Tripura High Court
Sri Suman Tanti vs The State Of Tripura on 26 November, 2021
Author: S. G. Chattopadhyay
Bench: S. G. Chattopadhyay
Page - 1 of 19
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) No.08/2020
Sri Suman Tanti,
Son of Late Sribatsya Tanti @ Bacha,
Of Champahour, P.S-Khowai,
District : Khowai Tripura.
............... Appellant(s).
Versus
The State of Tripura,
............... Respondent(s).
BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellant(s) : Mr. Subrata Sarkar, Sr. Advocate.
Ms. P. Chakraborty, Advocate.
Ms. M. Pal, Advocate.
For Respondent(s) : Mr. S. Debnath, Addl. Public Prosecutor.
Date of hearing : 8th October, 2021.
Date of Judgment & Order : 26th November, 2021.
Whether fit for reporting : NO.
JUDGMENT AND ORDER
This appeal is directed against the judgment and order of the learned Session Judge, Khowai dated 19.02.2019 passed in Case No.ST(T-1) 17 of 2014 convicting the appellant under Section 376 (1) IPC and sentencing him to undergo rigorous imprisonment for seven years and fine of Rs.5,000/- with default stipulation and further convicting him under Section 417 IPC and sentencing him to undergo R.I for one year and fine of Rs.2000/- with default stipulation. Crl. A(J) No.08/2020.
Page - 2 of 19 [2] The factual context of the case is as under:
The appellant had sexual intercourse with the victim assuring marriage. The victim (named withheld) lodged a written FIR with the Officer-in-Charge of Kalyanpur police station on 19.08.2016 alleging, inter alia, that after she got acquainted with the accused he assured that he would marry her. Pursuant to his assurance victim accompanied him to his uncle‟s house at Silchar where they lived together for about a month. During their stay there, accused had repeated sexual intercourse with the victim. After about a month, accused left the victim. It was also alleged by the victim in her FIR that accused appellant sold out her gold ear ring and nose pin to meet their daily expenses. Subsequently, he declined to marry her. As a result, victim lodged the FIR seeking police intervention. On the basis of her FIR Kalyanpur P.S case No.25 of 2013 under Sections 376 and 493 IPC was registered and the case was taken up for investigation. After completion of investigation, charge sheet was submitted for commission of offence punishable under Sections 376 and 493 IPC against the appellant.
[3] Cognizance of offence was taken by the Jurisdictional Magistrate and after commitment of the case to the Court of Sessions trial commenced in the Court of the learned Session Judge with the framing of the following charges against the appellant:
"Firstly that you after acquaintance with Smti. *** for a period of one month prior to 16.08.2013 committed rape upon her at your uncle‟s house satiated at Silchar, Lalabazar and thereby committed an offence punishable under Section-376 the Indian Penal Code and within the cognizance of this Court;
Crl. A(J) No.08/2020.
Page - 3 of 19 Secondly that you within the said period as stated above, fraudulently induced Smti. *** to commit sexual intercourse with you by promising marry the said Smti *** and that you thereby committed an offence punishable under Section- 417 of the Indian Penal code and within the cognizance of this Court.
And I do hereby direct that you be tried on the said charges by this Court of Sessions."
Appellant pleaded not guilty to both the charges and desired to stand the trial.
[4] In the course of trial prosecution examined 11 witnesses (PW-1 to PW-11) including the victim, her mother, some of her neighbours, the medical officer who held her medical examination to find out evidence of rape and the investigating officer. Apart from adducing the oral evidence of the witnesses, prosecution introduced 13 documentary evidence which were marked as Exbt.1 to Exbts.13/1.
The incriminating materials which appeared from prosecution evidence were then explained to the accused in terms of Section 313 Cr. P.C. The plea of the defence was complete denial of the prosecution case and no witness was examined on behalf of the defence. [5] Learned Sessions Judge, Khowai after thread bare discussion of the materials available on record, convicted the appellant for commission of offence punishable under Sections 376 (1) IPC and 417 IPC and sentenced him to undergo imprisonment and pay fine as aforesaid.
