Shri Priyangan Saha vs The State Of Tripura
2021 Latest Caselaw 1226 Tri

                      THE HIGH COURT OF TRIPURA
                            AGARTALA
                           CRL A (J) 36 OF 2020
Shri Priyangan Saha,
S/o Shri Rajesh Saha of Ranir Khamar, Madhuban,
PS-Amtali, District-West Tripura.
                                                              .... Appellant
             - Vs -

The State of Tripura,
                                                             ....Respondent

                          BEFORE
             HON'BLE MR. JUSTICE ARINDAM LODH

For the appellant             : Mr. S. Lodh,Advocate.

For the State-respondent      : Mr. S. Ghosh,
                                Additional Public Prosecutor.

Date of hearing and           : 09.12.2021
date of delivery of
Judgment & Order

Whether fit for reporting : No

                        Judgment & Order (Oral)
             This is an appeal preferred by the convict-appellant

challenging the judgment and order of conviction and sentence dated

08.07.2020, passed by learned Special Judge (POCSO), West Tripura,

Agartala, in connection with case No. Special (POCSO) 21 of 2018

whereby and whereunder the convict-appellant has been convicted and

sentenced to suffer R.I. for 7 (seven) years and to pay a fine of Rs.25,000/-
                                         Page 2




for the offence punishable under Section 376(1) of IPC with default

stipulation.


2.             Facts, as projected by learned Special Judge are reproduced

hereunder:


                              "Brief facts, leading this case is that the victim had been
                 staying in the house of one Rakhal Saha located at Granduse Para,
                 Agartala since her childhood i.e. 7 years of age and brought up there.
                 During such stay the victim came to be acquainted with the accused
                 and love affairs developed between them. Once the accused forcibly
                 committed rape upon the victim and when the victim resisted the
                 accused, he promised to marry her. Subsequently, matter was also
                 brought to the notice of parents of accused who assured to take
                 responsibility of the victim. On 08/03/2017 matter was settled
                 amicably in the house of said Rakhal Saha. However, the victim stated
                 to have approached East Agartala Women P.S. from where she was
                 taken to a Home at Jogendranagar. During stay in the said Home the
                 victim being fallen ill, she was taken to a Doctor and on the advice of
                 the Doctor her pregnancy was tested positive. Situating thus, mother
                 of the informant approached the parents of the accused with request
                 to get the victim married but they refused to do so. The victim being at
                 the stage of 6(six) months of her pregnancy lodged written complaint
                 with West Agartala Women P.S. on 26/10/2017."


3.             On receipt of the said written complaint, the Officer-in-Charge

of West Agartala Women PS had registered a specific case vide West

Agartala Women PS Case No.2017 WAW 083, dated 16.10.2017 under

Section 376(2)(i) of IPC and Section 4 of the POCSO Act and endorsed its

investigation initially to WSI Smt. Paramita Saha, here-in-after referred to
                                    Page 3




as the "IO" and subsequently to WSI, Mamtaz Hasina, here-in-after

referred to as "IO-2".


4.            During investigation, IO had visited the place of occurrence,

recorded the statements of the available witnesses. IO also arranged the

examination of the victim girl under Section 164(5) of CrPC and arrested

the accused-appellant. Medical examination was also conducted upon the

victim girl for determination of her pregnancy. IO also collected the report

of SFSL from the Forensic Science Laboratory and the medical

examination report of the victim. The IO-2 also appears to have collected

the DNA profiling report which was done to ascertain the biological

parents of the child given birth by the victim during investigation of this

case. Finally, a prima facie case established, the IO-2 had submitted

charge-sheet under Sections 376(2)(i)/417 of IPC and Section 4 of the

POCSO Act against the accused-appellant.


5.            At the commencement of trial, charges were framed against

the accused-appellant under Section 376(1) of IPC and Section 4 of the

POCSO Act. Charges were read over to the accused, to which he pleaded

not guilty.
                                    Page 4




6.           In order to substantiate the charges, the prosecution had

examined as many as 12 witnesses and introduced as many as 15

documents including the scientific and medical examination reports.


7.           After conclusion of trial, the accused-appellant was examined

under Section 313 CrPC wherein he pleaded to be innocent, but, he did not

adduce any evidence in his defence.


8.           Having heard the arguments advanced by learned counsels

appearing for the parties, learned Special Judge had held the accused-

appellant guilty of committing offence punishable under Section 376(1) of

IPC, but, acquitted the accused-appellant from the charge under Section 4

of the POCSO Act.


9.           Being aggrieved by and dissatisfied with the said judgment

and order of conviction and sentence, the appellant has preferred the instant

appeal before this court.


