Gauhati High Court
Debo Prasad Barman @ Deba Prasad Barman vs The State Of Assam And Anr on 28 February, 2025
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GAHC010196422023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./334/2023
DEBO PRASAD BARMAN @ DEBA PRASAD BARMAN
S/O LT. DHARANIDHAR BARMAN,
R/O BAHIRA CHENGMARI, P.S.- BONGAIGAON, DIST.- BONGAIGAON,
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE LEARNED P.P., ASSAM.
2:PRATIBHA SUTRADHAR
W/O MAHENDRA SUTRADHAR
VILL.- BAHIRA CHENGMARI
P.S.- BONGAIGAON
DIST.- BONGAIGAON
ASSAM
Advocate for the Petitioner : MR SARFRAZ NAWAZ, SAMIM RAHMAN,MR S A
BARBHUYAN,A W AMAN,MR. SURAJIT DAS,MS SURAYA RAHMAN
Advocate for the Respondent : PP, ASSAM, MS. MEGHALI BARMAN (R-2)
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER (CAV)
Date : 28-02-2025
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1. Head Mr. S. Nawaz, the learned counsel for the appellant. Also heard Ms.
S.H. Bora, the learned Additional Public Prosecutor for State respondent no. 1
and Ms. M. Barman, the learned counsel appearing for respondent no. 2.
2. This is an appeal u/s 374(2) Cr.PC against the impugned judgment & order
dated 10.07.2023 passed by learned Special Judge, Bongaigaon in Special (P)
Case No. 15(BGN) of 2019 convicting the accused/appellant u/s 376 IPC and
sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of
Rs. 3,000/- in default Simple Imprisonment for 3 months.
3. The prosecution story in brief is that on 09.06.2019 at about 6 PM the
accused/appellant took the victim girl to his house on the pretext of marrying
her and committed sexual intercourse with her and in the next morning the
accused along with the other family members assaulted the victim and drove
her out of the house.
4. On receipt of the FIR a G.D. Entry was made at Bidyapur Police Outpost
and then the same was forwarded to OC, Bongaigaon for registering a case.
Accordingly, a Bongaigaon P.S. Case No. 398 of 2019 u/s 366(A)/376 IPC read
with Section 6 of the POCSO Act was registered and the Investigation Officer
investigated the case accordingly. After completion of investigation, recording of
statement of victim u/s 164 Cr.PC and collecting her medical examination report,
the charge-sheet was filed against the accused/appellant. Charge was also
accordingly framed by the learned Special Judge against the accused/appellant
u/s 376 IPC read with Section 4 of the POCSO Act. The accused pleaded
innocence when charge was read over and explained to him and claimed to be
tried.
5. The prosecution examined as many as 9 (nine) nos. of witnesses, the
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statement of the accused/appellant Debo Prasad Barman is also recorded u/s
313 Cr.PC in which he pleaded not guilty but did not adduce any evidence in
favour of his case. The learned Special Judge heard the argumentput forward by
both sides and considering the evidence on records etc. passed the judgment
and order dated 10.07.2023 convicting the accused/appellant u/s 376 IPC,
holding that the victim was not below 18 years at the relevant time of incident
and thereby sentenced to undergo Rigorous Imprisonment for 10 years
alongwith a fine of Rs. 3,000/- in default of payment Simple Imprisonment for
another 3 months.
6. On being aggrieved and dissatisfied by the judgment and order of the
learned Special Judge, Bongaigaon, the present appeal has been preferred by
the accused/appellant.
7. It is submitted by Mr. Nawaz, the learned counsel for the appellant that
the learned Trial Court below committed grave errors and mistake in law as well
as of facts while passing the order of conviction against the present appellant.
8. The learned Trial Court below did not scrutinise the entire materials on
record in its true perspective and passed the order of conviction which led itself
to the perverse finding and conclusion, and hence, the judgment is liable to be
set aside.
