Calcutta High Court (Appellete Side)
Chand Mohan Sammader vs The State Of West Bengal on 28 March, 2011
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
CRA NO. 551 of 2005
Chand Mohan Sammader
Vs.
The State of West Bengal
PRESENT :
THE HON'BLE JUSTICE MRINAL KANTI SINHA
Mr. Prabir Majumdar .. for the petitioner.
Mr. Abhijit Adhya .. for the State.
Heard on : 15. 03. 2011.
Judgement On : 28. 03. 2011.
Mrinal Kanti Sinha, J :
Heard learned Advocates appearing for the parties.
1. This Criminal Appeal bearing CRA No. 551 of 2005 has been directed against the judgement and order of conviction dated June, 9 2005, and sentence dated June 10,2005 passed by Sri Sukhendu Das, learned Additional Sessions Judge, Fast Track Court IV, Krishnanagar, Nadia, in Sessions Trial NO. XVII (4) 2005 arising out of Sessions Case No. 48(2) 2005 convicting the appellant of offences punishable under Sections 376/417 of 2 the Indian Penal Code and sentencing the convict to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/- in default to suffer simple imprisonment for three months for the offence punishable under Section 376 of the Indian Penal Code, and for six months and to pay fine of Rs. 600/- in default to suffer simple imprisonment for one month for the offence under Section 417 of the Indian Penal Code, while the said sentences as passed shall run concurrently and fine, if realised be paid to the victim Sipra Sarkar as compensation.
2. It is the case of the appellant (in Jail) that the appellant was placed on trial to answer charges under Section 376/417 of the Indian Penal Code in connection with Sessions Case No. 48(2) 2005 which was initiated on the basis of a written complaint lodged by one Sipra Sarkar of Village Raninagar on 24.6.04 before the O.C. Murutia P.S., which was registered as Murutia P.S. Case No. 45 of 04 dated 24.6.04 under Sections 417/493/376 of the Indian Penal Code, on the allegation that since last one year the appellant Chand Mohan Sammadder, son of Karna Samadder, of her village committed sexual intercourse with the complainant aged about 16 years giving her assurance of marriage as a result of which she became pregnant and on being informed the appellant refused to marry her.
3. After receiving that complaint the Investigating Officer investigated into the said case and after completion of investigation submitted charge 3 sheet under Section 376/417 of the Indian Penal Code against the appellant and thereafter the case was committed to the Court of Sessions after compliance of the provisions of Section 207 of the Criminal Procedure Code and thereafter the case was transferred to the said Court for trial. After considering the materials on record charges under Sections 376/417 of the Indian Penal Code were framed against the appellant and read over and explained to him to which he pleaded not guilty and claimed to be tried. Thereafter the trial began and after examination of prosecution witnesses the appellant was examined under Section 313 of the Criminal Procedure Code, when the appellant denied the charges against him and it was the defence case that the allegation of rape against the appellant was brought by the complainant falsely with intention to create pressure upon him to marry her. After taking evidence and hearing the parties learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia passed the aforesaid judgment and order convicting and sentencing the appellant.
4. Being aggrieved by and dissatisfied with the aforesaid judgement and order of conviction and sentence of the learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia, the appellant has preferred 4 the present appeal before this Court praying for setting aside of the impugned order of conviction and sentence on the ground that the impugned order of conviction and sentence is against the evidence on record and is bad in law and has been passed relying upon surmises and conjectures without considering the defence case in its proper perspective, which has caused serious prejudice to the appellant and has resulted in total miscarriage of justice and the sentence is too severe.
5. The respondent the State is contesting the appeal, but has not filed any affidavit-in-opposition, though it is the case of the State that the said judgement and order passed in the said sessions case has rightly been passed by the learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia.
6. On the above case of the parties it is to be considered as to whether the learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia was correct and justified in passing the aforesaid judgement and order.
