Calcutta High Court (Appellete Side)
Jyotsna Kora vs The State Of West Bengal And Another on 3 August, 2010
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
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IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
PRESENT:
THE HON'BLE MR JUSTICE KALIDAS MUKHERJEE
CRR NO. 2657 OF 2008
Jyotsna Kora
Vs.
The State of West Bengal and another.
For the Petitioner : Mr. R.S. Chattopadhyay
Mr. U. S. Chattopadhyay
Mr. S. Chattopadhyay
For the O. P. No. 2: Mr. S. Sanyal
Mr. S. Chatterjee
Mr. M. K. Ghosh
For the State: Mr. S. K. Mallick
HEARD ON: 12.7.2010, 15.7.2010 and 23.7.2010.
JUDGMENT ON:03.8.2010.
KALIDAS MUKHERJEE, J.:
1. This is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure assailing the judgment and order passed by learned Additional Sessions Judge, 4th Court, Burdwan in Sessions Case No. 99 of 2007 corresponding to Sessions Trial No. 19 of 2007 acquitting 2 thereby the accused person under Section 376/417 of the Indian Penal Code.
2. The prosecution case, in short, is that the victim lodged a complaint with the O.C., Ausgram P.S. on 15.2.2006 alleging that she was about 15 years of age, reading in class - VIII. The accused Ananda Kora of her village developed intimacy with her and there was love affairs between them. The accused proposed to marry her and used to take her to the bank of the pond and used to cohabit against her will. As a result, she conceived and at the time of lodging the complaint she was carrying four months. After the receipt of the complaint, the Ausgram P.S. case No. 22 of 2006 dated 15.2.2006 was started under Section 376 I.P.C. After the completion of investigation charge sheet was submitted. The charge was framed against the accused/petitioner under Section 376 and 417 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried.
3. The learned Judge while recording the order of acquittal observed that the victim girl was above 16 years of age at the time of commission of the alleged offence and that the evidence on record and the conduct of the victim girl showed that she was a consenting party. The learned Judge held that from the circumstances it could not be said that her sexual intercourse was under misconception of fact, that is, promise to marry her. 3
4. Learned Counsel appearing for the petitioner submits that even if the victim girl is found to be major, the cohabitation was made against her will with a promise to marry her. It is contended that the prosecutrix narrated the incident vividly before the Court and she was 15 years of age at the time of incident. It is submitted that the result of the ossification test shows her age between 15 and 17 years. It is submitted that the learned Trial Judge was not justified in holding that she was aged above 16 years of age.
5. The learned Counsel submits that fraud was practised upon her by the accused with a false plea of marriage and this aspect was not considered by the learned Trial Judge. It is contended that the learned Trial Judge did not arrange for the DNA test to ascertain the paternity of the child. It is also contended that for the per- functory investigation, the prosecution case would not fail. The learned Counsel submits that defence put suggestion to the effect that another boy had assess to her, but, no such person was examined as D.W. It is contended that the age of the victim girl was below 16 years of age and the suggestion put to her by the defence that she was aged 19 years, had been denied.
6. The learned Counsel has referred to the provision contained in Section 90 of the Indian Penal Code and submits that there was misconception of fact. It is contended that the victim in her statement under Section 164 of the 4 Cr.P.C. stated that she resisted at the time of cohabitation. It is submitted that the School Certificate was not seized by the I.O. It is contended that the question of consent would not arise as the victim girl was below 16 years of age.
