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2014 DIGILAW 360 (TRI)

Rakesh Rudrapaul v. State of Tripura

2014-11-07

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order dated 07.06.2010 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 1(1) of 2010 whereunder the learned Sessions Judge confirmed the judgment and order of detention and fine dated 17.12.2009 passed by the Juvenile Justice Board, West Tripura, Agartala in case No. Juvenile 74/W/BLG/08, which corresponds to G.R. No. 1027 of 2006 under Section 417 of IPC read with Section 15 of the Juvenile Justice (Care & Protection of Children) Act, 2007. The Juvenile Justice Board(hereinafter mentioned as 'Board') directed that the petitioner shall remain in detention in the Special Home for a period of six months and shall also pay a fine of Rs. 5,000/- (rupees five thousand) and in default of payment of fine to remain in detention in the Special Home for a further period of two months. 2. Heard learned counsel, Mr. Samar Das for the petitioner and learned P.P., Mr. A. Ghosh for the State respondent. 3. Prosecution case, in short is that the houses of the petitioner and the victim(PW 2) are situated in the same locality, adjacent to each other and the petitioner used to work in his house as a potter. At day time the victim (PW 2) used to stay alone in her house being her parents used to go away to work and her younger brother and sister used to go to school. Taking advantage of loneliness of the victim the petitioner used to visit the house of the victim at day time and would offer to make love with her. He promised to marry her and thereby started sexual intimacy with the victim. Such illicit sexual relation continued for 7/8 months. The petitioner undergone intercourse with the victim on several occasions giving assurance of marriage and the victim did not disclose the fact to anybody. When she became pregnant she asked the accused to marry her but the accused denied. The fact of pregnancy was disclosed to her mother on the day of Maha-astami Puja of Durgapuja festival of the year 2006 and she was badly treated by her parents for such having premarital sexual relation with the petitioner. When she became pregnant she asked the accused to marry her but the accused denied. The fact of pregnancy was disclosed to her mother on the day of Maha-astami Puja of Durgapuja festival of the year 2006 and she was badly treated by her parents for such having premarital sexual relation with the petitioner. At the instance of the parents of the victim a village panchayat vaithak was held wherein the petitioner was also called but the petitioner disowned the responsibility of pregnancy of the victim. Thereafter father of the victim(PW 1) lodged the FIR on 10.10.2006 before Amtali P.S. and accordingly Amtali P.S. Case No. 69 of 2006 under Sections 417, 493, 376 of IPC was registered and after investigation charge sheet was submitted against the petitioner for commission of offence under Sections 417 and 376 of IPC. 3.1. Cognizance was taken on the basis of the police report and thereafter the case was committed to the Juvenile Justice Board since the petitioner was a juvenile at the time of alleged offence. The Board after inquiry/trial acquitted the petitioner from the charge under Section 376 of IPC and held him guilty of the charge under Section 417 of IPC and accordingly sentenced him as stated hereinbefore. 3.2. On appeal preferred by the petitioner the learned Sessions Judge upheld the order of the Board and hence this revisional application. 4. A revisional Court is to see the correctness, legality and propriety of the judgment/order passed by the inferior Court and to see the regularity of the proceedings. Ordinarily, the revisional Court is not required to re-examine or re-appreciate the evidence on record unless it is apparently shown that the evidence on record has not been correctly appreciated or that there is no legal evidence to arrive at such a finding. 5. It is an admitted position that at the time of alleged occurrence the petitioner was a juvenile. The trial Court has arrived at a definite finding that the victim(PW 2) was more than 16 years of age at the time of alleged occurrence. 5. It is an admitted position that at the time of alleged occurrence the petitioner was a juvenile. The trial Court has arrived at a definite finding that the victim(PW 2) was more than 16 years of age at the time of alleged occurrence. The victim(PW 2) alleged that the petitioner undergone intercourse with her with the assurance of marriage and as a result she got pregnant and the fact of her pregnancy was disclosed at first on the day of Maha-astami puja of Durgapuja festival of the year 2006 and it is overwhelmingly established that she delivered a male child and the child is living with her. The petitioner disowned the responsibility of paternity of the child in the village vaithak which is evident from the statement of the witnesses recorded during trial. 6. It is argued by learned counsel, Mr. Das that the Board wrongly arrived at a finding that the petitioner is guilty of cheating. The ingredient of 'cheating' is totally absent in the evidence on record and hence punishment under Section 417 of IPC cannot stand. He has also argued that evidence on record has not been properly appreciated and the Board as well as the appellate Court arrived at a wrong finding of guilt of the petitioner. 7. Learned P.P. on the other hand has argued that the victim is an illiterate, poor and rustic lady. The petitioner, being a next door neighbor fraudulently and dishonestly pretended love with the victim and with the assurance of marriage undergone intercourse with her for 7/8 months and as a result the victim got pregnant. Had the accused not given the assurance of marriage the victim would not surrender herself for the sexual enjoyment of the petitioner and so the ingredient of cheating has been well established and the Board as well as the appellate Court arrived at a correct finding. 8. I have meticulously gone through the judgment passed by the Board and the learned Sessions Judge. As it appears, the Board has meticulously examined and appreciated the evidence and arrived at a finding of guilt of the petitioner for commission of offence under Section 417 of IPC. 9. 