Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 766 (CAL)

Nitai Sarkar v. STATE OF WEST BENGAL

2012-08-13

KANCHAN CHAKRABORTY

body2012
Judgment Kanchan Chakraborty, J. The challenge in this appeal is to the judgment and order dated 10/11.3.2010 passed by the learned Additional District and Sessions Judge, Special Court, Balurghat, Dakshin Dinajpur in .C.No.94 of 2007 thereby convicting the appellant Nitai Sarkar for committing offence punishable under Section 376 of the I.P.C. and sentencing him to suffer R.I. for 7 years with a fine of Rs.5,000/- The appellant Nitai has assailed the judgment on many fold grounds, such as:- a) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; b) that the learned Trial Court failed to ascertain the fact that at the relevant period of time, the prosecutrix was a major and that she voluntarily taken part in sexual activities within the appellant with the knowledge of everybody; c) that the learned Trial Court failed to appreciate that there was no case of misconception of facts which prompted the prosecutrix to take part in the sexual activities with the appellant; d) that the learned Trial Court failed to appreciate the fact that there was marriage between the appellant and the prosecutrix which the parents of the prosecutrix did not accept and as a result, there was a Salish and the Salishnama was admitted into evidence; e) that the judgment being entirely perverse, is not sustainable in law. On 26.9.2006, one F.I.R. was lodged by the prosecutrix, P.W.1 with Banshihari Police Station alleging therein that for about last one year, she was working in the house of Pramesh Sarkar, the father of the appellant and was having good relation with them. During that period, the appellant expressed to her that he would marry her. He told that in presence of his father and mother Pramesh and Janak. In absence of his parents, Nitai, the appellant frequently embraced her and repeatedly said her that he would not live without her. Pramesh and Janak were informed but they told Ava that they would accept her as their son’s wife. She believed that the words given by Pramesh and Janak and thereafter started to cohabit with Nitai continuously. As a result, she became pregnant in the month of March, 2006. Thereafter, she informed the matter to the appellant who avoided to marry her on various pretext. She believed that the words given by Pramesh and Janak and thereafter started to cohabit with Nitai continuously. As a result, she became pregnant in the month of March, 2006. Thereafter, she informed the matter to the appellant who avoided to marry her on various pretext. Ava informed about her pregnancy to the father and mother of the appellant but they also paid no heed to her appeal but pressurised her to terminate the pregnancy. She declined to do so. On 25.9.2006, Pramesh and Janak came to the house of Ava, threatened her and told that if she does not terminate the pregnancy, they would kill her. The father of Ava also protested but was threatened. She stated her age as 15 years on the date of lodging the F.I.R. On the basis of the said F.I.R., Banshihari Police Station Case No.101 of 2006 dated 26.9.2006 under Section 493/376/109 of the I.P.C. was started against the appellant Nitai and his parents Pramesh and Janak. In course of investigation, the victim and the appellant were medically examined. The statement of the victim was recorded under Section 164 of the Cr. P. C. Some documents were seized by the I.O. Ultimately, the investigation was ended in a charge sheet against all the three accused persons including the appellant. The learned Trial Court, on consideration of the evidence on record came to a conclusion that Pramesh and Janak committed no offence and accordingly recorded the order of their acquittal. But, the learned Court found that Nitai Sarkar committed the offence under Section 376 of the I.P.C. and, as such, sentenced him to suffer R.I. for 7 years and to a fine of Rs.5,000/-. The appellant Nitai has come up with this appeal challenging the sustainability of the judgment on the grounds already stated above. Mr. Chatterjee, learned Counsel appearing on behalf of the appellant contended that the learned Court was entirely wrong in coming to a conclusion that the victim was 15 years old at the relevant period of time. The learned Court had come to such a conclusion only on the basis of the statement made by the father of the victim, the P.W.3 in his examination-in-chief. There was no evidence whatsoever in support of that statement of the P.W.3. The victim girl also did not mention anywhere as P.W.1 and in her statement under Section 164 of the Cr. There was no evidence whatsoever in support of that statement of the P.W.3. The victim girl also did not mention anywhere as P.W.1 and in her statement under Section 164 of the Cr. P. C. that she was 15 years old when the incidents of cohabitation allegedly started. Mr. Panda, learned Counsel appearing for the respondent/State of West Bengal, however, contended that the father is the best witness in respect of age of his daughter. Naturally, the learned Court did not make any mistake to accept what the P.W.3 stated. Mr. Chatterjee, learned Counsel for the appellant contended further that the testimony of the prosecutrix does not inspire confidence at all because she made different statements at different times and in different manners. There is gross discrepancy in the facts stated in the F.I.R., facts stated before the learned Magistrate under Section 164 of the Cr. P. C. and facts stated in the Court by her as P.W.1. When such an