7. Relying upon the decision reported in AIR 2003 Supreme Court 1639 in the case of Uday Vs. State of Karnataka Mr. Prabir Majumder , learned Advocate for the petitioner has submitted that the learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia, was not justified in 5 passing the aforesaid judgement and order of conviction and sentence inasmuch as the informant/defacto-complainant, who has been examined in the sessions case No. 48(2) 2005 as P.W. 5 was a consenting party to the alleged offence of rape and her consent was not obtained by show of any force or threat or threat of causing hurt to her and the P.W. 5 consented to the said sexual intercourse with the present petitioner like husband and wife as per her evidence and as per the written complaint, Exhibit 3, as well as the formal First Information Report, Exhibit 4, there was love affair between the parties since one year back from 24.6.04 and the alleged incident took place about one year back from the date when the matter was reported at the P.S. on 24.6.04, and there was considerable delay in lodging the First Information Report and no medical examination of the said victim girl was done for ascertaining as to whether she was raped or not and her medical examination was done only to ascertain her age, and no scientific test like D.N.A. was done to ascertain the paternity of the child of the said victim girl, and merely saying that the present appellant is the father of the said child of the said victim girl without any scientific test like D.N.A. it cannot conclusively be held that the present appellant is the father of the said child of the said victim girl, and there was no knowledge of the said victim girl from the beginning that by inducing her or practising any deception upon her with any promise to marry her the appellant committed the alleged offence of rape upon her, and most of the P.Ws have been declared hostile by the prosecution as they have not supported the prosecution case, and there was 6 no cogent and reliable evidence to prove that the present appellant has committed the alleged offences under Section 376/417 of the Indian Penal Code nor it has been proved by sufficient reliable evidence that the present accused has committed the alleged offences, and so the said conviction and sentence imposed upon him present petitioner was not just and proper and was not legally sustainable.
8. Mr. Abhijit Adhya, learned Advocate for the State/respondent has submitted that the P.W. 5 being a rustic village girl was not much conversant with the legal formality and it is not believable that a rustic village girl of Indian set up would made up a false story at the cost of her chastity, and apparently the said victim girl became pregnant and gave birth to a child later on and for that reason it may be presumed that the present appellant has committed rape upon her and has deceived her by not marrying her.
9. It appears that there was allegation against the present appellant of commission of offences under Sections 376/417 of the Indian Penal Code and taking evidence and hearing argument of the parties learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia, found the appellant guilty for the offences under Section 376/417 of the Indian Penal Code and convicted him and sentenced him for the said offences. So the relevant provisions of law regarding alleged offences of rape and cheating should be considered.
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10. Section 375 of the Indian Penal Code deals with the offence of rape while Section 376 of the Indian Penal Code provides for punishment of rape.
Section 375 of the Indian Penal Code reads thus :
"375. Rape :
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions : -
First. - Against her will.
Secondly.- Without her consent.
Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to 8 understand the nature and consequences of that to which she gives consent.
Sixthly. - With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Relevant provision Section 376 of the Indian Penal Code reads thus :
"376. Punishment for rape (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman rapes is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :9
Provided that the Court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years. (2) ........................................"
11. Section 415 of the Indian Penal Code defines cheating while the Section 417 of the Indian Penal Code provides for punishment for cheating.
Section 415 reads as follows :
415. Cheating :
"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. - A dishonest concealment of facts is a deception within the meaning of this section."
Section 417 of the Indian Penal Code reads thus :
Punishment for Cheating. :10
"Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
12. So it appears that for bringing an offence within the definition of rape the circumstances should fall under any of these descriptions as mentioned in Section 375 of the Indian Penal Code. In this case it has not been stated in the First Information Report as to whether the informant or the defacto-complainant herself was willing and gave her consent to the alleged offence of rape or not though there is a mention of a love affair between them, and at the time of making statement under Section 164 of the Criminal Procedure Code the informant stated before the learned Magistrate concerned, who recorded her statement under Section 164 of the Criminal Procedure Code, that said Chand Mohan Sammader or the present appellant forcibly picked up her on his lap pressing cloth on her mouth and took her to a jack fruit garden and raped her against her will and subsequently he tempted her to marry him and when the matter was made known, then he threatened her, and again 2/3 days after when she was going to take her bath, then the appellant again picked up her on his lap and took her to a banana garden and raped her against her will, but during her evidence as P.W. 5 she has stated that she had love affair with the accused Chand Mohan Sammader and had sexual intercourse with Chand Mohan Sammader as husband and wife and sometimes the sexual 11 intercourse took place as per willingness of the accused and sometimes as per her willingness and she consented the accused for sexual intercourse with her. So it appears she was not unwilling to have sexual intercourse with the present appellant nor the appellant exercised any force or threat upon her for having sexual intercourse with her as per her evidence, rather she was a consenting party.
13. Apparently, the first and second ingredients of rape as mentioned in Section 375 of the Indian Penal Code have been negatived by the informant/defacto-complainant or P.W.5 herself inasmuch as her alleged sexual intercourse with the present appellant Chand Mohan Sammader was neither against her will nor that was without her consent.
