Sri Jagannath Das vs The State Of Assam
2023 Latest Caselaw 1960 Gua

                                                                                     Page No.# 1/22

GAHC010120502012




                             IN THE GAUHATI HIGH COURT
                     (The High Court of Assam: Nagaland: Mizoram &
                                  Arunachal Pradesh)

                                        Crl.Rev.P. 125/2012


Sri Jagannath Das
S/O Sri Monindra Kr. Das R/O Vill- No. 2, Pipal Pukhuri, P.S. Lanka, Dist. Nagaon, Assam,
                                                                  ......        Petitioner
VERSUS

The State of Assam
                                                                       ......      Respondent

BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocate for the Petitioner : Mr. K. Agarwal, Sr. Advocate

Advocate for the Respondent : Mr. P. Borthakur, Addl. P.P.

Date of Hearing                     :       03.01.2023

Date of Judgment                    :       15.05.2023




                                 JUDGMENT & ORDER (CAV)

1. Heard Mr. K. Agarwal, learned Senior Counsel assisted by Ms. P. Neog, learned counsel

for the petitioner. Also heard Mr. P. Borthakur, learned Addl. P.P. for the State.

2. This revision was initiated suo motu vide order dated 05.03.2012 in Criminal Appeal No.

254/2004 wherein this Court in para 6 of the judgment & order observed that -

Page No.# 2/22

"6. Section 401 Cr.PC read with Section 397 Cr.PC empowers the High Court to exercise revisional jurisdiction suo motu and while exercising such jurisdiction, Section 397 Cr.PC allows the High Court to examine the record of any proceeding for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. Thus, as indicated hereinbefore, this Court is duty bound, as a Court exercising revisional jurisdiction, that a finding, which is incorrect, be not allowed to remain good on record. The duty, so imposed by the statute, cannot be avoided from being exercised by the High Court on the ground that the matter has come to the notice of the High Court from an appeal, which has been preferred by the accused against his conviction in respect of an offence other than one, which he has been acquitted of."

3. Notices were issued to Jagannath Das (hereinafter referred to as the petitioner), to

show cause, if any, as to why finding of acquittal, recorded by the learned trial Court in

respect of the charge framed against him under Section 376(1) of the Indian Penal Code (IPC

for short) be not set aside and the whole proceeding be not remanded to the learned trial

Court with direction to take into account the unchallenged evidence of the prosecutrix, and

render its finding in accordance with law. The Criminal Appeal No. 254/2004 was converted to

this present Revision Petition No. 125/2012, pursuant to the Order dated 05.03.2012 in

Criminal Appeal No. 254/2004.

4. The genesis of the case was that the prosecutrix (name withheld and herein after

referred to as X) was acquainted with Shri Jagannath Das (hereinafter referred to as the

petitioner). On 18.02.2002, taking advantage of the absence of her parents, the petitioner

had sexual intercourse with X with promises to marry her. She was impregnated by the

petitioner but he refused to marry her and forced her to undergo abortion by threatening her.

A village "Mel" was organized on 25.11.2001 to settle the matter but the petitioner and his

relatives refused any kind of settlement. This impelled the prosecutrix X to enter into the

house of the petitioner on 25.11.2001 but Sri Hari Sankar Das, Sri Gopal Das, Sri Manindra Page No.# 3/22

Das, Sri Kananbala Das, Smt. Pratima Das, Smt. Bhanu Das assaulted X at the behest of Sri

Ramagya Prasad Das and Sri Paresh Paul. An FIR was lodged and X was forwarded to Udali

P.S. and thereafter to Lanka P.S. for medical examination, but the police ignored the first FIR,

and the endeavours of the local people to settle the matter were not fruitful.

5. The present FIR was lodged on 18.02.2002 i.e. after 6/7 months of the incident. This

FIR was registered as Lanka PS. Case No. 14/2002 under Sections 143/323/376/493/313 IPC.

The Investigating Officer (IO for short) embarked upon the investigation and forwarded the

victim to Nagaon Civil Hospital. The victim was also forwarded to the Court to record her

statement under Section 164 of the Code of Criminal Procedure (Cr.PC for short). On

conclusion of investigation charge-sheet was laid against the petitioner under Sections

143/323/493/313/376 IPC and against the other accused Sri Hari Sankar Das, Sri Gopal Das,

Sri Manindra Das, Sri Kananbala Das, Smt. Pratima Das, Smt. Bhanu Das, Sri Sagar Das, Sri

Ramagya Prasad Das and Sri Paresh Paul under Sections 143/341/323 IPC. All the accused

persons entered appearance at the commencement of trial. A formal charge under Sections

143/323/376(1)/417/313 IPC was framed and read over to the petitioner and charge under

Sections 143/323 IPC was framed and read over to the other accused who were also

forwarded for trial. All the accused adjured the guilt and claimed innocence.

