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2018 DIGILAW 532 (CAL)

Asta Santra v. State of West Bengal

2018-08-02

SHIVAKANT PRASAD

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JUDGMENT : Shivakant Prasad, J. 1. In this appeal the appellant has assailed the judgment and order dated 30th September, 1991 passed by Sessions Judge, Hooghly convicting the appellant for the charge under Sections 376/417 of Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for four years and to pay fine of Rs. 2000/- in default to suffer further Rigorous Imprisonment for six months for charge under Section 376 IPC and also sentenced to suffer Rigorous Imprisonment for six months for the charge under Section 417 IPC in Sessions Trial Case No. 4 of 1991 arising out of Jangipara P.S. Case No. 8(1)/90 dated 18th January, 1990 under Sections 419/376 of Indian Penal Code. 2. The appellant was placed on trial to answer the charges under Section 417/376 of the Indian Penal Code to which the appellant pleaded not guilty and claimed to be tried. After prosecution examined as many as fifteen (15) witnesses, he was examined under Section 313 of the Code of Criminal Procedure to which he pleaded ignorance and declined to adduce defence evidence. 3. Prosecution case, in brief, is that the victim girl and the accused appellant were the neighbour in the Village Tara Anantapur P.S. Jangipara, District-Hooghly. For last one year they became close to each other. One day during the period when the parents of the victim were not in the house, the accused proposed sexual intercourse with the victim girl on promised to marry and committed sexual intercourse with her as a result she became pregnant and give birth to a male child on 10.01.1990 but even after the birth of the child the appellant accused refused to marry her. The matter was taken up with the Gram Panchayet for an amicable settlement but it had not materialised. Finding no alternative, the victim lodged the complaint to prosecute the appellant. 4. The defence is one of the denial of charges leveled against the appellant which emerges from the trend of cross-examination of the prosecution witnesses and from the statement of the appellant examined under Section 313 Cr.P.C. 5. But after the trial the learned Sessions Judge by the impugned judgment dated 30.09.1991 convicted the appellant and sentenced him to suffer rigorous imprisonment for 4 years and to pay find of Rs. But after the trial the learned Sessions Judge by the impugned judgment dated 30.09.1991 convicted the appellant and sentenced him to suffer rigorous imprisonment for 4 years and to pay find of Rs. 2000/-, in default to suffer rigorous imprisonment for further six months for the charge under Section 376 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six months for the charge under Section 417 of the Indian Penal Code the substantive sentence was order to run concurrently with the fine amount, if released payable to the victim girl towards compensation. 6. In this appeal the appellant has taken ground that the learned Trial Judge has failed to adjudicate the prosecution case by applying the test of probability with regard to the commission of rape by the appellant by ignoring the fact that the victim girl was a major girl, physically fit and mentally alert and that there was no promise given by the appellant for marriage. 7. At the outset my attention is invited to the FIR and the evidence of PW-1, the FIR maker, viz. victim girl and also to her statement under Section 164 of the Code of Criminal Procedure. The victim girl has stated that on the last 15 Chaitra at 08.00 p.m. the accused had forcibly taken her to the field known as Taltala Math, dragged her and after removing her wearing saya, he committed the crime and raped without her consent and again in the night at about 8.00 pm on 6th Jaistha the accused forcibly taken her to the heaps of straw near a bamboo grove where he committed rape on her. According to PW-1, the appellant had promised her to marry and proposed for cohabitation. The appellant happens to be cousin (pistoto brother) of the victim girl. The FIR, Exhibit–1 reflects that prior to date of registration of FIR, the victim girl had delivered a child on 10.01.1990 whereas she lodged the said FIR on 18.01.1990 at 16:25 hours. It appears that she never complained of rape committed on her by the appellant till she had delivered a male child. She never disclosed it to her parents and even to any other person alleging commission of offence under Section 376/417 of the Indian Penal Code against the accused appellant. 8. It appears that she never complained of rape committed on her by the appellant till she had delivered a male child. She never disclosed it to her parents and even to any other person alleging commission of offence under Section 376/417 of the Indian Penal Code against the accused appellant. 8. Statement of the victim girl under Section 164 of the Code of Criminal Procedure, Exhibit-11 recorded by the Judicial Magistrate reflects that the victim girl was aged about 15 years at the material point of time. She was medically examined and the medical report revealed no sign of rape. No sample of blood was preserved for examination of the mother and the child in the hospital, through the Superintendent of Serampore Hospital referred the victim for the test by forensic laboratory. The Investigating Officer does not appear to have undertaken any exercise to arrange for DNA test to ascertain as to whether the child born to the victim was fathered by the appellant. P.W.