9. Mr. Nawaz further submitted that the PW-1,the informant and PW-2, the
victim of this case deposed that she was 17 years of age at the relevant time of
incident and also produced the birth certificate to that effect which is exhibited
as Material Ext-1. But, the Health Educator, Bongaigaon PHC, DW-1 has proved
that the Material Ext.-1, the Birth Certificate is a fake document and on the basis
of which the learned Trial Court below also considered that the victim was not a
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minor at the time of occurrence. Thus it is seen that the prosecution had tried
to make out of case on the basis of some fake documents and tried to implicate
the accused/appellant in a case of POCSO.
10. Mr. Nawaz further submitted that the learned Special Judge also failed to
appreciate the medical evidence in its true perspective and considering the torn
hymen which is an old tear, held that there is a medical evidence which speaks
about the rape on the alleged victim. As per medical evidence there was no
semen stain or injury found on the part of the victim's body and the PW-6, the
doctor also could not state with certainty that there was a rape on the victim.
That in spite of such medical evidence and age of the victim the learned Special
Judge had passed the order of conviction without appreciating the medical
evidence and the other relevant evidence in its true perspective. More so, it is
seen from the evidence of the victim herself that she had gone to the house of
the appellant and stayed with him by her own and thus the learned Trial Court
below had ignored that even if there is any sexual intercourse between the
victim and the accused/appellant, it was consensual.
11. Mr. Nawaz further submitted that in fact that the prosecutrix/victim
deserves paramount consideration but here in the instant case from the medical
evidence and from the evidence of the victim herself it is seen that her evidence
does not inspire enough confidence to record conviction against the present
accused/appellant. Apart from that there were various contradictions and
discrepancies in the evidence of the vital witnesses of the prosecution which
creates reasonable doubt in the veracity of the case of the prosecution.
12. Mr. Nawaz further submitted that it is a settled principle of law that the
conviction can be based on the sole evidence of the prosecutrix, if the same has
inspired confidence and appears to be absolute trustworthy, unblemished and
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should be of sterling quality. In that context he also relied on a decision of
Hon'ble Apex Court reported vide (2020) 10SCC 573 Ganesh v. State
represented by its Inspector of Police and basically relied on para 10.3 of
the said judgment which reads as follows:-
"10.3. Who can be said to be a "sterling witness", has been dealt with and considered
by this Court in Rai Sandeep v. State (NCT of Delhi), In para 22, it is observed and held as
under:
"22. In our considered opinion, the "sterling witness" should be of a very high
quality and calibre whose version should, therefore, be unassailable. The court considering
the version of such witness should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the witness would be immaterial
and what would be relevant is the truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the statement right from the starting
point till the end, namely, at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent with the case of the
prosecution qua the accused. There should not be any prevarication in the version of such a
witness. The witness should be in a position to withstand the cross-examination of any length
and howsoever strenuous it may be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it.
Such a version should have corelation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said version should consistently match with
the version of every other witness. It can even be stated that it should be akin to the test
applied in the case of circumstantial evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above test as well as all 12 other such
similar tests to be applied, can it be held that such a witness can be called as a "sterling
witness" whose version can be accepted by the court without any corroboration and based on
which the guilty can be punished. To be more precise, the version of the said witness on the
core spectrum of the crime should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said version in material particulars
in order to enable the court trying the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the charge alleged."
13. Mr. Nawaz accordingly submitted that it is a fit case wherein the order of
conviction and sentence passed by the learned Special Judge, Bongaigaonin
Special (P) Case No. 15 (BGN) of 2019 can be set aside and quashed.
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14. Ms. S.H. Bora, the learned Additional Public Prosecutor appearing on
behalfof State Respondent No. 1 submitted in this regard that the victim may
went with the accused on her own and may had sexual intercourse with the
accused/appellant but from the materials available in the case records and
evidence of the PW-2, the victim it is seen that the consent was obtained only
with the misconception of fact. The statement of the victim was found to be
consistent at every stages of her evidence and there cannot be any ground for
disbelieving the victim and the informant. She further submitted that it may be a
case wherein the victim may be a girl of more than 18 years and thus the
POCSO may not be attracted but the facts remained same that the petitioner
was raped by the accused/appellant only with the pretext of false promise of
marriage and thus the learned Trial Court below had rightly convicted the
accused/appellant and sentenced him accordingly. Thus there is no reason to
make any interference in the judgment and order passed by the learned Special
Judge.
