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2009 DIGILAW 177 (GAU)

Biplab Roy v. State of Tripura

2009-03-13

C.R.SARMA

body2009
ORDER C.R. Sarma, J. 1. Challenge in this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) is to the order dated 4.6.2008 passed by the learned Asstt. Sessions Judge, Court No. 2, West Tripura, Agartala in case No. S.T. 07 of 2008 framing the charge under Section 376(1) and 417 of the Indian Penal Code (hereinafter referred to as IPC). The correctness of the order framing the charges as aforesaid has been questioned in this criminal revision. 2. Heard Mr. Somik Deb, learned Counsel appearing for the revision Petitioner and Mr. D. Sarkar, learned Public Prosecutor for the State. 3. A brief reference to the factual aspects would suffice. On 20.4.2007 an FIR was lodged with the Police alleging that the accused-Petitioner who used to regularly visit the house of the victim girl (the name of the victim girl is not disclosed) and about 9 months prior to the filing of the FIR at about 9 p.m. during the absence of the other family members in the house the accused-Petitioner, went into the room of the victim girl, gagged her mouth and had forcible sexual intercourse with her as a result of which she became pregnant. The revision Petitioner proposed to marry the victim girl and borne the medical expenses during the first six months of pregnancy. On 11.3.2007 local Panchayat held a meeting, in which the accused-Petitioner admitted the paternity of the child in the womb of the victim girl and agreed to marry her. But the accused-Petitioner fled away from his house before 25.3.2007 i.e. the date fixed for their marriage. On receipt of the FIR, Police registered a case, got the statement of the victim girl recorded under Section 164 CrPC. At the close of the investigation the Police submitted chargesheet against the accused-Petitioner and forwarded him to the court to stand trial. The learned Asst. Sessions Judge by the impugned order dated 4.6.2008, after hearing both the sides on the matter of framing the charge, framed the charges under Sections 376(1) and 417 of IPC against the accused-Petitioner to which he pleaded not guilty and claimed to be tried. Accordingly, the case was posted for hearing. The learned Asst. Sessions Judge by the impugned order dated 4.6.2008, after hearing both the sides on the matter of framing the charge, framed the charges under Sections 376(1) and 417 of IPC against the accused-Petitioner to which he pleaded not guilty and claimed to be tried. Accordingly, the case was posted for hearing. Being aggrieved by the said order of framing the charges, the revision Petitioner has come up with this petition challenging the legality and correctness of the impugned order. Mr. Somik Deb, learned Counsel for the accused-Petitioner relying on the decision held in (2003) 4 SCC 46 Uday v. State of Karnataka; (2005) 1 SCC 88 Deelip Singh @ Dilip Kumar v. State of Bihar and (2007) 7 SCC 430 Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar has submitted that the learned Asstt. Sessions Judge committed illegality by flaming the charge without any materials on record. The learned Counsel for the accused-Petitioner contended that the victim girl was a consenting party and in view of the acceptance of the proposal of marriage made by the accused-Petitioner the complainant had no case against the accused-Petitioner. The learned Counsel further submitted that the learned Asstt. Sessions Judge failed to record the reasons on the basis of which the charges were framed and that the impugned order was bad for want of sufficient grounds. The learned Asstt. Sessions Judge passed the following order: Accused Biplab Roy is present with his lawyer. Learned PP Mr. P. Bhattacharjee is also present. Heard both sides on the matter of charge. Formal charge under two heads under Sections 376(1) and 417 is framed against the accused Biplab Roy to which he pleaded not guilty and claimed to be tried. Issue summons upon P.Ws. as figured in the chargesheet. 4. In reply the learned Public Prosecutor has submitted that in the FIR as well as her statement under Section 164 CrPC the victim girl clearly stated that the accused person had forceful intercourse with her and thereafter he made the proposal to marry her, but subsequently he declined to honour his commitment and as such the learned Asstt. Sessions Judge committed no illegality by framing the charge on the basis of the statement of the victim girl. 5. Sessions Judge committed no illegality by framing the charge on the basis of the statement of the victim girl. 5. In the case of Uday v. State of Karnataka (supra), the prosecutrix was deeply in love with the accused-Appellant, she responded to his invitation and thereafter they went to the place where the house of the accused-Appellant was under construction. The Appellant talked to her and thereafter kissed her and embraced her and promised to marry her. He also had sexual intercourse with her. She was not willing to have sexual intercourse, but in the circumstances she consented to the sexual intercourse because the accused-Appellant had promised to marry her. They continued to meet thereafter and went out frequently. During the period as well, the Appellant had stated many times that he would marry her. She admitted that she had sexual intercourse with him about 15/20 times and they used to have sexual intercourse once or twice a week. As the prosecutrix started co-habiting with the accused and this continued for several months, the Apex Court believed that the prosecutrix willingly consented to have sexual intercourse with the Appellant whom she was deeply in love, not because he promised to marry her, but because she also desired it. In view of the above circumstances, it was held that it would be very difficult to impute to the Appellant that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In the case of Deelip Singh v. State of Bihar (supra) the prosecutrix and the Appellant were in love with each other and one day, the accused forcibly raped her and later consoled her saying that he would marry her, she succumbed to the entreaties of the accused to have sexual relations with him and continued to have sex on several occasions. But as the accused avoided to marry her, the victim woman filed an FIR and the accused-Appellant, after trial, was convicted under Section 376 IPC. While scrutinizing the evidence of the victim woman the Apex Court found that though the first sexual intercourse took place against her will, she became a consenting party later on and in the report given to the Police she did not complain of forcible rape. While scrutinizing the evidence of the victim woman the Apex Court found that though the first sexual intercourse took place against her will, she became a consenting party later on and in the report given to the Police she did not complain of forcible rape. That apart, the version of rape in the wheat field seems to be highly doubtful when tested in the light of her statements in the cross-examination. The Apex Court