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2020 DIGILAW 77 (TRI)

Ranga Mog v. State of Tripura

2020-06-19

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

body2020
JUDGMENT : Arindam Lodh, J. 1. The instant appeal mounts challenge to the judgment and order of conviction and sentence dated 24/09/2016 passed in Special 02(POCSO) of 2014 by learned Special Judge, South Tripura, Belonia. By the impugned decision, the convict-appellant stands convicted under Section 376(2)(i) of IPC and has been sentenced to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 5000/- with default stipulation. 2. We have heard Mr. P.S. Roy, learned counsel appearing for the appellant and Mr. Ratan Datta, learned P.P. appearing for the State-respondent. 3. The skeletal fact portraying the prosecution case originated from a complaint lodged by victim-prosecutrix inter alia, stating that convict-appellant, namely, Ranga Mog cohabited with her giving false promise to marry her. As a result, the victim-girl became pregnant. Accordingly, the victim-girl lodged the complaint against the accused-person. The FIR was registered as Shilachari P.S. Case No. 21/2013 dated 02.09.2013 under Section 376, 417 of IPC and under Section 4 of the POCSO Act 2012 against the accused-Ranga Mog alias Suresh. 4. Being committed, learned Special Judge, South Tripura, Belonia framed charge against the appellant under Section 376(2)(i), 417 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012. Learned Special Judge, South Tripura framed the following charges:- "Firstly:- That you, last one year 02.09.2013 in different time and occasion at Ailmara M.T. Colony in the house of Sushila(name changed) committed rape upon Miss. Sushila(name changed) (13 years) and you thereby committed an offence punishable under Section 376(2)(i) of I.P.C. and within my cognizance. Secondly:- That you, on the same date, time and place, cheated Miss Sushila(name changed) by deceiving her fraudulently or dishonestly inducing her to deliver her Chastity and to make sexual intercourse with her on the promise of marriage and you thereby committed an offence punishable under Section 417 of I.P.C. and within my cognizance. Thirdly:- That you, on the same date time and place, committed penetrative sexual assault of Miss Sushila(name changed) and thereby committed an offence punishable under Section-4 of the protection of children form sexual offence Act, 2012 and within my cognizance." The appellant pleaded not guilty and claimed to be tried. The prosecution examined 19 witnesses to establish the charges. Thirdly:- That you, on the same date time and place, committed penetrative sexual assault of Miss Sushila(name changed) and thereby committed an offence punishable under Section-4 of the protection of children form sexual offence Act, 2012 and within my cognizance." The appellant pleaded not guilty and claimed to be tried. The prosecution examined 19 witnesses to establish the charges. After conclusion of recording of the evidence learned Special Judge, South Tripura Belonia having considered the submissions of the learned counsel for the parties and the evidence and materials on record held that the prosecution has been able to prove its case under Section 376(2)(i) of IPC and also under Section 4 of the POCSO Act, 2012 beyond reasonable doubt. Accordingly, learned Special Judge convicted and sentenced the accused as afore-stated. However, the learned Trial Court did not find any ingredients of Section 417 of IPC as was charged against the appellant. 5. Mr. Roy, learned counsel for the appellant submitted that the prosecution has miserably failed to build a case that the victim-girl was below 18 years at the time of commission of offence. Therefore, according to him, none of the provisions of POSCO Act, 2012 would be applicable in the facts and circumstances of the instant case. Next, he contended that there was no evidence that the appellant had promised to marry the victim-girl with any bad faith or intention. Furthermore, learned counsel contended that development of physical relationship illicitly does not constitute the offence of rape. According to him, both the appellant and the victim-girl had continued their physical relation and only when she became pregnant, she gave marriage proposal to the accused-appellant. The appellant also married her. Learned counsel for the appellant further contended that mother of the victim-girl in her examination-in-chief specifically stated that her daughter lodged the case out of misunderstanding and they have no grievance against the accused-appellant and her daughter and the appellant are living peacefully. 