Sri Shibcharan Deb Barma vs The State Of Tripura
2021 Latest Caselaw 357 Tri

                                    Page 1 of 7


                        HIGH COURT OF TRIPURA
                              AGARTALA
                               AB 11 of 2021

Sri Shibcharan Deb Barma, S/O-Sri. Puni Deb Barma, Of Bairob Sardar
Para, P.S.- Mandai, Dist.-West Tripura
                                                    -----Petitioner(s)
                                   Versus

The State of Tripura
represented by the PP, High Court of Tripura, Agartala.
                                                          -----Respondent(s)

For the Petitioner(s)       : Mr. A. Basak, Adv.

For the Respondent(s)       : Mr. Ratan Datta, PP

Date of hearing             : 17.03.2021

Whether fit for reporting   : No.


                                BEFORE

           HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                                ORDER

17.03.2021

[1] This application has been filed under Section 438 of the

Code of Criminal Procedure, 1973 (Cr. P.C in short). for granting pre

arrest bail to the petitioner who is apprehending arrest in Mandai P.S.

case No. 2021 MDI 001 which has been registered under Sections 376

read with Section 417 Indian Penal Code(IPC in short).

[2] The genesis of the case is rooted in the FIR lodged by the

victim (name withheld to hide her identity) who alleged that she had

known the petitioner from her school days. In the year 2012, when she

got admitted in the 11th standard of her school, the accused petitioner

also got admitted in the said school with her in the same class.

Gradually they developed friendship which matured into love affairs

between them. On the 23rd day of October last year during Durga Puja,

the petitioner came to her house. Since her parents were absent in the

house at that time, she asked the petitioner to leave. But he entered into

her house, caught hold of her and committed sexual inter course on her.

When she raised cry, the people from the neighbourhood appeared and

rescued her. After the incidence, the petitioner assured that he would

marry her. When her parents returned home, she divulged the incident

to her parents. Her parents tried to contact the petitioner over

telephone. In the afternoon, the parents of the petitioner also came to

the house of the victim. Parents of both discussed and decided that the

victim would be given in marriage to the petitioner. Since there was no

prospect of marriage, the parents of the victim met the parents of the

petitioner on 13.12.2020 and further proposed for the marriage between

the petitioner and victim. The parents of the petitioner then refused to

get their son married to the victim. Thereafter, the victim reported the

matter to police on 16.01.2021 i.e. after about 4 months from the date

of occurrence and based on her written FIR, Mandai P.S. case no. 2021

MDI 001 under Sections 376 read with Section 417 IPC was registered.

Apprehending arrest in the case the accused petitioner has

moved this court for pre arrest bail under Section 438 Cr.P.C.

[3] Heard Mr. A.Basak, learned counsel appearing for the

petitioner.

Heard Mr. Ratan Datta, learned PP, representing the State

respondent

[4] Learned counsel appearing for the petitioner submits that

the victim is a matured lady who is doing her post graduate studies in

the university. Admittedly she is 28 years old and it is also submitted

by her that she had a long relationship with the petitioner. According to

learned counsel, after the alleged occurrence took place, the victim did

not report the matter to police. Only after the marriage proposal was

turned down, she came to the police station and lodged a case against

the accused petitioner. It is submitted by learned counsel that for

argument's sake, even if it is assumed that sexual intercourse occurred

between them, it was a consented relationship since both of them were

adult in age and the petitioner could not be held guilty of any offence

for such act. Further submission of learned counsel appearing for the

petitioner is that the accused has also completed his graduation and

looking for a job. In such a situation, if he is arrested and sent to jail,

his future will be spoilt. It is submitted by learned counsel that the

relationship between the petitioner and the victim is still alive and his

detention is likely to spoil the relationship for ever. Learned counsel,

therefore, urges the court for release of the accused on bail.

[5] Mr.Ratan Datta, learned Public Prosecutor on the other

hand vehemently opposes the bail application on the ground that such

incidents are on the increase and there is no reason to disbelieve the

victim who made the allegation of rape against the accused petitioner.

According to learned PP even consented sexual intercourse may

amount to rape if such consent is given under misconception of facts.

In support of his contention learned PP has relied on the decision of the

Apex Court in Anurag Soni vs. State of Chattisgarh reported in (2019)

13 SCC 1 where in the Apex Court held that if the consent given by the

prosecutrix was on misconception of fact, the accused shall be held

guilty of offence punishable under Section 376 of the IPC. Observation

of the Apex Court in paragraph 19 of the judgment is as under:

"19. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of

the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant accused for the offence punishable under Section 376 of the IPC. The appellantaccused must face the consequences of the crime committed by him."

[6] It is contended by learned PP that even though there was

relationship between the petitioner and the victim, the victim never

licensed the petitioner to commit sexual intercourse on her. She has

categorically stated in her FIR that despite her resistance, the accused

entered into her house in absence of her parents and committed sexual

intercourse on her. Learned counsel therefore, submits that a good

prima facie case of offence punishable under Section 376 read with

Section 417 IPC has been made out against the accused and therefore,

he does not deserve bail under Section 438 Cr.P.C.

[7] I have perused the case diary produced by learned PP. It

appears that during the investigation of the case the investigating

agency produced the victim before the Judicial Magistrate of the First

class at Agartala who recorded the statement of the victim under

Section 164(5) Cr.P.C. In her said statement, the victim categorically

stated that she stayed with the accused petitioner together in a rented

house in Khumlung and everyone in the neighbourhood was under the

impression that they would be married and therefore, none in the

neighbourhood raised any objection to their living together. After

graduation in 2017, when she got admitted in the university and shifted

to Agartala, she came to know that the accused entered into relationship

with another woman. The victim approached the accused several times

for marriage. He kept saying that he would marry her. But few months

thereafter, he retreated from his promise. Again from October 2020, he

started meeting her in her house at Mandai and on several occasions

they had physical relationship with each other. But ultimately he

refused to marry her.

[8] From the materials available on record, prima facie it

appears that it was consensual relationship between the parties. The

victim is 28 years old lady who was well aware of the consequence of

such relationship. Whether the victim consented to physical

relationship under misconception of fact may only be decided in the

course of trial on the basis of evidence.

[9] In the given facts and circumstances, no prima facie case

of rape has been made out against the accused. Therefore, this court is

of the view that bail may be granted to the accused on his furnishing

bail bond of Rs.20,000/- with two sureties of the like amount each to

the satisfaction of the Investigating Officer on the following conditions:

i) He will not leave the jurisdiction of the trial court

without prior approval of the Sessions Judge of the West

Tripura Judicial District

ii) He will appear before the IO of the case thrice in a

week

iii) He will not try to influence the witnesses in any

manner whatsoever.

[10] In terms of the above, the bail petition is allowed and the

case is disposed of.

Communicate the order to the IO.

Return the CD.

JUDGE

Saikat Sarma, P.A