Calcutta High Court (Appellete Side)

Manjay Das @ Sonjay Das vs State Of West Bengal & Anr on 3 August, 2023

                    IN THE HIGH COURT AT CALCUTTA
                       Criminal Appellate Jurisdiction
                             APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)



                                 CRA 733 of 2016

                            Manjay Das @ Sonjay Das

                                         Vs.

                           State of West Bengal & Anr.



For the Appellant                     :        Mr. Milon Mukherjee, Sr. Adv.
                                               Ms. Sujata Das.


For the State                         :        Mr. Pravas Bhattacharyya,
                                               Mr. MFA Begg.

For the Opposite Party no. 2         :         None.


Heard on                              :        14.07.2023

Judgment on                           :        03.08.2023




Shampa Dutt (Paul), J.:

1.

The Appeal:-

The present appeal arises from the judgment of conviction and

order of sentence dated 29.11.2016 passed by the Learned Additional

District & Sessions Judge, 2nd Court, Raiganj, Uttar Dinajpur in Sessions

Trial No. 01/2013 Sessions Case No. 164 of 2010 convicting the

appellant for commission of offence punishable under Section 417 of the

Indian Penal Code and sentencing him to pay fine of Rs.20,000/-

(Rupees Twenty Thousand) only in default to suffer simple imprisonment

for term of three months for the offence under Section 417 of the Indian

Penal Code.

2. The Prosecution:-

Mr. Pravas Bhattacharyya, learned counsel for the State has

submitted that the prosecution case in brief is that the complainant

being the victim lodged a complaint on 21.10.2008 alleging that the

appellant committed rape upon her on 15.04.2008 at 10:30 p.m. and

also on Dashami (Durgapuja of the year 2008) at 11:00 p.m. inducing

her to believe that she was already married with him at Shibmandir

(Shib Bari) on 14.04.2008. At the time of solemnization of marriage at

Shibmandir accused Parimal Das had given her one ring made of Gold

with purchase receipt and accused Bishaka Das and accused Late Gita @

Sita had agreed to accept her as 'Grihabodhu' (daughter-in-law). But the

appellant later, not only refused to marry but also disputed the marriage

at Shibmandir. A Panchayat was convened but the dispute could not be

solved and as such the filing of the case was delayed.

On the basis of the said complaint, Raiganj Police Station Case

No. 503/2008 dated 21.10.2008 was registered under Sections

376/493/109 of the Indian Penal Code against the present appellant

along with three other persons namely (1) Bishakha Das (2) Parimal Das

and (3) Late Gita @ Sita Das. Gita @ Sita (expired during trial) and case

has abated against her vide order dated 17.08.2016.

After completion of investigation the concerned Police Station

submitted charge sheet being no. 19 of 2009 dated 28.01.2009 against

the present appellant along with three other persons for committing

offence punishable under Sections 376/493/109 of the Indian Penal

Code.

Charge was framed against the appellant under Sections

376/417 of the Indian Penal Code in presence of the appellant to which

he pleaded not guilty and claimed to be tried.

The prosecution has examined as many as 9 witnesses and has

proved exhibit 1 to 8, while none had been examined on behalf of the

defence and there is total denial of allegation on behalf of the appellant.

3. The Sentence:-

On completion of the trial the Learned Trial Court by his

judgment and order dated 29.11.2016 was pleased to convict the

appellant for the offence punishable under Section 417 of the Indian

Penal Code and sentenced him to pay a fine of Rs.20,000/- in default to

suffer simple imprisonment for three months for the offence under

Section 417 of the Indian Penal Code. The fine recovered is to be paid to

the victim. The Learned Trial Court was further pleased to acquit the

other accused persons, namely, (1) Bishaka Das (2) Parimal Das from all

changes.

4. The Defence:-

Mr. Milon Mukherjee, learned Senior Counsel appearing for

the appellant has submitted that the learned Court below has erred in

the fact that the offence committed under Section 415 of the Indian Penal

Code by the appellant is deception, mis-representation and fraud by

backing out from his promise to marry the victim girl.

That the Learned Trial Court ought to have taken into

consideration that the prosecution witnesses have made significant and

material improvement and/or embellishments at the time of trial from

their earlier statements.

The Learned Trial Court failed to appreciate the evidence of the

prosecution witnesses properly and the finding of the Learned Judge is

unwarranted with the evidence on record and as such the impugned

judgment and order is liable to be set aside.

5. The evidence:-

P.W. 3 is the de facto complainant. The learned Trial Court has

held that she has admitted that she was in love with the appellant and

used to visit his house, on a misconception that she was married to the

appellant as an alleged marriage took place at a Shib Mandir.

Exhibit 4 ossification report dated 24.11.2008 shows that as

per observation "the bony age of the victim seems to be more than 18 years

but less than 20 years". The FIR is dated 21.10.2008.

6. Analysis of Evidence:-

The trial Court, relying upon several judgments came to the

findings that the case was not that of rape but consensual cohabitation.

The Court then proceeded to find the appellant guilty of the charge under

Section 417 of the Indian Penal Code and convicted him accordingly.

7. Conclusion:-

The prosecution has not challenged the acquittal of the

appellant of the other charges.

From the materials on record and the evidence before the trial

court, it appears that the victim (PW 3) has admitted in her cross

examination that she used to visit the house of the accused and the

accused also visited her several times and they had sexual relation on

many occasions. The trial court has thus held that there was consensual

cohabitation between the parties as the victim believed herself to be

lawfully married to the appellant. The alleged marriage at Shib Mandir

was not proved by producing/tendering the relevant witness, being the

priest of the temple, which is vital in this case to constitute the offence

alleged under Section 493 IPC, nor was charge framed under Section 493

IPC.