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2012 DIGILAW 239 (GAU)

Sewali Rajbongshi v. State of Assam

2012-02-22

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. This revision, filed by the informant-petitioner, is directed against the judgment and order, dated 03.08.2009, passed by the learned Additional Sessions Judge, FTC, Kamrup, Rangiya, in Sessions Case No. 133(K) of 2008 acquitting the accused-opposite party No.2, namely, Hemanta Das, of the charges, which were framed against him under Sections 376 and 417 of the Indian Penal Code. I have heard Mr. N.S. Laskar, learned counsel, for the informant-petitioner, and Mr. N. Ahmed, learned counsel, for the accused-opposite party. I have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 2. The case of the prosecution, may, in brief, be described thus:- The informant was in love with the accused, who promised to marry the informant, and, on 14.01.2002, when the members of the family of the informant were away from their house, the accused, by giving assurance to marry the informant, induced her to have sexual intercourse with him. Believing that the accused was sincere in making the promise, the informant allowed the accused to have sexual intercourse with her on several occasions. As a result of the sexual intercourse, which the accused had with the informant, she became pregnant and when the informant gave the information as regards her pregnancy to the accused, the accused initially repeated his promise that he would marry her and, having repeated similar promises to other relatives of the informant and her co-villagers, the accused did not, eventually, marry the informant, whereupon the informant lodged a written information, with the police at Baihata Chariali Police Station, with regard to what the accused had done. Treating the said written information as First Information Report, Baihata Chariali Police Station Case No.78 of 2002 under Sections 376/406/493 IPC was registered against the accused and, on completion of investigation, police laid charge-sheet against the accused under Sections 376/493 IPC. 3. During trial, on charges, under Sections 376 and 417 IPC, having been framed against the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 12 witnesses including the informant. The accused was, then, examined under Section 313 Cr. P.C and, in his examination aforementioned, the accused denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 5. The accused was, then, examined under Section 313 Cr. P.C and, in his examination aforementioned, the accused denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 5. On having found the accused not guilty of the offences charged with, the learned trial Court acquitted the accused accordingly. Aggrieved by the acquittal of the accused, the informant, as indicated above, has come to this Court with the present revision. 6. While considering the present revision, which has arisen out of judgment of acquittal of an accused, it needs to be borne in mind that this Court cannot convert, while exercising its revisional jurisdiction, an order of acquittal into an order of conviction. If this Court finds that while arriving at his decision, the learned trial Court has not taken into account any material aspect of evidence, which had been laid before it and which it ought to have taken into account, or that the learned trial Judge has misread or misconstrued any piece(s) of evidence or taken into account an aspect, which was wholly irrelevant or inadmissible in law, and that such acts or omissions, on the part of the learned trial Judge, resulted into acquittal of the accused, the revisional Court can set aside the acquittal and remand the matter to the trial Court to arrive, at a decision, in accordance with law. 7. 7. Before entering into the merit of the present revision, I may pause here to point out that though a cursory reading or hurried look into the decision of Uday vs. State of Karnataka, reported in (2003) 4 SCC 48, reflects as if the Supreme Court has held that consent given by a prosecutrix to sexual intercourse with a person with whom she is deeply in love, on the basis of a promise made by such a person that he would marry her on a later day, can never be said to have been given under a misconception of fact, a careful and cautious reading of the Supreme Court's latter decision, in Dilip Singh @ Dilip Kumar vs. Stale of Bihar, reported in (2005)1 SCC 88 , which, if I may point out, has considered and explained the decision rendered in Uday (supra), shows that while a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90 IPC, a representation deliberately made by the accused with a view to obtaining consent of the victim without having intended to marry her will, indeed, vitiate the consent. If the facts of a given case reveal that at the very inception of making of the promise to marry, the accused did not really entertain the intention to marry the victim and the promise to marry held out by him was a mere hoax, consent, ostensibly given by the victim, will not exculpate the accused from the ambit of Section 376 IPC. 8. Elaborately explaining as to what the decision in Uday (supra) conveys, or should be read as, the Supreme Court, in Dilip Singh (supra), has pointed out that in Uday (supra), the Court was cautious enough to add that no straight jacket formula can be evolved for determining whether the consent was given under a misconception of fact or not and, in the ultimate analysis, it is on the basis of the facts of each case, as may be discernible from the evidence on record and the surrounding circumstances, that the Court has to decide the question a to whether the consent given was voluntary or was under a misconception of fact. 9. 9. It has also been clearly been pointed out, in Dilip Singh (supra), by the Supreme Court, that for the purpose of determining as to whether consent existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether consent existed or not, the Court has to take into account not only the previous or contemporaneous act of the accused, but also his subsequent conduct. To put it differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the Court determine as to whether the offer of marriage made by the accused was a mere hoax to obtain consent or was it an honestly made promise of marriage, which could not be, or had not been, kept by the accused. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, in the absence of anything more, that the promise made by the accused was never intended to be acted upon by him. 10. It may, however, be borne in mind that even if a prosecutrix had consented believing in the words of the accused that the promise for marriage made to her by the accused is honest and genuine, this will not be sufficient to hold that no consent existed for the purpose of Section 90 IPC unless it is further established that the accused, at the time, when he had made the promise, did not have the intention of keeping to his promise. In a given case, thus, even a strong probability, if revealed from the materials on record, that the accused intended to marry the prosecutrix at the time, when he had made the promise for marriage, may absolve the accused, for, in such a case, it cannot be said that the consent was given under a misconception of fact and that the accused knew, or had reason to believe, that the consent given was under such misconception of fact. 11. 