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2018 DIGILAW 8 (CAL)

Pradip @ Babu Das v. State of West Bengal

2018-01-03

DEBI PROSAD DEY

body2018
JUDGMENT : DEBI PROSAD DEY, J. 1. This Appeal is directed against the judgment and order of conviction dated 09.01.2009 and 12.01.2009 passed by learned Additional Sessions Judge, Fast Track 2nd Court, Siliguri, Darjeeling in Sessions Trial No. 09/2005 arising out of Sessions Case No. 6(1) 2005, whereby and whereunder the learned Judge has convicted the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentenced the appellant to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 3,000/- in default to suffer rigorous imprisonment for three months. 2. The case of the prosecution as unfolded in the First Information Report is that the victim used to work as a part-time maid in the house of the appellant and the appellant forcibly raped the victim on one occasion and thereafter the appellant allured the victim to marry her and on the pretext of such assurance of marriage used to have sex with the victim continuously. As a result of which the victim became pregnant and ultimately delivered a male child. The victim thereafter lodged a written complaint and in terms of such written complaint, Siliguri Police Station Case No. 16 of 2003 dated 9th January 2003 under Section 376 and 493 of the Indian Penal Code was started against the appellant which culminated in filing of charge sheet. Charge under Section 376 of the Indian Penal Code was framed against the appellant and the appellant pleaded not guilty and claimed to be tried. 3. In order to bring home the charge against the appellant the prosecution has examined as many as 9 witnesses. After examination of the appellant under Section 313 of the Code of Criminal Procedure and after hearing the learned Advocates for both sides, the learned Judge convicted the appellant for the offence under Section 376 of the Indian Penal Code and sentenced him to suffer such imprisonment as mentioned hereinabove. 4. It would not be out of place to mention in brief about the evidence of the Prosecution Witnesses. Avimanya Mollick, Prosecution Witness No. 1 was present at the time of collection of blood samples from the persons of the appellant as well as the victim including the minor child of the victim. On 4th March 2003, he was present and he had put his signatures on some papers marked Exhibit 1/1, 2/1 and 3/1. Avimanya Mollick, Prosecution Witness No. 1 was present at the time of collection of blood samples from the persons of the appellant as well as the victim including the minor child of the victim. On 4th March 2003, he was present and he had put his signatures on some papers marked Exhibit 1/1, 2/1 and 3/1. Such evidence of Prosecution Witness No. 1 however, does not prove the case of the prosecution. In his cross examination the Prosecution Witness No. 1 has admitted that he was not present at the time of collection of blood from the persons concerned as it was taken behind the curtain and that he signed on some papers at the request of the Investigating Officer. Prosecution Witness No. 1 further stated that he signed on a paper as Dr. Gupta requested him to sign thereon. 5. Smt. Anoara Begam, Prosecution Witness No. 2 is the elder sister of the victim. According to this witness the victim used to work in the house of the appellant as domestic-help but suddenly the victim left her job. One day the victim reported to this witness that she had been feeling pain in her abdomen then this witness took her to a doctor for her treatment. The Doctor reported to this witness that the victim was pregnant. On being asked the victim divulged before this witness that the appellant has impregnated the victim. The victim further stated this witness that the appellant used to have sexual intercourse with the victim in absence of other members of his family and by such act the victim became pregnant. The prosecution witness No. 2 being accompanied by her mother went to the house of the appellant and asked him to marry the victim but the appellant and his family members flatly denied to such request. Thereafter the matter was reported to the police. This witness has also stated that the appellant assured the victim to marry her and with that assurance the appellant had sexual intercourse with the victim. It is apparent from the cross examination of this witness that about ten years ago from the date of occurrence she got married with a Muslim boy and after her marriage she had no contact with her parents for a considerable period as she got married with Muslim boy and against the will of her parents. It is apparent from the cross examination of this witness that about ten years ago from the date of occurrence she got married with a Muslim boy and after her marriage she had no contact with her parents for a considerable period as she got married with Muslim boy and against the will of her parents. At that point of time this witness had no knowledge as to where his sister was working as domestic-help. This witness has categorically admitted in her cross examination that when the victim was admitted at the North Bengal Medical College and Hospital for her delivery, at that point of time only the victim divulged that she had had sex with the appellant on the assurance of marriage by the appellant. This witness has also admitted in her cross examination that the victim was not subjected to any threat or any fear at the time of having such sexual relationship with the appellant but she was assured by the appellant that he would marry the victim. Admittedly the sister of the witness never disclosed before this witness or her husband that she had sexual intercourse with the appellant with the assurance of marriage even before filing of this case. The victim disclosed of such fact at the time, when she was admitted in the hospital. This witness has also admitted in her cross examination that subsequently the appellant wanted to marry the victim but the victim refused to marry the appellant. 