Calcutta High Court (Appellete Side)
Sanjoy Saha @ Tofi vs The State Of West Bengal on 14 August, 2013
Author: Tapen Sen
Bench: Tapen Sen
1 14/08/2013 AB (27) C.R.A. 184 of 2012 SANJOY SAHA @ TOFI Vs THE STATE OF WEST BENGAL Mr. Milon Mukherjee, Mr. Tapan Dutta Gupta, Mr. Parvej Anam ...For the Appellant.
Ms. Kakali Chatterjee ...For the State.
This Appeal is directed against the Judgment and Order of Conviction dated 21.03.2012 and 22.03.2012 respectively, and passed by Sri Tapan Kumar Mondal, learned First Additional District & Sessions Judge, Fast Track Court, Uttar Dinajpur at Raiganj in Sessions Trial No. 13 / 2008 arising out of Sessions Case No. 219 of 2008 whereby and whereunder this Appellant was convicted under the provisions of Section 376 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.5,000/- and in default, to suffer Rigorous Imprisonment for six months more.
The learned Trial Judge further ordered that the child of the victim, Archana Sarkar, be compensated by awarding "considerable money" out of the fund provided by the State of West Bengal for ensuring her welfare including her education.
2
The facts of this case has its genesis in a written report made by one Archana Sarkar (the victim) before the Officer in Charge, Itahar on 4.1.2006 wherein she, inter alia, stated that she had fallen in love with this Appellant (Sanjoy Saha @ Tofi) about three years ago. He promised to marry her and thereafter, cohabited with her many a times. One day, he took her to a particular kalibari in a village under the Kushmundi Police Station (Dehaband), put vermilion on her forehead and told her that henceforth she would be his wife. Subsequently, she became pregnant, but the first child was aborted by a rural "kabiraj".
It is stated that she became pregnant for the second time and when she asked him to take her to her in-law's house, he started dilly-dallying in the matter on one pretext or the other. Subsequently, she herself went to Itahar on the basis of a request made to her through a friend of his, who had come to her house, but in spite of waiting for a considerable period, he neither came nor did he take her to his own house. It was then she went back to her father's house, but even then, the accused "dilly-dallied" and wanted to break the relation. She alleged that she was pregnant by eight months, but had been deserted by him.
On the basis of the aforementioned written report, the Officer in Charge registered Itahar Police Station Case No. 4 of 2006 dated 4.1.2006 under Section 493 / 376 of the Indian Penal Code against the Appellant. Investigation was taken up and charge sheet submitted. The matter went to trial before the learned First Additional District and Sessions Judge, Fast Track Court, Uttar Dinajpur at Raiganj. Now, by the impugned Judgment, the Appellant was 3 convicted under Section 376 although charge sheet was submitted both under Section 493 / 376 of the Indian Penal Code.
The prosecution, in order to prove its case, examined as many as 12 witnesses and produced some documents. The defence did not examine any witness, but in course of his examination under Section 313, he claimed that he had been falsely implicated.
We must briefly advert to some of the evidences, which, according to us, are relevant for adjudication.
We will therefore, first of all and at the very outset, take up the evidence of the prosecutrix herself straightway. She was examined as P.W. 2 and in the very opening lines of her examination-in-chief, she disclosed, upon identifying this Appellant in Court that she had had a love affair with him three years ago and that he had also taken the permission of her father. She also stated that while she was returning home with him, he had told her that he had fallen in love with her and thereafter he had proposed cohabitation. She further stated that she had agreed to such a proposal since he had assured to marry her. She has very candidly stated that "thereafter we had sexual intercourse".
Considering the aforementioned statement, we do not think it essential to go into the other evidences because this witness is an extremely important material witness and her evidence was taken in Court in relation to an occurrence, which took place at a time when she was already a major and not a child.
4
Considering the aforementioned opening lines of her examination-in-chief and having also considered some of the other statements made in the cross- examination where, at one place, she stated that "thereafter we entered into sexual intercourse for more than 40 times" and that "such sexual intercourse was done in our house in maximum time", we are not inclined to agree with the reasoning given by the learned Court below to the effect that if the Court shows leniency towards the Appellant, it would communicate a wrong signal to the society. We, as a part of the Indian Judiciary, are not social reformers. We have to act in accordance with law and our Judgments must also reflect that we are doing justice in accordance with law. Therefore, such an observation coming from the Additional District & Sessions Judge was absolutely misconceived.
We, therefore, set aside the Judgment and Order of conviction of the learned Court below because Section 376 clearly says that if an offence of rape is committed without the consent of a person, then it would amount to the offence. In the instant case, the manner in which the acts were done, clearly goes to show that there was neither any element of rape nor any element of forcible consent nor any element of forcible sexual intercourse. It was done "more than 40 times" and with the active participation of the prosecutrix herself.
Under these circumstances, we must express our anxiety that such a factor was not taken into consideration by the learned Court below and instead, the Appellant was left to languish in jail with a sentence of R. I. for ten years with fine upon his head. We deprecate this Judgment. We accordingly set aside the Judgment and the order of conviction.
5
The Appeal stands allowed.
We direct the Appellant to be set at liberty forthwith, if not wanted in any other case.
The Criminal Section is directed to send down a copy of this Judgment along with the Lower Court Records of this case to the concerned Court below forthwith for information and for taking necessary action.
Let a copy of this Judgment be transmitted to the Superintendent, Jalpaiguri Central Correctional Home, Jalpaiguri.
Let a photostat certified copy of this Judgment, if applied for, be delivered to the learned Counsel for the parties upon compliance of all usual formalities.
(Tapen Sen, J.) (Asim Kumar Ray, J.) 6