6. To substantiate its stance, the prosecution adduced the evidence of 10 witnesses and

the defence cross-examined the witnesses to refute the charges. To the incriminating

circumstances arising against them, several questions were asked to the accused under

Section 313 Cr.PC and their responses were recorded. The accused did not tender any

evidence in defence.

Page No.# 4/22

7. The learned trial Court delineated the following points for determination:

"1. Whether on 25.11.2001 all the above-named accused were members of an unlawful assembly and in prosecution of the common object of that unlawful assembly, began to beat X who came to enter into the house of the accused to live as the wife of accused Sri Jagannath Das, voluntarily caused simple injuries on the person of X or not; and

2. Whether accused Sri Jagannath Das committed rape upon X and had sexual intercourse with her by promising to marry her but later on refused to marry her or not and whether accused Sri Jagannath Das voluntarily caused X who was pregnant due to their sexual intercourse, to miscarry without her consent with was not done in good faith to save the life of X or not."

8. In this present petition arising out of the Appeal No. 234/2004 the question that falls

for consideration is :

(i) whether the learned trial Court erred while aquitting the appellant/petitioner from charges

under Section 376(1) IPC;

(ii) whether the petitioner deserves acquittal from charges under Section 417 IPC.

9. To decide this matter, a cursory glance of the evidence is inevitable, although in a

revision the entire evidence is not required to be scrutinised. The legality and propriety of the

order has to be assessed.

10. X testified as PW-1 that the petitioner often visited her during the day time when she

was alone at home as her parents used to go out for work. On the date of the incident, the

petitioner taking advantage of the absence of her parents, forcefully committed sexual

intercourse on X. The victim X then stated that she would inform her parents about the

incident, and then the petitioner promised to marry her and on the pretext of marrying her,

the petitioner had physical relationship with the victim and he impregnated her. The victim X

further testified that her mother took her to a doctor who informed her mother that she was Page No.# 5/22

pregnant. Her mother then assaulted her and then 'X' confided to her mother that the

petitioner had impregnated her. Then she and her mother went to Doiyang and the petitioner

again promised to marry her. Her mother thereafter proceeded to Lumding to meet her father

who was at Lumding, to inform her father about the incident. At that juncture, the petitioner

forcibly took X to a doctor and forced her to abort the foetus. He promised X that he would

marry her after the abortion. The victim then informed her mother about the forceful abortion

caused by the petitioner. Her mother then called a meeting but the petitioner did not agree

with the decision taken in the meeting and X decided to stay in the petitioner's house as his

wife and proceeded to the petitioner's house by following him after the meeting. As soon as

she arrived near the petitioner's house, the accused Jagannath Das , Munindra Das, Hari

Sankar Das, Gopal Das, Protima Das, Smt. Bhanu Das and Smt. Kananbala Das assaulted her

and she was knocked unconscious and then X was taken to Lanka PHC. Thereafter another

meeting was held by X's mother which yielded no result. This impelled X to lodge the FIR.

She was forwarded for medical examination and her statement was recorded in the Court.

11. The victim's mother Y testified as PW-2 that her daughter was 16/17 years of age at

the time of the incident. When her daughter took ill, she took her daughter to a person

named Chand Khan, who practised medicine but he was not a doctor in the true sense and

Chand Khan revealed that her daughter was pregnant at that time. PW-2 then assaulted her

daughter who then disclosed that the petitioner had impregnated her. Then PW-2 took her

daughter to Doiyang to meet the petitioner and the petitioner requested her not to divulge

about the incident and he reassured her that he would resolve the matter. Then they returned

from Doiyang and she, PW-2 went to Lumding to meet her husband to inform him about the

incident. After she returned from Lumding, she learnt that the petitioner took her daughter to Page No.# 6/22

a doctor and got her pregnancy terminated. Then she organised a meeting where the elderly

people of the village assembled but the petitioner did not agree with the decision taken in the

meeting. Her daughter, PW-1 then followed the petitioner to his house to stay with him as his

wife, but the petitioner assaulted her daughter.

