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2017 DIGILAW 370 (CAL)

Subhas Roy v. State of West Bengal

2017-04-10

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : 1. The appellant challenges the judgment and order of conviction dated 17.06.2015 and 18.06.2015 respectively passed by the Judge, Special cum Additional Sessions Judge, Cooch Behar in Sessions Trial No. 03(04)/2012, by which the learned Judge has convicted the appellant under Section 417/376 of I.P.C. 2. According to the appellant, the learned trial court failed to take into account the evidentiary value of the victim and other witnesses so far as the ingredients of Section 417/376 of I.P.C. are concerned. He also added that if a sexual intercourse is committed with consent, that cannot be termed as rape. 3. Before I advert to the grievance of the appellant, which are mirror images of what was argued before the trial court, it would be wise to traverse through the relevant facts and events. Therefore, the factual scenario of the case has to have narration. 4. The victim lodged the complaint on 23.12.2008 ventilating her agonies that a few days back, the accused appellant along with his relatives came to their house with a proposal for marriage of the appellant with her and the negotiation talk took place between the parties. After a few days, the accused appellant used to ring her at a regular interval and she had been accompanying the accused appellant here and there. Lastly, on 06.09.2008 when she went to her college at or about 12 O'clock and at that time the accused being accompanied with some unknown persons came to her and compelled her to board herself into a Maruti Car and took her to Siliguri. The accused kept her in "Punjabi Hotel and Restaurant" for two days and ravished her against her will. Thereafter, the accused sent the victim through a local bus. After coming back to home, she ventilated her distraught pain and mental agonies to her parents. A meeting was held at Panchayat Level, where the accused had given an assurance of marriage but ultimately the said assurance was not translated into action. This is the sum and substance of the F.I.R. 5. In course of investigation, the Investigating Officer had recorded the statement of the available witnesses under Section 161 Cr.P.C. sent the victim to Court for recording her statement under Section 164 Cr.P.C. got the medical opinions regarding the alleged rape and capability of the accused and after completion of investigation has submitted charge-sheet. 6. In course of investigation, the Investigating Officer had recorded the statement of the available witnesses under Section 161 Cr.P.C. sent the victim to Court for recording her statement under Section 164 Cr.P.C. got the medical opinions regarding the alleged rape and capability of the accused and after completion of investigation has submitted charge-sheet. 6. Pursuant to the charge-sheet, the trial court has framed the charge. In course of trial, the learned trial court had recorded the evidence of the prosecution witnesses and after examining the accused under Section 313 Cr.P.C. and after hearing argument of both sides, the learned trial court was pleased to record the order of conviction and sentence. 7. Since rape is a secret act so the evidence of victim assumes high importance. Looking for corroboration is not required in such a case. Therefore, the evidence of the victim has to be scrutinised meticulously so as to enable this court to form an opinion if intercourse was there without her consent or not. 8. The PW-1, the victim in her evidence stated that on 06.09.2008 she was taken forcibly by a Maruti Car to Siliguri and after putting her in "Punjabi Hotel and Restaurant" the accused raped her. After two days she was let off and the accused dropped her at Satmile Bazar. On that day there was an alleged proposal of marriage was given by the accused. The evidence of PW-1 speaks that a proposal of marriage was initiated on 06.09.2008 and if it is true what prompted the accused to kidnap the victim from her college at or about 12 O'clock is a mystery. There is no reliable evidence adduced by any one of that college area that they found the victim being taken away by the accused appellant. The story of salishi was also there regarding this issue. According to her, she had ventilated her grievances in details in course of her statement recorded under Section 164 Cr.P.C. The said statement speaks that before the date of alleged offence she had hobnobbing with the accused for about two years and they met each other here and there frequently. If her such version is true then why the accused would kidnap her and took her forcibly was supposed to be explained. The statement recorded under Section 164 Cr.P.C. also speaks that she used to mix up freely with the accused for the last two years. If her such version is true then why the accused would kidnap her and took her forcibly was supposed to be explained. The statement recorded under Section 164 Cr.P.C. also speaks that she used to mix up freely with the accused for the last two years. She was kept in a hotel for about two days and in the meantime there was no F.I.R. nor even a missing diary was lodged by her parents. At the relevant point of time she was student of a college and aged about 24 years. She knows the consequence of a free physical relations with an able bodied person and in spite of that she had continued that relationship for two years. But for why? 9. It also appears from her evidence that there was marriage negotiation talk between the parents of herself and of the accused appellant. Lastly, she wanted to say, that on the premise of marriage the accused had taken her away. The PW-2, (mother of the victim) also admitted about their involvement in the affairs since 2008 and as the proposal of marriage was finalised so they raised no objection in regard to the free mixing of her daughter with Subhas. The alleged incident took place on 6th Day of September, 2008 and the victim came back on 08.09.2008. In spite of that the F.I.R. was lodged long after three months. There is no explanation from the prosecution on that score. The F.I.R. speaks that a Salishi was done at behest of Panchayat, but PW-2 (i.e. mother) clearly stated that she did not inform Panchayat Pradhan or police station regarding the incident. 10. The PW-3, in course of cross-examination, admitted that even after getting the information that her daughter was ravished, he did not lodge any complaint before any authority. The PW-4, in his examination-in-chief was very categorical in saying that registration was done on 22.09.2008. But the victim herself in her statement under section 164 Cr.P.C. stated that no registration was done. The doctor quite rightly did not find any injury since the victim was examined long after three months from the alleged incident. 11. On perusal of the entire evidence recorded by the trial court, I find that there was a full and free consent between the parties and the victim herself knew what could be the consequence of such free co-habitation with a person. 11. On perusal of the entire evidence recorded by the trial court, I find that there was a full and free consent between the parties and the victim herself knew what could be the consequence of such free co-habitation with a person. Since 2006 she was mixing with the accused appellant freely, so misconception of fact or marriage does not arise at all. 12. The learned trial court mainly discussed the societal aspects of the matter ignoring the relevant provisions of the code. In such circumstances, I am unable to concur with the finding of the learned trial court. If at all any sexual intercourse is done that was obviously with full consent of the parties. 13. Accordingly, the criminal appeal is thus allowed. The judgment and order of conviction recorded by the learned trial court is hereby set aside. The appellant is in jail. He be set at liberty at once. 14. Let a copy of this order be forwarded to the learned trial court with a request to inform the jail authority instantly to release the convict forthwith. 15. Let a copy of this order and LCR be sent to the learned Court below for information and taking necessary action. Appeal is allowed.