uncorroborated, inconsistent testimony is made by the prosecutrix, the learned Court would not have relied on it. Mr. Panda, learned Counsel for the respondent/State of West Bengal, on the other hand, contended that there might be some discrepancies in the statements of the prosecutrix but these discrepancies do not strike at the root of the prosecution case. Therefore, those discrepancies being inconsequential were not given any importance by the learned Trial Court rightly. Mr. Chatterjee contended further that there was no history of force applied to the prosecutrix by the appellant. She was a consenting party and the evidence recorded by the Court in course of trial altogether is going to suggest that there was a marriage between the appellant and the prosecutrix and they had been living as husband and wife for couple of months and thereafter, a dispute cropped up when she became pregnant. A Salish was held in the village over the issue. The learned Court did not accept that evidence although the learned Court found that there was two views possible. He contended further that the P.W.1, the prosecutrix has stated that it was Pramesh, the father of the appellant who actually given her assurance that he would arrange the marriage of the prosecutrix with the appellant. She did not state anywhere in the Court as P.W.1 that the said assurance was given by the appellant at any point of time. Therefore, Mr. She did not state anywhere in the Court as P.W.1 that the said assurance was given by the appellant at any point of time. Therefore, Mr. Chatterjee contended that there was no promise to marry on the side of the appellant and, as such, there was no scope for the prosecutrix to say that due to misconception of fact, she had participated in sexual inter-course with the appellant. Mr. Panda, learned Counsel for the respondent/State of West Bengal submits that the evidence is to be read as a whole and if it is read as a whole, it would disclose that the appellant actually made such a promise and due to misconception of fact and being influenced by such a false promise to marry, the prosecutrix surrendered to the appellant. In a case of rape, generally Court does not seek corroboration of the oral testimony of the prosecutrix, if it is found credible, consistent and trustworthy. In the instant case, on careful scrutiny of the evidence, it is found that all the witnesses excepting the prosecutrix came to know about the relationship between the appellant and the prosecutrix after the prosecutrix became pregnant for two months. Therefore, what happened actually at the relevant period of time could not be stated by any witnesses. Naturally, the learned Court had to put much stress on the oral testimony of the P.W.1 besides her statement under Section 164 of the Cr. P. C. as well as the statement made by her in the F.I.R. Starting with the F.I.R. which is marked as Ext.1, it appears that the prosecutrix stated therein that Nitai, the appellant used to tell her in presence of his parents that he would marry her. He sometimes embraced her also. Therefore, the prosecutrix had to inform everything to the parents of the appellant. The parents of the appellant had given her assurance that they would accept her as the wife of their son. The victim believed their words and indulged herself in sexual relation with Nitai fulfledgedly. As and when she told the appellant to marry her, he assured her that he would do it afterwards. In the month of March, 2006, she became pregnant and conveyed that news to the appellant. But the appellant avoided her on various pretexts. The victim believed their words and indulged herself in sexual relation with Nitai fulfledgedly. As and when she told the appellant to marry her, he assured her that he would do it afterwards. In the month of March, 2006, she became pregnant and conveyed that news to the appellant. But the appellant avoided her on various pretexts. The victim had to inform about her pregnancy to the parents of the appellant who ignored that and on 25.9.2006, came to the house of the victim and threatened her and her inmates with dire consequences in case she does not terminate the pregnancy. After lodging of the F.I.R. on 26.9.2006, the prosecutrix made statement before the learned Magistrate under Section 164 of the Cr. P. C. on 10.10.2006. Her statement under Section 164 of the Cr. P. C. goes like below; The appellant told that he intended to marry her and thereafter, he started to sleep with her. She became pregnant and had to report about her pregnancy to the parents of the appellant who assured her not to tell this to any one in the present situation, as they would accept her as their son’s wife. She told repeatedly to the parents of the appellant who assured her again and again that they would accept her as their son’s wife. But afterwards, threatened her not to tell pregnancy to any one and directed her to get that pregnancy terminated. Thereafter, she reported the matter to her parents. Then her mother met the appellant’s mother and after discussions over the issue, mother of the appellant declined to give marriage with the victim as the victim was a pregnant girl. The victim protested and said that she did not sleep with anybody but appellant. But the mother of the appellant did not accept that fact. Thereafter, on 21st July, 2008, the victim was examined as P.W.1. She stated that she was working in the house of the appellant as domestic helper. The appellant occasionally impressed her. She informed such matter to Pramesh, the father of the appellant. Pramesh, the father of the appellant told her that he would