24.09.2024 State Of West Bengal vs (Ad 2) Sambit Banerjee & Ors
2024 Latest Caselaw 4923 Cal

Calcutta High Court (Appellete Side)

24.09.2024 State Of West Bengal vs (Ad 2) Sambit Banerjee & Ors on 24 September, 2024

Author: Soumen Sen

Bench: Soumen Sen

Court No. 29                          CRMSPL 67 of 2023
(266041)
                c


24.09.2024                              State of West Bengal
                                                 Vs.
(AD 2)                                 Sambit Banerjee & Ors.
(S. Banerjee)



                    Mr. Suman Dey, Adv.
                                                       ....... for the State

                    Mr. Apalak Basu
                    Mr. Shibaji Shankar Dhar
                    Mr. Nazir Ahmed
                    Ms. Sanghamitra Mridha
                                                      ... for the OP 1, 3, 4, 5 and 6


                    Soumen Sen, J.(Oral)

1. The special leave to appeal is taken up for consideration.

2. The opposite parties have been acquitted on merits.

3. Surprisingly the victim has not preferred any appeal under

Section 372 Cr.P.C. and it seems that she has accepted the

judgment.

4. The State has preferred an application for special leave to

appeal.

5. We are not disputing the competence of the State to file an

appeal with a prayer for special leave merely because the

victim has not approached the court.

6. The maintainability of the application for Special Leave to

Appeal is not in doubt. The State can always file such

application without the victim having approached the court

under Section 372 of the Cr.P.C., inter alia, against an order

of acquittal. The right of victim to prefer an appeal under

Section 372 Cr.P.C. in the context of the definition of victim

in Section 2(wa) was considered in Mallikarjun Kodagali

(Dead) represented through Legal Representatives vs.

State of Karnataka and Ors.; 2019(2) SCC 752.

7. In the instant case, the victim seems to have accepted the

judgment of the trial court acquitting the

respondents/opposite parties. In the absence of the victim

the State can file an application under Section 378(3) for

leave to prefer an appeal. The distinction is required to be

drawn between the statutory appeal and an application for

special leave to appeal. The original Sub-section (3) was

substituted by Section 31(iii) of the Act of 25 of 2005 by

which the phrase "to the High Court" was inserted. The

said sub-section has cast a duty upon the court to exercise

its discretion judicially at the time of granting such special

leave. The High court would be required to consider any

special feature in a particular case and cannot ignore the

effect which the granting of leave to appeal without due

discrimination may be on the principles of normal

presumption of innocence of the accused in our criminal law

which has been further reinforced and strengthened by the

order of acquittal by the trial court (see. Thiagaraja

Bhagavathar v. Emperor ;AIR 1947 PC 113).

8. No right of hearing in favour of the accused can be read into

the statute while the court considers the question of

admission of appeal against the acquittal and for that

reason we did not allow Mr. Apalak Basu learned Counsel

appearing on behalf of the opposite parties no. 1, 3, 4, 5 and

6 to argue at this stage. The trial court has acquitted the

opposite parties. It is now well settled that the power of an

appellate court to review evidence in appeal against

acquittal is as extensive as its power in appeal against the

conviction. It is equally well settled that before an appellate

court can set aside the order of acquittal, it must carefully

consider the reasons given by the trial court in support of

its order and must give its own reason to reject those

reasons.

9. The presumption of innocence of the accused is required to

be kept in mind. The fact that the trial court had the

advantage of seeing and hearing the witnesses is a relevant

factor in assessing the findings of the trial court. Unless

there are exceptional circumstances the appellate court

should not disturb an order of acquittal. There must be

existence of strong cogent grounds to justify an interference

with the order. [see. Mathai Mathews v. State of

Maharashtra; 1970(3) SCC 772 and Chowdikodlu

Asuralli Dyavappa v. State of Gujarat; 1980 SCC (Cri)

251]

10. If it appears to the appellate court that the trial court

has taken a probable view to acquit an accused, the fact

that another probable view would lead to conviction cannot

be a ground to interfere with acquittal as held in Union of

India v. Pravat Kumar Behuria, 2019(10) SCC 220.

11. Leave may be granted when it appears to the appellate

court that the acquittal by the trial court is patently

unreasonable or demands a standard of proof amounting to

certainty which the law does not require. [see. State v.

Sunil Biswas, 1990 Cr.LJ 2093 (Cal)]

12. Keeping these principles in mind we requested Mr.

Suman Dey learned Counsel for the appellant/State to

demonstrate from the grounds a prima facie arguable case

on merits in favour of the leave.

