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2014 DIGILAW 177 (TRI)

Pintu Malakar v. State of Tripura

2014-05-07

S.TALAPATRA, U.B.SAHA

body2014
JUDGMENT S. Talapatra, J. The appellant has been convicted for committing the offence punishable under Section 376(1) and 417of the I.P.C. by the judgment and order dated 12.01.2011 delivered in Sessions Trial No. 26(NT/K)/2010 by the Additional Sessions Judge, North Tripura, Kailashahar. 2. The prosecutrix (name withheld for protecting her identity) by filing an F.I.R. to the Officer-in-Charge, Kumarghat Police Station on 24.05.2009 (Exbt. P/5) disclosed that the appellant often cohabited with her on promise of marrying her. Even she became pregnant and at the instance of the appellant she had aborted the pregnancy. Later on, the appellant had refused to marry her. There had been social negotiations but that did not bring effective result. The police had investigated the matter and filed the charge sheet under Sections 376(1), 417 and 315 of the I.P.C. The Magistrate after taking cognizance committed the case to the Sessions Judge, Kailashahar, North Tripura who had transferred the case for trial to the Court of Additional Sessions Judge, North Tripura, Kailashahar. The charge under Sections 417,316(1) and 315 of the I.P.C. was proposed and framed against the appellant when the appellant claimed total innocence and to face the trial. 3. To substantiate the charge, the prosecution has adduced as many as 14(fourteen) witnesses and has introduced as many as 8 documentary evidence (Exbt. 1 to 8) including the material objects, the prescription and urine analysis report in the evidence. The appellant was also examined under Section 313of the Cr. P.C. on the incriminating materials surfaced in the evidence. The appellant did not place any explanation; he had denied those materials incriminating him. 4. On appreciation of the evidence, the Additional Sessions Judge, North Tripura, Kailashahar had convicted the appellant under Sections 376(1) and 417 of the I.P.C. and acquitted him from the charge framed under Section 315 of the I.P.C. The appellant has been sentenced to suffer rigorous imprisonment for 10(ten) years and to pay fine of ` 20,000/- (Rupees twenty thousand) in default, to suffer another 6(six) months rigorous imprisonment for the offence punishable under Section 376(1) of the I.P.C. The appellant has further been sentenced to suffer 6(six) months rigorous imprisonment for the offence punishable under Section 417 of the I.P.C. 5. Mr. Mr. K. Roy, learned counsel appearing for the appellant has submitted that even though the appellant has denied that he had any intercourse with the prosecutrix but if the testimony of the prosecutrix is entirely believed even then it cannot be held that the appellant had committed rape within the meaning of Section 375 of the I.P.C. Mr. Roy, learned counsel has emphatically submitted that there was no misconception in extending ’consent’ to have the sexual intercourse, even though the prosecution has stated that on promise of marriage she had ’surrendered’ herself to the appellant. According to Mr. Roy, learned counsel, there is no evidence to show that the appellant had intention from the beginning to deceive the prosecutrix. He has referred to the testimony of PW-5, namely, Girindra Malakar who has stated without mincing the words that her daughter told that she had love affairs with the appellant. He has also stated that the appellant in a meeting sought sometime to overcome his financial stringency and to marry thereafter. According to Mr. Roy, learned counsel if the appellant could not marry the prosecutrix for financial stringency for some time that cannot come within the definition of cheating under Section 415of the I.P.C. and hence, the conviction under Section 417 cannot also be sustained. 6. From the other side, Mr. A. Ghosh, learned P.P. appearing for the State has fairly submitted that there is no evidence as regards the misconception of fact within the ambit of Section 90 of the I.P.C. The ’consent’ as it appears was not given by the prosecutrix under fear of injury or under a misconception of fact. However, Mr. A. Ghosh, learned P.P. has submitted that from the aggregate reading of the evidence as led by the prosecution, it can be gathered that from the very inspection, the appellant had an intention to deceive the prosecutrix and not to keep the promise of marrying her. He had the sexual intercourse deceitfully and causing harm to the reputation of the prosecutrix. As such, no infirmity can be found in the findings of conviction returned by the Additional Sessions Judge, North Tripura, Kailashahar. 7. Mr. He had the sexual intercourse deceitfully and causing harm to the reputation of the prosecutrix. As such, no infirmity can be found in the findings of conviction returned by the Additional Sessions Judge, North Tripura, Kailashahar. 7. Mr. A. Ghosh, learned P.P. has submitted that the law as enunciated by the apex court in State of U.P. vs. Naushad, reported in AIR 2014 SC 384 is squarely applicable in this present case in as much as ’ under misconception of fact’ has been radically interpreted by the apex court. In Nausad (supra) it has been held that : if consent is given by the prosecutrix under a misconception of fact, it is vitiated. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of Yedla Srinivas Rao v. State of A.P. : (2006) 11 SCC 615 , with reference to similar facts, this Court in para 10 held as under: 10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs. 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. 