14. Now regarding the third ingredient of rape as mentioned in Section 375 of the Indian Penal Code, which speaks that if the consent of the alleged woman subjected to rape is obtained by putting her or any person in whom she is interested, in fear of death or of hurt, it appears that in this case there is no such case that her consent to sexual intercourse with the appellant was obtained by putting her or any person in whom she is interested in fear of death or of hurt, or her consent was given under fear of injury or under a misconception of fact, and she knew or had reason to believe that her consent was not given in consequence of any threat, fear or misconception, and there was no question of assuming or presuming 12 that her aforesaid consent to the sexual intercourse with the appellant was given under any threat, fear or misconception of fact within her knowledge or she had reason to believe that her consent was given in consequence of such threat, fear or misconception of fact or fear of death or hurt. So the third element of the offence of rape as mentioned in Section 375 of the Indian Penal Code has not also been attracted in the present case.
15. Then comes the element "fourthly" of Section 375 of the Indian Penal Code. As per the provision of "fourthly" of Section 375 of the Indian Penal Code when the man knows that he is not the husband of the woman and obtained consent of that woman which is given because she believed that he is another man to whom she is or believes herself to have been lawfully married, but there is no such case that she consented to sexual intercourse with the appellant knowing or believing that she has lawfully been married with him, and as such the provision of 'fourthly" of Section 375 of the Indian Penal Code is not attracted in this case.
16. As per the provision "fifthly" of Section 375 of the Indian Penal Code when at the time of giving consent by reason of unsoundness of mind or intoxication or the administration of any stupefying or unwholesome substance that woman is unable to understand the nature and 13 consequence of that to which she gives consent, then that consent given by that woman would not tantamount to actual consent to sexual intercourse. There is no such case that the P.W. 5 had given consent due to unsoundness of mind or administration of any stupefying or unwholesome substance she was unable to understand the nature and consequences of the act to which she was consenting and when no such case has been pleaded or proved, then there was no question of bringing the case within the purview of the ingredient "fifthly" of Section 375 of the Indian Penal Code.
17. As per the provision of 'Sixthly' of Section 375 of the Indian Penal Code it would be rape with or without consent when the woman concerned is under sixteen years of age. As regards the age of the defacto-complainant P.W. 5 it appears that she herself has stated in her written complaint, Exhibit 3, that she is aged about sixteen years, but as per the report of the Radiologist, who examined the victim girl namely Sipra Sarkar, as P.W. 9, Exhibit 2, coupled with her X-Ray plates, material Exhibit, 1, he was of the opinion that the age of the said V.G. was considered as 16 years with allowable variation, i.e, 6 months to 2 years. In view of this evidence of P.W. 9 there can be no hesitation to hold that the said victim girl Sipra Sarkar or P.W. 5 was more than sixteen years old and she was not under sixteen years of age and as such she was matured enough to give or not to give consent to sexual intercourse with her and so she consented to sexual 14 intercourse with her voluntarily and consequently the instant case does not come within the purview of the description 'sixthly' of Section 375 of the Indian Penal Code.
18. Thus it appears that the defacto-complainant or P.W. 5 willingly consented the appellant to have sexual intercourse with her voluntarily out of her own free will out of love and her consent to that was not given under any of the exceptional descriptions as mentioned in Section 375 of the Indian penal Code. From that point of view it cannot be said that the learned Court below was legal and correct in his approach to find the appellant guilty for the alleged offence under Section 376 of the Indian Penal Code and to convict him for the said offence.
