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2018 DIGILAW 60 (CAL)

Bapi Kayal v. State of West Bengal

2018-01-09

JOYMALYA BAGCHI, RAJARSHI BHARADWAJ

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JUDGMENT : JOYMALYA BAGCHI, J. 1. Judgment and order dated 15.06.1993 passed by the learned Assistant Sessions Judge, 3rd Court, Alipore in ST 63 of 2001 arising out of S.T. Case No. 2(2) 93, convicting the appellant for committing offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment eight years and to pay fine of Rs.1000/- in default to suffer rigorous imprisonment for two months more. 2. Prosecution case as alleged against the appellant is to the effect that on between 2nd Baisakh, 1395 BS and before 2nd January, 1989 the appellant had cohabited with the victim, Sumitra, on the false promise of marriage. In fact, he went to the temple of Goddes Kali with the victim and undertook a fake marriage by putting vermilion on her forehead and cohabited with her. As a result the victim became pregnant and coming to know of such fact the family of the victim insisted on the registration marriage between the couple. The appellant initially agreed to do so but subsequently by show of force compelled one Khokan who happened to be the maternal uncle of Sumitra to enter into a registration marriage with her. In the meantime, Sumitra gave birth of a female child. On the basis of a petition of the mother of Sumitra, namely Malina, PW 1, under Section 156(3) of the Code of Criminal Procedure before the criminal court, Diamond Harbour Police Station Case No. 4 dated 02-01-1989 under Sections 376, 493 of the Indian Penal Code was registered against the appellant. 3. In conclusion of investigation, charge sheet was filed against the appellant and the case was committed to the Court of Sessions and transferred to the Court of Assistant Sessions Judge, 3rd Court, for trial and disposal. Charges were framed under Sections 376 and 471 of the Indian Penal Code and the appellant pleaded not guilty and claimed to be tried. 4. It was the specific defence of the appellant that he was not the father of the child and the victim had been married to Khokan Mondal. 5. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence examined one witness and exhibited the marriage certificate between Khokan, PW 3 and the victim. 6. It was the specific defence of the appellant that he was not the father of the child and the victim had been married to Khokan Mondal. 5. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence examined one witness and exhibited the marriage certificate between Khokan, PW 3 and the victim. 6. In conclusion of trial, the trial judge by judgment and order dated 15.06.1993 convicted and sentenced the appellant, as aforesaid. 7. Mr. Rudradiprta Nandi, learned Advocate appearing for the appellant argued that the victim was above 16 years at the time of occurrence and, therefore, had crossed the age of consent. He argued that the allegation of forcible rape is not supported by attending facts and circumstances of instant case. He vehemently argued that the plea that the registered marriage between PW 3, Khokan and the victim was out of duress and coercion is not supported by any contemporaneous complaint to any authority and is also not evident from the allegations in the first information report. He submitted that the blood group of the child did not rule out the possibility of Khokan, PW 3 being the father of the child. Hence, he prayed for acquittal of the appellant in the instant case. 8. On the other hand, learned Public Prosecutor with Mr. Das argued that the evidences of PW 3, Khokan, and other witnesses clearly established the appellant had been cohabited with the victim on the false promise of marriage, P.W. 3 had been compelled him to sign the registration papers to create a sham marriage between himself and the victim. It is further submitted that PW 3 is the maternal uncle of the victim and, therefore, the question of a valid marriage between the two did not arise. It is also submitted that the evidence of the victim along with her parents clearly showed that the appellant had sexual intercourse with her on false and dishonest promise of marriage and the ingredients of the offence of rape is clearly established. 9. I have considered the evidence on record in the light of the aforesaid submissions on behalf of the parties. 10. PW 1 is the mother of the victim and the de facto complainant in the instant case. She stated that the victim was her third daughter. At the time of occurrence, she was 14/15 years. 9. I have considered the evidence on record in the light of the aforesaid submissions on behalf of the parties. 10. PW 1 is the mother of the victim and the de facto complainant in the instant case. She stated that the victim was her third daughter. At the time of occurrence, she was 14/15 years. About the four years ago in the month of Baisakh she came to know from a local girl that her daughter had become pregnant. On inquiry she came to know from her daughter that she had several intercourse with the appellant and had become pregnant. Her daughter further stated that the appellant had assured her that he would marry and had asked her not to disclose the matter of any other person. The appellant was a neighbour residing in the adjacent house. She intimated the matter to the para people but they demanded money to negotiate the matter. She went to the police station but no steps were taken. On the other hand, she was threatened by the appellant and the local people. Finding no other alternative, she went to the criminal court and lodged a complaint before the Magistrate. She put her LTI on the petition. Police interrogated them and her daughter was sent to the court and examined in the hospital. Ossification test was also conducted. In cross examination, she stated that she was a hawker of rice and used to go out from her house at 2 AM in the night and return by 6/6.30 PM. She admitted that she knew Khokan, who was not a resident of the house. Her husband is a government employee. There was a registered marriage between Sumitra and the Khokan Mondal on 15-11-1988 and she was the witness to the said marriage. 