10.          I have heard Mr. S. Lodh, learned counsel appearing on behalf

of the appellant. Also heard Mr. S. Ghosh learned Addl. P.P. appearing on

behalf of the State-respondent.
                                     Page 5




11.          Mr. Lodh, learned counsel appearing for the appellant has

submitted that the prosecution has failed to establish the ingredients of

Section 90 of IPC. Mr. Lodh, learned counsel has tried to persuade this

court that both of them were consenting parties to develop physical relation

between them and there was no promise made by the convict in bad faith.

Mr. Lodh, learned counsel has further submitted that since the victim was

found to be adult, both the accused and the victim had developed physical

relation out of love and passion.


12.          On the other hand, Mr. S. Ghosh, learned Addl. P.P. appearing

for the State-respondent has submitted that if there was any good intention

on behalf of the appellant, then, why the appellant did not marry the girl.

As such, the ingredients of Section 90 of IPC, according to learned Addl.

P.P., are well attracted.


13.          Keeping in mind the above submissions, I have perused the

evidence on record. The evidence of PW-1 is appears to be vital.


14.          The complainant-victim being deposed as PW-1 stated that she

used to reside in the house of one Rakhal Saha as domestic help. She got

acquainted with the accused-appellant. One day, the accused had requested

her to have love affairs with him. Though, initially she had refused the
                                    Page 6




proposal, but, on repeated persuasions on behalf of the accused-appellant

that he loves her and he would marry her with the consent of his family

members, she agreed to the proposal considering everything and started

making love affairs with him and taking the opportunity of love affairs, the

accused-appellant made physical relation with her in the residence of

Rakhal Saha in absence of inmates of Rakhal Saha on a day. After the

physical relation when she told him to marry her that time he totally denied

the relation including the physical relation and refused to marry her.

Thereafter, she informed the matter to her mother. Her mother brought her

to the police station and lodged the FIR. She further deposed that, in that

meanwhile, she became conceived and after medical examination her

pregnancy was confirmed. Deposing further, she stated that her mother

tried to negotiate the matter with the family members of the accused, but,

the accused and his family members also refused to accept her. Thereafter,

she was brought to the Shelter Home and on the date of deposition she was

at the said Shelter Home. During her deposition, PW-1 stated that her

statement was recorded by the Magistrate. She lodged the FIR and the

Scribe was the Counsellor of Home. PW-1 had identified her signature in

the FIR.
                                    Page 7




             During cross-examination, PW-1 had admitted that she did not

state in her FIR that one day accused requested her to have love affairs with

her, but, she refused.


15.          PW-2, being the mother of the victim (PW-1) deposed that in

absence of the inmates of the house where her daughter was working as

maid servant, the accused-appellant had developed a physical relation with

her victim daughter with an assurance to marry her. But, thereafter, when

she was conceived, the accused-appellant had denied to marry her.


16.          PW-3, Satyajit Saha deposed that the victim (PW-1) used to

perform works in his house. In his absence, one day, the accused came to

his house and had some ill acts with the victim. He further deposed that

when his nephew noticed the same, the guardians of both sides were

informed and handed them over to their respective guardians.


17.          PW-4, Rupa Saha being the wife of PW-3 had deposed in the

similar tune as that of PW-3.


18.          PW-5, Rajarshi Das deposed that he had noticed one chappal

of an unknown person outside the room of his maternal uncle. She knocked

the door and after a while the accused-appellant along with the

complainant-victim (PW-1) came out of the room. They tried to enquire
                                     Page 8




into the matter, but, no satisfactory reply had been given either by the

accused-appellant or by the complainant (PW-1). Thereafter, guardians of

both of them were informed. They came and both the accused-appellant

and the victim girl (PW-1) were handed over to their respective guardians.


19.          PW-7, Indrani Saha was the Superintendent of the Shelter

Home at Jogendranagar. She deposed that she arranged for her medical

checkup by a Doctor after being reported of some physical discomfort of

PW-1. On examination, it was detected that she was carrying pregnancy.

PW-7 further deposed that initially, the victim did not say her anything,

but, being asked, she told her that during her stay at the house of one

Rakhal Saha, she had developed some physical relation with a boy whose

father's name is Pintu Saha and she herself and said boy were caught red

handed by the inmates of the house and ultimately, they were driven out.

She further deposed that on 3rd December, 2017 the victim had delivered a

female child. She made efforts to settle up the matter, but, failed.


20.          PW-8, Dr. Juthika Debbarma deposed that on scientific

examination, the DNA profile was matched with the accused.


21.          PW-10, Dr. Subhankar Nath deposed that after scientific

examination it came to light that the complainant (PW-1) was the
                                         Page 9




biological mother of the newly born baby and the accused was the

biological father of the baby.

22.          PW-11 is the investigating officer. PW-12 is another

investigating officer, who submitted the charge-sheet.


23.          I have carefully scrutinized the entire evidence let in by

prosecution witnesses, particularly, the evidence of PW-1. Before adverting

to the merits of the case, I have perused the decision in Pramod Suryabhan

Pawar v. State of Maharashtra & Anr. [AIR 2019 SC 4010: AIR Online

2019 SC 904], where the Hon'ble Supreme Court after considering its

earlier decisions has discreetly enumerated the meaning of "consent" as

contemplated under Section 375 and expression "misconception of fact".

