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2011 DIGILAW 684 (GAU)

Uttam Sutradhar v. State of Tripura

2011-08-11

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. R. Devnath, learned counsel for the appellant. Also heard Mr. E Bhattacharjee, learned additional public prosecutor, Tripura. The convict appellant has preferred this appeal against the judgment and order dated 25.11.2002 rendered by the learned Additional Sessions Judge, West Tripura, Agartala in case No. ST/(WT/A) of 2002, whereby he was convicted under Section 376, IPC and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/- in default of payment to suffer simple imprisonment for six months. 2. The prosecution case is based on a written FIR dated 22.4.2001 lodged by one Ajit Dey of West Noabadi with the East Agartala Police Station alleging inter alia that the convict/appellant was maintaining illicit relation with his deaf and dumb sister Ritu (real name withheld). The convict/appellant, promising to marry her, committed rape on different occasions and maintained illicit relation with her, as a result of which she got pregnant. Police registered East Agartala Police Station Case No. 80 of 2001 against him, investigated the matter and submitted charge-sheet under Section 493/ 376, IPC against the appellant. The case was committed to the Court of learned Additional Sessions Judge, West Tripura, Agartala. On the basis of materials found on record/charge was framed by the learned Additional Sessions Judge against the appellant under Section 376, IPC to which he pleaded not guilty and claimed to stand the trial. The prosecution examined as many as six witnesses in all, while defence examined none. After conclusion of the trial and on perusal of the evidence and materials on record and upon hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the appellant as stated earlier. 3. Mr. Bhowmik, learned senior counsel appearing for the appellant submits that there is no cogent and reliable evidence against the appellant for awarding conviction and sentence against him. The prosecution wholly relied on signs and gestures of the victim girl in the Court while she was produced for evidence, who, being a deaf was not in a position to hear the questions of the prosecution as well as defence counsel and could not answer anything by words as she is a dumb. She was trying to express by her signs and gestures but none could understand properly. She was trying to express by her signs and gestures but none could understand properly. It was not possible to follow what she was trying to communicate or express before the Court and it was not possible to cross-examine her. The learned trial Court, according to Mr. Bhowmik, convicted and sentenced the appellant on presumption only without any support of corroborated evidence of independent witness and as such the charge against the appellant having not been proved beyond any reasonable doubt as required in the criminal trial, the conviction and sentence is not sustainable under the law. It is, therefore, urged that the appellant is to be given benefit of doubt and acquitted of the charge. 4. It is further argued by Mr. Bhowmik, learned senior counsel that even assuming but not admitting that the victim girl, due to alleged illicit sexual relation with the appellant got pregnant, he cannot be convicted under Section 376, IPC inasmuch as the victim girl, as per the medical report, was found between 17 and 22 years of age and she was a consenting party to the alleged sexual acts. He also submitted that the allegation of maintaining illicit sexual relation with the victim girl on promise of marriage has not been proved by any evidence of independent witness. In the alternative, learned senior counsel also submits that for convicting the accused on allegation/charge of maintaining sexual relationship with a girl/woman on false promise of marriage and subsequently abandoning her, the prosecution has to prove that the accused from the beginning or at the time of enjoying sex had the ill intention to deceive her by making false promise. According to him, the breach of promise and change of mind/intention at the subsequent stage would not come under the mischief to Section 415, IPC and he cannot be convicted under the aforesaid section of the Penal Code. In support of his above submissions, he relied upon the decision in Moni Gogoi v. Sarumani Hazarika, reported in (1992) 2 GLR 113; Jintu Das v. State of Assam, reported in 2003 Cri LJ 1411; and in Uday v. State of Karnataka, reported in 2003 Cri LJ 1539. 5. Mr. In support of his above submissions, he relied upon the decision in Moni Gogoi v. Sarumani Hazarika, reported in (1992) 2 GLR 113; Jintu Das v. State of Assam, reported in 2003 Cri LJ 1411; and in Uday v. State of Karnataka, reported in 2003 Cri LJ 1539. 5. Mr. Bhattacharjee, learned additional Public Prosecutor, per contra, strenuously argued that when a deaf and dumb person appears before the trial Court and points by her finger at the accused in the dock and gave positive sign and gesture, there is no reason for taking other view that it was not the accused person who did not commit the offence. Moreover the evidence of victim who was examined as PW 3 was supported by the evidence of her sister-in-law, PW 5, who at least testified the fact that the accused was living as a tenant in the house of a neighbour and used to visit their house frequently. The evidence on record, as argued by the learned Additional Public Prosecutor, Tripura has proved the charge beyond reasonable doubt against the appellant, on the basis of which, the learned trial Court rightly awarded the conviction and sentence which needs no interference. 