-1 deposed that the accused had given her a tablet to be consumed by her for causing abortion. This fact is well revealed from her cross-examination so as to infer that she had a consenting mind. According to her statement under Section 164 Cr.P.C., she was aged about 15 years but according to the evidence of her brother she had consenting age of 22 years on the alleged date of occurrence. Father of the victim girl stated that his daughter became pregnant due to rape committed on her by no other but the appellant. 9. According to the father of the prosecutrix, he came to know of the fact that his daughter was an expectant mother for 6 to 7 months but at that juncture also no attempt was made to lodge an FIR against the appellant. During cross-examination the father has categorically stated on oath that he called the appellant accused to learn about the affairs when the appellant allegedly agreed to marry his daughter. So if the said fact is taken into consideration that the appellant agreed to marry the victim girl being in love affair with the victim, question of extracted consent on promise to marry does not arise. 10. The matter was reported to the Panchayet about the child born to the victim girl by her parents P.W.-2 and P.W.-3. 2/3 days prior to birth of the child. 10. The matter was reported to the Panchayet about the child born to the victim girl by her parents P.W.-2 and P.W.-3. 2/3 days prior to birth of the child. P.W.-4 the brother of the victim had impression that the accused appellant committed rape on his sister as a result she became pregnant and was expectant mother for 4/5 months but he did not even take any steps against the accused appellant. 11. P.W.-6, 7 and 10 have no personal knowledge about the affairs of the parties or the occurrence. P.W.-5, 8 and 9 were simply tendered by the prosecution. P.W.-12 is a recording officer who started Jangipur P.S. Case No. 8 dated 18th January, 1990 under Section 419/376 IPC and he has proved his endorsement on the FIR, Exhibit-1 to undertake investigation by P.W.-13, the Investigating Officer who investigated the case and recorded the statement of the witnesses and statement of victim was recorded by the Judicial Magistrate under Section 164 Cr.P.C.. After having collected the statement so made and the medical report, I.O. submitted charge sheet against the appellant. P.W.-14, the doctor examined the victim testifying the fact that there was no requisition for blood examination of the mother and child to ascertain the parentage of the child. But simply referred that the victim girl to forensic laboratory for tests. P.W.-15, Bench Clerk of the Magistrate Court deposed to prove the statement under Section 164 Cr.P.C. as Exhibit-2. His evidence appears to be redundant because it was not within the fitness of this witness to have proved the statement so recorded by the Judicial Magistrate. It was for the Magistrate to appear and prove the statement under Section 164 Cr.P.C.. 12. Be that as it may, having regard to the statement made by the victim girl the learned Judge convicted the accused for the charge under Section 376/417 IPC on the conclusion that the appellant committed rape on the victim girl on promise to marry her which amounted to extracted consent. 13. I am unable to agree with the finding so made by the learned Sessions Judge because according to the evidence of the victim girl P.W.1, she was in love affair with the appellant. 13. I am unable to agree with the finding so made by the learned Sessions Judge because according to the evidence of the victim girl P.W.1, she was in love affair with the appellant. Therefore, her consent cannot be construed to have been given on misconception of fact, more so, when she admitted that the accused appellant happens to be her Pistuto brother, ergo, there could not be any misconception that the person giving a promise to marry his own cousin sister would be materialized. She must be in full knowledge of the fact that such marriage would never occur. That apart, evidence as discussed above reveals that even if there was misdeed on the part of the appellant in so indulging in love affair with his own cousin sister, the appellant was agreeable for the marriage with the victim girl. 14. In the context above and having given an anxious consideration to the facts and circumstances of the case on appraisal of the evidence on record, I find that the prosecution has not been able to substantiate the charges levelled against the appellant beyond the reasonable shadow of doubt and is entitled to be acquitted. Accordingly, I set aside the impugned judgment and order of the conviction and sentence dated 30th September, 1991 in S.T. No.4 of 1991 and the appellant be set at liberty at once who is now in jail custody since 21st July, 2018 pursuant to the warrant of arrest issued on 17th July, 2018 as per the report of the S.I. of police being officer in charge of Jangipara P.S. Hooghly. It is also revealed from his report that the victim got married with a person and has one married son staying with her and also a married daughter in her family. The report so submitted before this Court be kept on record. 15. Accordingly, the CRA No. 341 of 1991 is allowed. 16. Let LCR together with a copy of the judgment be communicated to the Trial Court and also a copy of the substantive part of this judgment be sent to the Superintendent Correctional Home concerned forthwith. 17. Urgent xerox certified copies of this judgment, if applied for, be made available to the parties upon compliance of the requisite formalities.