12. The learned counsel for the petitioner laid stress in his argument that Chand Khan is

not a doctor and doubt creeps into one's mind when the pregnancy claimed by the victim is

not substantiated with proper medical report by a doctor who is in fact a quack.

13. Shri Rajabala Sarma testified as PW-3 that when PW-2 informed him that the petitioner

impregnated her daughter 'X', then he, Jagendra Gaonbura, Harilal Majhi, Purna Kalita

Gaonbura went to meet the petitioner's father and informed him about a village meeting. The

petitioner's father then disagreed to comply with the decision of the village meeting. Then a

meeting of the villagers was arranged at Kalimandir and both the parties were called to the

meeting but the petitioner did not attend the meeting. Thereafter, 'Anchalik' was held and the

petitioner attended the 'Anchalik' and both the parties were interrogated but the petitioner

left the meeting and went away. The victim 'X' then followed the petitioner up to his house.

After ten (10) minutes, they heard that the victim was being assaulted and they too went to

the place of the occurrence and found the victim 'X', lying on the road in an injured condition.

The victim 'X' was taken to the Udali police station and thereafter, she was taken to the

hospital at Lanka and she was admitted in the hospital as Indoor patient for ten days. When

she returned from the hospital, the victim 'X' informed him that the accused kicked her and

punched her.

In his cross-examination, PW-3 has admitted that he did not witness, the incident. No Page No.# 7/22

contradictions as per Section 145 of the Indian Evidence Act, 1872 (the evidence Act for

short) qua 162 Cr.P.C could be elicited through the cross examination of this witness and the

cross-examination of the I/O, Sri Dimbeswar Das PW-8.

14. Md. Matasin Ali has testified as PW-4. He stated that he was the President of the

'Anchalik Samiti', which used to decide trivial disputes. The victim's father asked for a Bichar

from the 'Anchalik' regarding the relation between his daughter and the petitioner. Both the

parties were present in the Bichar. It was decided by the 'Anchalik' that the petitioner should

marry the victim and the minutes of the meeting were noted down on Exhibit-3. He proved

his signature on the Exhibit-3 as Exhibit-3(1) and Exhibit-3(2). This document was however

exhibited under objection by the defence. PW-4 Matasin Ali further testified that Rajmohan

Nath, Jogendra Nath and Ilasuddin were present in the meeting, which was attended by the

30/40 prominent people of the village. The second meeting was held in the mandir at Pepul

Pukhuri. While, they were attending the meeting both the parties affixed their signatures on

the Exhibit-3 and left the meeting while the meeting was still going on. The victim 'X' was

assaulted in front of the petitioner's house but he did not go to the place of occurrence.

15. In sync with the evidence of PW-3 and PW-4, Shri Raja Mohan Nath also stated about

the meeting in his evidence. He testified as PW-5 that he is the Gaonburah of Gohagaon. He

was present in the meeting regarding the affair between the victim and the petitioner. The

petitioner's father and the victim's parents were present in the meeting attended by 30/40

villagers. It was decided in the meeting that the petitioner should marry the victim and the

Exhibit-3 was prepared. He proved his signature as Exhibit-3(2) which is the minutes of the

meeting exhibited under objection. The petitioner and his family members refused to comply

with the decision of the meeting and they quit the meeting. The victim 'X' also followed the Page No.# 8/22

petitioner. After some time, they heard that the victim was assaulted by the accused in front

of the petitioner's house. While he was returning home, he found the victim lying in front of

the petitioner's house.

16. Thus it clear from the evidence of PW-3, 4 and 5 that the meeting was indeed held as

stated by PW-1 and PW-2. The relationship between the petitioner and the victim has also

surfaced through the evidence of independent witnesses PW-3, PW-4 and PW-5, who was the

Gaonburah at the time of the incident.

17. A school teacher Md. Eliash Uddin @ Eliash has testified as PW-6 that he was present

during the dispute that arose due to the illicit relationship between the petitioner and the

victim. Md. Matasin Ali was the president in the meeting held at Pepul Pukhuri Mandir

campus. The petitioner along with his father and the victim along with her parents were

present in the meeting and other family members also attended the meeting. After hearing

both the sides, it was decided in the meeting that the petitioner should marry the victim and

the minutes of the meeting was prepared and marked as Annexure-3. The petitioner and his

family members disagreed to comply with the decision of the meeting and they quit the

meeting and went away. The victim 'X' also followed the petitioner. Later, they heard that the

victim was assaulted in front of the petitioner's house and he went and found the victim lying

in front of the petitioner's house. In his cross-examination, he has admitted that, he could not

remember the minutes of the meeting marked as Exhibit-3. The petitioner did not affix his

signature on the Exhibit-3, while the victim has given her signature and he identified her

signature as Exhibit-3(3). He has admitted that the meeting was held in the year 2000.