arrange her marriage with the appellant. She was delighted and thereafter, the appellant started residing with the victim in the same room in the house of Pramesh during day time. Consequently, she became pregnant. She informed such matter to Pramesh, the father of the appellant. Pramesh, the father of the appellant told her that he would arrange her marriage with the appellant. She was delighted and thereafter, the appellant started residing with the victim in the same room in the house of Pramesh during day time. Consequently, she became pregnant. Nitai, the appellant used to intercourse with her on every alternative day during day time. She informed the matter of pregnancy to Nitai and his parents. The parents of Nitai again reaffirmed their commitment of giving marriage of the prosecutrix with the appellant. But the appellant declined to marry the prosecutrix on some pretext. Thereafter, on 25.9.2006, Pramesh and Janak came to the house of the prosecutrix and threatened her to kill if she fails to terminate the pregnancy. In her cross-examination, she stated that there was a love affair in between herself and Nitai, which her father did not like. She admitted in her cross-examination that the trouble actually broke out in between the two families with regard to the marriage of prosecutrix with the appellant. She also admitted that she lodged the F.I.R. as instructed by her parents. She also admitted in her cross-examination that a Salish was held to settle the dispute but the appellants party did not accept the decision taken in the Salish. If the contents of the F.I.R. (Ext.1), the contents of the statement under Section 164 of the Cr. P. C. (Ext.2) and the evidence of prosecutrix, P.W.1 are considered juxtaposing each other, it can easily be found that there are gross discrepancies in the statement of the prosecutrix which made her testimonies in Court not only untrustworthy but also unacceptable. According to the F.I.R., the appellant expressed his desire to marry the prosecutrix in presence of his parents and in absence of his parents, he used to embrace her. She had to inform that fact to the parents of the appellant who assured her that they would arrange her marriage with the appellant. She, being impressed by such assurance of the parents of the appellant, indulged herself in cohabitation with the appellant. According to the statement under Section 164 of the Cr. P. C. (Ext.2), the appellant told her that he intended to marry her and thereafter started to sleep with her. She, being impressed by such assurance of the parents of the appellant, indulged herself in cohabitation with the appellant. According to the statement under Section 164 of the Cr. P. C. (Ext.2), the appellant told her that he intended to marry her and thereafter started to sleep with her. When she became pregnant, she reported the matter to the parents of the appellant who assured her not to disclose the matter, as they would accept her as their son’s wife. The difference between the facts stated in the F.I.R. and the facts stated by the prosecutrix while her statement under Section 164 of the Cr. P. C. was recorded is that according to the F.I.R., before the prosecutrix and the appellant started to sleep together and the prosecutrix became pregnant, the matter was reported to the parents of the appellant who assured her to give her marriage with the appellant. But, according to the statement under Section 164 of the Cr. P. C., after being pregnant, she informed the incident to the parents of the appellant. This fact carries lots of weight because the statement under Section 164 of the Cr. P. C. was recorded a few days after lodging of the F.I.R. One thing is very common in both the statement, i.e., none but the parents of the appellant had actually given her assurance of her marriage with the appellant. Both the statements in the F.I.R. and the statement under Section 164 Cr. P. C. do not support the statement of the prosecutrix as P.W.1. According to the P.W.1, the appellant simply embraced her occasionally and did not make any sexual relation with her initially. The prosecutrix and the appellant indulged themselves in doing sexual intercourse inside the house of the appellant during day time only when the father of the appellant assured her that her marriage will be given with the appellant. This fact is quite different that what has been stated in the statement under Section 164 of the Cr. P. C. The assurance of marriage, according to the P.W.1, was given by the parents of the appellant after she became pregnant. But the appellant declined to marry. This is entirely not matching with the statement under Section 164 of the Cr. P. C. The assurance of marriage, according to the P.W.1, was given by the parents of the appellant after she became pregnant. But the appellant declined to marry. This is entirely not matching with the statement under Section 164 of the Cr. P. C. as well as the facts stated in the F.I.R. In her cross-examination, she has made it clear that there was love affair in between her and the appellant, which her father did not like. He also admitted that the trouble cropped up between the two families over the marriage between her and the appellant and ultimately, she had to lodge the F.I.R. at the instruction of her parents. In such a situation, the learned Trial Court came to a finding that there was misconception of fact for which the victim was allured with the promise of marriage. This view of the Court cannot be accepted because the continuous sexual intercourse for about a year between the prosecutrix and the appellant was not