11. PW 2 is the victim girl. She deposed that five years ago at about 10 PM the appellant raped her by force with the assurance that he would marry her. Thereafter the appellant raped her on a number of times. She became pregnant and when she was carrying for six months, the appellant agreed to marry her by way of registration. Her father accompanied her for such marriage to Kolkata. The appellant brought three friends. Her grandmother also accompanied her. Thereafter, the appellant called her maternal uncle Khokan Mondal to the Registry Office. She became pregnant and when she was carrying for six months, the appellant agreed to marry her by way of registration. Her father accompanied her for such marriage to Kolkata. The appellant brought three friends. Her grandmother also accompanied her. Thereafter, the appellant called her maternal uncle Khokan Mondal to the Registry Office. The appellant and his friends forced Khokan to sign on the marriage registration papers in order to show that a marriage had been solemnised between herself and the said Khokan. Bisha Gayen, Santu Gayen, and Prabhas Gayen, the friends of the appellant, assaulted her causing injury. The appellant and his friends threatened them with dire consequence. As a result they signed on the registration papers and came back to the village and reported the matter to the villagers. Finding no other alternative, they went to Diamond Harbour Court and filed petition. She made statement before the Magistrate. She was also medically treated. 12. PW 4 also stated that the victim gave birth to a female child who is aged about 4 and 1/2 years. 13. PW 5, Ananda Neogi, is the father of the victim. He stated that he was working at the Central Cabin at Ballygunge. He used to go home during the weekend. 4 years ago his wife came to his quarter and said due to illicit relation with the appellant, the victim had become pregnant. Mother of the appellant assured that they would give marriage to the victim and the date was fixed for registration at Alipore Marriage Registry Office. Thereafter, the appellant and others came to the Marriage Registry Office. He along with his mother-in-law Ranjana Mondal and the victim went to the Marriage Registration Office. At the Marriage Registration Office he found that the name of Khokan has been mentioned in the registration document as the proposed husband of the victim. He opposed and refused to sign. However, he was forced to sign on the document by threats. In cross-examination, he stated that he never stated to the police that there was marriage between Sumitra and Khokan and Khokan was a resident of Kolkata and was brought by some people and he was forced to sign on the registration document. 14. PW 10, Ranjana Mondal, is the grandmother of the victim. In cross-examination, he stated that he never stated to the police that there was marriage between Sumitra and Khokan and Khokan was a resident of Kolkata and was brought by some people and he was forced to sign on the registration document. 14. PW 10, Ranjana Mondal, is the grandmother of the victim. She deposed that she was present at the time of registration of marraige proposed to have been solemnised between the appellant and the victim. She signed on the said document. 15. PW 3, Khokan Mondal, deposed that the victim was her Bhagni. The appellant admitted that he had love affair with the victim and he will marry her by way of registration. On the date of registration, appellant brought him to the Marriage Registration Office at Alipore. He was compelled to sign on the registration document against his will. In cross-examination, he stated that he was working as a labour in a garage at Garcha. There were 20/22 persons in the garage. Pradip, Rabin, Sashi were his colleague. Sankar and Arabinda were the owners of the garage and they were the witnesses of the marriage. 16. PW 7, Dr. Amarendra Nath Dey, was a radiologist was attached to M.R. Bangur Hospital on 3.3.1989. He examined the victim and opined that the victim was 18 to 19 years on the date of examination, that is, 3.3.1989. 17. PW 8, Surendra Nath Sen, was attached as a Pathologist at Diamond Harbour S.D. Hospital at the time of incident. On 23-03-1989 he examined the blood group of the victim and found it was ‘A’ Positive. He also examined the blood group of the child of the victim and found it to be ‘A’ Positive. He also examined the blood group of the appellant and it was also ‘A’ Positive and the blood group of Khokan was ‘O’ Positive. In cross examination, he admitted that if the victim and Khokan are the parents of the child, her blood group may be ‘A’ Positive. 18. PW 11, Dr. M.K. Mapa, was the medical officer attached to the Diamond Harbour S.D. Hospital on 19-01-1989. He stated that he examined Sumitra Neogi and found she was pregnant. The victim stated that she was married at Kali Bari on 2nd Baisakh, 1395 B.S. with the appellant. She had sexual intercourse with the appellant several times before and after the marriage. Thereafter, she was residing separately. He stated that he examined Sumitra Neogi and found she was pregnant. The victim stated that she was married at Kali Bari on 2nd Baisakh, 1395 B.S. with the appellant. She had sexual intercourse with the appellant several times before and after the marriage. Thereafter, she was residing separately. 