8. For appreciation, this Court has scrutinized the records. It transpired from the records that when the prosecutrix found her pregnant, she had disclosed about her love affair, cohabitation with the appellant and of her pregnancy to her parents, PW-2 Smt. Kalpana Malakar and PW-5, Sri Girindra Malakar. As the appellant did not come forward to marry the prosecutrix, the matter had been discussed in the village meeting where the appellant was also present but he had squarely denied the allegations. However, PW-5, Girindra Malakar has stated that "in the meeting at first Pintu denied the matter of love affairs but at last he admitted the fact of love affairs and agreed to marry Anima and also prayed for time on the ground of financial stringency." Among the persons who had attended the meeting namely, Swapan Majumeder (PW-7) who was the Pradhan of the village at the relevant time has stated that as the appellant denied the allegations, the meeting ultimately ended advising the parents of the prosecutrix to settle the matter by themselves and give marriage the prosecutrix with the appellant. PW-3, Sri Abani Choudhury, a participant in that meeting had stated that father of Pintu had agreed to take prosecutrix as bride of his son but Pintu refused to marry the prosecutrix saying that he was not involved with her. PW-3, Sri Abani Choudhury, a participant in that meeting had stated that father of Pintu had agreed to take prosecutrix as bride of his son but Pintu refused to marry the prosecutrix saying that he was not involved with her. PW-2, Smt. Kalpana Malakar, mother of the prosecutrix has stated that in the meeting it was decided that after saving money, the appellant would marry the prosecutrix but the appellant did not agree to such proposal. The prosecutrix thereafter filed the complaint to the police station. 9. Exbt. M.O. 1 series admitted at the instance of Dr. J.B. Darlong (PW-14). It is apparent that the prosecutrix was pregnant at the relevant time. Even from the medical examination report Exbt. 7 admitted at the instance of Dr. Pulak Rn. Das (PW-13) it is found that her hymen was ruptured. and there was signs of sexual intercourse but no marks of violence anywhere. 10. Having read the materials all together, it surfaces that there is no reason to disbelieve PW-1, the prosecutrix as regards the cohabitation, pregnancy and termination thereof. Now, the two pertinent points that emerged for consideration of this Court are that: (i) Whether the promise of marriage was there for cohabitation or that promise was deceitful from the very inception? and (ii) Whether the ’consent’ was given by the prosecutrix under misconception or not? Consent under misconception as provided under Section 90 of the I.P.C. can be divided in two parts; consent under fear of injury and consent under misconception of fact. 11. In this regard, when reference has been made to Nausad (supra) it would be apposite for this Court to consider the apex court decisions of Yedla Srinivas Rao v. State of A.P. : (2006) 11 SCC 615 and Uday vs. State of Karnataka, reported in 2003 SCC (Cri) 775. In Uday the ’consent’ under misconception of fact has been critically analyzed and it has been held that: 21. 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 be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. 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. 12. In Uday it has been also observed that- In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact. 13. In Uday it has been held that: In the event of dearth of evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. 14. In Yedla Srinivas Rao it was squarely established by the prosecution that the intention of the accused was right from the beginning, not honest and he kept on promising that he will marry her till she became pregnant and accordingly, it has been held in Yedla Srinivas Rao that this kind of consent taken by the accused with clear intention not to fulfill the promise persuaded the girl to believe that he was going to marry her and thus obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. 15. For purpose of forensic consideration of the nature of consent, this Court has reappraised the testimony of the prosecutrix and it appears from there that the prosecutrix had given consent for the sexual intercourse. The prosecutrix has stated that the appellant constantly told her that he would marry her and gave promise to marry her and induce her to agree with his proposal or desire to cohabit with him. Ultimately she had surrendered. She has categorically stated that "ultimately I have surrendered myself to him and many times getting scope he made intercourse with me in our house and also another places." Even after the prosecutrix became pregnant, the appellant had assured her to marry her but he had insisted her to get the pregnancy aborted and after termination of the pregnancy, the prosecutrix had disclosed the matter to her mother. Even the appellant had paid a paltry sum to her mother for purpose of her treatment. When the appellant had been taking time for marrying her, the matter was taken to the Panchayat and a meeting was held. But she has not stated that either in the meeting or anywhere that the appellant had refused to marry her. However, it appears that at some point of time, the appellant when pressurised extremely had stated that he would not marry the prosecutrix. But she has not stated that either in the meeting or anywhere that the appellant had refused to marry her. However, it appears that at some point of time, the appellant when pressurised extremely had stated that he would not marry the prosecutrix. Such elements of fact are available with noticeable variation from the testimonies of PWs-2, 5 & 6 as already referred. 16. In view of Uday it may be presumed that the denial was being vexed by the pressure or not having the sufficient financial resources at a particular time. Such refusal or denial cannot be correlated with deceit from the inception. In Uday what has been further observed may be reproduced for illustration: It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired in. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent. 17. As such the alleged sexual intercourse cannot be brought within the definition of rape as the ’consent’ cannot be held to be given by the prosecutrix under misconception of fact. As we have already discussed the testimony of the prosecutrix and we did find any statement the appellant ever denied to marry her. As natural corollary of what has observed, the conviction under Sections 376(1) and 417 of the I.P.C. cannot be maintained. 18. In the result, the impugned judgment and order is set aside. As we have already discussed the testimony of the prosecutrix and we did find any statement the appellant ever denied to marry her. As natural corollary of what has observed, the conviction under Sections 376(1) and 417 of the I.P.C. cannot be maintained. 18. In the result, the impugned judgment and order is set aside. The appellant is acquitted from the charge on benefit of doubt. Accordingly, the appeal stands allowed. Send down the LCRs forthwith.