19. If consent is given under fear or misconception of fact as provided by Section 90 of the Indian Penal Code then that will not be such a "consent" as intended by the said section of the Code, but in this case there is no such case that the informant/defacto-complainant or P.W. 5 was put to fear or was threatened by the present appellant for committing sexual intercourse with him or sexual intercourse with her was done by the appellant putting her under fear of death or hurt or by threatening her or using force upon her, rather it appears from the First Information Report, Exhibit 3, as well as evidence of P.W.5 that the appellant had love affair with the informant or defacto-complainant or P.W. 5 since one year 15 before the date of lodging the First Information Report at Police Station on 24.6.04 and there was no sexual intercourse between the parties with any temptation or promise of marriage, and though as per the statement of the said P.W. 5 recorded by the learned Magistrate concerned under Section 164 of the Code of Criminal Procedure on 29.6.04 the informant stated that about five months back therefrom she went to the field to work with her step mother while her mother was working at a distance then the appellant Chand Mohan Sammader picked up her on his lap forcibly pressing cloth in her mouth and took her to a jack fruit garden and raped her against her will and thereafter he tempted to marry her and when the matter became known then he threatened her and 2/3 days thereafter when she was going to take bath then said Chand Mohan Sammader again picked up her on his lap and raped her in a banana garden against her will, yet she has also stated that Chand Mohan Sammader was willing to marry her but his father did not agree to that, while during her evidence as P.W. 5 the defacto-complainant or informant has stated that she had love affairs with accused Chand Mohan Sammader and has sexual intercourse with Chand Mohan Sammader like husband and wife and sometimes sexual intercourse took place as per willingness of the accused and sometimes as per her willingness and she consented the accused for sexual intercourse. As such there is no reason to presume that her consent to sexual intercourse with the present appellant was without any thinking or was not voluntary and 16 deliberate, rather it appears that her consent to sexual intercourse with the appellant was voluntary and deliberate. There was no inducement or threat on the part of the present appellant to compel her to submit herself before him for sexual intercourse. It also appears that the P.W. 5 was medically examined for ascertaining her age only and not for ascertaining as to whether she was raped or not, though as per Exhibit 5 the appellant aged 18 years was medically examined to ascertain whether he was capable of doing sexual intercourse or not.
20. It has been mentioned in the decision reported in AIR 2003 Supreme Court 1639 in paragrah 10 in the case of Uday V. State of Karnataka with reference to Stroud's Judicial Dictionary (5th Edition) Page 510 that "
Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance, the good and evil on each side."
21. It has also been decided by the said decision of the Hon'ble Supreme Court that in paragraphs 21, 22 that :
"21. It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date , cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We 17 are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact, it- must also weigh the evidence keeping in view the fact that the burden is on the prosecutrix to prove each and every ingredient of the offence, absence of consent being one of them.
22. The approach to the subject of consent as indicated by the Punjab High Court in Rao Harnarain Singh (supra) and by the Kerala High Court in Vijayan Pillai (supra) has found approval by this Court in State of H.P. v. Mange Ram (2000) 7 SCC 224, BalaKrishnan, J. speaking for the Court observed :-
" The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent 18 for the purpose of S. 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
22. In this case it also appears from the First Information Report Exhibit 3 as well as the statement of the informant/defacto-complainant recorded under Section 164 of the Code of Criminal Procedure as well as her evidence as P. W. 5 that she willingly engaged in sexual intercourse with the present appellant with her consent out of love knowing well about the consequences thereof and the sexual intercourse between herself and the present appellant was an outcome of their love affair between them, and no such case has been pleaded or proved by evidence that her consent was obtained by putting her or any person in whom she is interested, in fear of death or of hurt or her consent was obtained by some misconception of fact, rather it appears that she engaged in sexual intercourse with the appellant with full knowledge and knowing the consequences thereof and this can also be ascertained from the fact that she did not inform about the sexual intercourse between herself and the present appellant till she became pregnant, nor she stated about that matter to anyone else till she became pregnant, though as per the First Information Report, Exhibit 3, the present appellant had allegedly sexual intercourse with her since about 19 one year before the date of lodging the F.I.R at Police Station on 24.6. 04 and it also appears that there is no such case that the said informant/defacto-complainant, P.W. 5, gave any resistance to the present appellant when he allegedly tried to commit rape upon her, rather it appears that she actively participated in the act of sexual intercourse with the present appellant several times in view of a love affair between them as a result of which she might have become pregnant.
23. It has also been observed by the Hon'ble Supreme Court in the decision reported in AIR 2003 Supreme Court 1369 in the case of Uday Vs. State of Karnataka in para 16 with reference to a Division Bench decision of Calcutta High Court in the case of Jayanti Rani Panda Vs. State of West Bengal and Another reported in 1984 Cri.L.J. 1535 (Cal) at 1538 in paragraph 7 that :
"............ 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, 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 20 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. I.P.C 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."
24. It appears that as per the written complaint, Exihibit 3, also that there was sexual intercourse between the parties since about one year before the lodging of the same at the P.S. on 24.6 .04, but in the mean time the P.W. 5 took no step to inform the matter at the Police Station or to anyone else and apart from the fact of delay in lodging FIR at the Police Station it appears that such silence on the part of the P..W. 5 also speaks a volume against her allegation that she was raped by the present appellant, and it has also been held by the decision reported in AIR 2003 1639 in para 25 that :
25. "There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of S.90, I.P.C. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the 21 consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely 22 place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent"
25. As such in this case it cannot be said that the P.W. 5 had sexual intercourse with of the present appellant, with whom she was deeply in love, without her consent or willingness and she engaged herself in sexual 23 intercourse with him not because he promised to marry her but because she also desired it, though the statement of the P.W. 5 in her written complaint, Exhibit 3, and her statement recorded under Section 164 of the Code of Criminal Procedure differs. It also appears therefrom that promise to marry her was given after she was allegedly raped or had sexual intercourse with the accused.