             Hon'ble Supreme Court has held thus:-

                       "...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:

Page 10

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 IPC 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(AIR 2019 SC 327) 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 (2013) 9 SCC 113. "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."

13. This understanding of consent has also been set out in Explanation 2 of Section 375 (reproduced above). Section 3(1) (w) of the SC/ST Act also incorporates this concept of consent:

"3(1) (w) -

Page 11

(i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;

...

Explanation.--For the purposes of sub-clause (i), the expression "consent" means an unequivocal voluntary agreement when the person by words, gestures, or any form of non-verbal communication, communicates willingness to participate in the specific act:

Provided that a woman belonging to a Scheduled Caste or a Scheduled Tribe who does not offer physical resistance to any act of a sexual nature is not by reason only of that fact, is to be regarded as consenting to the sexual activity:

Provided further that a woman's sexual history, including with the offender shall not imply consent or mitigate the offence;"

14. In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh (AIR 2019 SC 1857) this Court held:

"37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC." Similar observations were made by this Court in Deepak Gulati v State of Haryana [(2013) 7 SCC 675] ("Deepak Gulati"):

"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..."

15. In Yedla Srinivasa Rao v State of Andhra Pradesh [(2006) 11SCC 615]the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became Page 12

pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed:

"10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent...."

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 ( AIR 2013 SC 2071, Paras 18,21) 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 Page 13

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 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." (Emphasis supplied)

17. In Uday v State of Karnataka [(2003)4 SCC 46] the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:

"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 Page 14

love, that they promise to each other several times that come what may, they will get married..." (Emphasis supplied)

18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

24. Keeping in mind with the aforesaid principle, I have again

carefully scrutinized the evidence of PW-1. She has specifically stated that

the accused had started to love her. Initially she did not agree to develop

love affairs. However, the accused had proposed that she would marry her

with the consent of his family members. Considering everything she agreed

with his proposal of making love affairs with him. She has specifically

stated that out of such love affairs the accused had developed physical

relation with her in absence of the inmates of the house in the residence of

Rakhal Saha where she was working as a domestic help. She has further

stated that after the physical relation when she told the accused to marry

her, at that time, the accused had refused to marry her. Thereafter, she has

deposed that she informed the matter to her mother. On close examination

of the said statement, according to me, physical relation was developed

between the complainant (PW-1) and the accused-appellant on her consent Page 15

and it is not clear from the statement of the complainant that at the very

inception of such development of physical relation the accused had

expressed his intention to marry her or the consent of the complainant was

vitiated by any misconception of facts. Another important noticeable fact to

be considered, in the instant case, is that, it was not the appellant who

brought her to any other place. It was the victim-complainant who invited

the boy, the accused-appellant to go to the residence of Rakhal Saha where

she was staying. Furthermore, the girl did not express anything to her

mother on her own will and volition. The fact is that she was caught red

handed with the accused-appellant and thereafter, the guardians were called

upon and both of them were handed over to their respective guardians. I

have noticed that the girl did not lodge any complaint or did not disclose

the incident to anyone for almost 6(six) months. It was only after detection

of her pregnancy, she reported the matter to the Superintendent of the

Shelter Home and consequently, the FIR was lodged by her. So, it is not

clear from her versions and conducts that before physical relationship the

accused-appellant had ever promised to marry her. Moreso, after they were

caught together, the victim-complainant never disclosed to anyone

including her mother that she surrendered her chastity to the appellant only

after his promise to marry her. From the evidence of PW-7, it has come to Page 16

light that being asked by PW-7, the complainant has only disclosed that

during her stay she developed physical relation with the appellant, but, she

did not disclose to her that it was proceeded by the promise of the appellant

to marry her.

25. In my ultimate analysis, the prosecution has not been able to

establish that the fact of false promise itself had of immediate relevance or

direct nexus prompting the complainant to engage in the sexual act with the

appellant beyond reasonable doubt. In the opinion of this court, in the

instant case, the court can arrive at two conclusions. The law is settled in

this regard that the court will not upset the view favourable to the accused.

26. On overall assessment of the evidence and materials on record,

in my opinion, the accused-appellant is entitled to benefit of doubt.

Accordingly, the judgment and order of conviction and sentence dated

08.07.2020, passed by learned Special Judge (POCSO), West Tripura,

Agartala, in Case No. Special (POCSO) 21 of 2018, is interfered with and

the same stand set aside and quashed.

The appellant, Priyangan Saha is acquitted of the charge

levelled against him on benefit of doubt. Surety of the accused-appellant is

also discharged from the liability of the bail bond.

Page 17

The appeal, accordingly, stands allowed and disposed of.

Send back the LCRs forthwith.

JUDGE