18. The victim has clearly testified that the petitioner Jagannath and the accused Page No.# 9/22

Munindra, Hari Sankar, Gopal, Pratima, Bhanu, Kanklata assaulted her. The victim's mother,

PW-2, did not mention that the other accused assaulted her daughter. However, she stated

that her daughter was found lying unconscious in front of the petitioner's house. Although,

PW-4 and 5 have stated that the victim was assaulted in front of the petitioner's house, they

have not named the assailants who had assaulted the victim. PW-3 has stated that the victim

told him that the accused assaulted her by using their hands, legs and fists. The other

accused were acquitted from the charges under Sections 143/323 IPC on benefit of doubt.

The petitioner was also not held guilty of offence under Sections 143/376/313/323 IPC, so

the discussion narrows down to offence under Section 376 IPC and also offence under

Section 417 IPC.

19. Although, the incident of assault is not relevant to this case yet the incident in its

entirety is discussed to bring out a clear picture of the evidence, to decide the veracity of the

evidence of the victim and other witnesses. It has to be borne in mind that this case was

taken up ex debito justitiae. As there was no evidence that the petitioner as well as the

accused assaulted the victim, the petitioner as well as the accused were not convicted under

Section 323 IPC. Charges under Sections 143/323/493/313 IPC were not established against

the petitioner as well as the other accused, and rightly so when we do not have even a

scintilla of evidence that the victim 'X' was under the belief that she was lawfully married to

the petitioner. In this case, the victim knew well enough that she was having an affair, with a

married man. She has admitted in her cross-examination that when the petitioner expressed

his love for her, he was already married. She has admitted in her cross-examination that prior

to the incident of physical relationship between her and the petitioner, the petitioner was in

love with her and even after the incident of physical relationship, the petitioner was in love Page No.# 10/22

with her. The victim's mother, PW-2, did not witness the incident of assault. Although, the

PW-2, PW-3, PW-4 and PW-5 have stated that after the meeting the victim followed the

petitioner up to his house and she was assaulted by the accused, yet not a single witness

have categorically pointed out that the petitioner had assaulted her or any of the accused

assaulted her. The witnesses did not see the petitioner or the other accused assaulting her.

The Medical Officer however after examination of the victim on 25.11.2001 detected

tenderness on the chest back and head, and abrasion of the tip of the victim's left middle

finger. According to the FIR, the incident occurred on 25.11.2001 and the FIR was lodged on

18.02.2002. After the incident she was immediately examined by the Dr. Abdul Waris, PW-7,

on 25.11.2001 and he found injuries as discussed above but all the accused and the

petitioner were exonerated from the charges under Section 323 IPC.

20. The Medical Officer Dr. Abdul Warish has testified as PW-7 that on 25.01.2023, he

examined the victim 'X' and found the following:- (i) Tenderness present on chest, back and

head, (ii) Abrasion on the tip of left of middle finger ½ X ½. The injuries were fresh, simple

and caused by blunt object.

21. The I/O Shri Dimbeswar Das testified as PW-8 that on 18.02.2002, while serving as I/C

in Udali O.P, he received an FIR from 'X' and he registered GDE No. 287 dated 18.02.2002

and forwarded the FIR to the Lanka P.S. and Lanka P.S. Case No. 41/2002 was registered and

he embarked upon the investigation. He went to the place of occurrence and recorded the

statements of the witnesses. He forwarded the victim for medical examination and also to the

Court for recording her statements under Section 161 Cr.P.C. He arrested the petitioner. The

other accused were released on bail. He forwarded the petitioner to jail. On completion of

investigation, he submitted charge-sheet against the petitioner under Sections Page No.# 11/22

143/323/376/493 IPC and against other accused under sections 143/341/323 IPC. He has

proved the FIR as Exhibit-4 and Exhibit-4 (1) as his signature. He collected the medico legal

report of the victim and identified it as Exhibit-5. He stated that the victim was sent to Lanka

PHC for medical examination, after incident of assault. The Exhibit-6 is also another medical

report of the victim.