26. The evidence of the witnesses of the prosecution regarding the allegation of rape and promise to marry as alleged by the P.W. 5 may also be considered. It appears that P.W. 1 is the father of the defacto- complainant Sipra Sarkar, but though he has deposed that he knows accused Chand Mohan Samadder as his adjacent neighbour having visiting terms in his house, but he knows nothing more than that, for which he has been declared hostile by the prosecution. Though as per his evidence during cross-examination by the prosecution he has stated that he was not examined by the Investigating Officer over the incident, yet he has also stated further that he stated to police that he came to know about the incident from his elder daughter namely Anjana Sarkar. If as per his evidence he was not examined by the Investigating Officer, then how he stated that to police has not been made clear.
27. It appears from the evidence of P.W. 2 that said Sipra Sarkar is her 'nanad' and Chand Mohan Sammader had talking terms with Sipra Sarkar and she came to know from para people that Sipra was carrying for 6 24 months and though initially she denied the defence suggestion that Sipra had talking terms with so many persons, yet thereafter she had deposed that Sipra had talking terms with many boys of her para. In that case the probability of her promiscuous nature can not be ruled out and when there is such probability, then there is doubt also.
28. As per the evidence of P.W. 3 Sipra Sarkar is her 'named' by Village courtesy, but she does not know the accused and she does not know any incident and she was not examined by the Investigating Officer about this case and as she has not supported the prosecution case, so she has been declared hostile by the prosecution.
29. As per evidence of P.W. 4 Sipra is her 'nanad' but she knows nothing about the incident of Sipra or about any incident in between Sipra and the accused Chand Mohan Sammader and so she has also been declared hostile by the prosecution as she did not support the prosecution case.
30. P.W. 5 Sipra Sarkar, the informant and defacto-complainant has deposed that P.W.1 Prafulla Sarkar is her father, but she has also made self-contradictory statements once by deposing that about one year ago accused Chand Mohan Sammader committed rape upon her in a jack fruit garden and one month thereafter the accused forcibly committed rape upon her in the land of the uncle of the accused, and then by deposing 25 that she had love affairs with the accused Chand Mohan Sammader and she had sexual intercourse with Chand Mohan Sammader like husband and wife and sometimes sexual intercourse took place as per willingness of the accused and sometimes as per her willingness and she consented the accused for sexual intercourse with her making herself a consenting party having full knowledge about the consequences thereof.
31. P.W. 6 has stated that Sipra Sarkar is her sister-in-law and Anjan Pramanik is his wife and on being asked his wife told him that Chand Mohan has committed rape upon Sipra, but apparently his evidence is hearsay and as per his evidence he was not examined by the Investigating Officer over the incident of the case.
32. As per evidence of P.W. 7 her sister confessed that due to misdeed of Chand Mohan Sammader she would give birth to a child, and she had been to doctor with her sister for her medical examination, but as per evidence of the Investigating officer, P.W. 11, P.W. 7 Anjana Pramanik did not state that to him though he examined her.
33. P.W. 8 is the learned Judicial Magistrate concerned who recorded the statement of the said V.G. under Section 164 of the Code of Criminal Procedure.26
34. P.W. 9 examined said Sipra Sarkar as a Radiologist and opined that she was aged 16 years with allowable variation of 6 months to 2 years.
35. P.Ws 10,11 are Police Officers, who investigated into the case and submitted charge sheet against the accused Chand Mohan Samadder, and as per the evidence of P.W. 11 it is a fact that the statements made by the V.G. under Section 161 of Cr.P.C. and 164 of Cr.P.C. are contradictory.
