Calcutta High Court (Appellete Side)
Sushil Nayek @ Sushil Kumar Nayak vs The State Of West Bengal & Anr on 28 November, 2008
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.A. No. 466 of 1988 Sushil Nayek @ Sushil Kumar Nayak versus The State of West Bengal & Anr.
For Appellant : Mr. Sovendu Roy
Mr. Bhaskar Chandra Manna
Mr. Biswajit Manna
For State : Mr. Joy Sengupta
Heard On : November 4th, 2008.
Judgment On : 28-11-2008.
In a Sessions Trial the appellant Sushil Nayek @ Sushil Kumar Nayak was alternatively charged under Section 376 of the Indian Penal Code and under Section 417 of the Indian Penal Code. After trial he was acquitted of the charge under Section 376 of the Indian Penal Code but was convicted under Section 417 of the Indian Penal Code and for his such conviction he was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000/- and in default to suffer rigorous imprisonment for three months.
The appellant in this appeal challenged his conviction under Section 417 of the Indian Penal Code and the sentence passed thereunder.
Admittedly no appeal has been preferred against such order of acquittal.
2. The prosecution case in a nutshell are as follows;
"The defacto-complainant Kalpana Nayek is the aunt by distinct relation of the present appellant. She is a widow and in the year 1980 her husband expired leaving behind him the defacto-complainant and a son and a daughter. Due to poverty Kalpana took shelter at the house of an agnetic cousin of her husband, who happened to be the father of the accused, where she used to do all the domestic works to earn her livelihood. Taking advantage of her poverty the appellant Sushil Nayek, who is a married person and having his spouse leaving proposed to purchase a separate house and landed property for her so that she would not be required to work as a maid servant and shall bear all her liabilities. By these words the accused cohabited with the defacto-complainant and as a result she became pregnant. When the appellant insisted her to go for abortion as she did not agree to such proposal she was abused in filthily language and after assaulting her she was driven out from the house. Thereafter, a village Salish was held where the appellant admitted his guilt and promise to marry her. But subsequently the appellant denied either to marry or to bear the expenses of her maintenance and her child. The accused by making false promise to marry her and advantage of her poverty has committed those offences."
3. In the aforesaid trial the charge against the appellant was as follows;
"That you in between 1.1.1981 and 20.7.85 corresponding to 17th Pous, 1387 B.S. and 4th Sraban 1392 B.S. at Basudev Beria P.S. Contai committed rape on Kalpana Nayek and thereby committed an offence punishable under Section 376 of the Indian Penal Code and within the cognizance of the court of Sessions. Alternatively that you in between 1.1.1981 and 20.7.85 corresponding to 17th Pous, 1387 B.S. and 4th Sraban 1392 B.S. at Basudev Beria P.S. Contai cheated Kalpana Nayek by committing sexual intercourse with her with false promise to marry her, and thereby committed cheating, an offence punishable under Section 417 of the Indian Penal Code."
4. Mr. Sovendu Roy appearing with Mr. Bhaskar Chandra Manna, appearing on behalf of the appellant submitted that when in the trial the appellant was found not guilty of the offence punishable under Section 376 of the Indian Penal Code, his conviction under Section 417 of the Indian Penal Code cannot be sustained in law. He further submitted that the accused was acquitted of the charge under Section 376 of the Indian Penal Code as the court found that the defacto-complainant, who is an adult lady, was a consenting party. According to Mr. Roy as she was a consenting party, therefore no case under Section 417 of the Indian Penal Code can be said to have been made out as against him. Mr. Roy in support of his submissions relied upon several decisions viz. on the decision of Sukumar Ghose Vs. State of West Bengal, reported in 1985 (2)...., Raj Kumar Mondal Vs. The State of West Bengal & Anr., reported in 1992 Calcutta Criminal Law Reporter (Cal) 267, Hari Majhi Vs. State, reported in 1990 Cri. L. J. 650, Abhoy Pradhan Vs. The State of West Bengal, reported in 1999 C Cr LR (Cal) 224, Uday Vs. State of Karnataka, reported in (2003) 1 C Cr LR (SC) 555.
5. On the other hand, Mr. Joy Sengupta, the Learned Counsel, appearing for the State strenuously submitted on the evidence on record a clear case of offence punishable under Section 417 of the Indian Penal Code has been proved against the appellant as such the question of his acquittal does not at all arise. He further submitted merely because the appellant has been acquitted of a charge under Section 376 of the Indian Penal Code, even on the ground that she was a major lady and was a consenting party, that does not mean that he cannot be convicted under Section 417 of the Indian Penal Code, when there are sufficient materials to show that the accused is guilty of such offence, more particularly when he was charged alternatively. He further submitted that the victim was a poor rustic woman and as such minor contradictions arises in her testimonies here or there would not impeach her credit. He draws the attention of this court to the depositions of P.W. 3, P.W. 5 and P.W. 6 and submitted that at the village Salish in presence of those witnesses the appellant has admitted his responsibility for the child and for conception of Kalpana and he also gave an undertaking to maintain Kalpana and her children.