started on any such misconception of fact if the statement of the P.W.1 is accepted. According to the P.W.1 as well as according to the F.I.R., none but the father and mother of the appellant assured her marriage with the appellant. She has not stated as P.W.1 that the appellant disclosed at any point of time that he would marry her and induced her to participate in sexual intercourse with him in such a false promise. She was having love affair with the appellant and the dispute broke out between the two families over their marriage not because of her pregnancy. Because of her pregnancy, the parents of the appellant declined to give their son’s marriage with the prosecutrix. Therefore, it is found that there was no false promise of marriage on the part of the appellant. If there was any such false promise at all, that was made from the side of the parents of the appellant. Again, it is nowhere found that the appellant had no such intention to marry the prosecutrix. Initially, he had such intention even he had actually married her and both of them living as husband and wife for couple of months. This fact can well be ascertained from the answers given by the appellant in course of examination under Section 313 of the Cr. Initially, he had such intention even he had actually married her and both of them living as husband and wife for couple of months. This fact can well be ascertained from the answers given by the appellant in course of examination under Section 313 of the Cr. P. C. This fact also gets confirmation from the Ext.A. On perusal of the Ext.A, this Court does not find any word to the effect that it was filed simply to release the appellant from jail rather it says clearly that there was a marriage between the victim and the appellant on 30.1.2006 at Baira Kali Mata Temple at Kaliaganj according to the Hindu rites and customs and the case was filed by the prosecutrix simply because the marriage was not accepted by the parents of the appellant and the father of the prosecutrix. It says also that the F.I.R. lodged as she was pressurised by her father. The fact that she was pressurised to file F.I.R. had been admitted by the prosecutrix in her cross-examination. The learned Court did not accept the Ext.A as a trustworthy piece of evidence as the prosecutrix stated in her cross-examination that she signed the affidavit as the father of the appellant told her that the appellant would be enlarged on bail, if she signed the affidavit and thereafter the marriage between the appellant and the prosecutrix would be performed. This statement of the prosecutrix cannot be accepted at all because the situation was quite adverse so far as the prosecutrix was concerned. She was already pregnant and it was known to each and every by that time. She already became aware of the fact that there was no possibility of marriage as the appellant’s side did not agree to the decision of the Salish. Be that as it may, the learned Court concluded that the victim was 15 years old at the relevant period of time. The learned Court had taken this view only on the basis of the statement of the P.W.3 in his examination-in-chief. The learned Court failed to appreciate the statement of the P.W.3 made in his cross-examination. In his cross-examination, the P.W.3 stated that he was 35 years on the date he was examined in Court. The learned Court had taken this view only on the basis of the statement of the P.W.3 in his examination-in-chief. The learned Court failed to appreciate the statement of the P.W.3 made in his cross-examination. In his cross-examination, the P.W.3 stated that he was 35 years on the date he was examined in Court. His marriage took place about 25 years ago and her first daughter was born two years after marriage and the second, i.e., the prosecutrix was born three years thereafter. If so, a clear arithmetical calculation would reveal that at the relevant period of time, the prosecutrix was 18 years old, if we accept this statement of the P.W.3. Therefore, the evidence of P.W.3 regarding age cannot be accepted sacrosanct. The learned Court made an error in doing so. In this case, it is clear that the prosecutrix became pregnant due to cohabitation with the appellant. There is no denial to this fact by the appellant. He has stated categorically that he married the prosecutrix on the Kali Temple on 30.1.2006 and they had been living as husband and wife for couple of months and thereafter, the dispute arose and the case was instituted. The appellant in his examination under Section 313 of the Cr. P. C. also stated clearly that he always wanted to marry the prosecutrix. If so, there was no misconception of fact, which actually mislead the prosecutrix to participate in sexual intercourse with the appellant. To be stated precisely, there was no such false promise on the part of the appellant which actually mislead the prosecutrix to establish sexual relation with the appellant openly in the house of the appellant within the knowledge of the parents of the appellant. These facts altogether goes to indicate that there was consent on the part of the appellant and she was a major at the relevant period of time as stated in the affidavit sworn by her (Ext.A). It is more or less settled principle of law that if a woman of full age consents to sexual intercourse, then it is not rape, no matter how much reluctant is developed in the family subsequent to the incident. When prosecutrix is not below 18 years and there was voluntary participation in sexual intercourse, there cannot be any case of rape. When prosecutrix is not below 18 years and there was voluntary