Calcutta High Court
Abhoy Pradhan vs State Of West Bengal on 25 March, 1999
Equivalent citations: 1999CRILJ3534
JUDGMENT Sujit Barman Roy, J.
1. This appeal is directed against the judgment dated 12-11-1998 passed by the learned Assistant Sessions Judge, Diamond Harbour, South 24 Parganas in ST. No. 1(3) of 1997 convicting the appellant under Section 376, I.P.C. and sentencing him thereunder to suffer R.I. for eight years and to pay a fine of Rs. 5,000/-, and in default to undergo simple imprisonment for further two years. Appellant was also convicted under Section 420, I.P.C. and was sentenced thereunder to suffer R.I. for six years and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for further one year. Learned trial Court also directed that 75% of the fine, whenever realised, shall be paid to the victim girl Pratima Das as compensation.
2. After the hearing proceeded substantially and the argument of the learned counsel for the appellant was in fact concluded, Mr. S. Moitra, learned Addl. P.P. in the middle of his argument raised an objection against hearing and disposal of the appeal unless the PW-1 Pratima Das, in whose favour learned trial Court granted some compensation, is notified and heard. He pointed out that the learned trial Court granted some amount of compensation in favour of PW-1 Pratima Das, being the victim girl, out of the fine whenever recovered. He further pointed out that PW-1 Pratima Das has been impleaded as one of the parties in this appeal. Yet no notice has been served upon her and hence, the appeal cannot be heard and disposed of without notice to her. According to learned Addl. P.P., PW-1 Pratima Das is entitled to notice and hearing before this appeal can be disposed of. To buttress the aforesaid contention, learned Addl. P.P. heavily relied upon an old decision of a Division Bench of this Court in Bharasa Naw v. Sukdeo 27 WLJ 1086 : AIR 1926 Cal 1054. It is true that in somewhat similar circumstances it was held by this Court in the aforesaid decision that the complainant in whose favour a compensation was awarded, is entitled to notice and hearing before the appeal preferred by a convict can be heard and disposed of. It was further decided in that case that it is one of the fundamental principles of law that no order should be passed to the detriment of prejudice of party without giving him an opportunity of being heard in his defence. Therefore, although there was no provision in Cr.P.C. (old) providing for notice of an appeal by the accused being given to the complainant, yet it was the settled practice of this Court, in case where compensation was awarded to the complainant, to give notice of appeal to him and an acquittal in an appeal, in the absence of such notice, is liable to be set aside by the High Court in revision.
3. We are sorry to say that we are not aware of any such "settled practice" of this Court which sxisted in those days when the decision in the case of Bharasa Naw was rendered. Even if any such "settled practice" existed, same should not be followed anymore when an express provision in this respect has been incorporated in the new code of Criminal Procedure. Section 385 of the new Code has incorporated clear provision as to who are entitled to notice and hearing before an appeal can be heard and disposed of. It clearly provides that in an appeal from a case instituted on a police report, only the representative of the State and the accused/convict are entitled to notice and hearing. When such clear provision has been made in the statute in unambiguous terms, there is absolutely no justification for us to adhere to the "Settled practice" of this Court. "Settled practice" of the Court, however, hallowed and sanctified same may be, cannot prevail over clear legislative mandate. Of course we are not very sure if any such practice/convention ever existed.
4. Instant case is a case instituted on a police report. It is not a case instituted on a private complaint. Therefore, none except the convict and the representative of the" State is entitled to notice and hearing in a case of this nature. There is absolutely no reason to ignore the statutory provision and to follow some supposed principles/practice/convention which is contrary to express provision of law.
5. Mr. D. Sengupta, learned counsel for the appellant in this connection cited a much later decision of a Division Bench of this Court in Nanda Patihar v. The State (1985) 89 CWN 799. It appears from this decision that very same Addl. Public Prosecutor also appeared in that case for the State and raised the same objection. After considering the earlier decision of this Court in Bharasa Naw (supra), it has been held by this Court that in view of the provision contained in Section 385 of the new Code, private complainant or any person in whose favour some compensation has been directed to be paid out of the sentence of fine, whenever recovered, is not entitled to notice or hearing in an appeal unless such appeal arose out of a case instituted on a complaint. In such an appeal only the convict/ accused and the representative of the State are alone entitled to notice and hearing. We cannot assume that the learned Addl. P.P. was ignorant about this later decision of this Court. He himself appeared in this case and raised same objection against maintainability of the appeal and it was ultimately rejected by this Court. Instead of citing this later decision in the case of Nanda Patihar, he referred to an older decision of this Court in Bharasa Naw's case which apparently supported his aforesaid contention. We are constrained to express our unhappiness over this and observe that we never expected this from the Addl. P.P. who represents the State.
6. We further hold that though the appellant impleaded PW-1 Pratima Das as one of the respondents in this appeal by mistake or by way of abundant caution, she is neither a necessary party nor a proper party and hence she is not entitled to any notice or hearing in this appeal. We, therefore, reject the aforesaid contention of the learned Addl. P.P. that PW-1 Pratima Das is entitled notice/hearing in this appeal.