8. I have meticulously gone through the judgment passed by the Board and the learned Sessions Judge. As it appears, the Board has meticulously examined and appreciated the evidence and arrived at a finding of guilt of the petitioner for commission of offence under Section 417 of IPC. 9. The word, 'cheating' as defined in Section 415 of IPC reads thus: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation,--A dishonest concealment of facts is a deception within the meaning of this section." To prove the ingredients of cheating, the ingredients of fraudulently or dishonestly are also required to be proved. The word, 'fraudulently' defined in Section 25 of IPC thus: "25. Fraudulently--A person is said to do a thing if he does that thing with intent to defraud but not otherwise." The word, "dishonestly", is defined in Section 24 of IPC thus: "24. Dishonestly--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'." 10. A careful reading of the definition of 'cheating' makes it abundantly clear that it has two parts. The first part relates to delivery of property because of exercise of deceit by a person. The second part relates to inducement of the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived which causes damage or harm to the person so deceived in respect of his body, mind, reputation or property. 11. It is overwhelmingly established that the victim is an illiterate, unmarried young woman aged above 16 years, hails from a poor family. The petitioner is a neighbour of the victim and by profession a potter. It is also in the evidence on record that the younger sister of the victim used to work as a maid in the house of the petitioner. The petitioner is a neighbour of the victim and by profession a potter. It is also in the evidence on record that the younger sister of the victim used to work as a maid in the house of the petitioner. The victim used to stay alone at day time in her house. The accused used to visit her at day time when she used to stay alone and offer to make love with her and then with the assurance of marriage undergone intercourse with her. It is the simple statement of the victim that for seven/eight months the accused undergone intercourse with her giving the assurance of marriage and when she became pregnant due to such premarital illicit sexual relation and proposed the accused to marry her the accused declined and disowned the responsibility of pregnancy of the victim. It is, therefore, evident that had the accused not given the assurance of marriage the victim would not allow the petitioner to undergo intercourse with her. Because of such premarital illicit sex the victim got pregnant and delivered a male child, her entire life has been shattered. It is unlikely, anybody in our society will marry her again. Even if she can marry again what will be the fate of the boy who has been brought to earth because of the illicit sexual relation. The victim made definite statement that it is the petitioner who has undergone intercourse with her with the assurance of marriage and such statement has not been shattered in any manner. It is overwhelmingly established that the petitioner is responsible for the pregnancy of the victim as a result of which she delivered a male child. The victim surrendered her chastity because of the promise of the petitioner and otherwise she would not do so. Chastity and womanhood is regarded as a greatest virtue and asset of a woman. While for the false promise of the petitioner the victim suffered badly, mentally and in respect of her reputation, definitely such act of the petitioner comes within the purview of the definition of 'cheating'. Chastity may not have money value but definitely it has got reputation value and the petitioner damaged the reputation value of the victim by having illicit intercourse with her giving false assurance of marriage. 12. Chastity may not have money value but definitely it has got reputation value and the petitioner damaged the reputation value of the victim by having illicit intercourse with her giving false assurance of marriage. 12. The evidence on record clearly reveals that the petitioner made a representation deliberately with a view to elicit the assent of the victim without having the intention or inclination to marry her and such act of the petitioner definitely comes within the purview of cheating. It is overwhelmingly established that the petitioner made promise to marry the victim and it is clear that such promise was made by the petitioner only to obtain assent of the victim to undergo intercourse with her. When she got pregnant and proposed the petitioner to marry her, the petitioner abruptly went back to the promise and disowned the responsibility of pregnancy of the victim. This is clearly a 'cheating' on the part of the petitioner which is punishable under Section 417 of IPC and the Board, therefore, in my considered opinion has rightly arrived at a conclusion of guilt of the petitioner. The appellate Court, therefore rightly upheld the decision of the Board. 13. The reprehensible conduct of the petitioner left behind a trail of misery, ignominy and trauma. There is nothing before us as to what is the present position of the victim and her baby. The victim delivered the male child in the year 2006 and the baby might be grown 9 years in the meantime. The Board has directed the fine money of Rs. 5,000/- (rupees five thousand) to be paid to the victim. No other compensation has been directed. It is brought on record that the petitioner is a potter by profession. He has therefore certain income of his own and he is responsible to maintain the illegitimate child. He is, prima facie, accountable for damages under civil law. 14. Section 357A has prescribed the Victim Compensation Scheme. The Legal Services Authority must stand by the side of the victim to adequately compensate her and her illegitimate child. I think it fit to direct the Juvenile Justice Board to refer the case of the petitioner to the District Legal Services Authority or the State Legal Services Authority to decide the quantum of compensation payable to the victim and her illegitimate child. She must be adequately compensated under the Scheme. 15. I think it fit to direct the Juvenile Justice Board to refer the case of the petitioner to the District Legal Services Authority or the State Legal Services Authority to decide the quantum of compensation payable to the victim and her illegitimate child. She must be adequately compensated under the Scheme. 15. In view of the discussions made above, the revisional application is found to be devoid of merit and hence it stands dismissed. 16. Send back the L.C. records along with a copy of the judgment.