Calcutta High Court (Appellete Side)
In Re : Sudarshan Mondal vs State Of W.B. [1984 Crlj 1535 on 14 March, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1 14/03/2013
CRA No. 607 of 2007 In re : Sudarshan Mondal ... Petitioner Mr. Bitasok Banerjee ... For the appellant Ms. Kakali Chatterjee ... For the State This appeal arose out of judgment and order dated 31.7.2007 passed by the learned Assistant Sessions Judge, Rampurhat, Birbhum in Sessions Case No. 21 of 2001 and thereby convicting the appellant for offence punishable under Section 376 IPC and sentencing him to suffer rigorous imprisonment for a term of two years with a fine of Rs. 5000/- with default clause.
In the background of this appeal the fact in a nutshell is that one Sudharshan Mondal promised the victim girl to marry and raped her. As a result, she became pregnant and then she was dragged out from the house of the accused and miscarriage was done. 2 A complaint was lodged under Section 156(3) of the Code of Criminal Procedure with the Police, Mayureshwar P.S. After investigation the Police submitted charge- sheet under Section 419/493/376/313/120B IPC.
The case was committed to the learned court of Sessions by the learned Magistrate, Rampurhat, Birbhum.
On hearing of both sides charge was framed against the accused person under Section 493/376/313/34 IPC against the accused Sudarshan Mondal and under Section 313/34 of IPC against the accused Narayan Chandra Mondal and Haradhan Mondal.
The contents of the charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried.
Thereafter, the accused Haradhan Mondal expired. To prove this case the prosecution examined 8 witnesses while none were examined on the side of the defence. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross- 3 examination and the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure is denial of offence with a plea of innocence.
On hearing of both sides, the learned trial court convicted the present petitioner by the impugned judgment. The point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Section 376 IPC reads as under:
S. 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 women raped 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:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose 4 a sentence of imprisonment for a term of less than seven years.........
The learned counsel for the appellant argued mainly on the following points:
i) There was no injury either on the person of the accused or on the prosecutrix and that happens only when both parties are consenting.
ii) There was embellishment in the evidence of prosecution witnesses.
iii) From the evidence of doctor PWs 4 and 7, there was no injury found in the private parts of the victim girl.
iv) The victim girl did not state the name of the person by whom she became pregnant.
The learned counsel for the State, on the other hand, strenuously argued that this is a case where sentence passed by the learned trial court should be sustained.
To appreciate the case from a better angle some relevant pieces of evidence are required to be discussed here.
PW 1 is the father of the victim. He stated that at the relevant point of time his daughter was aged about 14 years. He also stated that while he used to work in 5 the house of the accused persons his daughter developed a love affair with Sudarshan Mondal and then his daughter was taken to the village Belara by the accused/appellant with a view to marry her and he promised in presence of Goddess Ma Manosha that he will marry his daughter and as such went on intercoursing with her and subsequently, his daughter became pregnant and when requested by the victim, he refused to marry her. Further, it was the evidence of PW 1 that against the will of his daughter the accused caused miscarriage of the foetus of the victim girl.
PW 2, the victim girl also stated like this. She stated that she had love affairs with the accused person and on the promise of marriage she cohabited with the accused person and became pregnant and when requested to marry he refused to marry her and the accused with his associates forced the victim girl to miscarry the foetus.
PW 3 is a villager. He heard from the villagers about pregnancy caused by the accused. He stated that a salish was called but Ganesh Mondal, the father of the victim demanded money from the accused's family. It is a new case. Further in cross-examination he stated 6 that Ganesh Mondal demanded money from Narayan Mondal for meeting up the miscarriage of her daughter.
PW 4 is a doctor. He examined the victim and found that she was carrying for 20 weeks.
PW 5 did pathological tests of the victim girl.
PW 6 was declared a hostile witness.
Confrontation of his evidence was taken from the I.O., PW 8. Other witnesses do not appear to be a truthful one.
PW 7 is another doctor. On examination of the victim girl he found that her hymen was raptured and torn.
Now, the question is whether the victim is a consenting party or not. She and her father claimed that she is 14 years old.
It was argued by the learned counsel for the State that no cross-examination was made by the defence that the victim was not 14 years old. So, it shall be presumed that the victim is 14 years old. The prosecution is to prove the case beyond all reasonable doubts. They cannot capitalise the lapses of the appellant. No school leaving certificate or birth certificate or ossification test is forthcoming here to show 7 that the victim girl is a minor and as such her consent to act upon the promise given by the accused/appellant to marry and to allow her to be a party to the cohabitation between her and the appellant is of no consequence. Admittedly, the petitioner is a consenting party. Even, her father was aware of the fact that her daughter was indulged in the love affairs and became pregnant but why they did allow the matter to reach such a level is not clear. This piece of silence is suggestive of the factum that the father and the victim girl accepted the phenomenon of the sexual intercourse between the victim and the accused on the promise to marry. The learned counsel for the appellant cited before me an unreported decision arising out of SLP (Cri) 3072 of 2006 passed on 17.8.2007 by the Hon'ble Apex Court in Criminal Appeal No. 1086 of 2007 wherein the Hon'ble Apex Court discussed the length and breadth of Sections 376 and 493 IPC alongwith the factum of consent for the purpose of attracting Section 376 IPC. The Hon'ble Division Bench of High Court at Calcutta in the case of Jayanti Rani Panda vs. State of W.B. [1984 CrLJ 1535] observed as follows:
8
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC 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.
In my opinion, promise to marry is something different from miscarriage of fact. In this case, the appellant is said to have promised to marry. Thus, promise has not been acted upon. Promise does not 9 necessarily mean that it is a fact. The fact constitutes promise sometimes whereas promise itself is not a fact. The misconception of fact is an aspect which has already taken place i.e. a past incident, for example, if a man keeps his hand on the head of an idol and promise to a girl by saying that "I have married you". Then it is a fact. Further, if the girl acts on such fact that she is married to the man and ultimately, it appears that the man takes a volte face, that can be treated as a misconception of fact. But promise to marry cannot be equated with a misconception of fact.
For a long period they went on maintaining the relationship without any demur but when she realized that something wrong has already taken place, she regained her conscience. She should have looked before she had leapt. She understood what is meant by sexual intercourse done days together and what may be the outcome of such action. She should have taken guard against the consequences of such act. Here, when the rod was hot, she did not strike the same. Much delay has caused. The decision referred to above helps the appellant in this case. Needless to mention, the learned court below considering the materials on record did not 10 find any material to rope the present appellant for commission of offence under other Sections of charge.
Hence, I find on consideration of the totality of the circumstances and the materials on record that the prosecution could not prove the case under Section 376 IPC and the findings of the learned court below is not correct and the same is liable to be set aside.
In the result, the appeal stands allowed. The impugned judgment is hereby set aside. The accused/appellant be released from bail bonds and set at liberty if he is not wanted in any other case.
Let a copy of the judgment and the LCR be sent down to the learned court below immediately.
Urgent Photostat certified copies, if applied for, be supplied according to rules.
(Toufique Uddin, J.)