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2015 DIGILAW 807 (GAU)

Subir Dhar v. State of Assam

2015-06-25

RUMI KUMARI PHUKAN

body2015
ORDER : This is an appeal filed under Section 374 of the Code of Criminal Procedure for setting aside the judgment and order dated 31.5.2006 passed by the learned Addl. Sessions Judge (Ad-hoc), Hojai at Sankardev Nagar, Nagaon, Assam (Fast Track Court) in Sessions Case No.208 (N) 05 thereby convicting the appellant under Section 417 IPC and sentencing him to suffer rigorous imprisonment for three months and to pay a fine of Rs.20000/- in default to suffer simple imprisonment for 60 days. 2. The brief facts of the case as projected in the FIR filed by the informant Smti Bhanuprabha Hazarika is that the accused Shri Subir Dhar was in love with her daughter Smt. Barnali Hazarika for the last five years prior to the filing of the FIR. When the complainant asked the accused about the love affairs, the later told her that he will marry her daughter. But on 24.10.04, the accused refused to marry the complainant’s daughter as a result of which her daughter Smti Barnali Hazarika made an attempt to commit suicide by consuming poison, but due to timely intervention of the neighbours, she could be saved. On 25.10.04, Barnali went to the house of the accused and sat in front of it. When the complainant reached there along with the police, Barnali told her that if the accused did not marry her, she will commit suicide. Somehow the victim was brought to their house. On the above facts, the informant lodged the FIR with the Police which was subsequently registered as Lumding P.S. Case No.148 of 2004 under Section 493/376 IPC. 3. After completion of the investigation, the police submitted the charge sheet against the accused Subir Dhar under Section 493/376/417 IPC. The Court below committed the case to the Court of Sessions for favour of trial. On appearance of the accused before the Court of Sessions, the charge was modified to Section 376/417 IPC and charge was framed and explained to the accused/appellant to which he pleaded not guilty. 4. In course of trial, the prosecution examined as many as five PWs whereas the defence examined two witnesses. One CW was examined who was cross-examined by the prosecution as well as by the defence. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he admitted about the love affairs with Barnali Hazarika but denied the factum of sexual intercourse was denied. One CW was examined who was cross-examined by the prosecution as well as by the defence. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he admitted about the love affairs with Barnali Hazarika but denied the factum of sexual intercourse was denied. On conclusion of the trial, the learned Trial Court found the accused guilty under Section 417 IPC and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs.20,000/- in default to suffer simple imprisonment for 60 days. 5. Aggrieved thereby, the appellant has preferred this appeal on the ground that the learned Sessions Judge committed error of law as well as in facts in convicting the appellant under Section 417 IPC as there was no material whatsoever on record to come to a finding that the appellant had induced the victim to handover any property to him. According to the appellant, the property included in Section 417 means any tangible thing capable of being used, possessed etc., so the same is not applicable to the matter of chastity of any women within the purview of Chapter XVII of the IPC which is related to offence against property. It is stated that the learned Sessions Judge has come to a definite finding that the parties were in deep love for a period over of 5 years which resulted in their physical relationship and, as such, the learned Sessions Judge committed error in convicting the appellant under Section 417 IPC. Accordingly, it has been prayed to set aside the order of conviction and acquit the accused person of the charge. 6. While initiating the argument, the learned counsel for the appellant has basically relied upon the facts that the accused appellant cannot be convicted solely on the ground for his inability to marry the victim girl in the attending facts and circumstances of the case. Reliance has been placed upon the observation of the Hon’ble Supreme in (1977) 3 SCC 7 ( Nrisingha Murari Chakraborty and others –Vs.- State of West Bengal) wherein the Hon’ble Supreme Court has described the property within the meaning of Section 420 as below :- “‘Property’ means a tangible thing capable of ownership. Reliance has been placed upon the observation of the Hon’ble Supreme in (1977) 3 SCC 7 ( Nrisingha Murari Chakraborty and others –Vs.- State of West Bengal) wherein the Hon’ble Supreme Court has described the property within the meaning of Section 420 as below :- “‘Property’ means a tangible thing capable of ownership. Even if it has no money value in the hands of the person cheated it becomes a thing of value in the hands of the person who may get possession of it as a result of the cheating practiced by hi. It is a document of importance for travel abroad, for, without it, it is impossible for a person to travel, and so it is of considerable value to its holder.” 7. It has been also contended by the learned counsel for the appellant that Chapter XVII itself relates to the property, but to rope the appellant with the criminal liability that there should be criminal intention on the part of the appellant from the very beginning so as to infer dishonest intention. The fact that accused had no such criminal intention to deceive the victim girl, learned counsel for the appellant has pointed out certain portion of evidence of the informant side, which goes to show that the accused had the intention to marry her, but due to his family objection the same could not be performed. It is the contention of the appellant side that the appellant never deceived the victim girl in any manner, but it is a matter of mutual love affairs between the parties, but unfortunately the marriage could not be performed by the accused appellant due to the objection raised by his family. The simple inability of the accused appellant to marry the victim girl cannot be termed as cheating within the purview of Section 417 IPC. The definition of property according to Black Law’s Dictionary is “everything that has exchangeable value” is called property, capable of being owned and possessed, but cannot be transferred, alienated. 