11. Conversely, if a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the Court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain consent of the woman, for, such a consent given by the woman would not, in the light of the provisions of Section 90 IPC, amount to consent in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. What is imperative to bear in mind, in such cases, is that killing of a man is, ordinarily, conceived as murder by a common man; but in law, every killing does not amount to murder. Similarly, the word consent, as is understood in common parlance, may not be, for the purpose of the Indian Penal Code, consent at all. 12. Bearing in mind what has been indicated above, let me, now, enter into the merit of the present revision and determine if the revision needs to be allowed. 13. In the present case, the learned trial Court has, at para 22 of its judgment and order, come to the conclusion that the fact, that the accused had sexual intercourse with the informant (PW1) by promising to marry her, stands proved, but the learned trial Court also observed that the fact, that the accused, while so making the promise to marry the informant, had not really intended marrying the informant could not be proved. On the basis of the conclusions, so reached, the learned trial Court held the accused not guilty of the offences charged with and acquitted him. The relevant observations, appearing in this regard, at para 28 and 29, read as under: 28. From the evidence of PW3 it reveals that the accused promised to many victim Sewali Rajbongshi but as the family members of the accused gave objection so he did not marry Sewali. The evidence of PW4 shows that when they asked the accused about the matter then the accused assured them that he would marry Sewali. From the evidence of PW3 it reveals that the accused promised to many victim Sewali Rajbongshi but as the family members of the accused gave objection so he did not marry Sewali. The evidence of PW4 shows that when they asked the accused about the matter then the accused assured them that he would marry Sewali. From the evidence of PW6 Haripriya Rajbongshi, we also come to know that when she and Sewali went to the medical to see accused Hemanta then the accused assured them that he would marry Sewali. That being the evidence on record it cannot be said that the representation made by the accused was false to the knowledge of the accused at the time it was made. On the other hand, the subsequent failure of the accused to marry the victim girl does not prove that when he made such promise or assurance the same were made with knowledge that such promise on assurance were false. In this connection, we may place reliance on a decision in Jayanti Rani Panda vs. State of West Bengal, reported in 1984 Crl. J. 1535 (Cal), wherein it has been observed by the Hon'ble High Court that- The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. 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. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability. 28. In view of above discussion of the evidence on record and also having considered the abovementioned observation of the Hon'ble High Court, I am of the opinion that the accused neither committed the offence of rape or any offence of cheating. The prosecution thus has failed to prove the offences against the accused. 14. 28. In view of above discussion of the evidence on record and also having considered the abovementioned observation of the Hon'ble High Court, I am of the opinion that the accused neither committed the offence of rape or any offence of cheating. The prosecution thus has failed to prove the offences against the accused. 14. From what have been pointed out and concluded by the learned trial Court, what clearly transpires is that while the accused did promise to marry the informant (PW1), he did not, eventually, marry her. The learned trial Court has clearly noted that PW3, who is the elder brother of the informant, has given evidence that the accused promised to marry his sister, but as the family members of the accused raised objections, he did not marry her. On a close scrutiny of the evidence on record, this Court finds that PW3 did depose in his evidence that the accused had, initially, promised to marry PW1, but, later on, the members of the family of the accused raised their objections and the accused fled away. This piece of evidence has not been controverted, disputed or denied or in any way shaken by the prosecution. The evidence of PW3 could not have, therefore, been ignored by the learned trial Court and has rightly not been ignored by the learned trial Court. If the evidence of PW3 is borne in mind, it becomes evident that the accused did not, eventually, marry the informant, because the members of his family raised objection and not because that he did not want to marry the informant or that the accused had made a false promise to her that he would marry her. In such circumstances, it would not have been possible for the learned trial Court to hold, boldly and confidently, that the accused, at the time of making promise to marry PW1, did not intend to marry her. 15. Coupled with the above, it needs to be noted that it is the initial intention of the accused, which is relevant and material in a case of present nature. Though the subsequent conduct of an accused may be relevant, the fact of the matter remains that as far as the present case is concerned, it has come from the prosecution witness himself that the accused did not marry PW1, because the members of the family of the accused raised their objection. Though the subsequent conduct of an accused may be relevant, the fact of the matter remains that as far as the present case is concerned, it has come from the prosecution witness himself that the accused did not marry PW1, because the members of the family of the accused raised their objection. In such circumstance, the conclusion, reached by the learned trial Court, that the promise, made by the accused, did not suffer from any misrepresentation of fact, cannot be said to be perverse. 16. At any rate, when there are two views possible, the view, which goes in favour of the defence, needs to be adopted by a Court exercising criminal jurisdiction. In the present case, the learned trial Court could have taken the view, in the face of the evidence on record, that the accused had not been proved to have made false promise to the informant that he would marry her. While exercising revisional jurisdiction, the High Court would not overrule a view, which is a possible view taken by the trial Court, nor would the High Court impose its view by discarding the view, which was taken by the trial Court, when the view taken by the trial Court is a possible view. A conclusion, which is wholly irrational or unreasonable, may be interfered with in exercise of revisional jurisdiction; but a possible or reasonable view, drawn by a trial Court from the evidence on record, cannot be interfered with by the High Court in exercise of its revisional jurisdiction, should it appear to the High Court that there could have been another equally reasonable view. Such is the position in the present case. 17. Because of what have been discussed and pointed out, this Court does not find that the acquittal of the accused-opposite party suffers from any infirmity, legal or factual. This revision, therefore, fails and the same shall accordingly stand dismissed. Send back the LCR. Petition dismissed.