6. Heard the learned advocates appearing on behalf of the parties. Considered the evidence of the prosecution witnesses as well as other materials on record.
7. The prosecution to prove its case during the trial examined as many as 10 witnesses. The P.W. 8, 9 and 10 are the police personnels. P.W. 2 Ashutosh Manna was declared hostile during the trial. Prosecution was not inclined to examine P.W. 4, Susanta Kumar Patra as his statement was not recorded under Section 161 of the Code of Criminal Procedure. P.W. 7 wrote the FIR on the instruction of the defacto-complainant, P.W. 1.
8. In fact, the case of the prosecution rests on the evidence of P.W. 1, Kalpana Nayek, the defacto-complainant of the case and on the evidence of P.W. 3, Srikanta Sheet, P.W. 5 Sudhangshu Sekhar Patra and P.W. 6 Gunadhar Patra.
9. On careful scrutiny of the testimony of the P.W. 1, the defacto- complainant, Kalpana Nayek, the victim girl, the following facts clearly transpires;
(a) After the death of her husband Kalpana took shelter at the house of the father of the appellant who was distantly related to her along with her children.
(b) During her such stay the present appellant taking advantage of her poverty expressed his intention to look after herself and her children and to maintain them as well as to purchase a land and to built up a house for her. He also offered to marry her.
(c) The defacto-complainant however did not agree to cohabit with him even on such allurement and offers being made continuously.
(d) Lastly the defacto-complainant was forced to share bed with the appellant and through him she conceived.
(e) Thereafter, she was driven out from their house followed by physical assault by the appellant.
(f) In a village Salish held afterwards, the appellant accepted his responsibility and agreed to take charge of herself and her children.
(g) She would not have allowed the appellant to cohabit with her unless there was any allurement or promise on the part of the appellant.
(h) She was compelled by the circumstances of her poverty.
(i) It was known to her that appellant Sushil Nayek was a married man and having his spouse leaving, with three daughter and four sons.
(j) In her cross-examination she stated that she could not remember whether in the FIR she mentioned that on a promise to marry, Sushil has committed illicit cohabitation with her and had it been known to her that he would not marry her she would not have agreed to cohabit with him.
(k) According to the witnesses present at the time of Salish, the appellant confessed that he was responsible for conception of Kalpana and also agreed to maintain her family.
9. Although the appellant was charged for cheating the defacto- complainant Kalpana Nayek by committing sexual intercourse with her with false promise to marry, but in her evidence the defacto-complainant stated that in spite of all offers and allurement of the appellant that he would maintain her and her family and also by purchasing a land built up a house for her shelter still she did not agree to cohabit with him but finally the accused forcibly cohabited with her. Thus, it cannot be said that the defacto-complainant Kalpana Nayek was deceived by the representation of the appellant, in other words by his promise to marry her and thereby permit him to cohabit with her. The case of the prosecution as it transpires from the First Information Report that the victim was deceived by the appellant on a false promise to marry her and on such deception she gave her consent for sexual cohabitation stands completely contradicted on her own evidence before the court. According to me this contradictions are not at all minor and are very material which clinches the issue. It is an admitted position that the victim was related to the appellant and was also working at their house for about a year and it was known to her that the appellant was a married person having his spouse leaving, with children. Thus, when it was known to the victim that the appellant is a married man, I am not inclined to accept the prosecution case that the defacto-complainant was induced by the assurance of the accused that he would marry her and on such deception allowed him to cohabit with her. In any event the confession of the appellant in a village Salish that he was responsible for her conception and his undertaking to maintain her in future would not ipso facto bring the case within the ambit of an offence punishable under Section 417 of the Indian Penal Code. There is no law that simply because a witness is a rustic lady even when there is contradiction arises out of her own evidence on very material points the court has to accept her evidence which supports the prosecution case and her evidence which leads to the conclusion that no offence has been made out against the appellant has to be discarded. From the evidence on record more particularly that of the victim girl, I am unable to hold that the prosecution has been able to prove beyond all reasonable doubts that on a promise to marry the appellant deceived the P.W. 1, Kalpana Nayek and thereby induced her to cohabit with him.
10. For the reasons stated above, the impugned order of conviction cannot be sustained. Accordingly, this appeal succeeds and the impugned order of conviction and sentence stands set aside.
The appellant who is now on bail shall be forthwith discharged from the bail bonds.
The Office is directed to communicate this order to the court below and send down the Lower Court Records at once.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )