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2004 DIGILAW 265 (CAL)

NRIPEN DAS v. STATE

2004-04-08

GORACHAND DE, SANKAR PRASAD MITRA

body2004
G. C. DE, J. ( 1 ) THIS appeal by the convict is against the judgment and order of conviction dated 12. 6. 97 and the sentence dated 13. 6. 97 passed by the learned assistant Sessions Judge, Jalpaiguri in Sessions Case No. 92/96 arising out of kotwali P. S. , Jalpaiguri case number 425 of 1994 under section 376 of IPC (G. R. Case No. 1503 of 94 ). By the said judgement the learned Assistant Sessions judge found the accused Nripen Das guilty under section 376 of the IPC and convicted him thereunder and sentenced him to suffer R. I. for 10 years and also to pay a fine of Rs. 5,000/- i. d. to suffer further R. I. for one year. Direction was also given that the fine amount, if realised, shall be paid to the victim kalpana Biswas as compensation. It is also directed that the period of detention of the convict in course of the trial is to be set off under section 428 of the Code of Criminal Procedure. ( 2 ) PROSECUTION case in brief is that Kalpana Biswas became blind at the age of seven being attacked by Typhoid and she used to reside in her house with her mother and sister while her father was not heard of for a long period. She used to go out for begging with the aid of her sister Anjana. In course of such begging she came in contact with the accused who promised her to marry as well to take step for the treatment of her eyes and during the Durga Puja days of 1994 the accused Nripen Das started to cohabit with her with such false assurances, but ultimately Nripen Das denied to marry her. The matter was communicated to the relatives and then to local Panchayat and ultimately a written complaint was filed, on the basis of which the FIR was drawn and a case was started. The accused was arrested in course of investigation and his potency was confirmed by medical examination. The victim girl was also medically examined in which confirmation of sexual intercourse is indicated. The victim also made a statement which was recorded by a learned Magistrate under section 164 Cr. PC. Ultimately on completion of investigation chargesheet was submitted against the accused Nripen Das. The victim girl was also medically examined in which confirmation of sexual intercourse is indicated. The victim also made a statement which was recorded by a learned Magistrate under section 164 Cr. PC. Ultimately on completion of investigation chargesheet was submitted against the accused Nripen Das. The case was committed to the court of Sessions where charge under section 376 of the IPC was framed. Since the accused pleaded not guilty to the charge, prosecution produced as many as twelve witnesses including the Investigating Officer. Other documents were also produced along with the ossification test report of the victim girl to prove her age. ( 3 ) OF course no defence witness was examined in this case and the defence case, as can be ascertained from the trend of cross-examination and the answers given in course of examination under section 313 Cr. PC, is complete innocence. ( 4 ) IN course of hearing of this appeal the learned Counsel appearing on behalf of the appellant by scanning the school certificate (Ext. 5) tried to argue that the date of birth of the victim girl being 27. 1. 77, it can safely be concluded that at the time of the alleged incident the victim girl was above sixteen years of age. The learned Counsel also placed reliance on the ossification test report (Ext. 3) in which the victim girl was shown to be between 15 years and 16 years of age. It is contended that if two years, plus or minus, is taken into consideration it can be said that the victim was above 16 years of age. So scanning the evidence of the victim (PW. 4) it has been argued that the alleged sexual act was the outcome of the consent given by the victim. ( 5 ) THE learned Counsel also pointed out that to conceal the story of consent the story of starting sexual act by threat of a knife was tried to be introduced and in fact in her statement under section 164 Cr. PC the victim tried to say so. It is argued by pointing out that PW. 4 Anjana, who is sister of the victim girl (PW. 2) also stated that she saw knife when the accused was lying in the same bed with Kalpana. There was no specific indication that sexual act was done on the point of knife. PC the victim tried to say so. It is argued by pointing out that PW. 4 Anjana, who is sister of the victim girl (PW. 2) also stated that she saw knife when the accused was lying in the same bed with Kalpana. There was no specific indication that sexual act was done on the point of knife. So, the learned Counsel contended that the element of rape having not been proved, the accused is liable to be acquitted. ( 6 ) MR. Sasanka Ghose, learned Counsel appearing for the State, however, raised serious objection to the submissions made by the learned Counsel for the appellant. The argument of Mr. Ghose practically supports the finding of the Trial Court with-the rider that substantive evidence of PW. 2 alone is sufficient to indicate that the sexual act was done by the accused with the assurance of marrying a blind girl and also to take care of her treatment. Scanning the status of the victim girl Mr. Ghose further contended that the trial Court was quite justified in imposing the maximum sentence to the accused in this case. ( 7 ) AFTER hearing the learned Counsel of both sides and on perusal of the evidence on record it transpires that in the paper book the Ext. 5, i. e. the School certificate, is not properly depicted. In the said Register of the Blind School the date of birth of the victim girl is indicated as 27. 1. 79 and not 27. 1. 