on: 17 March, 2022.
2
BIBEK CHAUDHURI, J. : -
1.
CRA 510 of 2017 is an appeal against the judgment and order of
conviction and sentence dated 9th August, 2017 and 10th August, 2017
passed by the learned Additional Sessions Judge, 2nd Court at Malda in
Sessions Case No.202 of 2014 corresponding to Sessions Trial No.23 of
2014 thereby convicting the accused under Section 417/354/506 of the
Indian Penal Code and sentencing him to suffer simple imprisonment of
one year and to pay fine of Rs.1,50,000/- in default, to suffer simple
imprisonment of three months further for the offence punishable under
Section 417 of the Indian Penal Code, simple imprisonment of two years
and to pay a fine of Rs.2,50,000/-, in default, to suffer simple
imprisonment of six months for the offence punishable under Section 354
of the Indian Penal Code and the simple imprisonment for one year and to
pay a fine of Rs.1,00,000/-, in default, to suffer simple imprisonment of
one month further for offence punishable under Section 506 of the Indian
Penal Code.
2. The appellant faced trial under the charge of Section 417/376/506
of the Indian Penal Code. In order to prove the charge, prosecution
examined ten witnesses. The learned trial judge on appreciation of
evidence held the appellant convicted under Section 417/376/506 of the
Indian Penal Code assigning the following reasons:-
"The case as made out in the petition of complaint/FIR and
evidence of complainant-cum-victim girl as a whole leads to
the conclusion that the accused Pritam Das deceived the
complainant-cum-victim girl by giving promise to marry her,
but later refused and he also did physical assault to her. She
stated to the Doctor (PW9) about the sexual assault by the
accused and also stated that the accused threatened her of
dire consequences, if she disclosed it, in my opinion attract
the provision of Section 417/376/506 of the Indian Penal
Code and the accused is held guilty of the said charge."
3. The written complaint submitted by the de facto complainant
contains the following facts:-
4. Accused Pritam Das was known to the de facto complainant for long
time. The accused established physical relation with the de facto
complainant on promise of marriage. He committed sexual intercourse
with her in the absence of her mother after intimidating her against her
will. Whenever the de facto complainant tried to resist him, the accused
threatened her saying that he would kill her and her mother. The de facto
complainant informed the matter to the police vide G.D Entry dated 14th
January, 2013 and 9th March, 2013. However, police did not take any
action. On 19th March, 2013 the de facto complainant appeared before the
Additional Superintendent of Police, Malda and then lodged the complaint
before the Inspector-in-Charge, English Bazar Police Station. The accused
refused to marry the de facto complainant and threatened her to assault.
5. Police took up the case for investigation and submitted charge-
sheet against the appellant under Section 417/376/506 of the Indian
Penal Code.
6. In order to prove the charge against the appellant, prosecution
examined ten witnesses during trial. Amongst them PW1 is the de facto
complainant. PW2 is her mother. PW3 Bappa Biswas is the maternal
uncle of the de facto complainant on village courtesy. PW5 Ujjwal Das is a
resident of the same locality where the de facto complainant used to
reside at the relevant point of time. PW6 is the maternal-grand-mother of
the victim girl and PW9 is the Medical Officer who examined the victim
girl and issued Medico Legal Examination Report in connection with the
case. PW8 Dr. Nimai Chand Sardar is another Medical Officer who
conducted medical examination of the accused to ascertain as to whether
he was sexually capable or not. PW10 is the Investigating Officer of the
case. PW4 Alok Sarkar did not support the prosecution case and was
declared hostile.
7. It is needless to say that in a case under Section 376 of the IPC, the
victim girl is the best witness and her status is similar to an injured
witness. Therefore, if the court finds that the evidence of the victim girl
inspires confidence and it is trustworthy, cogent, believable and
unblemished and her evidence corroborates with the evidence of the
Medical Officer who examined the victim girl during investigation of the
case and submits Medico Legal Examination Report, the court generally
does not seek for any corroboration. This is due to the reason that the
offence of sexual violence is generally committed in secrecy. The accused
takes all precaution so that offence may not be witnessed by any third
person.
8. In the case of cohabitation on false promise of marriage, it is more
difficult to have any eye witness account of the incident except the victim
herself because at the time of cohabitation on false promise of marriage,
both the victim and the accused unite secretly. Bearing the above
circumstance in mind, let me now appreciate the evidence of the de facto
complainant (PW1)/prosecutrix.
9. It is ascertained from her evidence that the sister of the accused
used to take tuition from mother of the victim girl. The accused used to
come to the de facto complainant to drop his sister to her mother.
Sometimes in the absence of her mother the de facto complainant used to
impart tuition to the sister of the accused. In this way both of them were
acquainted with each other. The accused gave her a proposal to marry
her. On 19th March, 2013 he committed rape upon the de facto
complainant in the absence of her mother. After the incident she informed
the same to her mother. Then she lodged a written complaint with the
Inspector-in-Charge, English Bazar Police Station. She stated further that
during investigation her medical examination was conducted. She also
gave a statement under Section 164 of the Code of Criminal Procedure
during investigation which was recorded by the jurisdictional magistrate.
During cross examination she denied that she had a love relation with the
accused for about 2/2½ years prior to lodging the FIR. It is also
ascertained from her evidence that she lodged more than one General
Diary against the accused prior to lodging the complaint against him.
10. Thus, it is clear from the evidence on record that the prosecutrix
was subjected to rape only once on 19th March, 2013.