22. The learned SDJM Sri Pratim Kumar Bora has testified as PW-9 that on 15.03.2002,

while serving as JMFC, Hojai at Sankardev Nagar, Nagaon, he recorded the statement of the

victim 'X'. He proved the statement of the victim as Exhibit-4 and Exhibit-4(1), 4 (2) and 4 (3)

as his signatures.

23. Dr. Pradeep Saikia, PW-10 has examined the victim after the FIR was lodged on

18.02.2002 and he found the following:-

" No injury was found upon her person. The hymen was found absent. The cervical opening

was H-shaped. The uterus was found in normal size. Smear reveals no spermatozoa. From

her radiological report her age was determined as 16/17 years.

Opinion: No sign of recent sexual intercourse was found. Shape of the cervical opening

indicates some manipulation in the cervix."

24. According to the opinion of the doctor, generally when there is no delivery, the cervical

opening remains o-shaped, but when delivery is done, the cervical opening takes the shape

of H. As the cervical opening of the victim was found to be H-shaped, definitely there was

delivery either by manipulation or by normal method. He proved his medico legal report as

Exhibit-5 and Exhibit-5(1) and 5(2) as his signatures. He has also admitted in his cross-

examination that he had given the age of the victim sans the radiological report. He has also Page No.# 12/22

admitted that, he could not affirm whether the victim 'X' was actually examined by him.

25. Thus, in this case, the trial Court had correctly held that the petitioner is not guilty of

offence under Section 313 Cr.P.C. The Medical Officer, PW-10 could not ascertain wheter the

victim gave birth to a child or whether she was compelled to undergo abortion.

26. Now, the core question is whether the petitioner committed rape on the victim or

whether he is guilty of offence under Section 417 IPC. It has been held in Jaya Mala vs

Home Secretary, Government Of Jammu and Kashmir AIR 1982 SC 1297 that:-

"However, it is notorious and one can take judicial notice that the

margin of error in age ascertained by radiological examination is two years on either side."

27. In this case at hand, the age of the victim was given as 16 to 17 years, and if two

years on the higher side of her age is calculated then the age of the victim tantamounts to 19

years. After considering 2(two) years on the higher side of the age of the victim, now the

question that arises is whether the victim was induced into having sexual relationship with

the petitioner on misconception of facts.

28. The learned counsel for the petitioner has relied on decision of the Hon'ble Supreme

Court in Deepak Gulati Vs. State of Haryana reported in (2013) 7 SCC 675, wherein, it

has been held that:-

" 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, Page No.# 13/22

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 IPC 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."

29. It has also been held by the Hon'ble Supreme Court in Dr. Dhruvaram Murlidhar

Sonar Vs. State of Maharashtra and Others reported in (2019) 18 SCC 191, wherein,

it has been held that:-

"Thus, there is a clear distinction between rape and consensual sex. The court, in such

cases, must very carefully examine whether the complainant had actually wanted to marry

the victim or had mala fide motives and had made a false promise to this effect only to

satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a

distinction between mere breach of a promise and not fulfilling a false promise. If the

accused has not made the promise with the sole intention to seduce the prosecutrix to

indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases

must be treated differently. If the complainant had any mala fide intention and if he had

clandestine motives, it is a clear case of rape. The acknowledged consensual physical

relationship between the parties would not constitute an offence under Section 376 of the Page No.# 14/22

IPC."

30. In the instant case, the victim was well acquainted with the petitioner. She concealed

about her relationship with the petitioner and her mother took her to a doctor, when she took

ill. The incident of assault allegedly occurred on 25.11.2001 and the FIR was lodged on

18.02.2002. Prior to the incident of assault on 25.11.2001, the victim 'X' allegedly was

induced into having physical relationship with the accused and thereafter, continuously for

one year, the victim 'X' had physical relationship with the petitioner on her own volition. She

has deposed that initially she was induced into having sexual relationship with the petitioner

who promised to marry her and thereafter, continuously for one year, she had sexual

relationship with the petitioner because he promised to marry her. The petitioner was already

a married man at that time. The victim has given her age as 15 years when her statement

was recorded under Section 164 Cr.P.C by the Judicial Magistrate, whereas, the Medical

Officer, PW-10 had opined that the victim was around 16 to 17 years old on 25.11.2001. It is

possible that the victim may not be aware that she cannot get married to an already married

man. The petitioner was around 30 years old at the time of the incident. He is a peasant and

he may also not be aware that he cannot marry for the second time being governed by the

Hindu Marriage Act. There is every possibility that the petitioner as well as the victim may not

be aware that they cannot lawfully get married as the petitioner is a married man. When such

doubt creeps in, the benefit of doubt has to be extended to the petitioner. The minutes of the

meeting Exhibit-3 was exhibited under objection by the accused, which also includes the

petitioner. The Exhibit-3 is a photocopy of minutes of the meeting.