77. So, the said certificate along with the evidence of PW. 7 indicates that the victim was aged about 16 years at the time of commission of the sexual act during the durga Puja days in the year 1994. The ossification test report (Ext. 3) also indicates that the victim was aged 15/16 years and if allowance of two years, plus or minus, is given to such finding, it will indicate that the victim almost arrived the age of consent. So, after a careful scrutiny of the evidence on record and the series of sexual act, as described by the victim herself, it can safely be concluded that the consent of the victim for the sexual acts is predominant. So, after a careful scrutiny of the evidence on record and the series of sexual act, as described by the victim herself, it can safely be concluded that the consent of the victim for the sexual acts is predominant. But at the same time it was rightly clarified by the Trial Court that such consent was obtained by practising deception upon the blind girl by giving assurance of marriage and treatment against blindness. ( 8 ) MR. Mitra, learned Counsel appearing on behalf of the appellant placing reliance on the Division Bench judgment of this Court in Jayanti Rani Panda vs. State and Anr. , reported in 1983 (11) CHN 290, contended that section 90 of the IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court could be assured that from the very inception the accused Nripen Das never really intended to marry her. Reliance was also placed on three Division Bench Judgments of this Court reported in 1990 (1) CHN 191 , Hari Majhi@hari Malik vs. State; 1999 (1) CHN 608 , Abhoy Pradhan vs. State and 2000 C Cr LR (Cal) 1, Sudhamay vs. State of west Bengal, in support of his contention that it is necessary to be proved that the representation was false to the knowledge of the accused and so made in order to deceive the girl. It is also argued that when giving consent is established the accused is entitled to get its benefit. ( 9 ) MR. Mitra also placed reliance on two judgments of the Apex Court reported in AIR 2000 SC 2798 , State of H. P. vs. Mongera and 2003 (1) C Cr LR (SC) 555, uday vs. State of Karnataka, to show that the consent given under misconception is invalid, if the person to whom the consent is given is aware of its existence. It is also argued that if a full grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity, it was then an act of promiscuity on her part and not an act induced by misconception of fact. ( 10 ) HOWEVER, Mr. It is also argued that if a full grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity, it was then an act of promiscuity on her part and not an act induced by misconception of fact. ( 10 ) HOWEVER, Mr. Ghose scanning the evidence on record tried to point out that the decisions relied on by the learned Counsel for the appellant are not applicable in the fact situation of the present case. Mr. Ghose also argued that if the story of first sexual act on the point of knife is disbelieved and it is found out that the girl gave consent of cohabitation, it is also required to be considered that the poor blind girl practically swayed by the assurance of a young boy that he would marry her and would take appropriate steps for removal of her blindness through proper treatment. So, Mr. Ghose concluded that considering the age of the victim girl and the circumstances it is to be construed that consent, if any, was obtained by misconception of fact. ( 11 ) THE argument of Mr. Ghose is acceptable on the proposition that each and every criminal case is to be judged in its proper prospective on the basis of the facts made available to the Court, and as such, the decision taken in a case on the basis of bundle of facts might have no bearing in respect of different bundles of fact in another criminal case. It is interesting to note that though in the case of Jayanti Rani Panda (supra), this Court analysed the ambit and scope of section 90 of IPC following the term consent in a case under section 376 IPC, in three other cited decisions of this Court, charges were framed either under section 417 or under section 420 of IPC read with section 376 IPC. But in the present case no charge under section 417 or section 420 of IPC has been framed. ( 12 ) IT is already discussed above that the age of the victim girl was in the border line of 16 years. It is also to be noted that the victim girl was not adult nor a full-grown lady as was discussed in the cited decisions. ( 12 ) IT is already discussed above that the age of the victim girl was in the border line of 16 years. It is also to be noted that the victim girl was not adult nor a full-grown lady as was discussed in the cited decisions. In the case of uday (supra), the Apex Court while analysing the case of rape on a girl of about 19 years noted from the facts that the accused and the prosecutrix were in deep love and on the promise of marriage the sexual act had taken place. In paragraph 21, the Apex Court took the view :"it therefore appears 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 given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether 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, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them". ( 13 ) ADMITTEDLY in a case of this nature burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. The evidence on record indicates that the victim girl who was about 16 years of age and who had no. ( 13 ) ADMITTEDLY in a case of this nature burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. The evidence on record indicates that the victim girl who was about 16 years of age and who had no. prior experience of any sexual act (as can be ascertained from evidence, including the medical report) allowed the accused to use her body on the assurance of marriage and treatment of her eyes. So, if offering of the body on the basis of the assurance given by the accused is construed to be giving of consent on the part of the prosecutrix, then it is also required to be considered whether the prosecutrix was aware of the effect or result of such consent that ended in sexual act since the victim had no prior knowledge of such act specially in view of her age and status. It can safely be concluded that she was suffering from inherent misconception and on the basis of such misconception she gave consent which is excepted under section 90 of IPC. ( 14 ) IT is true that after the first sexual intercourse between the accused and the victim, there were 2 or 3 