7. So far as the main case is concerned, prosecution story in short is that on 25-5-1992 PW-1 Smt. Pratima Das lodged a complaint before the learned Sub-Divisional Judicial Magistrate, Diamond Harbour, South 24 Parganas alleging, inter alia, that she lost her mother when she was a child and soon after the death of her mother, her father married once again. Since her father married second time, her step-mother began to torture her. Unable to bear such oppression and finding no other option, she fled away from the house of her father and took shelter in the hotel of one Dhanu Thakur at Kakdwip and started to work there as maid servant. Sometime thereafter father of the appellant took her in his farm house on 30th Poush, 1398 B.S. and she started to work there as a maid servant. Mother of the appellant also lived there in the said farm house for a few days. About two or three days after her arrival there, appellant's mother left the farmhouse for their residential house at Kakdwip. PW-1 Pratima Das worked there at the said farm house as a maid servant and she also used to cook food for them. However, sometime thereafter on 19-1-1992 at about 8/8.30 a.m. appellant suddenly embraced and forcibly kissed her. Simultaneously, she was forcibly laid on the bed and raped by the appellant. Appellant gagged her mouth with clothes. At that time appellant assured her that appellant would marry her. Because of this assurance given by the appellant, she lived with the appellant as wife and almost every day and night appellant had sexual intercourse with PW-1 Pratima. Consequently, she conceived and became pregnant. Time and again appellant promised that he would marry her. However, subsequently, appellant was dilly-dallying so far as her marriage with appellant is concerned. Appellant also gave her some medicine for abortion. He assured her that he would marry her. In bona fide belief that the appellant would keep his promise/assurance, PW-1 Pratima took such medicine and destroyed the foetus. Later on when the appellant wanted to marry Pratima, his parents drove him out from their house. PW-1 Pratima was also driven out from their house. It was further stated in the said complaint that the appellant really wanted to marry her but because of vehement objection from his parents, appellant could not marry Pratima. Thereafter parents of the appellant were trying to give marriage of the appellant with another girl. Accordingly, on the basis of the aforesaid allegation made in the complaint, a prayer was made therein to forward the said complaint under Section 156, Cr.P.C. to police authorities for investigation etc. In view of the aforesaid prayer, learned S.D.J.M. forwarded the said complaint to the concerned Police Station, and, accordingly, on that basis an FIR was registered against the appellant under Section 376/420, I.P.C.
8. After usual investigation, police submitted a charge-sheet against the appellant and others under Sections 376/420, I.P.C.
9. Upon commitment learned trial Court framed charges under Sections 376/420, I.P.C. against the appellant and others to which they pleaded not guilty. On conclusion of the trial appellant alone was convicted and sentenced as already stated. Others were acquitted.
10. From the evidence on record as well as from the complaint it appears that the prosecution story in short is that first such occurrence took place on 19-1-1992 at about 8/8.30 a.m. On that day in the morning at the above noted time, the appellant forcibly embraced and kissed the complainant and she was forcibly laid and thereafter, appellant tried to rape her. At that moment when PW-1 tried to raise alarm, appellant gagged her mouth with clothes and assured the complainant that the appellant would marry her, Thereafter, only appellant had sexual intercourse with the complainant. Since then for about two months they lived together as husband and wife and had cohabitation. From the conduct of the complainant and the statements, she made in her complaint as well as in her deposition it is apparent that as the appellant promised to marry her, complainant gave her consent to have sexual intercourse with the appellant. It is not in dispute that at the time of occurrence complainant was an adult and she reached the consent giving age. It is equally apparent from the complaint that the appellant was really serious and eager to marry the complainant. But the parents of the appellant stood in the way and vehemently raised objection against the proposed marriage between the appellant and the complainant. It has been specifically stated in unambiguous terms that the parents of the appellant drove him out from their house when appellant wanted to marry the complainant. At that time, the parents of the appellant had assaulted him and ultimately drove him out from their house. It is therefore, apparent on the face of the record that the appellant never made any false promise to PW 1 Pratima Das with knowledge that such promise/assurance was false. In making such promise /assurance, it appears to us that the appellant had always been sincere and honest and he never tried to practice any deception on the complainant. Now, the question arises for our decision as to whether the allegations made in the complaint as well as in the deposition of the complainant, if the same are taken to be true, make out any offence within the meaning of Sections 376 and 4:10, I.P.C. The fundamental question that is required to be decided by us is whether the materials on record fulfill all the essential ingredients of the offences under Section 376 as well as 420, I.P.C. The offences of rape and cheating have been defined in Sections. 375 and 415, I.P.C.
11. We have heard Mr. Dipak Sengupta, learned Counsel for the appellant as well as Mr. S. Moitra, learned Additional P.P. for the State.