13. Mr. Suman Dey, learned advocate for the State has

submitted that the trial court has wrongly shifted the

burden of proof with regard to commission of an offence

under Section 376 of the Indian Penal Code overlooking the

fact that the presumption is in favour of the victim in view

of Section 114A of the Indian Evidence Act. It is further

submitted that the evidence of false promise would be clear

from the evidence of the victim and the other prosecution

witnesses and the very fact that the Opposite Party no. 1

refused to marry the victim after having been in intimate

physical relationship for almost 10 years. It is submitted

that the defence has not produced any witness to dispute

the veracity of the evidence of the prosecutrix or other

prosecution witnesses. It is further submitted that gold

ornaments and jewellery purchased for the purpose of

marriage and handed over to the would be son-in-law, were

not returned. The allegation with regard to the offence

under Section 509 IPC was not even discussed. In the

aforesaid background we have to decide whether this is a fit

case for admission.

14. The prosecutrix is a qualified lady and in service at TCS.

Her evidence shows that her sexual intercourse with the

principal accused had happened more than once at different

places. Although such behavior appears to her to be

unethical she allowed it multiple times without inhibition in

expectation of getting married to the said male partner. It is

sought to be argued that the opposite party no.1 has

conducted himself in such a manner that had induced a

feeling in her that the opposite party no.1 would marry her.

In this respect the conduct of the family members of the

opposite party no.1 in creating such an impression was

highlighted. In this background it is now argued that the

circumstances under which a sexual intercourse had taken

place was not a result of free consent so as to exonerate the

male partner from being prosecuted for the offence.

15. The Hon'ble Supreme Court in Uday v. State of

Karnataka, 2003 (1) C Cr.LR (SC) 555: 2003 AIR SCW

1035 has held:

"that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the code. There is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent......." (emphasis supplied)

16. The term consent has been considered by the Hon'ble

Supreme Court in Promod Suryabhan Pawar v. State of

Maharashtra and Anr. 2019(9) SCC 608. The meaning of

the term 'consent' as laid down in the second description of

Section 375 of IPC has been authoritatively observed by the

Hon'ble Supreme Court in paragraphs 9 to 12 in the

following words:

"9. The present proceedings concern an FIR registered against the Appellant Under Sections 376, 417, 504, and 506(2) of the Indian Penal Code and Sections 3(1)(u), (w) and 3(2)(vii) of SC/ST Act. Section 376 of the Indian Penal Code prescribes the punishment for the offence of rape which is set out in Section 375. Section 375 prescribes seven descriptions of how the offence of rape may be committed. For the present purposes only the second such description, along with Section 90 of the Indian Penal Code is relevant and is set out below.

375. Rape - A man is said to commit "rape" if he - ...

under the circumstances falling under any of the following seven descriptions-

Firstly ...

Secondly. - Without her consent.

...

Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

90. Consent known to be given under fear or misconception- A consent is not such a consent as is intended by any Section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or...

10. Where a woman does not "consent" to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 does not define the term "consent", a "consent" based on a "misconception of fact" is not consent in the eyes of the law.

11. The primary contention advanced by the complainant is that the Appellant engaged in sexual relations with her on the false promise of marrying her, and therefore her "consent", being premised on a "misconception of fact" (the promise to marry), stands vitiated.

12. This Court has repeatedly held that consent with respect to Section 375 of the Indian Penal Code involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction Under Section 482, this Court observed:

15. ... An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of.

This understanding was also emphasised in the decision of this Court in Kaini Rajan v. State of Kerala:

12. ... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and asset. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." (emphasis supplied)

It has been observed further in paragraph 16 thus:

"16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact"

that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of

giving it. The "consent" of a woman Under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:

21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the Accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the Accused, and not solely on account of misrepresentation made to her by the Accused, or where an Accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.

...

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the Accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must

have an immediate relevance". Section 90 Indian Penal Code cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the Accused had never really intended to marry her. (emphasis supplied)

17. The aforesaid decision clearly suggests that an

individual is said to have consented to an act, when such

individual exercised a reasoned choice after being fully

aware with the circumstances, actions and consequences of

the Act. Further the ratio of the decision states that a

promise to marry if made with the intention not to abide by

it but to deceive the woman to convince her to engage in

sexual relation amounts to deception and a 'misconception

of fact' that vitiates the woman's purported consent.

18. There is a clear distinction between rape and

consensual sex. The court is required to carefully examine

whether the accused had actually wanted to marry the

victim or had mala fide motives and had made false promise

to this effect only to satisfy his lust as the latter falls within

the ambit of cheating or deception. There is a distinction

between the mere breach of a promise and not fulfilling a

false promise as clearly stated in Deepak Gulati v. State

of Haryana, 2013 CRI. L.J. 2990. The court observed

that:

"The court must examine whether at an early stage a false promise of marriage was made by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."

19. Facts reveal that Sambit Banerjee was the classmate of

the victim at Moulana Azad College for three years during

the period 2003-06 and they developed a relationship. The

victim alleged that taking advantage of such relationship,

the accused forcefully had intercourse with her at her

house, at the house of the accused at Serampore and at his

workplace at Guwahati as recent as in the years 2014. The

evidence does not show that the opposite party no.1 had no

intention of upholding his promise at the time the

relationship developed. There is also no evidence suggestive

of any promise made to each other of any marriage.