15. Ms. Bora further relied on the decision of the Hon'ble Apex Court reported
in (2019) 9 SCC 608 Pramod Suryabhan Pawar v. State of Maharashtra
and Another and basically relied on para 14, 15, 16, 17 & 18 of the said
judgment wherein the consent and misconception of fact is discussed in detail.
The para 14, 15, 16, 17 & 18 reads as follows:-
"14. In the present case, the "misconception of fact" alleged by the complainant
is the appellant's promise to marry her. Specifically in the context of a promise to
marry, this Court has observed that there is a distinction between a false promise
given on the understanding by the maker that it will be broken, and the breach of a
promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v
State of Chhattisgarh, this Court held:
"12. The sum and substance of the aforesaid decisions would be that if it
is established and proved that from the inception the accused who gave the promise to
the prosecutrix to marry, did not have any intention to marry and the prosecutrix
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gave the consent for sexual intercourse on such an assurance by the accused that he
would marry her, such a consent can be said to be a consent obtained on a
misconception of fact as per Section 90 of the IPC and, in such a case, such a consent
would not excuse the offender and such an offender can be said to have committed the
rape as defined under Sections 375 of the IPC and can be convicted for the offence
under Section 376 of the IPC." Similar observations were made by this Court in Deepak
Gulati v State of Haryana ("Deepak Gulati"):
"21. ... 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."
15. In Yedla Srinivasa Rao v State of Andhra Pradesh the accused forcibly established
sexual relations with the complainant. When she asked the accused why he had
spoiled her life, he promised to marry her. On this premise, the accused repeatedly
had sexual intercourse with the complainant. When the complainant became
pregnant, the accused refused to marry her. When the matter was brought to the
panchayat, the accused admitted to having had sexual intercourse with the
complainant but subsequently absconded. Given this factual background, the court
observed:
"10. It appears that the intention of the accused as per the testimony of PW 1
was, right from the beginning, not honest and he kept on promising that he will marry
her, till she became pregnant. This kind of consent obtained by the accused cannot be
said to be any consent because she was under a misconception of fact that the accused
intends to marry her, therefore, she had submitted to sexual intercourse with him.
This fact is also admitted by the accused that he had committed sexual intercourse
which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of
elders of the village. It is more than clear that the accused made a false promise that
he would marry her. Therefore, the intention of the accused right from the beginning
was not bona fide and the poor girl submitted to the lust of the accused, completely
being misled by the accused who held out the promise for marriage. This kind of
consent taken by the accused with clear intention not to fulfil the promise and
persuading the girl to believe that he is going to marry her and obtained her consent
for the sexual intercourse under total misconception, cannot be treated to be a
consent."
16. Where the promise to marry is false and the intention of the maker at the time of
making the promise itself was not to abide by it but to deceive the woman to convince
her to engage in sexual relations, there is a "misconception of fact" that vitiates the
woman's "consent". On the other hand, a breach of a promise cannot be said to be a
false promise. To establish a false promise, the maker of the promise should have had
no intention of upholding his word at the time of giving it. The "consent" of a woman
under Section 375 is vitiated on the ground of a "misconception of fact" where such
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misconception was the basis for her choosing to engage in the said act. In Deepak
Gulati this Court observed:
"21. ... 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 misrepresentation 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.
...
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her." (Emphasis supplied)
17. In Uday v State of Karnataka the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:
"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 Page No.# 9/19 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, are 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 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..." (Emphasis supplied)
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 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."
16. Ms. Barman, the learned counsel appearing for respondent no. 2 also submitted that the learned Trial Court below had appreciated the evidence on record in its true perspective and considering of pros and cons of the case vis-a- vis the medical evidence etc. passed the order of conviction and hence there cannot be any question of interfering the judgment passed by the learned Trial Court below.
17. Heard the submissions made by learned counsel for both sides, I have also perused the evidence on record, the medical evidence and the judgment and order passed by the learned Special Judge.