6. From the evidence on record it is found that victim was a deaf and dumb unmarried girl, aged between 17 to 22 years. It is also found that she was in the advanced stage of pregnancy of 6/7 months as per the medical report at the time of lodging the FIR on 22.4.2001. The evidence on record also establishes that the accused/appellant during the relevant time was living as tenant in the neighbour's house, PW1, who identified the accused in the dock and testified that the accused was a carpenter by profession and that he was living in the rented house of PW 1 situated near the house of the victim girl at the relevant point of time. It is, therefore/quite natural that there was chance of visiting the house of the informant and meeting his sister occasionally, if not frequently. PW 5, Smti Anita Dey, sister-in-law of the victim girl deposed that the accused often used to visit their house. He also used to talk to other members of the family and maintained intimacy with the family members. She also deposed that the accused used to speak to the victim with sign and gesture. PW 5, Smti Anita Dey, sister-in-law of the victim girl deposed that the accused often used to visit their house. He also used to talk to other members of the family and maintained intimacy with the family members. She also deposed that the accused used to speak to the victim with sign and gesture. Due to such intimacy with the members of the victim's family it cannot be ruled out that there was no chance of growing intimacy between the accused and the victim culminating into physical relationship and also resulting into pregnancy out of sexual intercourse that took place on some occasion(s). The evidence on record is that the accused was living singly in a neighbouring rented house and the victim was an unmarried girl in the prime of her youthful life. The accused, as per the statement recorded under Section313, Cr.P.C. was 28 years at the relevant point of time. Both the accused and the victim were at the stage of sexual adventure due to their youthful marriageable age. As they used to meet frequently there is nothing unnatural for these young man and girl like accused and the victim in indulging themselves in sexual intercourse on some occasions. The victim may be a deaf and dumb girl but she is also endowed with flesh and blood, sexual urge, normal feeling and emotion like other normal girls. She might also have been dreaming for a happy marital life with the accused like other girls. With such dream and hope, she might have consented to maintain pre-marital sexual acts with the accused. There is nothing in the evidence to prove that the accused did really make any promise of marriage to the victim girl but it is as much as usual trick of a boy to convince a girl for taking her consent for sexual intercourse as the usual hope and aspiration of an young lady that a young male partner would marry and live a marital life with her. 7. From the evidence of PW 5 it appears that the victim girl, with signs and gestures tried to express that she became pregnant due to sexual intercourse with the accused who used to visit their house. PW 5 got perturbed when she came to know about the same from the victim girl. 7. From the evidence of PW 5 it appears that the victim girl, with signs and gestures tried to express that she became pregnant due to sexual intercourse with the accused who used to visit their house. PW 5 got perturbed when she came to know about the same from the victim girl. The factum of pregnancy of the victim girl and the stage of pregnancy was confirmed when the was taken to doctor and examined medically. In the cross-examination, the defence counsel did not put any suggestion to PW 5 that the accused was not visiting their house frequently. No such suggestion was also put by the defence to PW 2, informant and brother of the victim girl. Instead, the defence counsel put a suggestion to PW 5 that the victim got pregnant by some visitors to their house. From the cross-examination of PWs 2 and 5 it is found that the defence projected a story that the PW 2, elder brother of the victim girl, was involved in illicit country liquor selling and people of ill-character of the locality often visit his house and enjoy liquor and the members of the local club raised objection to such illicit liquor selling and for this reason, out of grudge false allegation has been made against him in collusion with Chittaranjan Mazumdar, PW1, the landlord. But the defence adduced no evidence in this regard and as such the story of the defence cannot be accepted or treated as correct and true. The evidence rather establishes that the accused undeniably often used to visit the house of the informant and there is no other person who had established intimate relationship with the family members of the informant, particularly with his sister i.e. the victim. 8. Now let me come to the submission of the learned senior counsel of the appellant that the accused cannot be convicted under Section 415, IPC if there was no ill-motive/intention of deceiving the girl at the beginning. The correctness of this submission should be examined in the facts and circumstances of a given case. The admitted fact in this case is that the victim is a deaf and dumb girl and whereas the appellant is an able bodied young man earning his livelihood as a carpenter. The correctness of this submission should be examined in the facts and circumstances of a given case. The admitted fact in this case is that the victim is a deaf and dumb girl and whereas the appellant is an able bodied young man earning his livelihood as a carpenter. He knew it very well that he would face strong objection from his parents and relations if he proposes to marry the prosecutrix. Also he knew it well that he would not be able to pursue and convince his parents to accept her as their daughter-in-law. Moreover, he knew it very well that his marriage life would not be an easy sailing with the prosecutrix as his wife and he would have to shoulder extra burden if he marries a deaf and dumb girl because she needs constant special care and attention as physically challenged person. Two possible views can be taken in regard to intention of the appellant. One view is that the appellant had a deep love and sympathy for the prosecutrix as a deaf and dumb girl and to help her, he sincerely wanted to marry her. This is to his good intention. The other view is that he had no love or sympathy at all for her but he pretended to have love for her just to have sex with her and meet his sexual lust. To marry her was not his real intention because he was sure that in future, after marrying her he would face difficulties and take an uncalled for extra burden. This is to his ill-motive/intention. As a man of poor income group the appellant could not normally choose to marry a physically challenged girl due to obvious reason mentioned above and under such circumstances the latter view is to be accepted as reasonable. From this discussion the Court can come to a conclusion that the appellant had the ill-intention motive to enjoy sex with the victim girl giving her false promise for marriage. 