6. Prosecution Witness NO. 3 Sk. Sabul is the husband of Prosecution Witness No. 2 and he has corroborated the statement of Prosecution Witness No. 2. Admittedly this witness has had no knowledge about the occurrence or about such statement since the victim never stated anything before this witness and he was out of the premises of the Police Station when the First Information Report was actually lodged by the victim. The evidence of Prosecution Witness No. 3 thus does not help the case of the prosecution. 7. Prosecution Witness No. 4, Baneswar Das Gupta, scribed the First Information Report on behalf of the complainant and he scribed the said First Information Report as per the statement of the victim and thereafter he read over and explained the contents to the victim, who admitted the same to be correct and signed thereon accordingly. The First Information Report has been marked as Exhibit 4. The First Information Report has been marked as Exhibit 4. On the date of filing of such First Information Report this witness was Deputy Group Commander of Home-Guard at Siliguri and he had scribed very many First Information Reports. This witness has had no knowledge about the occurrence and except proving the First Information Report, I do not find any material in the evidence of Prosecution Witness No. 4. 8. Dr. Rumi Moitra, Prosecution Witness No. 5 examined the victim on 4th March 2003 in North Bengal Medical College and Hospital and found that the victim had experience of such sexual intercourse. The report of the victim has been marked as Exhibit 5. The victim also stated before the doctor. that at that point of time she was aged about 21 years. This witness also admitted in her cross examination that she did not find any sign of forcible intercourse at the time of examination of the victim. 9. Dr. Saibal Gupta, Prosecution Witness No. 6 was posted as Professor and Head of the Department of Forensic and State Medicine, North Bengal Medical College on 4th March 2003. On that date he examined the appellant aged about 21 years in connection with Siliguri Police Station Case No. 16 of 2003 dated 9th January 2003 and found that the appellant was capable of doing sexual intercourse. He also did not find injury on the person of the appellant. 10. Smt. Nilu Ghosh, Prosecution Witness No. 7 is the victim. In her examination-in-chief the victim stated that taking advantage of the absence of other family members one day when she was working as maid in the house of the appellant, the appellant committed rape upon her and thereafter the appellant promised her that he would marry her. Thereafter on very many occasions the victim and the appellant used to have sexual intercourse in absence of the family members of the appellant. Following physical relationship with the appellant the victim became pregnant. She reported of such fact to the appellant, who assured her that he would marry her and would start to reside in a separate residence after marriage. As per advice of the appellant, victim left the job of domestic-help and started residing in her father's house. Following physical relationship with the appellant the victim became pregnant. She reported of such fact to the appellant, who assured her that he would marry her and would start to reside in a separate residence after marriage. As per advice of the appellant, victim left the job of domestic-help and started residing in her father's house. During that period she remain confined in her father's house and did not even divulge such fact to any member of her family or any outsider. Only when she suffered from delivery-plain, she then divulged the matter to her mother and elder sister that she was made pregnant by the appellant and she gave birth to a male-child. She also narrated that she divulge incident of her love affairs with the appellant followed by sexual relationship with the appellant. The mother and sister of the victim went to the house of the appellant, who handed over Rs. 7,000/- to them for taking care of the victim and thereafter she delivered the said male-child in North Bengal Medical College and Hospital. The appellant turned down the request of the victim to marry the victim and thereafter the case under reference was started at the behest of the victim. In her cross examination the victim admitted that she did not disclose the fact of her love affairs with the appellant to anybody or to any friend or her parents or any other family members. She also suppressed the fact of sexual relationship with the appellant during that period. She did not even disclose this to any member of his family. Admittedly when mensuration of the victim was stopped but she did not feel anything with regard to her pregnancy and only after 5 months of her pregnancy she could feel about her pregnancy. During that period the victim did not inform anyone of her family or any outsider or any neighbours but she suppressed her pregnancy and remain confined within her family. Admittedly the victim became pregnant only after one year of her love affairs with the appellant and she left the job of domestic-help after 4/5 months of her pregnancy. The victim admitted in her cross examination that she never disclosed the same to the local residents, local Panchayat Member, para people or to any of her family members. This victim has admitted in her cross examination that she had consent in that sexual relationship. The victim admitted in her cross examination that she never disclosed the same to the local residents, local Panchayat Member, para people or to any of her family members. This victim has admitted in her cross examination that she had consent in that sexual relationship. She has, however, denied of her allegation of rape. 11. Smt. Sushila Ghosh, Prosecution Witness No. 8 is the mother of the victim, this witness has stated that she came to know about the pregnancy of the victim only when the victim was taken to the Doctor. This witness has admitted in her examination-in-chief that the appellant gave Rs. 7,000 in cash for the purpose of medical treatment of the victim and also admitted the paternity of the child of the victim. Thereafter the appellant refused to act in terms of his promise and that is why the case was started. It is apparent from the cross examination of this witness that she came to know from the Doctor just prior to delivery of male child by the victim and the victim never disclosed anything about her affairs with the appellant and about her pregnancy. 