11. Learned trial judge completely failed to consider that the PW1
herself alleged in her complaint that she had acquaintance with the
appellant for long time and the appellant had physical relationship with
her on the assurance that he would marry the de facto complainant. In
the written complaint she did not state that on 19th March, 2013 the
accused committed rape upon her. The learned judge in the trial court
failed to appreciate the evidence of the de facto complainant in relation to
the incident stated by her in the written complaint. In the written
complaint, the de facto complainant stated that she had acquaintance
with the appellant for a long time and the appellant had physical
relationship with her giving her assurance of marriage. In her statement
recorded under Section 164 of the Code of Criminal Procedure the de
facto complainant clearly stated that the appellant had physical
relationship with her on number of occasions in their house in the
absence of her mother on assurance of marriage. However, for last 7/8
months prior to lodging the complaint the appellant refused to marry her.
Therefore, statement made by the de facto complainant in her evidence as
PW1 does not match with her statement made in the written complaint as
well as under Section 164 of the Code of Criminal Procedure.
12. In her evidence the victim girl stated that at the relevant point of
time she was aged about 19 years. Therefore, she was major at the time of
lodging complaint against the appellant. There is absolutely no evidence
that the victim was forcibly raped by the appellant. On the other hand, it
is the specific statement of the victim girl in the written complaint as well
as in her statement recorded under Section 164 of the Code of Criminal
Procedure that she cohabited with the appellant as a consequence of love
affair between them.
13. The victim girl was medically examined by PW9 Dr. Kalyan Mishra.
On examination he found no mark of injury on her body and in her
private parts. He also recorded that the hymen of the victim was torn, two
fingers could be introduced inside her vagina and it seems to the Medical
Officer that she is habituated to sexual intercourse. The victim girl made a
statement before the Medical Officer that she was sexually violated by the
appellant on several occasions since December, 2012. The victim girl
could not disclose the said incidents as the appellant threatened her with
dire consequences if she had disclosed the said fact. Thus, the victim girl
did not state before the Medical Officer that the appellant committed
sexual intercourse with her on false promise of marriage.
14. In the case of Maheshwar Tigga vs. The State Of Jharkhand
reported in (2020) 10 SCC 108, the Hon'ble Supreme Court considered
the question as to whether the prosecutrix had consented to the physical
relationship under any misconception of fact with regard to promise of
marriage or her consent was obtained on fraudulent misrepresentation of
marriage. The Apex Court was pleased to hold that under Section 90 of
the IPC a consent given under a misconception of fact is no consent in the
eye of law. But the misconception of fact has to be in proximity of time to
the occurrence and cannot be spread over a period of years together.
From the statement of the victim recorded under Section 164 of the Code
of Criminal Procedure it is found that the victim had love relationship
with the appellant for about two and half years.
15. In a very recent decision of the Division Bench of this Court in CRA
366 of 2015 (Saddam Hossain vs. State of West Bengal), judgment
delivered on 7th December, 2021, the ratio of Deelip Singh @ Dilip
Kumar vs. State of Bihar reported in (2005) 1 SCC 88 was considered.
In the aforesaid report the Hon'ble Supreme Court held 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."
16. There is absolutely no evidence in the instant case that from the
very inception the appellant fraudulently obtained the consent of the
victim girl or that the victim girl consented to physical relationship on
misconception of fact within the meaning of Section 90 of the IPC. There
is no evidence that the appellant did not intend to marry from the
inception of the relationship.
17. For the reasons stated above, I am of the view that the impugned
judgment and order of conviction and sentence under Section
417/354/506 of the IPC is liable to be set aside.
18. The appeal is therefore allowed on contest.
19. The appellant be discharged from his bail bond.
20. CRA 350 of 2018 is an appeal under the proviso of Section 372 of
the Code of Criminal Procedure filed by the de facto complainant of
Sessions Case No.202 of 2014 corresponding to Sessions Trial No.23 of
2014 praying for enhancement of sentence for the offence punishable
under Section 417 of the IPC and convicting the rivate respondent for
committing offence under Section 376 of the IPC.
21. At the time of hearing of the instant appeal along with CRA 510 of
2017, it was urged by Mr. Kazi Safiullah, learned Advocate for the
appellant that the learned trial judge committed grave error in acquitting
the private respondent from the charge under Section 376 of the IPC and
convicting and sentencing him for lesser offence under Section 354 of the
IPC. It is further submitted by the learned Advocate for the appellant that
the appellant in his evidence as PW1 deposed that the private respondent
committed rape upon her on false assurance of marriage. The Medico
Legal Examination Report which was marked exhibit during trial proves
that the victim was subjected to sexual intercourse more than once. The
evidence on record is sufficient to hold the appellant guilty for committing
offence under Section 376 of the IPC. Therefore, the private
respondent/accused should be adequately punished.
22. In view of my discussion while disposing of CRA 510 of 2017, the
private respondent was held not guilty for committing any offence under
Section 417/376 of the IPC. It is found from the materials on record that
the appellant was a consenting party and she and the private respondent
voluntarily cohabited out of live relationship for a long time. The de facto
complainant/appellant failed to prove that her consent was obtained by
false promise of marriage from the very beginning and there was a
misconception of fact on the part of the de facto complainant and she
gave consent to such physical relationship with the private respondent
out of misconception of fact.
23. In view of the finding made by this Court in CRA 510 of 2017, the
instant appeal is liable to be dismissed.
24. Accordingly CRA 350 of 2018 is dismissed on contest.
25. Let a copy of this judgment along with the lower court record be
forthwith sent down to the trial court.
26. Photostat certified copy of this judgment, if applied for, shall be
made available to the appellant within the week from the date of putting
in the requisites.
(Bibek Chaudhuri, J.)