6. On the other hand, learned P.P. submitted that the victim girl was a minor at the time of commission of offence. Prosecution introduced the school certificate (Exbt-P-6). At the time of investigation, the statement of the victim-girl was recorded under Section 164(5) of Cr.P.C. which remained all along consistent up till her deposition before the Trial Court. 6. On the other hand, learned P.P. submitted that the victim girl was a minor at the time of commission of offence. Prosecution introduced the school certificate (Exbt-P-6). At the time of investigation, the statement of the victim-girl was recorded under Section 164(5) of Cr.P.C. which remained all along consistent up till her deposition before the Trial Court. The learned P.P. urged to maintain the conviction and sentence as imposed by the learned Special Judge, South Tripura, Belonia. 7. On the basis of the aforesaid submissions, we have perused the evidence and materials on record. For the purpose of appreciation of evidence, summarisations of evidence are necessary. 8. P.W.1, Mangla Mog deposed that the father of the victim informed him that his daughter and the appellant had developed love affair and her daughter became pregnant. He further deposed that a meeting was called for compromise, but the mother of Ranga Mog did not agree to compromise. On being asked, the victim-girl told him that the appellant caused her pregnancy by sexual relationship with her. He further deposed that the victim girl had delivered a baby. 9. P.W.-2, Thangia Mog deposed that he had not seen the victim-girl to mix with the appellant. However, from the discussion held in the meeting he came to learn about that fact. 10. P.W.-3 and P.W.-4 are not material witnesses. 11. P.W.5, Smt. Debasree Paul being the constable of the Shilachari P/S deposed that on 02.09.2013, the vaginal swab of the victim-girl was collected in Shilachari PHC. She identified her signature in the seizure list marked as Exbt-P-2/series/1. 12. P.W.-6, Ringo Mog deposed that he knew the victim-girl. Her father informed him for a compromise. They tried to compromise and propose for marriage of the victim-girl with the accused-appellant but the mother of the appellant refused to marry and for that reason they could not settle the dispute. In the cross examination, P.W.-6 stated that he had seen mixing of the victim-girl with the accused-appellant. 13. P.W.7 Thoyngri Mog deposed that there was an illicit relation between the accused and the victim-girl and as a result she gave birth to a child. 14. P.W.-8, Rajib Deb Roy is a police constable who collected the blood sample of the victim girl. 15. P.W.-9, Athaisi Mog is the father of the victim-girl. 13. P.W.7 Thoyngri Mog deposed that there was an illicit relation between the accused and the victim-girl and as a result she gave birth to a child. 14. P.W.-8, Rajib Deb Roy is a police constable who collected the blood sample of the victim girl. 15. P.W.-9, Athaisi Mog is the father of the victim-girl. He deposed that his wife told him that his daughter became pregnant and the appellant was responsible for that. He further deposed that his daughter did not tell anything to him. He also deposed that a meeting was held in their house, but the appellant refused to marry her daughter, which prompted them to lodge FIR. Being confronted with cross-examination, P.W.-9 stated that the appellant was not present in the meeting and he had not seen the appellant to mix with his daughter. 16. P.W.-10, Chiranjit Sarkar is the S.I. of Police, who seized the school certificate by preparing a seizure list. He proved his signature as Exbt-P-2 series/1. The school certificate was marked as Exbt:- M.O. 1. 17. P.W.-11, Shaurav Saha deposed that being Judicial Magistrate First Class he recorded the statement of the victim-girl under Section 164(5) of Cr.P.C. He had given certificate after recording it. The school certificate was marked as Exbt. P.5. 18. P.W.12, Jhantu Deb was a witness of seizure memo by which the school certificate of the victim-girl was seized. He identified his signature as Exbt. P.2 series/3. 19. P.W.-13, Jahar Reang deposed that on 12.09.2013 he was posted as head-master when the school certificate of the victim-girl (Exbt. P.6) was seized. He deposed that as per the certificate the age of the victim girl was on 20.02.2001. In his cross examination, P.W.13 stated that at the time of her admission in the school he was not the headmaster and he did not fill-up the register. He further stated that he could not say the basis of putting the date of birth in the register and he did not peruse any other document to issue the certificate. 20. P.W.