7. The learned Counsel has referred to and cited the decisions reported in 2007(1) SCC (Cri) 557 paragraphs 9, 10,11 and 16 [Yedla Srinivasa Rao V. State of A.P.]; 2008(3)CLT (HT)177 paragraphs 13, 19, 20 [Swapan Chatterjee V. State of West Bengal]; 2006(2) SCC (Cri) 1 [Dinesh alias Buddha V. State of Rajasthan]; AIR 2006 SC 2214 [Om Prakash V. State of Uttar Pradesh]; 2005(2) C.Cr.L.R. Cal 367 [Nirmala Devi V. Ranjit Singh & Another]; 2002 C.Cr.L.R. (Cal) 830 paragraphs 20, 21, 28, 29 [Smt. Mira Roy V. State of West Bengal & Another]; 2002 C.Cr.L.R. Cal 1093 paragraph 20, 26 [Gita Chakraborty V. Satyajit Banerjee & Ors.]; 2008(1) C.Cr.L.R. SC 173 [Pradeep Kumar Verma V. State of Bihar & Another].
8. Mr. Mallick appearing on behalf of the State submits that there was erroneous finding by the learned Trial Judge on the question of age of the victim girl and, as such, there was miscarriage of justice. Mr. Mallick submits that from the report of the ossification test it would appear that 5 the girl was below 16 years of age and, as such, consent was immaterial. Mr. Mallick also submits that the accused promised to marry her and with that assurance cohabited with her and, as such, there was misconception of fact.
9. The learned Counsel appearing on behalf of the O.P. No. 2 submits that the victim girl was above 16 years of age and the learned Judge rightly held that she was a consenting party. The learned Counsel has read out the relevant portion of the evidence of P.W. 1 wherein she has categorically stated that she enjoyed the sexual intercourse which was preceded by the love affairs. The learned Counsel submits that in order to bring home the charge the prosecution has to prove that the accused knew from the very beginning that the promise of marriage was false to the knowledge of the accused at the time it was made and there was no evidence to that effect. It is contended that the scope of interference in a Revisional Application is limited and there is nothing on record to show that there was manifest illegality, perversity or miscarriage of justice. It is contended that when there is confusion as to the age of the victim girl, it would go in favour of the accused.
10. It is contended that there is no perversity in the judgment of the learned Court below. It is contended that the accused did not take her away forcibly. It is submitted that as regards the age of the victim girl, the I.O. 6 stated in his evidence that no school certificate was handed over to him. The learned Counsel has referred to and cited the decisions reported in 1986 C.Cr.L.R. (SC) 132 [Bansi Lal and Ors. Vs. Laxman Singh]; 1990 Cr.L.J. 650 [Hari Majhi Vs. The State of West Bengal]; 1984 Cr.L.J. 1535 [Jayanti Rani Panda Vs. State of West Bengal and another]; 2002 SCC (Cri) 1448 [Bindeshwari Prasad Singh alias B.P. Singh and others Vs. State of Bihar and another]; 2003 Cr.L.J. 1539 [Uday Vs. State of Karnataka]; 2005 SCC (Cri) 276 [Satyajit Banerjee and others Vs. State of W.B. and others]; 2008(3) SCC (Cri) 793 [State of Maharashtra Vs. Sujay Mangesh Poyarekar]; 2005 SCC (Cri) 253 [Deelip Singh alias Dilip Kumar Vs. State of Bihar]; 2005 (2) C.Cr.L.R. (Cal) 67 [Sudhangshu Pramanick & Ors. Vs. State of West Bengal].
11. In the case of Om Prakash Vs. State of Uttar Pradesh (Supra) it has been held by the Apex Court that the victim of sexual assault is not treated as accomplice and, as such, her evidence does not require corroboration from any other evidence including the evidence of a Doctor.