further held that: It is most unlikely that such unwilling person will go to a secluded place in the company of the accused at an odd time in the night and take the risk of being sexually assaulted. In any case, if the rape was committed by the accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. She admitted that the accused used to talk to her for hours together and that was within the knowledge of her parents and brother. Above all, the version given by her in the court was at variance with the version set out in the FIR. The Apex Court found it unsafe to lend credence to the version of the victim woman to believe that she was raped against her will. In the case of Pradeep Kumar v. State of Bihar (supra) the order rejecting an application for discharge of the accused-Appellant was challenged. In the said case, the accused-Appellant developed sexual relations with the prosecutrix after assuring her that he would marry her. The informant was taken to a temple, where in presence of the deity the Appellant accepted her as his wife and thereafter an agreement was entered into. Since the accused disowned having married the informant and much less having ever had any physical relationship with her, she was forced to file the FIR. The chargesheet was filed under Sections 376 and 406 IPC. The learned trial Judge refused to discharge the accused-Appellant. In this case, the accused used to visit the house of the prosecutrix and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. The chargesheet was filed under Sections 376 and 406 IPC. The learned trial Judge refused to discharge the accused-Appellant. In this case, the accused used to visit the house of the prosecutrix and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. The Apex Court held that if a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. 6. In the cases relied on by the learned Counsel for the accused-Petitioner there Was promise of marriage followed by repeated act of sexual intercourse. As the prosecutrix in all the said cases surrendered to the accused-Appellant after the promise of marriage, the Apex Court found it safe to hold that the prosecutrix had the consent and as such no case under Section 376 IPC was made out. But in the case in hand, a careful reading of the FIR and the statement recorded under Section 164CrPC will lead to find that the accused-Petitioner had forcible sexual intercourse with the prosecutrix only once and after the said forcible sexual intercourse he gave a proposal to marry the prosecutrix in the next month. She clearly stated that the accused-Petitioner had forcible sexual intercourse against her will. In the statement under Section 164 CrPC also she stated that initially the accused had forcible physical relation with her and thereafter he induced her with the proposal of marriage. Naturally, as the woman had lost her most treasured chastity and the honour, which is supreme for a self respecting woman, she had no other alternative than to accept the proposal of marriage and she has certainly aggrieved when the accused refused to honour the promise. Therefore, that she was keeping silent after the incident of rape was not unnatural. 7. In view of the above, I respectfully find that the facts and circumstances of the present case and those before the Supreme Court are not same and similar. Single forcible sexual intercourse against the will and her silence followed by proposal of marriage cannot lead to the presumption that the prosecutrix was a consenting party. 7. In view of the above, I respectfully find that the facts and circumstances of the present case and those before the Supreme Court are not same and similar. Single forcible sexual intercourse against the will and her silence followed by proposal of marriage cannot lead to the presumption that the prosecutrix was a consenting party. In the cases relied on by the learned defence counsel all the prosecutrix were consenting parties in the subsequent several sexual intercourses. But in the present case there is nothing on record to find that the victim woman had ever given any consent to have sexual intercourse with the accused-revision Petitioner. If the victim woman before us had surrendered to the accused-Petitioner after the first forcible intercourse men there would have been sufficient reason to believe that she had no case for presumption, but I find no material on record to believe that the victim woman had surrendered to the accused-Petitioner after the alleged incident of rape which was alleged to be a forceful one. 8. Section 228(1) CrPC provides that after such consideration and hearing if the Judge is of the opinion that there is ground for presuming that the accused committed an offence which was exclusively triable by the court of Session he shall frame in writing the charge against the accused. Sub-rule (2) provides that the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Therefore, for the purpose of framing charge the learned Judge is required to have grounds for presuming that the accused committed an offence. 9. In view of the above discussion, the FIR and the statement recorded under Section 164 CrPC clearly reveal that the accused had forcible sexual intercourse with the victim woman against her will. Hence, the said material that the alleged act was done against the will of the victim woman was sufficient to draw a presumption that the accused committed an offence under Section 376(1) IPC. Therefore, I find that the learned Asstt. Sessions Judge committed no illegality or miscarriage of justice by framing the charges under Sections 376(1) and 417 IPC. 10. With regard to the contention raised by the learned defence counsel that the learned Asstt. Therefore, I find that the learned Asstt. Sessions Judge committed no illegality or miscarriage of justice by framing the charges under Sections 376(1) and 417 IPC. 10. With regard to the contention raised by the learned defence counsel that the learned Asstt. Sessions Judge committed illegality by failing to record the reasons of framing the charges, I find that in the impugned order the learned Asstt. Sessions Judge recorded that he had heard learned Counsels for both sides on the matter of charge. After framing the charges the learned Sessions Judge put the question asking the accused as to whether he would like to plead guilty to the aforesaid charge or have any defence to make, to which the accused replied that he was innocent and that he wanted to be tried. From the above, it appears that the learned Asstt. Sessions Judge properly brought the charges to the notice of the accused-Petitioner and as such he gave him sufficient scope to reply to the charges. Therefore, there is no material to find that any prejudice was caused to the accused-Petitioner by framing the charges in the said way. Hence, it appears that the learned Asstt. Sessions Judge complied with the statutory requirement as provided by Section 228 CrPC. In the light of the above, I find no merit to interfere with the impugned order. 11. Accordingly, the revision petition stands rejected.