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18. In the instant case the appellant basically raised the issue that the foundational facts of the prosecution is based on false and fake documents wherein the girl was stated to be 17 years at the relevant time of incident only to harass and to make the case stronger by incorporating the POCSO Act. From the record also it reveals that the document of the birth certificate on the basis of which the girl was stated to be less than 18 years at the relevant time of incident was stated to be fake and in that regard the DW-1 also adduced his evidence stating that the documents which was relied by the prosecution is a fake document. The learned Special Judge also had given due consideration on the evidence of DW-1 and accordingly it is held that the girl was not a minor at the relevant time of incident and the medical evidence also shows that the victim was around 20 years at the time of incident. Thus the learned Special Judge had dropped the Section 4 of the POCSO Act though the charge was earlier framed in the said section of law and subsequently the conviction order was passed only under Section 376 of IPC.
19. To substantiate the plea that the victim was major at the relevant time of incident, the defence adduced the evidence of DW-1, the Health Educator, Bongaigaon PHC and accordingly he exhibited the birth register as Ext.-B and the relevant page of the age of the victim was recorded as Ext.-B1 and B2. He also deposed that the birth certificate which was produced by the victim/informant does not belong to their office which was exhibited as Material Ext.-1 i.e. the birth certificate and which is seem to be a fake one. However, in his cross-examination he stated that if the material Ext.-1 is issued by their office is not known to him as at the relevant time he was working as a Dealing Assistant of issuance of birth and death certificate from 01.09.2022 only. However, from the evidence of DW-1 it is seen that the Material Ext.-1/Birth Page No.# 11/19 Certificate on the basis of which the victim girl was stated to be a minor at the relevant time of incident is a fake certificate and the office of the birth and death registration has not issued the said certificate.
20. Considering this aspect of the case the learned Special Judge also convicted the accused/appellant only u/s 376 IPC though initially the case was charged against the accused-appellant u/s 4 of the POCSO Act.
21. It is held by the learned Special Judge that even if the Section 4 is not attracted in the present case but there are sufficient materials to held that the accused committed rape on the victim on the day of incident when he insisted the victim girlto go with him in his own house on the pretext of false promise of marriage. The learned Special Judge also discussed in detail in regards to ingredients of Section 375 IPC as well as the ingredients of Section 3 of the POCSO Act in the judgment passed by the learned Special Judge.
22. Further it is considered by the learned Special Judge that the evidence of the prosecutrix remained inconsistent while adducing evidence before Court as well as while recording a statement u/s 164 Cr.PC and her statement made in various stages also remained unrebutted and the defence could not rebut the evidence of the prosecutrix though she was cross-examined at length and also put suggestion to her.
23. The prosecution has examined as many as 9 (nine) nos. of witnesses including the IO, MO and doctor as stated above and the vital witness of the prosecution is PW-1, the informant and PW-2, the victim of this case.
24. PW-1 lodged the FIR after hearing about the incident from her daughter that the accused took her daughter in his own house and had committed rape on her having forceful intercourse with her. But, she did not state anything in Page No.# 12/19 regards to false promise of marriage to her daughter and simply stated that the accused took her daughter to his house and had forcible sexual intercourse with her. She also denied when suggested that she wanted to give marriage to her daughter with the accused/appellant and on his refusal a false case is lodged by her. However, from the evidence on record it is seen that the house of the accused/appellant is not so far from the house of the victim/informant. She was also cross-examined at length in regards to age of the victim. However, it was stated by her that her daughter was less than 18 years at the relevant time of incident.
25. Coming to the evidence of the prosecutrix/PW-2, she deposed that the accused/appellant took her to their house on a false promise of marriage and accordingly she went with him and stayed with him in his house. On the said night he had forcible sexual intercourse with her and on the day of incident his parents were also not present in the house. On the next day the elder brother of the accused asked her to go to her own house and on her refusal they assaulted her. Thereafter, she came to her own house and narrated the incident to her parents and accordingly FIR was lodged, she was medically examined and her statement is also recorded u/s 164 Cr.PC. From her cross evidence it is seen that she went with the accused to his house and did not talk to anyone. Neither she was tied in the house nor she made any hue and cry while she was staying with the accused in his house. More so, when she was assaulted by the accused and his brother, the neighbours did not turn up and she also did not narrate the story to the neighbours even when she was returning home by her own.