participation in sexual intercourse, there cannot be any case of rape. The theory of misconception of fact does not appear to be applicable in the peculiar facts and circumstances of the case. Looking at the F.I.R. (Ext.1), it appears that the prosecutrix mentioned her age as 15 years at the time of lodging the F.I.R. This fact was stated in the last three lines of the F.I.R. in a different manner as if it has been added to subsequently. She did not mention her age while examined by the learned Magistrate under Section 164 of the Cr. P. C. She has not also mentioned her age at the time of examination in the Court. There was no ossification test. There was no birth certificate or school leaving certificate etc. to ascertain her age. Her father has made contradictory statement, which is not at all reliable. The only document placed before the Court was the Ext.A. The Ext.A was not relied on by the learned Court. In such a situation, there is every doubt as to the minority of the prosecutrix. This apart, P.W.5, the scribe of the Ext.B has stated that the prosecutrix reported him that their marriage was solemnized at Kaliaganj Kali Temple in the year 2006. There is no reason to disbelieve the evidence of the P.W.5. He has neither related to the appellant nor to the prosecutrix. He had no reason to make such statement in Court. The Ext.B is the document on non-judicial stamp which was referred to as Salishnama in the Court. That Salish was held when the appellant’s parents declined to give marriage of the appellant with the prosecutrix. The prosecutrix put her signature on the Ext.B. It appears therefrom in term (1), it is mentioned that Ava Roy will again start her matrimonial life with Nitai Sarkar. The word “again” mentioned in the term (1) of the Ext.B leaves no room of doubt that what the P.W.5 has stated is correct. It also supports what the appellant has stated in his examination under Section 313 of the Cr. P. C. If so, there was a marriage which was not accepted by the parents of the parties to the marriage. They started matrimonial life but subsequently it did not continue because of dispute between the families over the issue of pregnancy. It also supports what the appellant has stated in his examination under Section 313 of the Cr. P. C. If so, there was a marriage which was not accepted by the parents of the parties to the marriage. They started matrimonial life but subsequently it did not continue because of dispute between the families over the issue of pregnancy. Therefore, there is every doubt in the prosecution case as to whether there was any misconception of fact for which the prosecutrix took part in the sexual intercourse with the appellant on any false promise of marriage made by the appellant. The fact that Salish was held has been accepted by the prosecutrix in her cross-examination. The P.W.2, a local man also stated about the Salish. The father of the prosecutrix in his cross-examination stated that there was a Salish but the decision of the Salish was not accepted by the appellant party. P.W.6 also supported the facts of Salish. All these facts together indicates that after the disclosure of pregnancy, somehow a dispute cropped up between two families on the issue of pregnancy and the marriage discontinued and the appellant disagreed to live with the prosecutrix any further as decided in the Salish. The case was lodged under the pressure of the parents of the prosecutrix. The prosecutrix admitted herself in the Ext.A that there was marriage between herself and the appellant. The appellant in his examination under Section 313 of the Cr. P. C. also admitted that fact. He never stated that he did not want to marry but he actually married the prosecutrix. The fact was supported by the P.W.5. That being the facts and circumstances of the case, I think that the learned Court failed to appreciate the facts and circumstances of the case and the evidence on record in its proper and true perspective. The prosecutrix being a grown up lady indulged herself in sexual intercourse within the knowledge of the parents of the appellant for about a year. She also married the appellant and lived as husband and wife. Their marriage was not accepted by the families and ultimately, by the appellant. She was pressurised to lodge the F.I.R. against the appellant on the allegation that she was raped when she was minor. This case of the prosecution has not at all been established by sufficient and satisfactory evidence. Their marriage was not accepted by the families and ultimately, by the appellant. She was pressurised to lodge the F.I.R. against the appellant on the allegation that she was raped when she was minor. This case of the prosecution has not at all been established by sufficient and satisfactory evidence. In such type of case, the key word in the matter of appreciation of the evidence is consistency. There is lack of consistency in the statement of the prosecutrix. She made a different statements at different times in different manners with different intentions. Her testimony is not inspiring confidence and is not credible. When the statement is inconsistent, it is not credible. When it is not credible, it cannot be accepted without corroboration. Accordingly, I do not find any reason as to why the learned Court accepted the testimony of the prosecutrix sacrosanct without seeking corroboration of the same. The way, the learned Court came to a conclusion appears to be not correct. The finding, as such, is not sustainable in law. In view of the discussions above, the appeal succeeds. The judgment and conviction is set aside.