31. The petitioner had also preferred an appeal, which was converted into this revision

petition. The petitioner is aggrieved by the order of conviction and sentence passed by the Page No.# 15/22

Sessions Judge, convicting him under Section 417 to undergo rigorous imprisonment for

3(three) months and to pay a fine of Rs. 2,000/- with default stipulation. The learned counsel

for the petitioner has relied on relation of this Court in Ripak Das Vs. State of Assam

reported in 2012 (2) GLT 137, wherein, it has been held that:-

" (19) It is important to note that "consent" in positive terms has not been defined in the

IPC. Section 90 IPC, however, amongst others, provides that a consent is not such a consent

as is intended by any section of IPC, 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. For

application of Section 90 IPC, in a case of this nature, two conditions are to be fulfilled.

Firstly, it must be established that the consent was given under a misconception of fact and

secondly, it must be poved that the person who obtained the consent, knew or had reason to

believe that the consent was given in consequence of such misconception. The failure to keep

a promise at a future uncertain date does not necessarily amount to a misconception of fact

at the very inception of the act itself for fastening of criminal liability. It must also be proved

that from the very inception, the accused never intended to marry her. In other words,

though a promise to marry without anything more may not give rise to a misconception of

fact within the meaning of Section 90 IPC, a false representation deliberately made by the

accused with a view to obtain consent of the woman without having at all intended to marry

her will vitiate the consent, if any, given by the woman.

(20) From the evidence of PW-1, it appears that she did not agree to the proposition of Ripak

to have intimacy on the promise that he would marry her. She, in categorical terms, both

stated that she was not agreeable to the same. However, the evidence on record discloses Page No.# 16/22

that she had intercourse on 4/5 occasions with Ripak. From the evidence of PW-1, it also

appears that there is no allegation of the petitioner forcefully committing sexual intercourse

with her. It would appear that, if at all, the petitioner had consensual intercourse with the

PW-1. There is also no evidence to show that from the very beginning, assuming that the

petitioner had promised to marry her, he did not really intend to marry her. Rather the version

of the PW-1 is that even at the time of her departure, Ripak had told her that he would marry

her and had also visited their residence and had asked her to prepare for the wedding."

32. Reverting back to this case, it is held that the evidence of the Medical Officer, PW-10,

clearly reveals that there is evidence of some sort of manipulation in the cervix of the victim

and the cervix was found to be H-shaped. A meeting was arranged and the petitioner was

present in the meeting. The uncontroverted evidence of PW-1, PW-2, PW-3, PW-4, PW-5 and

PW-6 clearly implicates that the petitioner was present in the "Anchalik" meeting. The

uncontroverted evidence of PW-1 and PW-2 also reveals that the victim 'X' had sexual

intercourse with the petitioner. She was also impregnated by the petitioner. To the

incriminating circumstances arising against him several questions were asked under Section

313 Cr.P.C to the petitioner and he denied and disowned all the allegations levelled against

him by the witnesses. He stated about criminal cases between his family and the victim's

family insinuating mens rea for false allegations. The evidence of the victim is not sufficient to

prove that the petitioner committed rape on the victim with false promises of marriage and

thereafter, induced her to have sexual relationship with him for over a year until she was

found to be pregnant by her mother. The allegation by the victim against the petitioner of

having forcefully committed sexual assault on her and thereafter, inducing her to continue

having sexual relationship with him with false promises of marriage does not inspire Page No.# 17/22

confidence. She was having a love affair with a married man for over a year. She has

admitted as PW-1 that she was in love with the petitioner.

33. The evidence of PW-2 clearly depicts that she came to know about her daughter's

pregnancy when her daughter took ill. Her daughter 'X' admitted of having a relationship with

the petitioner. The victim who is considered to be a major was having an affair with the

petitioner for over a year. Although, the petitioner is a married man, the victim relied on him

and she continued with her relationship with the petitioner. It is not clear from the evidence if

the petitioner, from the very inception of his relationship with the victim intended to cheat the

victim with false promises of marriage and thereafter, induced her into having physical

relationship with him for over a year. The learned trial Court did not convict the petitioner

under Section 313 IPC and also under Section 323 IPC. The victim's evidence and her

mother's evidence was not held to be reliable to convict the petitioner under Section 323/313

IPC.