Nonetheless that both of them had developed intimate

physical relationship leading to 'patipatra' is undeniable.

20. It has not been proved that the accused had no

intention to marry the prosecutrix at the first time of

intercourse or on subsequent occasion. There was no

criminal intent or mala fide on the part of the accused while

the accused was in relationship with the victim. Every

breach of promise to marry cannot be treated as a false

promise and on that basis to prosecute a person for the

offence under Section 376 would be a manifest injustice.

21. The evidence clearly shows that they were in a

relationship and steps were taken towards a marriage

which, however, did not fructify as the opposite party no.1

was pressurized for leaving his job at Guwahati and to take

up a job in Kolkata and to live with her along with her

parents.

22. The opposite party no. 1 felt that no self-respecting

person could agree to such a demand. It seems that the

relationship became unpleasant and bitter because of such

demand and insistence and had ultimately resulted in

several criminal complaints being lodged against the

prospective son-in-law by the family of the prosecutrix. The

accused has stated in his examination under Section 313

Cr.P.C. that the prosecutrix and her father held him by his

collar and assaulted him. It further transpires from the

evidence of PW-1 that several police complaints were also

made by the mother of the victim alleging such incidents.

23. The aforesaid background furnishes reason for the

marriage not being finalized and in the light of the aforesaid

events the allegation of a forceful intercourse needs to be

considered. The court cannot shut its eyes to such evidence

on record as the presumption under Section 114A is

rebuttable. The evidence on record would show that the

accused had given satisfactory explanation to rebut the

presumption under Section 114A. The acrimonious

relationship developing in and around the ceremony of

patipatra seems to be the reason for the marriage not

happening. In this regard the finding of the learned Trial

Judge is relevant. The learned trial judge on consideration

of the evidence and testimony of the prosecutrix held that

the couple had physical relation more than once. PW1

alleged that the principal accused convinced her each time

in the backdrop of a promise to marry her. She even alleged

forceful intercourse. The evidence on record establishes the

fact that the prosecutrix is a highly qualified lady pursuing

an independent job and also carrying out her task not only

within the country but also abroad. The question that arises

is how far a lady with such background and independence

can be forced to act against her will. It is to be considered in

the backdrop of the fact that, no complaint was made by the

prosecutrix before her family members or before the

prospective in laws against any such unwanted advances of

the principal accused at any point of time after their relation

was known to both the families. The evidence clearly

discloses consensual sex by two adult persons knowing fully

well the consequences of such relationship.

24. The learned trial judge in the backdrop of evidence

discussed in detail observed:

"Now, no close scrutiny of the materials on record, shows that the principal accused defended his cause by alleging that after the execution of the 'patipatra' the prosecutrix pressurized him for leaving the job at Guwahati and to take a job at Kolkata and to live at her home as domesticated son. Viewing the annulment of marriage in this backdrop, I find that here is no such fact to hold that the principal accused had intention to deceive from the very inception of his relation with the prosecutrix."

25. The learned Single judge has taken into consideration

the several complaints lodged against the prospective son in

law and his family members and the assault on the accused

no.1 by the prosecutrix and her father. It was on such

consideration we are of the view that the allegation of rape

is not established.

26. There is nothing on record to show that any search or

seizure was carried out for recovery of articles alleged to

have been parted with in furtherance of promise to marry.

27. The learned trial court has considered the evidence of

the parties and arrived at a finding that there is no criminal

intention attached with regard to the purchase of the

articles in expectation of the marriage. Although the FIR

was lodged both under Sections 420 and 406 IPC but, there

is a difference between two offences. In a criminal breach of

trust, the initial entrustment was lawful whereas in a

cheating there is a dishonest inducement to deliver any

property. The prosecution has to make out a clear case of

either cheating or criminal breach of trust. The prosecution

has failed on both counts. The demand for dowry was also

not proved.

28. Learned advocate for the State could not place any

evidence to show wherefrom the allegation of cheating or

criminal misappropriation or a demand for dowry was

established. The victim and the opposite party were highly

placed in the society and in their respective organizations

and were not in the need of money or dependent on each

other.

29. The appellate court should be extremely charry to

interfere with an order of acquittal unless the impugned

order is patently illegal and unreasonable and contrary to

law. Where the trial court has overlooked a material piece of

evidence could also be a ground for interference.

30. The trial court in our view has taken a probable view on

appreciation of facts and law in acquitting the accused.

31. Therefore, we do not find any reason to admit the

appeal.

32. The appeal has abated against the opposite party no. 2.

33. The prayer for special leave to appeal is rejected.

(Soumen Sen, J.)

(Uday Kumar, J.)