12. In the case of Dinesh @ Buddha Vs. State of Rajasthan (Supra) it has been held by the Apex Court that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
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13. In the case of Yedla Srinivasa Rao Vs. State of A.P. it was held that what is the voluntary consent and what is not would depend on facts of each case; factors like the age of the girl, her education, her social status and likewise the social status of the boy has to be considered and the Court should closely scrutinise evidence while taking into consideration the said factors. It has further been held that if the attending circumstances lead to conclusion that it was not only the accused but the prosecutrix was also equally keen, then in that case the offence is condoned. In para 11 it has been observed by the Apex court as follows:-
"11. .............. But as already mentioned above, in the present case we are satisfied that looking to the antecedent and subsequent events that the accused never intended to fulfil the promise of marriage, this was not a case where the accused was deeply in love. In the present case in our hand the accused persuaded her for a couple of months but she resisted it throughout. But, on one day he came to the house of her sister and closed the doors and committed forcible sexual intercourse against her will and consent, holding out a promise for marriage and continued to satisfy his lust. Therefore, this case stands entirely on a different footing. We may add a word of caution that the court of fact while appreciating evidence in such cases should closely scrutinise evidence while taking into consideration the factors like the age of the girl, her education, her social status and likewise the social status of the boy."8
14. In the case of Pradip Kumar Verma Vs. State of Bihar & anr; the question as to misconception of fact of a promise to marry was not discussed and, as such, the case was remitted to High Court for fresh consideration.
15. In the case of Smt. Mira Roy Vs. State of West Bengal & Anr., it was held that when the State has not preferred any appeal, the powers of the High Court is extremely restricted and the scope of interfering in such a matter is very narrow.
16. In the case of Gita Chakraborty Vs. Satyajit Banerjee & Ors. the case was remanded for fresh trial as the essential witnesses were not examined.
17. In the case of Nirmala Devi Vs. Ranjit Singh & Anr. (Supra) it was held that when the material witnesses were not produced by the prosecution, the Court should not fail or remain an inactive spectator but exercise an active role and the discretionary power of the Court under Section 311 Cr.P.C. should be exercised. In that case the defacto complainant, the doctor and some others were not produced by the prosecution. The case was sent back for retrial.
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18. In the case of Swapan Chatterjee Vs. State of West Bengal it has been held that consent obtained by fraudulent means is an offence and is punishable.
19. The learned Counsel appearing for the petitioner submits that as per medical jurisprudence in case of the ossification test indicating the age between 15 and 16 years a margin of error of six months on either side would make, according to the recommended method, an estimated age between 14½ years and 16½ years. The learned Counsel for the petitioner thus wants to show that margin of error would be six months and not two years.
20. As regards the decision cited by the learned Counsel appearing for the O.P. No. 2, it has been held in the case of Hari Majhi Vs. The State that when the prosecutrix agreed to sexual intercourse as accused promised to marry her, on this ground the accused could not be held guilty of rape. It has further been held that when the accused had frequent sexual intercourse with prosecutrix for more than one year by promising to marry her and there is no evidence that the representation by the accused was false to the knowledge of the accused at the time it was made, the accused could not be convicted for cheating.
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21. In the case of Jayanti Rani Panda Vs. State of West Bengal and another (Supra) it has been held in paragraph 7 as follows:-
"7. ................Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is that if she had really been assured of marriage by the accused who was visiting her house and in whose promise she had faith, why should she keep it a secret from her parents if really she had belief in that promise. ................."
It has further been held in paragraph 7 as follows:-
"7. ...............The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC 11 cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."
22. In the case of Uday Vs. State of Karnataka (Supra) it has been held that the prosecutrix was aware of the fact that they belonged to different castes and proposal of their marriage will be opposed by their family members and the consent given by the prosecutrix to sexual intercourse cannot be said to be given under misconception of fact i.e. promise to marry, but because she also desired for it."
23. In the case of Dilip Singh alias Dilip Kumar Vs. State of Bihar (Supra) it has been held that the prosecutrix has taken a conscious decision to participate in the sexual act only on being impressed by the accused's promise to marry her; but accused's promise was not false from its inception with the intention to seduce her to sexual act. It was held that clause second of Section 375 IPC was not established.