[6] Heard Mr. S. Sarkar, learned Sr. Advocate appearing along with Ms. Piyali Chakraborty and Ms. Monalisa Pal for the appellant. Also Crl. A(J) No.08/2020.
Page - 4 of 19 heard Mr. S. Debnath, learned Additional Public Prosecutor representing the State respondents.
[7] The appellant has challenged his conviction and sentence mainly on the following grounds:
(i) Despite serious discrepancy in the evidence of the victim prosecutrix (PW-1), the trial Court has relied on her testimony to convict and sentence the appellant which is erroneous and unsustainable.
(ii) Prosecution cannot take the plea that appellant committed sexual intercourse on the victim on false assurance of marriage because at the time of occurrence the victim was at her consenting age and there was no allegation that sexual intercourse with her was committed against her will.
(iii) Her evidence would reveal that she voluntarily left home with the accused and lived together with him at Silchar without the slightest objection and voluntarily participated in physical relationship with the accused appellant. Therefore, conviction of the appellant under Section 376 (1) IPC or Section 417 IPC is not sustainable.
[8] While arguing on behalf of the appellant, Mr. Sarkar, learned Sr. Advocate has vehemently contended that the prosecutrix willingly consented to having sexual intercourse with the appellant because they had developed love affairs. She participated in the physical relationship as Crl. A(J) No.08/2020.
Page - 5 of 19 a result of her love for the appellant and not because of his promise to marry her. Counsel submits that her consent was a free consent. There is no evidence of any kind of duress from the side of the accused. In support of his contention counsel has relied on the decision of the Apex Court in Uday Vs. State of Karnataka reported in AIR 2003 SUPREME COURT 1639 wherein the Apex Court in paragraph 25 of the Judgment has held as under:
"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 Section 90 IPC. 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 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 place at 12 O'clock in the night. It Crl. A(J) No.08/2020.
Page - 6 of 19 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 over come 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."
[9] Counsel further contends that since the prosecutrix voluntarily participated in the physical relationship with the appellant after having fully exercised the choice between resistance and assent, it was a free consent on her part within the meaning of Section 375 IPC. In support of his contention, counsel has relied on the decision of the Apex Court in the Case of Kaini Ranjan vs. State of Karnataka reported in (2013) 9 SCC 113, wherein the Apex Court has held as under :
"12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act Crl. A(J) No.08/2020.
Page - 7 of 19 must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 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. [See State v. Mango Ram (2000) 7 SCC 224]"
[10] Having relied on the decision of the Apex Court in the case of Dipak Gulati Vs. State of Haryana reported in (2013) 7 SCC 675, learned counsel has argued that since the consent of having sexual intercourse with the appellant was given by the prosecutrix after wholly understanding the nature and consequence of such act and on account of her love and passion for the appellant arising out of a long standing relationship, it did not amount to rape within the meaning of Section 375 IPC. Counsel has relied on paragraph-21 of the judgment of the Supreme Court in Dipak Gulati(supra), wherein the Supreme Court has held as under:
"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to Crl. A(J) No.08/2020.
Page - 8 of 19 satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."
[11] Finally, it was argued by Mr. Sarkar that "false promise of marriage" as alleged by the prosecutrix had no nexus to the consent of the prosecutrix to having sexual intercourse with the appellant because such consent was given by her as a result of her love and passion for the appellant after fully understanding the consequences of such sexual indulgence and, therefore, conviction of the appellant for rape is not sustainable. To support his contention Mr. Sarkar, learned Sr. advocate has relied on the decision of the Apex Court in Pramod Surajbhan Pawar vs. State of Maharashtra and Anr.; reported in (2019) 9 SCC 608 wherein the Apex Court vide paragraph-18 of the judgment has held as under:
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was Crl. A(J) No.08/2020.
