Calcutta High Court (Appellete Side)
Srimati Ghosh vs The State Of West Bengal & Anr on 12 June, 2009
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.R. No. 1427 of 2007 Srimati Ghosh versus The State of West Bengal & Anr.
For Petitioner : Mr. Pradip Kumar Roy
Mrs. Moupiya De
For O.P. No. 1 : Mr. Mukteswar Maity
For State : Mr. Joy Sengupta
Heard On : April 17th, 2009.
Judgment On : 12-06-2009.
Against an order of acquittal of a charge under Section 376 of the Indian Penal Code passed in favour of the accused/opposite party no. 2 in a trial held before the Learned Additional Sessions Judge, Fast Track, 1st Court, Murshidabad, the petitioner who happened to be the defacto-complainant of the case, moved the instant Criminal Revision. No appeal was however preferred by the State against the said order of acquittal.
2. Heard Mr. Pradip Kumar Roy appearing with Mrs. Moupiya Das for the petitioner, Mr. Mukteswar Maity appearing for the accused/opposite party no. 2 and Mr. Joy Sengupta appearing for the State. Perused the impugned Judgement as well as the deposition of the witnesses and the exhibits of the case from the Lower Court Records.
3. The Learned Trial Judge acquitted the accused/opposite party on following findings;
(a) The P.W. 1, the defacto-complainant, in her examination-in- chief stated that after submitting the application for marriage before the Marriage Officer, the accused took her to his house at Jiaganj and twice forcibly cohabited with her against her will and consent. However, during cross-examination she stated that she fell in love with the accused and out of their love affairs she used to cohabit with the accused freely and has specifically stated that she cohabited with the accused twice during the period of love.
(b) According to the evidence of the P.W. 1 Srimati Ghosh while they were in love with each other they unanimously agreed to marry and consequently they went to the Marriage Registrar at Zamindaripara and jointly gave notice of intending marriage voluntarily in the prescribed form.
(c) She further admitted thereafter she never went to the Marriage Registrar for registration of their proposed marriage and she was never married with the accused.
(d) She further stated in her evidence-in-chief that she put her signature in the prescribed application form for marriage which was submitted before the concerned Marriage Registrar and the Marriage Registrar, the P.W. 11 S. Lahiri stated in his evidence that both the accused and the P.W. 1 submitted the prescribed application form for marriage under Special Marriage Act putting their signatures. The said application form was proved by him and marked as Exhibit - 9, the notice for proposed marriage.
(e) The Exhibit 9, the notice of marriage under Section 5 of the Special Marriage Act, was written in Bengali script containing the signature of both the accused and the P.W. 1.
(f) In Exhibit 9, the P.W. 1 mentioned her age as 24 years.
(g) P.W. 2 who is the private tutor of the daughter of P.W. 1 stated that they married each other and although their marriage was registered but there was no social marriage and after registration of marriage the accused took the P.W. 1 to his residence at Jiaganj.
(h) The P.W. 3, the elder sister of the P.W. 1 stated that after submission of the application for registration of their marriage the accused took her sister to his residence at Jiaganj and cohabited with her against her will.
(i) The victim girl stated before the Learned Magistrate, P.W. 8 who recorded her statement under Section 164 of the Code of Criminal Procedure that she was married with the accused on 15th of March, 2003 before the Marriage Registrar and thereafter accused took her to Jiaganj and she stayed for one day and on the same day she cohabited with the accused twice and as a result of that she sustained injury on her private parts and was treated by one Dr. Gouri Ganguly on 16.04.2003.
The Learned Trial Judge upon appreciation of the aforesaid evidence on record thus concluded at the time of the alleged cohabitation the victim girl was admittedly aged about 24 years and was more than 16 years and on her own admission she used to cohabit with the accused out of love and they decided to marry each other and accordingly submitted a notice of intended marriage under Section 5 of the Special Marriage Act, but thereafter she did not appear before the Marriage Registrar for solemnization of their marriage. The Learned Judge refused to accept the plea of the P.W. 1 that the appellant induced her to a belief of lawful marriage and cohabited with her, for the reason that her such evidence has been contradicted by her cross-examination and the evidence of the P.W. 11 the Marriage Registrar.
4. It is no more res-integra, the scope of interference with an order of acquittal by any High Court in exercise of its revisional jurisdiction is very limited and such interference is called for only in very exceptional cases where there is some glaring defects in the procedure or where there is manifest error on the point of law and consequently there has been a flagrant miscarriage of justice. No doubt, it is always open to the High Court, in revision to interfere with an order of acquittal, even at the instance of the private parties, though the State has not preferred any appeal, when it is found the Trial Court has no jurisdiction to try the case or where the Trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been over looked or where the Trial Court relied on such evidence which are not legally admissible and certainly where the findings are unreasonable and perverse. It is not legally permissible for the High Court to interfere with an order of acquittal, in revision, merely because the trial court has mis-appreciated the evidence on record. The High Court has no power to convert an order of acquittal to one of conviction as it is not permissible under sub- section (3) of Section 401 of the Code. In this connection it would be sufficient to refer to the decision of the Hon'ble Apex Court in the case of D. Stephens Vs. Nosibolla, reported in 1951 Criminal Law Journal 510, K. Chinnaswamy Reddy Vs. State of A.P. & Ors., reported in (1963) 1 Criminal Law Journal 8, Vimal Singh Vs. Khuman Singh, reported in 1998 SCC (Cri) 1574, Jagannath Chowdhury Vs. State of Bihar, reported in 2002 SCC (Cri) 1181.
5. The learned Advocate appearing for the petitioner could not able to point out any piece of evidence that has been overlooked by the Trial Court which clinches the issue or proposed to be relied upon by the prosecution. Upon consideration of the evidence on record, I do not find any material evidence has been left out by the Trial Court from its consideration. The findings of the Trial Court are well founded, it cannot be said the same are either unreasonable or perverse. In this case it is an admitted position that at the time of the alleged occurrence the victim girl was aged about 24 years and was not a minor. It is also an admitted position that both the victim and the accused had long standing love affairs between themselves and during such love they cohabited. It is also an admitted position the appellant and the P.W. 1 gave notice for intended marriage under Section 5 of the Special Marriage Act to the Marriage Registrar, the P.W. 11 but as the P.W. 1 did not attend the office of the Marriage Registrar their marriage was not solemnized.
6. Having regards to the evidence on record more particularly in view of the admitted position that accused and the victim girl had a long standing love affairs between themselves and they agreed to marry each other and also a notice of intended marriage was given but no marriage could be solemnized as she did not turn up before the Marriage Registrar thereafater and when the allegations of P.W. 1, the victim girl that the accused forcibly cohabited with her twice against her will and consent, stands demolished by her own admission in cross- examination that out of love they cohabited with each other, it cannot be said that her consent to such cohabitation was under a mis-conception of fact and thus is no consent in terms of provisions of Section 90 of the Indian Penal Code. Thus, there is no question of interfering with the impugned order of acquittal.
This Criminal Revision has no merit and accordingly stands dismissed.
The Office is directed to 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. )