-14, Rakesh Jamatia was posted as the officer-in-charge of the Police Station who received one written FIR filed by a victim-girl. He deposed that on the basis of the FIR, the case was registered and endorsed to S.I. Asit Ch. Das. 21. P.W.-15, Udama Mog is the mother of the victim-girl. 20. P.W.-14, Rakesh Jamatia was posted as the officer-in-charge of the Police Station who received one written FIR filed by a victim-girl. He deposed that on the basis of the FIR, the case was registered and endorsed to S.I. Asit Ch. Das. 21. P.W.-15, Udama Mog is the mother of the victim-girl. She deposed that the informant of the case lodged the FIR out of misunderstanding and they had no grievance against the appellant. She further deposed that the matter was amicably settled and her daughter was married to the appellant and they were living peacefully. 22. P.W.-16 is the victim girl. She deposed that about two years back, the appellant committed rape forcefully upon her on several times giving promise to marry her. Thereafter, she became pregnant and she disclosed the fact to her mother. She further deposed that a village meeting was held and in that meeting, the appellant was not present. But the mother of the appellant was present. She further deposed that the appellant did not marry her till the date of deposition before the Court. 23. P.W.17, Asit Ch. Das is the investigating officer, he deposed that after being prima facie satisfied with the case established against the appellant, he submitted the charge-sheet. 24. P.W.-18 did not say anything. 25. P.W.-19, Rupan Kanti Barua was the scribe of the ejahar. He deposed that he had written the ejahar as per the version of the victim-girl. 26. On close scrutiny of the evidence on record that we have reproduced here-in-above, it is evident that in the ejahar the victim-girl stated that there was an illicit relationship between her and the appellant and out of that illicit relationship she became pregnant. Simultaneously, she stated that the appellant had given false promise of marriage and allured her. This fact of illicit relationship and frequent mixing of appellant and the girl would be evident from the depositions of P.W.6 & P.W.7. P.W.15, the mother of the informant-girl quiet categorically had stated that her daughter lodged the written ejahar against the appellant out of misunderstanding and they have no grievance against the appellant. Furthermore, she has stated that the matter was amicably settled and the appellant has married her daughter and they are living peacefully. 27. P.W.15, the mother of the informant-girl quiet categorically had stated that her daughter lodged the written ejahar against the appellant out of misunderstanding and they have no grievance against the appellant. Furthermore, she has stated that the matter was amicably settled and the appellant has married her daughter and they are living peacefully. 27. P.W.-1 has categorically stated that the father of the girl told him that his daughter had a love affair with the appellant and as a result of that his daughter became pregnant. 28. P.W.16, the victim girl herself had stated that the appellant had committed rape upon her forcefully on several occasions giving promise to marry her. 29. From the above facts and circumstances, it has come to fore that there was frequent mixing between the appellant and the victim girl and they had a love affair. Their relationship was going on for several days and they had engaged in sexual intercourse on multiple occasions. 30. At this juncture, it would be apposite to extract an observation of Supreme Court in Pramod Suryabhan Pawar Vs. State of Maharashtra reported in (2019) 9 SCC 608 which is reproduced here-under: [SCC. P-602, para-18] "To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act." 31. Applying the aforesaid principle in the present case, we find no evidence wherefrom it would be revealed that the appellant made a promise of marriage to the girl which was a false promise, given in bad faith. 32. In the instant case, evidently, it is apparent that the appellant and the girl used to meet regularly. They had love affairs and it does appear to us that the girl permitted the appellant liberties which if at all are permitted only to a person with whom one is in deep love. 32. In the instant case, evidently, it is apparent that the appellant and the girl used to meet regularly. They had love affairs and it does appear to us that the girl permitted the appellant liberties which if at all are permitted only to a person with whom one is in deep love. Furthermore, according to us, the circumstances of the case lead us to conclude that the appellant had reasons to believe that the consent given by the girl was the result of their deep love for each other. 33. Again, if we scan the evidence of the girl with bird's eye view then, we do not find that the prosecution has been able to establish a case that the girl had given consent to the appellant allowing him to involve in sexual intercourse on the basis of any misconception of fact or on the basis of a promise, which was false and made in bad faith. It is also not established in the present case that the appellant from the very beginning wanted to deceive the girl. From the evidence of the witnesses it has come to light that in the village meeting appellant was not present and it was his mother who attended the meeting. The mother had refused the proposal of marriage between her son i.e., the appellant and the girl. Although P.W.-9, the father of the girl in his examination-in-chief had said that the appellant refused to marry her daughter in the meeting but in the cross examination, he has specifically stated that the appellant was not present in the meeting. Contrary thereto, as we said earlier, it was the mother who refused the proposal made by the parents of the girl to give marriage of their daughter to her son. There is no cogent and supporting evidence that the accused-appellant had ever refused to marry her during entire transactions. 34. More particularly, the deposition of the girl does not reveal any fact that her consent to sexual act had any immediate relevance to the false promise of the appellant or for the reason, as a matter of repetition, the appellant-girl had a love affair and they used to mix regularly and in all probability they developed physical relationship out of deep love and passion. 35. 35. Above all, it has come to fore from the deposition of the mother of the girl that the appellant had married the girl and they have been living peacefully. 36. We have noticed the examination of the appellant under Section 313 of Cr.P.C. and following question seem to be relevant in the context of the case:- "Question No. 9. P.W.-9 Athaisi Mog stated that Sushila (name changed) is his daughter and his wife told him that Sushila (name changed) was made pregnant by you. What do you want to say about the above evidence of the prosecution witness? Ans:- I married Sushila" (name changed) 37. Another important feature, it appears that the learned Court below did not bring it to the notice of the appellant-accused in his examination under Section 313 Cr.P.C. in respect of the deposition of the prosecutrix that "Ranga did not marry me till today". Surprisingly, no question was put to the appellant to receive the appropriate explanation or reply from him regarding this circumstance for which the accused would get the benefit. (Emphasis supplied) It is settled proposition of law that attention of the appellant should be drawn to every inculpable material so as to enable him to express it. (Emphasis supplied) 38. However, though his attention has not been drawn to the statement of the prosecutrix, particularly, on this circumstance but, his answer to question No. 9 has received relevance to this fact in issue that "Ranga did not marry me till today". To answer the question No. 9, as quoted above, the appellant specifically stated that "I married Sushila" (name changed) i.e., the prosecutrix of the instant case. 39. Another feature we are to discuss in regard to the age of the girl. According to us, the prosecution has miserably failed to prove the age of the girl. The head master of the school had categorically stated that he does not know the basis of the recording the date of birth of the prosecutrix in the relevant register of the school. The parents also did not divulge the date of birth of their daughter/prosecutrix. 40. In this circumstances, we are unable to accept that the age of the girl was below 18 years at the time of commission of offence. In view of this, the commission of offence under Protection of Children from Sexual Offences Act cannot be admitted in the instant case. 40. In this circumstances, we are unable to accept that the age of the girl was below 18 years at the time of commission of offence. In view of this, the commission of offence under Protection of Children from Sexual Offences Act cannot be admitted in the instant case. 41. Considering the entire facts and circumstances as are reproduced here-in-above and in our independent analysis and appreciation of evidence, in our view, the prosecution has failed to establish the essential requirements under Section 376(2)(i) of IPC and Section 4 of the Protection of Children from Sexual Offences Act. 42. Consequently, the appeal stands allowed. The appellant is acquitted and he shall be released forthwith if not wanted in any other case. Issue release warrant forthwith. Send back the records.