36. Thus it appears from the evidence of the P.Ws as well as the documents of the prosecution, Exhibits 1 to 5 also that the evidence of the P.Ws are contradictory to the case narrated in the First Information Report, which was lodged at the Police Station at a much belated stage. Moreover the P.W. 5 herself as a woman of more than sixteen years willingly engaged in sexual intercourse with the appellant knowing fully well about the consequences thereof and voluntarily consented to have sexual intercourse with the appellant, and as such it cannot be said that the present appellant actually committed "rape" upon the P.W. 5 in view of the relevant provisions of law. Though there was allegation that the present appellant is the father of the said child of the P.W. 5, yet it has not been ascertained by any Scientific test like DNA test or paternity test that present appellant is really the father of the said child of the P.W.5. It has not also been established by sufficient reliable evidence that the P.W. 5 had any 27 knowledge from the beginning that inducing her or practising any deception upon her the appellant committed the alleged offence of rape upon her and thereby cheated her with any false promise of marriage or there was any misconception of fact.
37. In spite of reference of love affair between the parties in the First Information Report and categorical evidence of P.W. 5 that she had love affairs with the appellant Chand Mohan Sammader and it is a fact that she had sexual intercourse with Chand Mohan like husband and wife and some times sexual intercourse took place as per willingness of the accused and sometimes as per her willingness and she consented the appellant for sexual intercourse, the learned Additional Sessions Judge concerned has observed that he found nothing in the F.I.R. and nowhere from the evidence of P.W.1 that there was love affairs between the parties before the incident of rape and it should not unnecessarily be presumed that the victim of this case surrendered herself before the appellant for sexual intercourse knowing fully well the consequence and disregard to be inflicted upon herself and her family and the very conduct of the V.G. at the time of commission of rape clearly indicates that there was no willing consent on the part of the victim and it appears from the evidence that the victim did not take any active part in the intercourse with the accused which is very much expected if it is with consent out of love affairs between the 28 parties and the evidence on record has supported the prosecution case. Moreover, learned Additional Judge concerned has also observed that in view of Section 114 (A) of Evidence Act when sexual intercourse by the accused is proved and prosecutrix deposed to the effect that she was not a consenting party, the presumption arises that she did not consent and the result is entire burden to prove consent would then rest on the defence and it is not believable that rustic village girl of poor and backward class like P.W. 5 or a girl or woman of the Society would make up a false story saying herself to the victim of sexual intercourse by stranger or an outsider, though as per the evidence of P.W. 1 the appellant Chand Mohan Sammader is his adjacent neighbour, but such observation appears to be contradictory to the evidence on record and has not been made on proper consideration of the evidence on record and the learned Sessions Judge was legally wrong and was not correct in his approach in this regard by not considering the evidence on record in its proper perspective, and in such case onus is always upon the prosecution to prove its case beyond all reasonable doubt by sufficient reliable evidence and not upon the defence to disprove it or to prove the defence case, if any, in which case it would be sufficient for the defence to prove a preponderance of probability only of its case. In this regard reference may be made to a decision reported in (2010) 4 Cal LT 516 (HC) at page 523 para 25 in the case of Dibakar Singh & Anr. Vs. The State of West Bengal whereby it has been observed that :- 29
".........It is sufficient if the defence succeeds in eliciting points from the cross-examination of the P.Ws that the incident might have happened in any way other than the manner as alleged by the prosecution. The learned Judge in this respect proceeded to consider these points from a wrong angle of vision and wrongly placed the onus upon the defence to prove such points. The onus is upon the prosecution to prove the prosecution case in the manner as alleged........"..
38. Having regard to the submission of the learned Advocates for the parties materials on record and other circumstances it appears that the prosecution case that the present appellant committed the alleged offence of rape and cheating upon the said defacto-complainant or P.W. 5 by giving her false promise to marry on the alleged date, time and place and in the manner as alleged by the prosecution, has not been proved by sufficient reliable evidence beyond all reasonable doubt and in view of the decision reported in AIR 2003 Supreme Court 1639 also the appellant/accused cannot be held liable for the alleged offences and as such the learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia, was not legal, correct and justified in his approach and finding in this regard convicting and sentencing the appellant by the impugned judgement and order, which requires to be set aside.30
39. Accordingly the appeal bearing No. CRA No. 551 of 2005 is allowed. The judgement and order of conviction and sentence passed against the present appellant are hereby set aside. The present appellant is found not guilty for the charges under Sections 376/417, IPC, levelled against him, and the present appellant is acquitted from the charges of alleged offences levelled against him and he be released at once, if not wanted in any other case.
40. A copy of this judgement and order be sent to the Superintendent of Jail (Dumdum Correctional Home) at once for information and necessary action.
41. Let a copy of this judgement and order along with the Lower Court Record be sent down to the learned Court below immediately.
42. Urgent photostat copy of this judgement, if applied for, be given to the parties on usual undertaking.
(Mrinal Kanti Sinha, J.)