34. In her cross-examination, the victim, PW-10 has testified that 5,6 months before, she

had sexual relationship with the petitioner, the petitioner had expressed his love for her and

he promised to marry her. Thereafter, the petitioner used to visit her frequently. Her evidence

depicts that she secretly continued with her relationship with the petitioner for a year, after

the alleged date of incident, until her mother found out that she is pregnant. The petitioner

did not voluntarily inform her mother that she was pregnant, but when she took ill, her

mother took her to the Chand Khan, a kind of traditional healer or a sorcerer, who informed

the victim's mother that the victim was pregnant. It cannot be deciphered that the petitioner

had no intention to marry the victim. A village meeting was called and a dispute erupted in

the village meeting. The petitioner left the meeting and the victim followed him. It is alleged Page No.# 18/22

that the accused assaulted the victim. The accused who allegedly assaulted the victim are

related to the victim. One accused Smti. Pratima Das, is the petitioner's wife, the other

accused Smti. Bhanu Das, is the petitioner's sister-in-law, Sri Gopal Das, is the petitioner's

younger brother and Sri Hari Sankar Das, is the petitioner's elder brother. Accused Munindra

Kr. Das, is the father of the petitioner. It is alleged that all the accused persons have allegedly

assaulted the victim, but all the accused have been exonerated and they have been acquitted

from the charges under Section 323 IPC. The remaining two accused are not related to the

petitioner. Accused Paresh Paul and Sagar Ch. Das are not related to the petitioner. The victim

testified as PW-1 that all the accused assaulted her and her evidence has been substantiated

by the evidence of her mother as PW-2 but the trial Court has acquitted the accused persons

from the charges under Section 143/323 IPC. The contradictions prevented the trial Court

from convicting the accused under Section 143/323 IPC. These contradictions were elicited

through the cross-examination of PW-1 and cross-examination of the I/O, PW-9.

35. The contradiction under Section 145 of the Evidence Act qua Section 162 Cr.P.C.

clearly depicts that the victim did not mention before the I/O under Section 161 Cr.P.C that

the accused assaulted her and she was rendered unconscious as a result of the assault. In

her statement under Section 164 Cr.P.C, the victim however, stated that the accused

assaulted her and left her lying on the road. It is submitted on behalf of the petitioner that

the statement of the victim under Section 164 Cr.P.C. was an afterthought. Her statement was

recorded on 05.03.2022, whereas, the alleged incident occurred on 25.11.2001. There is not

even iota of doubt that in the meeting, a difference arose between the parties and the

petitioner and his family members left the meeting. The victim who followed the petitioners,

was not allowed to enter into the petitioner's house. The evidence of PW-1 is substantiated Page No.# 19/22

by the evidence of other witnesses who were present in the meeting. The PW-2, 3, 4, 5 and 6

were present in the meeting. It is clear from the evidence of PW-1 to 6 that the victim

followed the petitioner up to his house. The victim has stated that she wanted to enter into

the petitioner's house and stay in his house as his wife but she not allowed to enter. There

may have been a scuffle but it cannot be considered as an incident of assault. The victim was

not allowed to enter into the petitioner's house and she was found lying on the road. The

victim was disillusioned by the petitioner's behaviour. It is, however, not discernible that the

petitioner from the very inception had intended to cheat the victim. The turn of events, after

the meeting led to the incident. Even the evidence of the victim does not prove beyond

reasonable doubt that the petitioner from the inception cheated her and induced her into

having physical relationship with him and on misconception of facts, the victim had sexual

relationship with the petitioner. The victim has testified that she continued with this secret

relationship with the petitioner for more than a year until she was caught by her mother,

when her mother found that she was pregnant.

36. The learned counsel for the petitioner has also emphasised through his argument that

there was an inexplicable delay in lodging the FIR. The incident of assault occurred on

25.11.2001 while the FIR was lodged on 18.02.2002, providing sufficient time for fabrication

of the FIR.