12. Learned Additional P.P. contended that the acts attributed to the. appellant by the complainant fulfil all the ingredients of the offences of cheating and rape as defined in Sections. 420 and 375, I.P.C. respectively. He, further contended that the appellant was rightly convicted and sentenced by the learned trial Court for the aforesaid offences and accordingly, there is no reason to interfere with the impugned judgment.
13. To buttress the aforesaid contention, learned Additional P.P. heavily relied upon a decision of the Apex Court in 1996 SCC (CRL) 133. It appears from this decision that the accused of that case approached the Apex Court for quashing cognizance taken against him in a case of rape. The complaint in that case contained more or less similar allegation against the accused. Supreme Court refused to interfere with the cognizance taken by the learned Magistrate in that case and, therefore, declined to quash the cognizance/proceeding initiated against the accused. Instant case, presently we are dealing with, has nothing to do with the quashing of cognizance or proceeding. Trial in this case is already complete and the appellant was convicted and sentenced. Against that decision of the trial Court convicting the appellant on the aforesaid charges, he has approached this Court in this appeal in exercise of the statutory right. In this case appellant has not asked for quashing of cognizance/proceeding. He has come here for quashing his conviction and sentence recorded by the trial Court. We are, therefore, of the view that the aforesaid decision of the Apex Court has nothing to do with the case presently we are concerned.
14. Learned Additional P.P. also referred to another decision of the Apex Court in the State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316 : (1996 Cri LJ 1728). In that case the Apex Court observed that corroboration of the evidence of the victim in a case of sexual assault is not always necessary. Conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. In the instant case, we are trying to find out as to whether the allegations made in the complaint and in the deposition of the complainant, if the same are taken to be true, fulfil all the essential ingredients of the offences of rape and cheating. We are not embarking upon appreciation of evidence adduced in this case. We are concerned in this case with more fundamental question as to whether allegations made in the complaint and deposition of the complainant made out the offences for which the appellant has been convicted. We are not disputing the veracity of the allegations made in the complaint and in the deposition of PW 1. In this view of the matter, the decision in the case of Gurmit Singh (supra) is not at all relevant for our present purpose.
15. Now, learned Additional P.P. further drew our attention to Section 90, I.P.C. According to him, the appellant made a false promise to PW 1 that he would marry her and by making such false promise he created a misconception in her mind and as the complainant was under a misconception of fact and also that appellant knew or had reasons to believe at that time that complainant gave such consent in consequence of such misconception it must be held that the consent, if any, given by the complainant, was not at all a consent contemplated under various provisions of the Penal Code. Learned Additional P.P. further contended that such false representation/assurance/promise with knowledge hat the same was false, amounted to a deception within the meaning of Section 415, I.P.C. There-after, learned Additional P.P. further contended hat the aforesaid acts amounted to offences of rape and cheating and the allegations made by the complainant in her complaint as well as in her deposition fulfil all the essential ingredients of the said offences.
16. We find from the complaint as well as from the evidence on record that the appellant sincerely wanted to marry the complainant. When he proposed to marry the complainant, his parents assaulted him and drove him out from their house. From these facts, we are unable to hold that appellant made any false promise/representation/assurance to the complainant with knowledge that such promise /representation/assurance was false in any manner. On the contrary we find that it is the specific case of the complainant as stated by her in her complaint as well as in her deposition that the appellant was all through serious and sincere to marry the complainant. This subsequent failure to marry the complainant does not prove that when he made such promise/ representation/assurance, same were made with knowledge that such promise /assurance/representation were false. Otherwise, the very distinction between ordinary breach of promise/contract and the offence of cheating would disappear. We are, therefore, of the firm opinion that the facts attributed to the appellant do not amount to any attempt to create any false conception of facts in the mind of the complainant or that the appellant at that time had any intention to deceive the complainant. In view of the aforesaid clear admissions made by the complainant in most unambiguous terms in her complaint as well as in her deposition, we are constrained to hold that appellant never practised any deception upon the complainant nor did he make any attempt to create some false conception of facts in a mind of the complainant. This being so, we have absolutely no hesitation in our mind to hold that the appellant neither committed the offence of rape nor any offence of cheating as defined in Sections 375 and 420, I.P.C. respectively.
From subsequent failure of the appellant to marry the complainant we cannot jump to a conclusion that the deception preceded the actual transaction i.e. the alleged intercourse. For the same reason, we cannot jump to the conclusion that the complainant gave her consent under a misconception of fact or that the appellant did such act with knowledge or at least had reasons to believe that the consent was given in consequence of such misconception. Therefore, even if the allegations made by the complainant in her complaint and deposition are found to be true, yet they do not make out any offence of rape or cheating and hence, verdict of guilt returned by the trial Court cannot be sustained:
17. We, therefore, allow this appeal, set aside the impugned judgment, and direct that the appellant shall be forthwith set at liberty.
Ranjan Kumar Mazumder, J.
18. I agree.