26. PW-3 simply heard about the incident from the informant and PW-4 is the father of the prosecutrix who also narrated the same story corroborating the Page No.# 13/19 PW-1 and as per him also on the next day morning at about 6 AM his daughter came back to his house and when she reported that she was forcibly taken by the accused by gagging her mouth and also had forcible sexual intercourse with her and thereafter his wife lodged the FIR. From his cross evidence it appears that he did not report the matter to any neighbours after returning of her daughter from the house of the accused/appellant.
27. PW-5 is also a neighbour and he also claims his presence at the relevant time of seizure of the birth certificate of the victim and he also deposed that the informant had narrated the incident before him. Though the PW-5 claims his presence at the relevant time of seizure of the birth certificate etc. but from his cross evidence it is seen that he stays about 1½ kilometre far from the house of the victim and there are approximately 16 inhabitants near the house of the victim and she is not aware about any siblings of the prosecutrix.
28. PW-6, the doctor who examined the victim and as per the history recorded by the doctor the victim escaped with the boyfriend that is the appellant on 09.06.2019 at about 7:00 PM and also gave history of several episodes of coitus for last two months and during examination he did not find any semen stain or injury over the private parts of the victim though there was an old torn hymen was found at the time of her examination. As per the medical report the victim was 20 years at the relevant time of incident and from the clinical examination and investigation report etc. the doctor could not ascertain whether the prosecutrix was raped or not.
29. The PW-7 filed the charge-sheet on the basis of investigation done by the previous Investigating Officer and the charge-sheet was filed u/s 366(A)/376 IPC read with Section 6 of the POCSO Act, 2012.
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30. PW-8 was the Investigating Office who conducted the investigation and from his cross evidence it is seen that he is not aware about the birth certificate which was collected by the complainant and he has not investigated regarding the date of issuance of birth certificate of the victim.
31. The prosecution also examined the school Head Master of Rashigaon Bahirchengmari L.P. School who exhibited the admission register and as per him the date of birth was recorded as 04.11.2001. However, he was not in a position to say on the basis of which document the age of the victim was recorded in the school register.
32. After completion of the prosecution witnesses the PW-1 was re-examined by the prosecution who came with a Material Ext.-2, the High School Leaving Certificate of her daughter wherein the date of birth is registered as 04.11.2001. She admitted in her cross evidence that the birth certificate was obtained after 12/13 years of her birth and it was not submitted before police during the investigation. However, she denied when suggested that she was more than 18 years at the relevant time of the incident.
33. So, from the discussion and also from the prosecution witnesses it is seen that neither there is any eye-witness to the incident nor there is any evidence recorded by the prosecution who saw the victim forcibly taken by the accused/appellant. The FIR was lodged only on the basis of the statement made by the victim. From the vital witness of the prosecution i.e. the PW-2, the prosecutrix it is seen that no force was applied while she was going with the accused. However, it is alleged that she went with the accused as he made a false promise of marriage. But, from the entire evidence of the prosecutrix it is also seen that though she alleged forcible intercourse with her but it is seen that neither she raised any hue and cry nor she reported about the incident to any Page No.# 15/19 neighbour though she was alone with the accused for the whole night in absence of his parents. More so, from the medical evidence of the doctor it is seen that there was no sign of forcible intercourse nor there is any injury found at the private parts of the victim. As per the history recorded by the doctor there are several episodes of coitus for last two months. Except old tear in the hymen there is no other injury etc. was found on the private parts of the victim and for which the doctor could not ascertain as to whether any rape was committed on the victim at the relevant night of the incident. That apart the age of the victim is also recorded as 20 years and she was stated to be 20 years by her own at the day of her examination. From the old tear hymen etc. and other signs it can be held that the accused and the victim/prosecutrix were habituated with the sexual intercourse but it was not a forcible sexual intercourse and seems to be consensual. More so, from the evidence of the victim it is seen that she went with the accused by her own and did not raise any hue and cry even if at the time of sexual intercourse with her which she alleged that it was a forcible intercourse against her will.
34. Thus, it is seen that the foundational facts of the prosecution could not be established rather it is seen that the foundation of the entire case is based on a fake document of birth certificate. At the same time from the evidence of the doctor it also reveals that there is no sign of forcible intercourse and even if any sexual intercourse had happened between the parties, it seems to be consensual.