8. Attention of the Court has been invited to the matters on record which can only reveals that the accused acted bonafide since inception of relation between the parties. The definition of property according to Black Law’s Dictionary is “everything that has exchangeable value” is called property, capable of being owned and possessed, but cannot be transferred, alienated. 8. Attention of the Court has been invited to the matters on record which can only reveals that the accused acted bonafide since inception of relation between the parties. Reliance has also been placed upon the case laws reported in (1997) 6 SCC 499 (Jibriwal Diwan –Vs.- State of Maharashtra) wherein it has been held that the act of the appellant cannot be said to have been done dishonestly and fraudulently. Therefore, the offence under Section 417 IPC is not made out. 9. On the other hand, in reply to the arguments made by the appellant side, the learned Additional Public Prosecutor has submitted that chastity of an women is more than a property and the accused promised to marry her for which they maintain a relation, but the subsequent refusal to marry her indicates that he has violated his promise and the learned Trial Court has rightly convicted the appellant and no interference is called for. 10. I have considered the rival submissions of both the parties and it can be found that the Trial Court has convicted the accused appellant solely on the ground that the accused failed to marry the victim girl in-spite of his promise to marry her, after maintaining a long love affairs and physical relation with her. 11. I have given an anxious consideration to the evidence on record and on an appraisal of the evidence of the informant side itself, it is found that the victim as well as the informant and his brother and sister-in-law of the victim had clearly admitted in their evidence that there was love affairs between the parties for last five years and it was an open secret for all concerned and the accused admitted from the very inception of their relation about such love affairs and he not only assured himself, but also brought his family members to the house of the informant to assert his promise that the informant should not given marriage of the victim girl to any other person as he will marry Smti Barnali, daughter of the informant. The same fact has been asserted by the P.W.1, Smti Bornali Hazarika (victim), P.W.2 Bhanu Prava Hazarika (informant), P.W. 4 Mrs. The same fact has been asserted by the P.W.1, Smti Bornali Hazarika (victim), P.W.2 Bhanu Prava Hazarika (informant), P.W. 4 Mrs. Arati Hazarika (sister-in-law of the victim) and C.W. 1 Sri Mukun Hazarika (brother of the victim). On cumulative reading of the evidence, it would reveal that there was no any dishonest intention on the part of the accused while maintaining the relation with the victim girl. Rather, it shows that there were extreme love affairs between the parties. The victim girl in her evidence in chief herself has stated that the accused later on told her that if he marries her, then his father would abandon him. In cross-examination she has stated that the accused also told her that due to caste barrier it may not be possible to marry her due to the objection of his father. So, apparently she knew about the affairs so prevailing over and above their relation. 12. The fact that the victim turned pregnant from the side of the accused and miscarriage was done is not proved by any convincing evidence. Even her mother/P.W.2 and her sister-in-law (P.W.4) and her brother (C.W.1) have not stated anything to support the allegation. So the testimony of the victim on this score remains unsubstantiated. The defence side had examined the doctor which was referred by the victim that he was the person who caused her miscarriage and the said doctor Shri D.C. Roy as D.W.2 has stated in his evidence that he never terminated the pregnancy of the victim girl in his dispensary neither she visited him. Further contention of the victim girl that accused took joint photograph with her while maintaining the relation in the studio of Kanu Deb situated at Krishnanagar, the defence side has examined the said Kanu Deb as D.W.1 who has stated that he never took joint photograph of the appellant and the victim girl in his studio. 13. The fact that the victim was minor at the relevant time is also not proved by the prosecution by any positive evidence. According to the victim herself, she read upto class-VIII and she also failed two times in the school. So, she was in a better position to produce the school certificate and or age certificate to prove her age, but no such document was produced to prove the age. According to the victim herself, she read upto class-VIII and she also failed two times in the school. So, she was in a better position to produce the school certificate and or age certificate to prove her age, but no such document was produced to prove the age. On the other hand, the informant who is the mother of the victim has also denied to have any knowledge about the date of birth of her own daughter and they have stated the age of the victim merely on assumption that she was minor at the time of occurrence. So such vague evidence on the part of the prosecution side cannot be accepted that the victim was minor at the time of occurrence. Each of the every claim of the prosecution side is not proved on material aspects. Here the facts remains that ultimately the accused appellant did not marry the victim girl for which she was frustrated and a case has been lodged against the accused person. 