Page - 9 of 19 vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
[12] Mr. Sarkar, learned Sr. advocate contends that for the present case, the school certificate of the victim collected during investigation of the case would reveal that she was born on 10.01.1992. According to her the alleged occurrence took place between month of July and August, 2013 when the victim was more than 20 years of age and a quite matured lady. Despite knowing everything about the status of the accused she accompanied him to Silchar where they lived together for about a month. There is no allegation of application of force to her. She volunteered to live with the accused in the house of a relative of the accused at Silchar and from there she voluntarily returned home. In these circumstances, accused cannot be held guilty of rape or cheating. Counsel therefore, urges the Court to set aside his conviction and sentence. [13] Opposing the contention of the counsel of the appellant, Mr. S. Debnath, learned Additional Public Prosecutor submits that the accused was a married man. He concealed his marriage to the victim as a result of which she agreed to accompany the appellant to Silchar where they lived together for about a month and the appellant had sexual intercourse with the victim during the period. Counsel submits that consent to sexual intercourse given by the victim was clearly vitiated by misconception in terms of Section 90 IPC because her consent was obtained by the Crl. A(J) No.08/2020.
Page - 10 of 19 appellant under the pretext of marriage by misconstruing his true intention to her. It is contended by Mr. Debnath that appellant had no intention of actually marrying the victim. He made a false assurance that he would marry her only to indulge in sexual intercourse with her. Counsel, therefore submits that there is no ground to interfere with the conviction and sentence of the appellant. Counsel urges the Court to uphold his conviction and sentence.
[14] Counsel of the parties have taken this Court to the evidence of the prosecution witnesses. Victim of the case who has been examined as PW-1 has categorically asserted in her evidence that she got introduced to the accused petitioner through online chatting. Pursuant to the request of the accused, she met him physically at Bagan Bazar in Khowai. Accused allured her with the proposal of marriage and assured her that he would marry her if she accompanied him to Silchar. Initially, she refused. Accused then told her that he would die if she does not go with him. Persuaded thus, she agreed to accompany him. They travelled to Teliamura by a bus and from there they went to Silchar by train. Both of them took shelter in the house of one Paresh Tanti, uncle of the accused at Silchar. Even though no marriage took place between them, they started living as husband and wife. After few days the accused put vermilion on her forehead as per Hindu custom of marriage. The victim further stated that they lived together in that house for about one month and during the said period they had physical relationship. Victim then requested the accused to take her to his house. But he refused to do so saying that he was a married person having one son. Knowing that the Crl. A(J) No.08/2020.
Page - 11 of 19 accused had his wife and son, victim broke down into tears. Thereafter the accused petitioner brought her back to Khowai and deserted her on the street in night. Somehow, she arrived at home and narrated everything to her parents. Two days thereafter, she went to the police station and reported the matter to the police. During investigation police produced her before the Judicial Magistrate who recorded her statement.
PW was subjected to cross-examination by the counsel of the accused. In cross-examination, accused tried to impeach her statement by making various suggestions to her. It was suggested to her that she along with her parents and neighbours forcefully lifted the accused to Bagan Bazar and compelled him to take her to Silchar from there. She denied the suggestion. It was also suggested to her that accused never lived with her at Silchar as husband and wife which was also denied by the witness. It was further suggested to her that she accompanied the accused to Silchar and lived there with him voluntarily. She categorically denied the suggestion.
[15] Her mother, PW-2 stated in her examination-in-chief that after her daughter was missing from home, she and her husband started searching for her and came to know that the accused had taken her daughter to Silchar. After about a month, her daughter returned home and told her that she stayed with the accused in the house of his uncle at Silchar where they lived together as husband and wife. Accused initially told her daughter that he was unmarried but subsequently when she came to know that he was a married person, she wanted to return home. Accused then brought her to khowai and deserted her on the road near Crl. A(J) No.08/2020.
Page - 12 of 19 her village. After returning home her daughter reported the matter to police. Several suggestions were put to the witness in cross-examination like her daughter compelled the accused to take her to Silchar and she voluntarily accompanied him and stayed with him. The PW denied the suggestions.
