Patna High Court
Gouram Pal @ Shyamal Pal vs State Of Bihar on 9 February, 2012
Author: Mandhata Singh
Bench: Mandhata Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.288 of 1999
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Against the judgment of conviction and sentence dated 7.10.1999 and 8.10.1999
passed in Sessions Case no. 334 of 1996 by Shreenarayan Choudhary, Sessions
Judge, Katihar
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Goutam Pal @ Shyamal Pal .... .... Appellant
Versus
The State of Bihar .... ... Respondent
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Appearance:
For the Appellant: Mr. Rakesh Kumar Sinha, Advocate
For the Respondent: Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
ORAL JUDGMENT
Date: 09-02-2012
Mandhata Singh,J. Prosecution case initiated on a written application of Meena Devi
Samanto addressed to the S.P. Katihar, in brief, is that two years' earlier she had
proposed marriage of her daughter Nanda Samanto with appellant Goutam Pal @
Shyamal Pal. Proposal was accepted and marriage was settled in presence of Hena
Rani Pal, Jyotindra Pal, Ajit Pal and Dilip Pal. After settlement of marriage
intimacy in between the bride and bridegroom developed, leading to their
frequent meeting. An amount of Rs. 2,000/- advanced to the bridegroom party but
for want of more money, marriage could not be solemnized rather marriage was
refused. In the meantime, it is said that due to intimacy both the bridegroom and
bride entered into sexual indulgence.
2. After concluding the trial, the case is ended in conviction and
sentence to the appellant for the offence under sections 376 and 493 of the Indian
Penal Code.
3. In all ten witnesses are examined in the case and they are P.W.1
Sandhaya Samanto, P.W.2 Anup Kumar Das, P.W.3 Pallav Biswas, P.W.4
Swapan Kumar Munshi, P.W.5 Rabindra Nath Samanto, P.W.6 Gopal Mukherjee,
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P.W.7 Dr. Kanak Ranjan, P.W.8 Meena Devi informant of the case, P.W.9 Nanda
Samanto victim of the case and P.W.10 Shyam Narayan Pandey I.O. of the case.
4. Of witnesses, P.Ws 2, 3, 4 and 6 state to know nothing about the
incident though all have been declared hostile, cross-examined by the prosecution
but in the same also nothing has appeared to corroborate the prosecution case.
P.W.7 is doctor and P.W.10 is I.O. of the case. Rest of the witnesses namely P.Ws
1,5, 8 and 9 are witnesses to state the averment made in the written application.
5. According to learned defence counsel, averment made in the
written application corroborated by the witnesses namely P.Ws 1, 5, 8 and 9 if is
accepted then also no case either under section 376 of the Indian Penal Code or
section 493 of the Indian Penal Code is made out. Of the above four witnesses,
P.W.9 is victim of the case, her statement is to be believed for happening of any
thing may be said conclusive also for the prosecution case. In paragraph 1 she
states that she was knowing this appellant from before, therefore, she fell in love
of him (appellant). On allurement of marriage she indulged with him in sexual
relation. In paragraph 7 more elaborately she states that they were meeting not
openly but was known to Mohalla people, in course of sexual intercourse there
was no pregnancy, no preventive measure was being taken on her behalf but that
was taken on behalf of appellant. This relation came in knowledge of parents of
the victim only after 4-5 months and after knowing the same they went to
appellant's guardian.
6. It is admitted fact in the case that victim was major at the time of
sexual relation, so the act to have sexual intercourse by the appellant is rape only
if it is committed against the will of the victim P.W.9 (daughter of informant),
without her consent, with her consent, when her consent was obtained by putting
her or any person in whom she was interested in fear of death or of hurt, with her
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consent, when the appellant knew that he was not her husband, and that her
consent was given because she believed that he was another man to whom she
was or believed herself to be lawfully married, 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 was unable to understand the nature and
consequences of that to which she gave consent. It is not a case that sexual
relation of informant's daughter with this appellant was against her will or
without her consent or consent was obtained by putting her or any person in
whom she was interested in fear of death or of hurt nor anything was suppressed
or hidden or existing that she believed the appellant to be lawfully married or
under the influence of any intoxication rather it is a clear case of their love affair,
as averred, they indulged in sexual intercourse then only appellant's guardian was
approached for their marriage so no case under section 376 of the Indian Penal
Code is made out.
7. Another offence for which appellant is convicted is the offence
under section 493 of the Indian Penal Code, it runs as follows:-
"493. Cohabitation caused by a man deceitfully inducing a
belief of lawful marriage. -- Every man who by deceit causes any
woman who is not lawfully married to him to believe that she is
lawfully married to him and to cohabit or have sexual
intercourse with him in that belief, shall be punished with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine."
8. According to learned counsel, every thing was open to both the
parties, nothing was suppressed or hidden. There was no deceit causing
informant's daughter to believe that she was lawfully married to the appellant
rather it was their love only and act of parties only fixes liability for constituting
any offence which is lacking in the case. Without considering the same,
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conviction and sentence reached by the trial court is not liable to be sustained.
One thing moré is submitted on behalf of learned counsel for the defence though
there is no material on record that now parties (daughter of the informant and
appellant) have married also. Marriage certificate was there in personal record of
the lawyer shown to this Court.
9. After having considered the evidence on record and the material
recorded by the trial court, the appeal is allowed. The judgment and order dated
7.10.1999and 8.10.1999 for conviction and sentence passed in Sessions Case no.
334 of 1996 by Sessions Judge, Katihar is set aside. Accordingly, appellant is acquitted of the charges, discharged from the liability of bail bond and set at liberty.
10. Copy of judgment along with lower court records be sent back to the trial court forthwith.
(Mandhata Singh, J) A.I./ AFR