14. So let us examine the legal aspect of such conduct of the parties. It would be relevant to discuss about the observations so made by this Court in Bipul Medhi Vs. State of Assam, reported in 2009 Crl.L.J 1099, 2007 (2) GLR 200, wherein elaborate discussion has been made on such similar situation in the following manner : “ Failure of the petitioner to keep the promise to marry the opposite party may under circumstances of the case amount to mere breach of promise/contract and in view of Illustration (g) appended to Section 415 IPC it is evident that breach of promise/contract simpliciter without any proof of the fact that such promise/representation was made by the petitioner with knowledge that he would not marry the opposite party will bring the case within the meaning of Section 415 as well as Section 417 IPC. The prosecution has miserably failed to adduce any evidence whatsoever to show that during or before the alleged intercourse of the petitioner, in-fact appellant had fraudulent or dishonest intention not to marry the complainant. In absence of any such circumstances in the evidence on record, the conviction and sentence imposed upon the petitioner cannot be maintained. The prosecution has miserably failed to adduce any evidence whatsoever to show that during or before the alleged intercourse of the petitioner, in-fact appellant had fraudulent or dishonest intention not to marry the complainant. In absence of any such circumstances in the evidence on record, the conviction and sentence imposed upon the petitioner cannot be maintained. The Court further observed that the prosecutrix willingly consented for having sexual intercourse with the appellant with him he was deeply in love, not because he promised to marry her but because she also desired it. In the circumstances, it would be very difficult to input to the appellant knowledge that the prosecutrix has consented the consequences of misconception of facts arising out of his promise. In any event it would not be 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.” 15. In the case of Dilip Singh @ Dilip Kumar Vs. State of Bihar, reported in AIR 2005 SC 203 , the question posed by the apex Court was as to whether consent given by a women regarding the man’s promise to marry her is a consent and it was explained by the Apex Court in following manner : “ While reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of section 90 which needs to be clarified that a representation deliberate with a view to elicit the assent of the victim without having intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of making the promise, the accused did not really entertained the intention of marrying her and the promise to marry her will not held out by him, was a mere hoax, the consent ostensibly given by the victim will be of no avail. It has further been discussed that unless the Court can be assured that from the very inception the accused never really intended to marry her, to establish the deceit.” 16. Similarly, in Morn Chandra Paul Vs. It has further been discussed that unless the Court can be assured that from the very inception the accused never really intended to marry her, to establish the deceit.” 16. Similarly, in Morn Chandra Paul Vs. State of Tripura, 1996 (2) GLR 15, it has been held that offence under Section 415 IPC can be made out when the accused dishonestly induce the women to have sexual intercourse with him on the basis of false promise to marry her. 17. We have another observation of the Hon’ble Supreme Court in 2013 (7) SCC 675 reported in Deepak Gulati Vs. State of Haryana wherein similar matter was discussed in the following manner: “There is a distinction between the mere breach of a promise, and not fulfilling a false promise. There must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance”. Section 90 IOC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.” 18. Having regard to the evidence on record and the legal proposition mentioned above, we found in the present case firstly that there is no conclusive evidence that the victim was minor at the relevant time. Having regard to the evidence on record and the legal proposition mentioned above, we found in the present case firstly that there is no conclusive evidence that the victim was minor at the relevant time. Even than we can assume that she was at the verge of majority and has adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. The physical relationship had clearly developed out of love and affection between both the parties. She was also conscious about the complications and the issues regarding her marriage that the father of the accused may not be agreeable to the marriage of the appellant with her because of the caste problem. Even then she agreed to continue with the relationship with the appellant in-spite of expression of the appellant on the subject. On the other hand, there is no evidence to prove that since inception of relation the appellant never intended to marry the victim girl to raise the allegation of false promise of marriage as has been raised by the prosecutrix. Rather, the evidence and circumstances of the case, suggestive of fact that appellant disclosed to all the family members of the informant/victim that he will marry the victim girl and she need not be married to other person. He regularly took the victim girl with him and the affairs continued for five years and ultimately as apprehended by the accused appellant, he could not solemnized the marriage with the victim girl and the facts in the given case depict a picture that he could not fulfill the promise to marry for certain other reasons, but he is not guilty of making a false promise to marry. There was absolutely no evidence to prove that appellant had never intended to marry the victim girl. This Court cannot be assured the fact that from the very beginning the accused has no intention to marry the victim girl. 19. So in the given background of the case, it can he held that the accused never acted with malafide intention while making such promise to marry the victim and not keeping his promise and mere breach of promise without malafide intention cannot amount to deception. Accordingly, it can be held that conviction of accused under Section 417 IPC holds no good and liable to be interfered with. 20. Accordingly, it can be held that conviction of accused under Section 417 IPC holds no good and liable to be interfered with. 20. In the result, the appeal is allowed. The impugned order of conviction dated 31.5.2006 passed in Sessions Case No.208 (N)/2005 is hereby set aside. The accused is set at liberty forthwith. Bail bond stands discharged. Return the LCR.