[16] PW-3, also supported the evidence that accused had taken the victim to Silchar and lived together in the house of his uncle. [17] PW-4, a neighbour of the victim also told the trial court that he was aware of the fact that accused had taken the victim to Silchar and lived in his uncle‟s house together with the victim for about a month and when the victim came to know that he was a married man, she wanted to return home. Accused then brought her back to Khowai and deserted her near her village.
[18] PW-5, was a police constable who produced the victim at hospital for medical examination where she was subjected to medical examination on 19.08.2013.
[19] PW-6, was also a police officer who under the instructions of the Officer-in-Charge of Kalyanpur police station brought the accused to hospital for his medical examination where the accused was subjected to medical examination.
[20] PW-7, a constable of police stated that the school certificate of the victim was seized by the investigating officer of the case in her Crl. A(J) No.08/2020.
Page - 13 of 19 presence and she put her signature on the seizure list which was identified by her as Exbt.-4.
[21] PW-8, is another police constable who under the instruction of the Deputy Superintendent of Police further produced the accused at Kalyanpur hospital for his medical examination which was done in the hospital.
[22] PW-9, is the Investigating Officer. He stated that he conducted part of the investigation of the case and on 18.09.2013 he handed over the case to the Officer-in-charge of Kalyanpur Police Station before completion of investigation.
[23] PW-10, is the second Investigating Officer who completed the investigation of the case and evidence collected during investigation having supported the charges against the accused, he laid charge sheet against accused for offence punishable under Sections 376 and 493 IPC. [24] PW-11 was the Medical Officer at Kalyanpur Community Health Centre at Khowai during investigation of the case when the victim was produced before him for medical examination. After medical examination of the victim, he gave the following opinion:
"***** it is not that she has not experienced sexual intercourse. The PW identified his report as Exbt.11"
[25] The evidence discussed herein above clearly demonstrates that accused allured the victim with the promise of marriage, as a result Crl. A(J) No.08/2020.
Page - 14 of 19 of which she accompanied him to Silchar where they lived together for about a month and she was subjected to repeated sexual intercourse. It is also evident that soon after the victim came to know that accused was a married person and he was also having a son, she declined to stay with him. Accused then brought her back to her village and deserted her on the street during night. She took shelter in her uncle‟s house during night and in the following morning she returned home and told everything to her parents and thereafter she reported the matter to police. [26] The question which arises for consideration is that whether in this fact situation the trial Court was justified to hold the accused guilty of offence punishable under Sections 376(1) and 417 IPC. [27] Learned trial court held that charge of rape against the appellant was proved because the appellant obtained consent of the prosecutrix for sexual intercourse under the pretext of marriage knowing it fully well that he would not marry her.
[28] It was apparent from the conduct of the appellant that he only wanted to indulge in sexual intercourse with the victim and he had no intention of actually marrying the victim. In order to materialise his intention, he obtained her consent by concealing his marriage to her. The victim in her cross-examination, reaffirmed that the appellant obtained her consent on the pretext of marriage. In view of such conduct of the appellant and the evidence of the victim, the argument of learned counsel that „assurance of marriage‟ has no relevance because victim was at her Crl. A(J) No.08/2020.
Page - 15 of 19 consenting age and she consented to sexual intercourse out of her love and passion for the appellant is not acceptable. [29] In the case of Uday vs. state of Karnataka(supra) undisputedly the appellant and the prosecutrix were in deep love. The circumstances of the case revealed that their relationship was so deep that the prosecutrix did not hesitate to go out with the appellant to a lonely place even at 12 O‟clock in the night. On appreciation of the peculiar circumstances of the case, the apex court held that the prosecutrix in that case 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. (Italics supplied) In such circumstances, promise of marriage lost relevance. [30] The context of the present case is completely different. There is no evidence at all that they were in deep love. The given circumstances and evidence on record clearly indicate that appellant obtained her consent on the pretext of marriage to gratify his lust knowing it fully well that he would never marry her. He was also quite aware of the fact that the victim submitted to the allurement of marriage without fully understanding the consequence and as such her consent cannot be termed as free consent in terms of Section 90 IPC. [31] The conduct of the appellant has proved that even though he had no intention to marry her, he kept the promise of marriage alive only Crl. A(J) No.08/2020.