35. The only issue raised by the prosecution as well as the learned Additional Public Prosecutor at the time of argument that her consent was obtained with the misconception of fact of false promise of marriage and in that case, the case comes under the definition of Section 375 of IPC and the accused is liable to be Page No.# 16/19 convict u/s 376 of IPC. To substantiate the fact of false promise of marriage or obtaining of consent with mis-conception of fact it is seen that except one statement made by the victim in her evidence that she was asked to come with the accused as he promised to marry her. Apart from the said statement, there is no other incident described by the prosecution witnesses as to whether the accused/appellant used to meet with the victim, promised to marry her and as to whether anyone else had the knowledge about the false promise of marriage to the victim by the accused/appellant. There is no evidence at all that he had the intention to cheat the victim from the very inception of their relationship and there is no evidence from the prosecution that he earlier also had sexual intercourse with her with false promise of marriage. However, from the evidence of the doctor and the history recorded by him, it was seen that several episodes of coitus for last two months had happened. But, only on the basis of an averment made by the prosecutrix that the accused had forcible sexual intercourse with her only with the false promise of marriage, there is no other evidence to substantiate the plea.
36. As relied by the learned Special Judge in case of State of Himachal Pradesh v. Sanjay Kumar @ Sunny, reported in (2017) 2 SCC 51, the Apex Court had held that:-
"The testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone, to convict the accused. No doubt, her testimony has to inspire confidence. The Apex Court further held that seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury."
37. But, here in the instant case as discussed above, it is seen that the evidence of the prosecutrix is not sufficient to warrant conviction against the accused/appellant wherein the entire foundation of the case is based on some Page No.# 17/19 false and fake documents and in the same time the prosecution also failed to establish the fact that the consent was obtained with the misconception of facts to fulfil the ingredients of Section 375 IPC.
38. In a landmark judgment reported in 2020 (3) GLT 403 (Bhupen Kalita Vs. State of Assam), this Court had discussed the legal position concerning the provision of POCSO Act, 2012, and paragraph No. 71 of the said judgment read as under:-
"71. In the light of the discussions above, the following legal positions emerge in any proceeding under the POCSO Act.
(A) The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability.
(B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused.
(C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused, the accused can rebut the same either by discrediting the prosecution witnesses through cross-examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However, if it relates to absence of culpable mental state, the accused had to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act.
(D) However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt."
39. But, here in the instant case it is seen that the prosecution could not establish the foundational facts of this case to warrant conviction against the Page No.# 18/19 present accused/appellant. Rather, it is seen that the case was mainly based on the birth certificate of the victim which is found to be fake and false and thus the very basis of the prosecution case is false and in the same time as discussed above, the basic facts of the case that the consent was obtained with the misconception of facts i.e. with false promise of marriage also could not be substantiated by the prosecution.
40. Further, from the medical evidence also it is seen that the doctor did not find any sign of forcible intercourse with the victim and it could not be ascertained as to whether rape was committed on the victim or not. Rather, from the evidence of the prosecutrix it is seen that she went with the accused by her own, stayed with him, had sexual intercourse without any protest. More so, the prosecution also failed to establish that consent was obtained only with the "misconception of facts."
41. So, from the entire discussion made above, I find that the prosecution has failed to prove the case against the appellant beyond all reasonable doubt and it is found that there is no cogent and reliable evidence nor there is any circumstantial evidence to prove the case against the accused/appellant beyond all reasonable doubt. Accordingly, the appeal stands allowed. The impugned judgment & order dated 10.07.2023 passed by learned Special Judge, Bongaigaon in Special (P) Case No. 15 (BGN) of 2019 convicting the accused/appellant u/s 376 IPC, stands set aside. The appellant is acquitted of all the charges. Bond, if any, shall stand discharged. The appellant shall be released from jail forthwith if not required in connection with any other case.
42. Send back the case record of the Trial Court along with a copy of this judgment and order.
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43. Let a copy of this judgment and order be also sent to the jail authority for necessary compliance.
44. In terms of above, this criminal appeal stands disposed of.
JUDGE Comparing Assistant