Calcutta High Court
Md. Mahasin Sk. vs Sayeda Khatun Bibi And Anr. on 30 November, 2004
Equivalent citations: 2005CRILJ3162
ORDER P.N. Sinha, J.
1. This revision application under Section 401 read with Section 482 of Cr. P. C. is directed against the judgment and order dated 5-6-1998 passed by the learned Additional Sessions Judge, 3rd Court, Murshidabad in Criminal Appeal No. 33 of 1995 thereby allowing the appeal in part and affirming the judgment and order of conviction passed by the learned judicial Magistrate, 2nd Court, Berhampore, Murshidabad in Case No. C. R. 272/92 and modifying the sentence of rigorous imprisonment for, one year and to pay a fine of Rs. 1,000/- in default to suffer R.I. for further two months imposed on this petitioner by the learned Magistrate to a sentence of fine of Rs. 5,000/- in default to suffer R.I. for one year for offence under Section 417 of the Indian Penal Code (in short I.P.C.). Being aggrieved by and dissatisfied with the order of the said sentence and order of confirmation of conviction imposed upon him, the petitioner has moved this Court through this revisional application.
2. Facts of the case as it appears from the materials on record and lower Court record below is that the opposite party No. 1 Sayeda Khatun Bibi lodged the complaint before the learned Chief Judicial Magistrate (in short CJM), Murshidabad and it was registered as Case No. CR 272 of 1992. In the complaint the complainant alleged that on 20-6-1991 corresponding to 5th Ashar she was engaged as the maid servant in the house of the accused (present petitioner) and after such engagement the accused petitioner started cohabitation with her against her wishes from 6th Shravan alluring her on promise of marriage. In spite of her requests she could not resist the accused petitioner from making sexual intercourse with her as a result of which she became pregnant and gave birth to a son. Subsequently, the accused petitioner refused to marry her and thereby cheated her. Filing the complaint she prayed for direction for sending the complaint to Officer-in-Charge, Berhampore P. S. for investigation under Section 156(3) of Cr. P. C. but, the learned Magistrate rejected the said prayer and after perusing complaint opined that the complaint discloses an offence under Section 417 of I.P.C. and took cognizance of the offence and thereafter, examining the complainant and her witnesses issued process against the accused petitioner under Section 417 of I. P. C. Subsequently, after appearance of the accused the case was transferred to the Court of learned Judicial Magistrate, 2nd Court, Berhampore for disposal. After trial the learned Magistrate by his judgment and order dated 7-8-1995 held the present petitioner guilty under Section 417 of I. P. C. and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for two months. Challenging the judgment and order of conviction and sentence this petitioner as appellant preferred appeal before the learned Sessions Judge, Murshidabad which was registered as Criminal Appeal No. 33 of 1995 and it was heard by the learned Additional Sessions Judge, 3rd Court, Murshidabad. The learned Additional Sessions Judge by his order dated 5-6-1998 allowed the appeal in part and affirmed the conviction but, altered the sentence to a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year. Thereafter, the petitioner has moved this Court in this revisional application.
3. Mr. Dipak Sengupta, learned senior advocate appearing for the petitioner contended that the appellate Court failed to appreciate the evidence of witnesses, particularly the cross examination of P. W. 1 (Sayeda Khatum), the complainant herself. The accused petitioner was not examined under Section 251 of Cr. P. C. properly and what are the accusation against the accused was not properly read over and explained to this petitioner. Substance of accusation and statement of particulars of offence are not same thing. The learned appellate Court did not discuss evidence of witnesses properly and without discussing evidence of the witnesses came to the finding that the petitioner was guilty for the offence under Section 417 of I. P. C. Neither the learned Magistrate nor the learned first appellate Court considered the evidence of witnesses in order to come to the conclusion as to whether the offence alleged against the petitioner has been proved or not. The misrepresentation as alleged was not at all a misrepresentation to attract Section 417 of I. P. C. and there was no misconception of fact and there was also no element of cheating.