19. PW 12, Susanta Kr. Ray, is the Police Officer who received the formal complaint and drew up the formal FIR. 20. PW 13, Tushar Kanti Halder, is the lawyer. He deposed that his senior had drafted the petition of complaint as per the instructions of PW 1. 21. PW 14, S.S. Sadhu, is the Judicial Magistrate who recorded the statement of PW 2. 22. PWs. 15 and 16 are the Investigating Officers in the instant case. 23. DW 1, Manik Bhattacharjee, is the record keeper of Alipore Marriage Registration Officer who produced the marriage registration certificate between the victim and Khokan (Exbt. A). 24. The aforesaid evidence shows that the victim was 18/19 years at the time of her examination by the doctor, PW 7. Therefore, the victim was around 17/18 years at the time of occurrence i.e. on or after 2nd Baisakh 1395 BS. PW 2 in her evidence stated that the appellant had forcibly raped her on the first occasion. However, she did not lodge any complaint or raise any protest. On the other hand, it is her claim that as the appellant promised to marry her, she continued to cohabit with the appellant. Such conduct on the part of PW 2 who had already attained the age of discretion compels me to come to a conclusion that the cohabitation between the appellant and the victim was not out of force but due to an amorous relationship which was developed between themselves. It was only after the victim had become pregnant and when such pregnancy was noticed by her parents that such affair came to light. The evidence on record shows that in the meantime the couple had gone to the village temple and had married by exchanging garlands and putting vermilion on the forehead of the victim. 25. However, subsequently it appears that a registration marriage had taken place between the victim and one Khokan Mandal (P.W. 3), the maternal uncle of the victim. The prosecution claimed that such registration was a product of force and coercion perpetrated by the appellant and his associates. 26. 25. However, subsequently it appears that a registration marriage had taken place between the victim and one Khokan Mandal (P.W. 3), the maternal uncle of the victim. The prosecution claimed that such registration was a product of force and coercion perpetrated by the appellant and his associates. 26. On the other hand, the appellant denied the paternity of the child and claimed that the victim had cohabited with P.W. 3 and as a consequence became pregnant and was married to the latter by way of registration. 27. In the conspectus of the aforesaid facts although I have no doubt in my mind that there was a physical relationship between the appellant and the victim and that the victim and appellant had undergone a marriage of sorts in the local temple. But the allegation that P.W. 3 was compelled to sign the registration document to enter into a matrimony with the victim out of force and coercion appears to be stated for the first time in Court. Such incident is not reflected in the first information report which had been recorded after due deliberations with a senior lawyer. Absence of such a significant circumstance in the first information report renders the allegation of threat and coercion on PW 3 to sign the marriage registration document highly doubtful. More over, no contemporaneous complaint had been lodged either by the victim or PW 3 with regard to the alleged threat and coercion under which they were forced to sign the marriage registration certificate. However, I cannot also turn my eyes from the fact that P.W. 3 is the maternal uncle of the victim and no valid marriage could have been registered between them in view of the fact that they fall within the degrees of prohibited relationship. The circumstances in which the marriage between the victim and P.W. 3 was registered has not been established beyond doubt. Allegations of force and coercion by the appellant and his associates to procure the said document is not reflected in the first information report and no contemporaneous complaint was lodged by anyone improbabilising this aspect of the prosecution case. On the other hand, it appears that the victim who was aged around 18 years was freely mixing with the appellant and had undergone a marriage of sorts in the local temple. On the other hand, it appears that the victim who was aged around 18 years was freely mixing with the appellant and had undergone a marriage of sorts in the local temple. The victim had already attained the age of discretion and the fact that they surreptitiously performed a marriage ceremony in the local temple makes it highly improbable that the sexual intercourse between the parties would fall within the penal ambit of the offence under Section 376 of the Indian Penal Code. 28. In view of the aforesaid discussion, I am inclined to extent the benefit of the doubt to the appellant and acquit him of the charge leveled against him. 29. Accordingly, the appeal is allowed and the conviction and sentence of the appellant is set aside. The appellant shall be discharged from his bail bonds after expiry of a period of six months in terms of Section 437A Cr.P.C. 30. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 31. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. Rajarshi Bharadwaj, J. - I agree.