24. In the instant case, the victim girl lodged complaint with the I.C., Ausgram P.S. alleging that she was aged 15 years, reading in Class- VIII. Love affairs developed between her and Ananda Kora, a co-villager. It has been alleged that Ananda Kora promised to marry her and thereafter she was taken to the bank of the tank and other places and against her will the 12 accused co-habited with her, as a result, she conceived. When the victim asked him to marry, he denied.
25. In the statement of the victim recorded under Section 164 Cr.P.C. it has been stated that she had love affairs with the accused for about one year. Taking advantage of that the accused developed sexual relationship with her several times. When she told him that she would disclose it to her family members, the accused promised to marry her and further told her not to disclose it to others. She has further stated in her statement under Section 164 Cr.P.C. that she conceived and she disclosed the fact to her parents and the members of the party. It has further been stated that the accused told the members of the party and at the P.S. that the child was not begotten by him.
26. P.W. 1 has stated in her cross-examination that there was no exchange of letters between her and the accused; her family members or the para people were not aware about the lover affairs; they used to meet outside the house in the evening at about 4/5 P.M.; they had love affairs for about one year before the first sexual relation; she did not disclose to anyone about her love affairs. It is in her cross-examination that on 6/7 occasions the accused made sexual intercourse with her. It is in her cross- examination that accused did not take her away forcibly from the house for the second time for sexual intercourse. It is in her evidence that she 13 enjoyed sexual relation on the 6th occasion with the accused and on the second, third, fourth and fifth she felt good on having such sexual intercourse. She has categorically stated in her cross-examination that accused did not take her away from the house forcibly. It is in her evidence that her father is the leader of the CPM party. She has stated that save and except her oral statement she had nothing to say that she had love affairs with the accused.
27. P.W. 2 is the mother of the victim. It is in her cross-examination that she was aware about the mixing of her daughter with Ananda Kora 5/7 months prior to coming to know of the said pregnancy. She has stated in her cross- examination that she did not state to the I.O. that the villagers asked the accused to marry her daughter. In her cross-examination she could not say whether at the relevant point of time her daughter was aged about 18 to 19 years.
28. P.W. 3 has stated that P.W. 1 is her niece. It is in his cross-examination that accused has denied the relationship with the victim and causing her pregnancy.
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29. It is in the evidence of P.W. 4 that Ananda Kora declined in the meeting the allegation of mixing and love affairs with the victim and making her pregnant. It is in the evidence of P.W. 4 that no such Pradhan, Panchayat member, teacher or any Government servant were present in the said meeting; only the villagers were present.
30. P.W. 5 was declined hostile. P.W. 6 is the learned Magistrate who recorded the statement of the victim girl under Section 164 Cr.P.C. P.W. 7 is the Police Officer who filled up the formal F.I.R.
31. P.W. 8 is the Doctor who has opined after ossification test that her age was 15 to 17 years, more towards the middle i.e. 16 years on 20.2.2006. It is in the evidence of the doctor that as per the authentic text book in forensic medicine, variation of age upto 2 to 3 years on either side can occur.
32. P.W. 9 is another doctor. P.W. 10 is the I.O. who has stated that he did not seize any birth certificate of the victim and he did not make any prayer before the Court for the DNA test of the child. It is in the evidence of the I.O. that the accused denied his involvement in the commission of the offence. The I.O. has stated that P.W. 2 did not state before him that her daughter was a student of class-VIII and she used to attend the school and go to bathe in the pond and during this period she used to talk to the accused Ananda Kora; she did not state before him that her daughter was 15 aged about 15 years and that the villagers asked the accused to marry her daughter; she did not state before him that she had knowledge of talk between her daughter and the accused. The I.O. has further stated that he did not examine any Panchayat Pradhan during investigation.
33. The learned Trial Judge held that applying the margin of error of at least two years which went in favour of the accused it appeared that on the date of ossification test, that is, 20.2.2006 the victim girl was between 17 and 19 years, i.e. at the relevant period she was between 16 to 18 years, more towards middle i.e. 17 years as per the statement of the doctor. The learned Judge thus held that the victim girl was above 16 years of age at the time of the commission of the alleged offence. The learned Judge further held from the evidence on record and the conduct of the victim girl that she was found to be a consenting party.