other occasions of its repetition, and all such subsequent acts might be on the basis of consent. But the first act in the present fact situation cannot be construed to be on consent of the victim girl. Moreover, if the girl was aware that the accused was giving mere hoax without any intention to marry her or to take care of the treatment of her eyes, she would not have offered her body to the accused. It is also to be noted that the fifth clause of section 375 of the IPC clarified that the consent cannot be construed to be a consent if it was given due to unsoundness of mind or intoxication or the administration by the accused personally or through another of any stupefying or unwholesome substance, the victim girl is unable to understand the nature and consequence of such act for which she gives consent. Stupefying or unwholesome substance may be tangible like drugs etc. or it might be intangible like false representation, hoax or other mode of deception which in fact has stupefying element. Stupefying or unwholesome substance may be tangible like drugs etc. or it might be intangible like false representation, hoax or other mode of deception which in fact has stupefying element. Similarly, such type of false representation, hoax or other modes of deception may also create psychological impact in the mind of the victim so as to make her intoxicated or cause unsoundness of mind. Unsoundness of mind is not defined in the Code, but it can be construed to be a situation by which a woman is unable to understand the nature and consequence of such act. ( 15 ) IT is to be noted that there is a gulf of difference between consent and submission. While the consent involves submission, but mere act of submission does not involve consent. In this regard, we may refer to two celebrated English decisions. Mr. Coleridge, J. in Day (1841) 9 C and P 722, and Mr. Quain, J. in lock (1872) LR 2 CCR page 10 clarified in details the term consent and submission. The view taken was that the mere submission of one who does not know the nature of the act done cannot be a consent. Considering the fact situation of this case, we take the view that the submission for the first act by the victim girl cannot be construed as consent inasmuch as she was not aware of the nature of the act to be done on the basis of consent. In Rabinarayan Das vs. State, 1992 Cr. LJ 269, a Single Judge of the Orissa High Court (Mr. A. Pasayat, J, as he then was) took into consideration such a case of rape committed on a blind girl and it was viewed that 'consent' cannot be equated to inability to resist out of helplessness. Consent always involves a voluntary act and conscious acceptance of what is proposed to be done by another. ( 16 ) IT is also to be noted that the age of the victim girl at the material point of time was about 15 years and 9 months as per school certificate (Ext. 5) and between 15-16 years as per ossification report (Ext. 3 ). It is established that the victim girl was almost in the border line of 16 years of age. 5) and between 15-16 years as per ossification report (Ext. 3 ). It is established that the victim girl was almost in the border line of 16 years of age. True it is that in such case, the accused is entitled to get benefit specially when it cannot be definitely concluded that the victim girl was aged below 16 years. But at the same time, scanning the evidence on record, we also take the view that even if the victim girl is construed to be of 16 years of age, her consent was obtained by misrepresentation of fact for the first sexual act. It is also to be noted that subsequent sexual acts cannot be construed to be condonation of the first act which is undoubtedly an act of sexual intercourse coming within the purview of definition of rape under seetion 375 of IPC. So, we come to the conclusion that the accused was rightly found guilty under section 376 of IPC. ( 17 ) AS regards sentence it is to be noted that the Trial Court heard the accused on the question of sentence when the accused remained silent. Accordingly, the Trial Court considering the nature of the case opted to impose a sentence of 10 years R. I. and to pay a fine of Rs. 5,000/-, in default, to suffer r. I. for one year more. But surprisingly enough, neither any argument was made before the Trial Court nor it was taken care of that the accused was also of tender age at the time of commission of the offence. There is no indication that he had any precedent of like nature. So, before passing the sentence it was incumbent upon the Court to consider that in the case of first offence of this nature by a boy of tender age, appropriate case is to be taken for selecting the nature of sentence. It appears that the Trial Court did not consider sub-section 2 (f) of section 376 of the IPC where it is indicated that whoever commits rape of a woman when she is under 12 years of age shall be punished to R. I. for a term which shall not be less than 10 years but which may be for the life or shall also be liable to fine. ( 18 ) IT appears that the learned Sessions Judge imposed the sentence of 10 years with a fine but did not consider that in an appropriate case, the imprisonment of either description of a term which shall not be less than 7 years, can be passed under sub-section (1) of section 376 of the IPC. Keeping in view the nature of this case and the circumstances explained we are of the view that 7 years R. I. with fine imposed shall be the just and proper sentence in this case. ( 19 ) SO, in allowing the appeal in part, the conviction of the accused is confirmed and the sentence is reduced to a period of rigorous imprisonment for 7 years with a fine of Rs. 5,000/-, in default, to suffer R. I. for one year more. If the fine is deposited, it is to be paid to the victim as compensation as ordered by the Trial Court. Period of detention undergone by the appellant/accused be set off against the substantive sentence under section 428 of Cr. PC. ( 20 ) LET a copy of this judgment along with the L. C. R. be sent to the Court below for modification of the jail warrant and taking necessary steps. Appeal allowed in part.