12. The Prosecution Witness No. 9, Sub Inspector Joy Deb Santra, investigated the case and the Investigating Officer (I.O) of this case. The I.O has stated that the victim never stated before him during investigation that the appellant committed forcible rape on her and the forensic report has been exhibited as exhibits (a) and (b). I do not find any substance in such report since the report did not reveal anything against the appellant. 13. Learned advocate appearing on behalf of the appellant contended that there was love affairs between two major persons and as a result of which they were involved in physical relationship which ultimately made the victim pregnant. The question of forcible intercourse by the appellant does not appear from the totality of the evidence on record and the victim suppressed her pregnancy till the delivery and as a result of which at the instigation of her sister and her husband the First Information Report was lodged at least after two years of such alleged occurrence of rape. The question of forcible intercourse by the appellant does not appear from the totality of the evidence on record and the victim suppressed her pregnancy till the delivery and as a result of which at the instigation of her sister and her husband the First Information Report was lodged at least after two years of such alleged occurrence of rape. Learned Advocate for the appellant further contended that the elder sister of the victim, Persecution Witness No. 2 has admitted in her cross examination that the appellant was ready and willing to marry the victim but the victim refused to marry the appellant. That goes to show that the appellant was faithful to his alleged promise but the victim did not accept the appellant as her husband. Learned Advocate for the appellant further contended that the victim was aged about 21 years at the time of such occurrence and being aware of the consequences of such unbridled sex, she gave consent voluntarily and accordingly the learned Trial Court came to an erroneous finding with regard to such offence of rape against the appellant and thereby erroneously convicted and sentenced the appellant for the alleged offence. In support of his contention the learned Advocate for the appellant has referred the following decisions: (i) Uday v. State of Karnataka (2003) 4 SCC 46 . (ii) Jayanti Rani Panda v. State 1984 Cri. L.J 1535. (iii) Krishna Pada Mahato v. State of West Bengal. (2005) 2 CHN 198 . 14. Learned Advocate for the State vehemently contended that the aforesaid decisions are not applicable in the context of the given facts and circumstances of this case for the sole reason that the victim was subjected to such sexual relationship on the false assurance of marriage and thereby the appellant had obtained the consent of the victim with the false assurance of marriage. Learned Advocate for the State further contended that promise of marriage deliberately made by the appellant with a view to obtain consent of the victim without having any intention or inclination to marry her and that would vitiate the consent and the appellant should be punished for the offence under Section 375 of the Indian Penal Code. Learned Advocate for the State further contended that promise of marriage deliberately made by the appellant with a view to obtain consent of the victim without having any intention or inclination to marry her and that would vitiate the consent and the appellant should be punished for the offence under Section 375 of the Indian Penal Code. Relying on the decision reported in (2007) 5 SCC 918 Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar learned Advocate for the State drew the attention of the Court with regard to the statement whereby and whereunder the victim stated that on the first occasion the appellant committed rape on the victim taking advantage of the absence of the family members. It is submitted that such statement of the victim clearly reveals that the victim was subjected to sexual relationship with the appellant forcibly. On that score the learned trial Court was justified in convicting and sentencing the appellant under Section 376 of the Indian Penal Code. 15. Accordingly having scrutiny of the entire evidence of the victim it transpired that the victim had sexual relationship with the appellant for a long period and the victim had love affairs with the appellant for a substantial period of time. This fact has been admitted by the victim during her examination before the trial Court. Admittedly the victim came to know about her pregnancy and thereafter she left the work of domestic-help from the house of the appellant. The victim confined herself in her father's house and when the victim was suffering from delivery pain, at that point of time only she divulged before her mother and sister that the appellant is the author of such pregnancy or the appellant is responsible for her pregnancy. Thereafter the victim gave birth to a male-child at North Bengal Medical College and Hospital and the matter was brought to the notice of the Police. The investigating Officer PW 9 has admitted in his cross examination that in fact the victim never stated before the Investigating Officer during the period of investigation that the appellant had committed forcible rape on her against her consent and will. It is, therefore, apparent from such evidence of prosecution witness No. 9 that the victim developed her testimony during trial and such statement of the victim cannot be looked into. It