4. Mr. Sengupta further contended that the evidence of P. W. 1, the victim herself would reveal that she was a consenting party to the incident and on her own continued cohabitation or sexual intercourse with the petitioner for several months and did not inform anybody and did not lodge any FIR. There was no deception at the point of inception. On the other hand, her evidence reveals that when this petitioner gave such a proposal to her, she obtained consent of her parents and then went on cohabitating with the petitioner. This evidence establishes that there was no deception on facts and this petitioner did not cohabit with her against her wishes. The evidence proves that the victim by continuing sexual intercourse with this petitioner without informing the said fact to anybody till she became pregnant led a promiscuous life and it was an act of promiscuity on her part and not an act induced by misconception of fact. The learned Courts below failed to appreciate the evidence as well as legal position and erred both in law and fact. Accordingly, the judgment and order of conviction passed by the learned Courts below should be set aside. In support of his contention he cited the decisions in Hari Majhi v. The State reported in 1990 Cri LJ 650 (Cal) and Rajkumar Mondal v. The State of West Bengal reported in 1992 Cal Cr. LR 267.
5. Md. Anisur Rahaman Khan, learned advocate for the opposite party No. 1 contended that both the learned Courts below acted rightly by convicting the petitioner. From evidence it transpired that the petitioner engaged the victim to work as maid servant in his house at Shialmara. The petitioner has his own house at Rani Nagar, but as he runs business at Shialmara the petitioner has house-cum godown at Shialmara and he used to stay there and occasionally used to visit her house at Rani Nagar. His wife and children occasionally visited the house of petitioner at Shialmara but at Shialmara the accused petitioner used to reside alone most of the time. For that reason the victim was engaged to work as maid servant and the petitioner by giving promise of marriage indulged in sexual intercourse with her. The victim was initially not agreeable to such act but, this petitioner by assuring her of marriage committed sexual intercourse with her and when she became pregnant drove out her. The victim was a minor at the time of incident and the evidence that was led in Court clearly established that the accused cheated her and there was misrepresentation as well as misconception of fact. There was a salish also over the incident and in the salish the victim disclosed everything but in spite of that the petitioner did not marry her. The learned Court rightly appreciated the evidence and there is no merit in the revisional application and accordingly it should be dismissed.
6. I have carefully perused the revisional application and lower Court record and also the evidence and considered the submissions made by the learned advocates of the parties. It appears that in order to prove her case the opposite party complainant examined four witnesses namely P. W. 1 Sayeda Khatun, the complainant herself, P. W. 2 Haji Abu Bakkar, P. W. 3 Yaar Ali and P. W. 4 Hazrat Sheikh, the father of the victim. Evidence of P. W. 1 reveals that she was engaged by the petitioner to work as a maid servant in his house and after she started Working as maid servant the petitioner wanted to have sexual intercourse with her and she denied. Thereafter, the petitioner promised her that he will marry her and thereafter, he started cohabitation with the victim as a result of which she became pregnant. When she asked the petitioner to marry her, the petitioner denied to marry her and not only that thereafter, he drove out the victim. When she was engaged as maid servant in the house of petitioner he was residing at Shialmara. The petitioner now resides at Rani Nagar. She informed the matter to her parents and they informed the neighbours. Cross examination of P. W. 1 reveals that the wife and children of the petitioner used to reside at Rani Nagar and occasionally they visited Shialmara. 15-16 days after she started working as maid servant the petitioner gave proposal to cohabit with her. She told her parents regarding proposal of the accused petitioner and her parents told her that she may be married with the petitioner. Evidence of P. W. 4 reveals that the petitioner promised to marry her daughter and had intercourse with her as a result of which she became pregnant. The accused did not marry her, but on the other hand, drove her out when she was pregnant for three months. He informed the neighbours and villagers and called a salish and in the salish the petitioner was asked to marry the victim but, the petitioner did not obey the verdict of the salish. Cross examination of P. W. 4 reveals that the victim worked as maid servant in the house of petitioner nearly two years and he came to know about the incident when she was driven out.
7. This is a vital discrepancy between evidence of P. W. 1 i.e., the victim and P. W. 4, her father. According to P. W. 1 when the accused disclosed his intention to cohabit with her she refused the proposal. The petitioner thereafter promised to marry her and her cross examination reveals that she stated the matter to her parents and her parents gave consent, if she is married with the petitioner. But her father P. W. 4 in his evidence stated that he came to know about the incident when her daughter was driven out by the petitioner and his evidence reveals that when the victim was driven out she was already three months pregnant. The learned advocate for the opposite party complainant stated that victim was a minor but, there was no such evidence that the Victim was a minor at the time of incident. The lower Court record contains the complaint and in the complaint petition also it was disclosed that the complainant i.e. victim was a minor. Evidence of four witnesses who were examined in the trial Court did not reveal that the victim was a minor. When the complaint itself is silent regarding minority of the victim and there is no evidence also to show that the victim was a minor, the contention before this Court for the first time after a gap of so many years that the victim was a minor is not acceptable. P. W. 3 and P. W. 4 had no knowledge about the incident and they stated that they learnt from the complainant and her father that the petitioner committed sexual intercourse with her and as a result of which she became pregnant. Their evidence reveals that they came to know about the incident few months after when there was salish in village.