Page - 16 of 19 to obtain her consent for having sexual intercourse. His intention was, thus, clearly malafide. Such act of the appellant falls squarely under the definition of rape in terms of Section 375 IPC as he had sexual intercourse with the victim with her consent which was given under misconception of fact as defined under Section 90 IPC. [32] In the case of Kaini Ranjan(supra) relied on by the counsel of the appellant, the Apex Court succinctly held that „consent‟ is an act of reason coupled with deliberation and whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.
(Italics supplied) In the given context, the consent of the victim, as discussed, was clearly vitiated by allurement of marriage. In the case of Dipak Gulati(supra), it was held by the Apex Court that in similar circumstances accused can be convicted for rape only if the court can come to the conclusion that intention of the accused was malafide, and that he had clandestine motives. In order to arrive at such conclusion, court must very carefully examine whether accused had actually wanted to marry the victim, or had malafide motives and had made a false promise to this effect only to satisfy his lust. Clearly in this case, the whole conduct of the appellant irresistibly lead us to conclude that he never wanted to marry the victim because he was already married and he had a son from his marriage. He concealed these facts. It has been clearly proved that victim would not have consented to sexual intercourse Crl. A(J) No.08/2020.
Page - 17 of 19 with him had she not been deceived by the appellant with false promise of marriage.
[33] Same principle was reiterated by the Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vrs. State of Maharastra & others: reported in AIR 2019 SC 327 wherein it was held by the Apex Court that in similar circumstances if the accused had any mala fide intention and if he had clandestine motives, it would be a clear case of rape.
[34] In Pramode Surajbhan Pawar(supra) also, the Apex Court held that „consent‟ in terms of Section 375, IPC must involve an active and reasoned deliberation towards the proposed sexual intercourse and to establish that consent of the victim was vitiated by misconception of fact two propositions have to be established. One of those propositions is that promise of marriage was false and the other is that such promise had a direct nexus to the woman‟s decision to engage in the sexual act. In the present context both the propositions have been clearly established. Consent of the victim was vitiated by misconception of fact because promise of marriage was evidently false and the appellant had knowledge of it and it is also evident that appellant had sexual intercourse with her after obtaining her consent on the pretext of marriage which clearly proves that promise of marriage had direct nexus to the consent of the victim. As a result, the appellant cannot derive any benefit from the judgments relied upon by him.
Crl. A(J) No.08/2020.
Page - 18 of 19 [35] In the case of UP vs. Naushad; reported in (2013) 16 SCC 651 the accused had sexual intercourse with the prosecutrix by giving a false assurance to her that he would marry her. After she got pregnant, he refused to do so. The apex Court held that from this it was evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. (Italics supplied) [36] In Anurag Soni Vrs. State of Chattisgarh; reported in (2019) 13 SCC 1 the Apex Court reiterated that promise of marriage for obtaining consent for sexual intercourse without any actual intention to marry vitiates the consent and such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and in such case consent would not excuse the offender charged under Section 376 IPC.
[37] Having applied the ratio decided by the Apex Court in the judgments cited to supra and having re-evaluated the entire evidence and the facts and circumstances of the case, this court is of the considered view that the decision of the trial court with regard to the conviction and sentence of the appellant does not call for any interference in appeal. Resultantly, the appeal stands dismissed. Appellant will suffer the remaining period of his sentence.
Crl. A(J) No.08/2020.
Page - 19 of 19 [38] In terms of the above, the appeal is disposed of. Pending application(s), if any, also stand disposed of accordingly.
Send back the LC Record.
JUDGE Dipankar Crl. A(J) No.08/2020.