is, therefore, apparent from such evidence of prosecution witness No. 9 that the victim developed her testimony during trial and such statement of the victim cannot be looked into. Had there been any such forcible rape on the person of the victim, victim ought to have and should have divulged such fact before the Investigating Officer. That having not been done, such statement of the victim cannot be looked into for a just decision of this case. Secondly, it is crystal clear from the evidence of the victim that she had love affairs with the appellant and she being a major lady had definite knowledge about the consequence of such unbridled sex with the appellant. Therefore she did not even report her pregnancy to any member of her family and kept herself confined in her father's house till the delivery of such child. The evidence of prosecution witness No. 2, elder sister of the victim reveals that the victim herself refused to marry the appellant. It is also apparent from the evidence of the mother and elder sister of the victim that the appellant paid Rs. 7,000/- to them for taking care of the victim and her child. 16. On careful scrutiny of the entire materials on record it transpired that a major lady gave consent to such unbridled sex with the appellant and thereafter she became pregnant and gave birth to a male-child. Subsequently, the victim refused to marry the appellant. In any view of the matter it cannot be said that the victim was subjected to forcible sexual intercourse by the appellant without her consent and will. Therefore, the decision reported in 2007 (5) Supreme 918 (Supra) does not fit to the facts and circumstances of this case. The promise of marriage was not the only reason for having sex between the victim and the appellant but they involved in such physical relationship out of the love affairs between themselves. This fact has been admitted by the victim in her cross examination. In view of the circumstances stated above, it cannot be said that that the physical relationship between the parties was developed with the assurance of marriage. It is apparent from the evidence of Prosecution Witness No. 2 that the appellant had even expressed his willingness to marry the victim but the victim refused to marry the appellant. In view of the circumstances stated above, it cannot be said that that the physical relationship between the parties was developed with the assurance of marriage. It is apparent from the evidence of Prosecution Witness No. 2 that the appellant had even expressed his willingness to marry the victim but the victim refused to marry the appellant. In the decision reported (2005) CHN 198 (Supra) it has been held that there was no misconception of fact and the victim being a full-grown lady voluntarily consented to have sexual intercourse with the appellant. In that view of this case, it cannot be said that the appellant forcibly committed rape on the person of the victim but the victim was a consenting party and her conduct was nothing but an act of promiscuity on her part. Learned Judge relied on a decision of Uday v. State of Karnataka (Supra), Jayanti Rani Panda v. State (Supra) and the decision reported in (1990) Cr. L.J 650 17. The Hon'ble Supreme Court in Uday v. State of Karnataka (supra) has also enunciated the self-same principle of law. It has been observed by the apex Court in the aforesaid decision in paragraphs 21, 22 and 23 as follows: “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact, it must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. 22. The approach to the subject of consent as indicated by the Punjab High Court in Rao Hamarain Singh and by the Kerala High Court in Vijayan Pillai has found approval by the Court in State of H.P v. Mango Ram. Balakrishnan, J. Speaking for the Court observed: ‘The evidence as a whole indicates that there was resistance by the prosecurtix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choise between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.’ 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutruix was grown-up girl studying in a college. She was deeply in love with appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. In the instant case, the prosecutruix was grown-up girl studying in a college. She was deeply in love with appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept in a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them, she thus freely exercised a choice between resistance and assent, she must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.” 18. It is therefore, apparent from the totality of the evidence of the victim that she being a major lady had love affairs with the appellant and thereafter they used to enjoy sex. The victim became pregnant but she did not even divulge such fact till the date of her delivery of a male-child. That goes to show that the learned trial Court erroneously convicted the appellant for the offence punishable under Section 376 of the Indian Penal Code. 19. In the premises set forth above the order of conviction dated 9th January 2009 and order of Sentence dated 19th January 2009 passed by the learned Additional Session Judge, Fast Track 2nd Court, Siliguri in Sessions Trial No. 9/2005 arising out of Sessions Case No. 6(1) 2005 against the appellant are set aside. The appellant Pradip @ Babu Das is found not guilty to the charge under Section 376 of the Indian Penal Code and he is acquitted from the said charge. The appellant is thus discharged from his bail bond. The appeal stands allowed. 20. Let copy of this order be forwarded to the trial Court along with copy of this judgment for information and necessary action. 21. The appellant is thus discharged from his bail bond. The appeal stands allowed. 20. Let copy of this order be forwarded to the trial Court along with copy of this judgment for information and necessary action. 21. Parties will be at liberty to get the photostat certified copy of this order upon completion of all requisite formalities.