8. The evidence which were adduced during trial and the circumstances reveal that victim was a major girl and definitely a girl of above 16 years of age. She had full consent in sexual intercourse with the petitioner and she continued such act with the petitioner for few months till she became pregnant. The victim did not tell the matter to anybody and did not report anything to neighbours and did not lodge any general diary or FIR at police station alleging that the petitioner committed sexual intercourse with her against her wishes. Her father came to know about incident when the petitioner drove out the victim from his house and evidence reveals that by this time she was already three months pregnant. The evidence clearly reveals that the victim even did not report to her parents about pregnancy during initial stages. Considering the evidence I am opinion that in the instant case the victim being a full grown lady voluntarily consented to have sexual intercourse with the petitioner. The decisions cited by the learned advocate for petitioner are quite apposite in the instant case. In Hari Majhi (1990 Cri LJ 650) (Cal) (supra) the accused had frequent sexual intercourse with a girl above 16 years for more than a year before she conceived. It was held by this Court that even if it is assumed that she agreed to sexual intercourse with the accused on account of promise of the marriage, the charge under Section 417 could not be substantiated in the absence of any evidence to show that the said representation by the accused was false to the knowledge of the accused at the time it was made. This Court further held that where the charge is of cheating, as in this case rests upon a representation, which is false and which relates not to a existing fact but to a certain future event, it must be shown by the prosecution that the representation is false to the knowledge of the accused when it was made. It will be of no consequence to show that in fact the representation has ultimately turned out to be untrue. Accordingly, this Court set aside the conviction in the appeal.
9. The facts of Rajkumar Mondal (1992 Cal Cri LR 267) (supra) was also similar and there the victim was working as maid servant in the house of the appellant when the appellant committed sexual intercourse with her and when she disclosed that she would inform everybody about the incident the appellant assured to marry her but ultimately did not marry her. The learned trial Court held the accused guilty under Section 417 of I. P. C. and not guilty under Section 376 of I. P. C. In the appeal a Division Bench of this Court set aside the conviction observing that there was no ingredient of cheating.
10. The Supreme Court in Uday v. State of Karnataka reported in 2003 SCC (Cri) 775 : (2003 Cri LJ 1539) and this Court in Jayanti Rani Panda v. State of West Bengal reported in 1984 Cri LJ 1535 observed that 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. The aforesaid principles are equally applicable in this case. From evidence it did not transpire that victim was a minor and it appears that the victim being a full grown lady and above 16 years voluntarily consented to have sexual Intercourse with the petitioner. She did not disclose anything to either the neighbours, villagers or to her parents till she was pregnant for three months. The evidence clearly establishes that there was no misconception of fact in the instant case and the victim was a consenting party and her conduct was nothing but an act of promiscuity on her part. The evidence and circumstances show that the victim consciously consented to have sexual intercourse with the petitioner and her consent was not in consequence of any misconception of fact. It is clear, therefore, that the subsequent refusal by the petitioner to marry the victim would be of no consequence when it has not been established that the representation was false to the knowledge of the petitioner when it was made.
11. Discussion of evidence clearly indicates that there was no element of cheating nor, there was element of misconception of fact. Accordingly, conviction of the petitioner under Section 417 of the I. P. C. was bad in law. The learned appellate Court below failed to appreciate the evidence and principles of law which resulted into gross error and illegality resulting into miscarriage of justice. The judgment and order passed by the learned Additional Sessions Judge, 3rd Court, Murshidabad in Criminal Appeal No. 33 of 1995 being not proper and legal is hereby set aside. In view of the discussions made above the rule is hereby made absolute and the conviction of the petitioner under Section 417 of I. P. C. and sentence imposed on him are hereby set aside. The petitioner is found not guilty for the offence under Section 417 of I. P. C. and is acquitted accordingly. He is discharged from his ball bond.
12. The revisional application is allowed and disposed of.
Send down the lower Court records along with copy of order to the learned courts below.
Urgent xerox certified copy be given to the parties, if applied for, expeditiously.