34. In the case of Dilip Singh Vs. State of Bihar (Supra) it was held in paragraph 13 as follows:-
"13. .................In any case, if the rape was committed by the accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. She admitted that the accused used to talk to her for hours together and that was within the knowledge of her 16 parents and brother. This statement also casts an element of doubt on her version that she was subjected to sexual intercourse in spite of her resistance..........."
35. From the evidence of P.W. 1 and her statement under Section 164 Cr.P.C.
it would appear that the first occasion of sexual intercourse was preceded by love affairs which continued for about one year. During such period they had free mixing and the victim girl cohabited with the accused several times after having love affairs for about one year. She has stated that thereafter when she told the accused that she would disclose it to her family members, the accused promised to marry her and further told her not to disclose it to others. It is, therefore, clear that after having sexual intercourse with the accused several times she asked him to marry. The contention that the accused forcibly cohabited with her on the false promise of marriage, therefore, does not find corroboration from the statement of the victim recorded under Section 164 Cr.P.C. It is also evident from the testimony of P.W. 1 that she enjoyed such act of sexual intercourse with the accused and she suppressed such facts to her parents and the neighbours. This abstinence from disclosing it to her parents and the local people also does not support the case of promise to marry. There is no evidence from the prosecution that the promise allegedly given by the accused was false to his knowledge at the time it was made by him. It cannot, therefore, be said that there was misconception of fact. Section 90 I.P.C. has no manner of application in the facts of the instant case, in as 17 much as, the continued love affairs for one year followed by sexual intercourse unaccompanied by promise of marriage at the inception, makes Section 90 I.P.C. inapplicable.
36. As regards the age of the victim girl it appears that the school certificate was not produced before the I.O. and while coming to the conclusion that the victim girl was above 16 years of age, the learned Judge relied on the decision, namely, 1982 Cr.L.J. (SC) 1777 [Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and others] wherein it has been held that the margin of error in age ascertained by the radiological examination would be two years on either side.
37. It has been held in the case of Satyajit Banerjee and others Vs. State of West Bengal & others (Supra) that direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. It has further been held that in case of revisional jurisdiction invoked at the instance of the complainant the revisional jurisdiction is to be exercised in very exceptional cases, where there is a defect of procedure or manifest error of law resulting in flagrant miscarriage of justice.
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38. In case of Sudhangshu Pramanick & Ors. Vs. State of West Bengal (Supra) the age of the victim girl was between 15 and 16 years and it has been held that when there are two views, that which leans in favour of the accused should be adopted; applying the margin of error at least two years which goes in favour of the above accused, it was further held that on the date of incident the victim girl was between 15 years 9 months and 16 years 9 months. In that case accused was found not guilty.
39. In the instant case as per ossification test, the age of the victim was found by the doctor between 15 and 17 years, more at the middle i.e. 16 years. From the evidence on record it is clear that the victim girl attained the age of puberty or the age of discretion and she consciously participated and enjoyed the sexual intercourse. There was continued love affairs for one year which was followed by sexual intercourse on several occasions. There was no promise of marriage at the early stage as is evident from the statement of the victim girl recorded under Section 164 Cr.P.C. There is also no evidence to show that the alleged promise to marry her by the accused was false from the very beginning and that it was to the knowledge of that person at the time it was made. I am of the considered view that the finding of the learned Trial Judge cannot be said to be perverse. It cannot also be said that there was any illegality or miscarriage of justice. Such being the position I find that there is no ground to interfere with the order of acquittal recorded by the learned Trial Judge.
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40. In the result, the Revisional Application fails and the same stands dismissed.
41. Let a copy of this judgment along with the LCR be sent to the learned Court below immediately.
42. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. )