9. The learned counsel for the appellant relied on the decision of the Supreme Court in Uday's case (supra) but in my considered view, the decision of the said case rather goes against his case. It has been held therein that in a case of this nature two conditions must be fulfilled under Section 90, IPC. 9. The learned counsel for the appellant relied on the decision of the Supreme Court in Uday's case (supra) but in my considered view, the decision of the said case rather goes against his case. It has been held therein that in a case of this nature two conditions must be fulfilled under Section 90, IPC. Firstly, it must be shown whether consent was given under a misconception of fact and 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. For a clear appreciation of this aspect of the matter, it is felt necessary to refer to provisions under Section 90, IPC. It is quoted below: 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 or 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 Consent of insane person.--If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. The victim, as a deaf and dumb girl, had misconception that the appellant had love with her and due to such love he would marry her. There is nothing wrong for a young lady, may be she is physically handicapped, to aspire for marriage with a young man like the appellant. This misconception of the young victim girl has been exploited by the appellant. There is no other possible view except the one that the victim girl, out of such misconception, consented to sexual intercourse with the appellant on several occasions or on one occasion, resulting into pregnancy. This misconception of the young victim girl has been exploited by the appellant. There is no other possible view except the one that the victim girl, out of such misconception, consented to sexual intercourse with the appellant on several occasions or on one occasion, resulting into pregnancy. In the aforesaid cited case it has also been held that the consensus of judicial opinion is in his favour as 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 on a later date, cannot be said to be given under a misconception of fact. It was also held that a false promise is not a fact within the meaning of the Penal Code. The said proposition of law is not disputed. But in my view, the said law has no universal application irrespective of certain special facts and circumstances. The undisputed factum that the victim is a deaf and dumb girl is the factor which brings this case to the fold of such special category. If the backdrop of the present case is considered, there should not be any manner of doubt that the prosecutrix was a victim of misconception of fact due to false promise, to say more appropriately, due to ill-intention/motive of the appellant at the beginning. 10. The other case relied upon by the learned counsel for the appellant is Jintu Das (supra). The victim girl in the aforesaid case above 16 years and she consented to act of sexual intercourse on promise of marriage fully knowing the nature and application of such act. She did not tell anybody about such sexual intercourse till she became pregnant. The accused, in the said case, was convicted by the trial Court but in appeal this Court held that conviction under Section 376, IPC was not proper. The reason given is that if a full grown woman consents to act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she became pregnant, it is an act of promiscuity on her part and not an act induced by misconception of act. The fact of aforecited case has a marked difference from the present case. The fact of aforecited case has a marked difference from the present case. In the said case the victim was not a physically challenged person like the one in the present case, who is admittedly a deaf and dumb girl who needs regular care of the family members and in my considered view the act of maintaining sexual relationship by the appellant with such girl cannot be put at the same footing to discharge the accused appellant of charge under Section 376, IPC. Here is a case where the consent of the physically challenged young lady was deceitfully secured by the appellant under misconception of fact at the inception of the act itself, that is at the first sexual intercourse promising marriage which was not the real intention of the convict appellant. 11. In the referred case of Moni Gogoi (supra), the accused promised the prosecutrix for marriage and indulged in sexual intercourse with her and became pregnant and ultimately gave birth to a child. The accused deserted the prosecutrix and refused to marry. The question involved in the said case was whether the accused was guilty of cheating the prosecutrix under Sections 415 and 417, IPC. This Court held in the negative. The reason is that there was no evidence on record that at the time of making such promise/assurance or at the time of cohabitation, the accused made such promise to the prosecutrix that he would marry her with knowledge that ultimately he would not marry the prosecutrix. It was held that had the accused made the promise honestly and bonafide during or before the alleged intercourse then the accused cannot be convicted under Section 417, IPC for his failure to keep the promise to marry the victim girl because there may be hundreds of factors for which the accused may fail to keep his promise and he may even change his mind for various reasons, foul or honest. It was therefore, held by this Court that the accused cannot be held guilty under Sections 415 and 417, IPC. Now this Court has to consider whether the aforesaid law would be applicable to the present case. The Court has to consider the present case taking into consideration the attending facts and circumstances. It may be noted that in the present case the victim is a deaf and dumb girl who cannot take care of herself. Now this Court has to consider whether the aforesaid law would be applicable to the present case. The Court has to consider the present case taking into consideration the attending facts and circumstances. It may be noted that in the present case the victim is a deaf and dumb girl who cannot take care of herself. Such a girl is not expected to know the ill-intention/motive of the accused/appellant that after enjoying sex with her on false promise for marriage he would abandon her and/or there would be change in his mind. There might be consent of the prosecutrix to sexual act with the accused but it was obviously obtained on misconception of facts which is not considered as real consent. 12. Present case is not confined to commission of offence under Section 415/ 417 of the IPC. It is something about far more serious offence the sense that a physically challenged girl has been deceitfully, made to give her consent to illicit sexual intercourse. One may argue that her free and voluntary consent to sexual relation is apparent as she has been indulging in such act with the accused not only once but on several occasions and therefore the offence under Section 376, IPC is not attracted. This proposition may be correct and acceptable in a case of normal grown up girl above 16 years of age. Distinction has to be drawn from such normal cases to decide the present case. One should be alive with the most vital undeniable fact and reality that victim is a deaf and dumb girl incapable of taking care of herself and such a girl is not expected to wilfully and voluntarily consenting to a pre-marital illicit sexual intercourse. In such a case the argument that the victim girl was a consenting party to such sexual relationship as she continued to maintain such sexual relation till she became pregnant is not acceptable for the same reason. It is a fallacy of argument. If the prosecution accepts the position that the appellant obtained the consent with intention to marry her and he held out promise to her and she consented, the subsequent change of mind of the accused and deserting her would not attract offence under Section 417 and far less the Section 376, IPC and the accused who has ravished the prosecutrix should be allowed to go scot free, cannot be accepted. It is difficult for individual to know or fore-see whether the giver of promise for marriage would change his mind in future and desert the girl. Mind is always complex and it is changing every moment. Even a self would not know when and how a change in his mind on a particular matter and act would take place. How one can expect that a physically challenged girl could know the real intent of the perpetrator who appeared to be descent at the beginning and convinced her to surrender her body? There would be a total denial of justice to this unfortunate young lady if the accused appellant is discharged of charge under Section 376, IPC on misconception and misapplication of law. I am of the considered view that when the first act of sexual intercourse was accomplished by misconception of fact and false promise of marriage, it would amount to sexual intercourse without the free consent of the victim girl, more so, in the case of a deaf and dumb girl, and the participation of the girl in the subsequent sexual act(s) cannot be taken as a consent to such act and thereby it would exonerate the act of serious crime like rape committed by the accused appellant on each subsequent occasion. Under such circumstances the conclusion would be that the appellant committed offence of rape under Section 376, IPC right from the inception to last occasion of sexual act. The conviction must be only under Section 376, IPC and not under Section 415/417, IPC. 13. I must say that to misread and discard the accusing signs and gestures of the victim girl towards the accused person in the dock during the trial would be nothing but adding insult to a deaf and dumb girl who has been ravished by a physically able bodied person exploiting and taking advantage of her physical infirmity. There is no earthly reason to disbelieve the victim girl who sufficiently expressed per feelings and sufferings through her signs and gestures after pointing an accusing finger at the accused. Should we to believe only a person who can speak and play tricks with an innocent deaf and dumb lady and set him at liberty only on the ground of not having opportunity of cross-examining the prosecutrix? Should we to believe only a person who can speak and play tricks with an innocent deaf and dumb lady and set him at liberty only on the ground of not having opportunity of cross-examining the prosecutrix? Is it not an insult to a physically challenged victim girl and also disregard to the existing justice delivery system? 14. The prosecution in my considered view has been able to establish the charge of offence under Section376, IPC beyond all reasonable doubt and I find no ground for interference with the conviction and sentence as handed down upon the accused/appellant. The impugned judgment and order of conviction and sentence dated 25.11.2002 passed by the learned Addl. Sessions Judge, West Tripura, Agartala in Case No. S.T. 9 (WT/A) of 2002 against the accused/appellant stands upheld. The appeal stands dismissed. The accused/appellant who is on bail shall surrender himself before the learned Addl. Sessions Judge, West Tripura, Agartala forthwith to serve the sentence failing which the learned Court below shall take necessary action against the convict in accordance with law. 15. The bail bond stands cancelled. Send down the LCRs. forthwith. @PR = Appeal dismissed. Appeal dismissed.