37. It is also submitted that the PW-1 admitted in her cross-examination that her mother

had lodged an FIR against Munindra Das, which is still pending. Another FIR has been lodged

against her mother and her elder sister by the accused Munindra Das which was settled in the

National Lok Adalat and her mother was sentenced to fine. The petitioner has also stated

about a land dispute between him and the victim's family in his statement under Section 313 Page No.# 20/22

Cr.P.C. However, the suggestion regarding the land dispute has been denied by the PW-1.

38. It has been held by the Hon'ble Supreme Court in Deelip Singh Alias Dilip Kumar

Vs. State of Bihar reported in (2005) 1 SCC 88 that:-

"35. The remaining question is whether on the basis of the evidence on record, is it

reasonably possible to hold that the accused with the fraudulent intention of inducing her to

sexual intercourse, made a false promise to marry? We have no doubt that the accused did

hold out the promise to marry her and that was the predominant reason for the victim girl to

agree to the sexual intimacy with him. PW-12 was also too keen to marry him as she said so

specifically. But we find no evidence which gives rise to an inference beyond reasonable

doubt that the accused had no intention to marry her at all from the inception and that the

promise he made was false to his knowledge. No circumstances emerging from the

prosecution evidence establish this fact. On the other hand, the statement of PW-12 that

'later on', the accused became ready to marry her but his father and others took him away

from the village would indicate that the accused might have been prompted by a genuine

intention to marry which did not materialize on account of the pressure exerted by his family

elders. It seems to be a case of breach of promise to marry rather than a case of false

promise to marry. On this aspect also, the observations of this Court in Uday's case at

paragraph 24 comes to the aid of the appellant.

36. We reach the ultimate conclusion that the findings of the trial court as affirmed by the

High Court are either perverse or vitiated by non-consideration of material evidence and

relevant factors emerging from the prosecution evidence. We cannot, therefore, sustain the

conviction."

Page No.# 21/22

39. Reverting back to this case, it is held that the victim's evidence does not inspire

confidence. Her mother's evidence also does not inspire confidence. The other witnesses PW-

3, 4, 5 and 6 have proved the fact that the meeting was held on 25.11.2001. This meeting

was regarding the victim's pregnancy. Before the meeting could be concluded, the accused

left the meeting. The victim followed him but she was not allowed to enter into his house and

stay with him as his wife. The petitioner's wife and other family members prevented the

victim from entering into his house. Even if the petitioner had promised to marry the victim,

he could not keep his promise as the victim was not allowed to enter into his house by his

family members. He was already a married man at the time of the incident. He had attended

the meeting, which was arranged by the petitioner's mother with the help of villagers. Even if

the petitioner had a good intention of marrying the victim, he was prevented from doing so

by his family members. The petitioner ought to get the benefit of doubt. It is apparent from

the victim's evidence that although her first sexual intercourse was against her will, she

became a consenting party later on. The version of rape seems to be highly doubtful when

tested in the light of her statements under Sections 161 and 164 Cr.P.C.

40. In view of my foregoing discussions, it is thus held that the prosecution has failed to

prove beyond a reasonable doubt that from the very inception, the accused had no intention

to marry the victim and had obtained the consent of the victim to have sexual relationship

with her with false promises of marriage and under misconception of facts. It is thereby held

that the trial Court's decision acquitting the petitioner from charges under Section 376 IPC is

sustainable and does not require interference. However, I do not concur with the findings of

the trial Court holding the petitioner guilty of offence under Section 417 IPC. It has already

been held in my foregoing discussions that the prosecution has failed to prove beyond Page No.# 22/22

reasonable doubt that the petitioner from the very inception of his relationship had intended

to cheat the victim. He might have been prompted by a genuine intention to marry the victim,

which did not materialise on account of pressure exercised by his family members. The

victim's evidence clearly reveals that she was in love with the petitioner, who was a married

man. The victim and the petitioner carried on with their relationship until the victim was

caught by her mother, when she took ill. After the meeting that was held by the Anchalik, the

petitioner was followed by the victim but she was not allowed to enter into his house by his

family members. It is thereby held that the petitioner ought to get the benefit of doubt. It is

thereby held that the prosecution has failed to prove beyond reasonable doubt that the

petitioner is guilty of offence of cheating. The petitioner is thereby acquitted from the charges

under Section 417 IPC on benefit of doubt. The judgment and order dated 31.08.2004 passed

by the learned Adhoc Additional Sessions Judge, Hojai at Sankardev Nagar, convicting the

petitioner under Section 417 IPC is hereby set aside.

41. The surety stands discharged.

Send back the LCR.

JUDGE

Comparing Assistant