Calcutta High Court (Appellete Side)
Barik Mistry vs The State Of West Bengal on 25 June, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Toufique Uddin
CRA 288 of 2011
Barik Mistry
-vs-
The State of West Bengal
For Appellant: Mr. Angshuman Chakraborty, Ld. Amicus Curie
For the State: Ms. Rituparna De, Advocate
Heard on : 11th June 2013
Judgment on : 25th June 2013
Toufique Uddin, J :
This appeal arose out of judgment and order of conviction dated 29.09.2010 and 01.10.2010 passed by learned Additional Sessions Judge, Fast Track Court-VIII, Alipore, South 24-Parganas in Sessions Trial No. 3 (3) of 2008 convicting the appellant under Section 376 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/- with default clause.
In the background of this appeal, the fact in a nutshell is as follows:-
On 10.04.2007, one Kohinoor Sarder, daughter of Md. Golam Moula Sarder of North Patikhali, PO - Nagortala, PS - Canning, reported to the Officer-in-charge, Canning Police Station that she was a helpless young lady. Her next door neighbour Barik Mistry alluring her to marry, mixed with her against her will. Barik Mistry used to come to her house in the absence of her parents. The villagers knew it. She told him to visit her house after marriage. She also used to say that if he comes every now and then, then the people of the locality would call her in bad name. But Barik used to tell that he would marry her. On 04.04.2007 at 10.00 p.m., Barik Mistry entered into her room. She cautioned him but inspite of that he mixed with her. Her family members saw the incident. She raised alarm and people gathered there. A Salish was called on the same night in presence of both. The said Barik Mistry and his uncle Mother Bux and two others promised in presence of the local people that when her father and Barik's father would return to home they will arrange for their social marriage. But ultimately they denied the entire matter and in spite of repeated requests they denied to give the accused marriage with the complainant.
A written complaint was lodged. After investigation police submitted charge- sheet under Section 376/493 of the Indian Penal Code.
The case was committed to the Court of Sessions by the learned Magistrate. Thereafter the learned Trial Court on hearing of both sides framed charge under Section 376 of the Indian Penal Code against the present appellant. The contents of the charge were read over and explained to the accused person who pleaded not guilty and claimed to be tried.
To contest this case, the prosecution examined as many as 12 witnesses while none was examined on the side of the defence.
The accused was examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination of the witnesses and the replies given by the accused person at the time of examination under Section 313 of the Code of Criminal Procedure is denial of offence with a plea of innocence.
On conclusion of trial the learned Court below convicted the present appellant by the impugned judgment.
Now the point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Section 376 of the Indian Penal Code reads as under :-
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 terms 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:
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In this case none was found to be present for the appellant. That is why, Mr. Angshuman Chakraborty, learned lawyer of this Hon'ble Court was appointed "Amicus Curie".
Learned Amicus Curie contended that there was series of lacuna and infirmities in the judgment and that is why the judgment of the learned Court below cannot be sustained.
On the other hand the learned lawyer of the State contended that there is nothing to interfere with the impugned judgment.
To appreciate this case from a better angle, some relevant pieces of evidence are required to be considered.
Exhibit 1 is the complaint lodged by the victim herself. Herein she has stated that the accused Barik Mistruy allured her on the promise of marriage and mixed up with her against her will. He used to come to her residence frequently in the absence of her parents and she is a helpless young lady. Taking such opportunity the accused had intercoursed with her. She often warned the accused that a scandal will spread if he does not marry her. She requested the accused several times but the accused did not marry her.
On 04.04.2007 at 10.00 p.m. the accused Barik Mistri entered in her house. Despite caution, he forcibly intercoursed with her. She cried loudly to gather people. A Salish was held. It was settled in the Salish and the accused and his relatives gave a written promise in presence of local people that when the father of Barik and Kohinoor will come to house, there will be a social marriage. Long days have passed but the marriage could not take place. Hence the case.
PW-1 is the victim girl herself. She stated in her evidence what she disclosed in her petition of complaint (ext. 1). She identified the victim. In her examination she has stated the incident took place on 04.04.2007 at 10.00 p.m. at her residence and accused committed rape on her against her will and she was alone in the house as her father went to resume his duty and her mother went to attend Maa Monosaa's song at a distance of five minutes walk from her residence. She has stated that prior to the incident she had love affairs with Barik Mistri.
She made statement before the learned Magistrate under Section 164 of the Code of Criminal Procedure stating that she entered into love affairs with the accused on his promise to marry her. On such allurement, the accused despite her resistance committed rape several times. Ultimately, on 04.04.2007 she committed intercourse for the last time. She raised alarm. Her relations and neighbours came. Salish was held. But marriage did not take place. In her further evidence she stated that she is 18 years of age. Her School Leaving Certificate is exhibit 5. It shows that her date of birth is 03.03.1991. This indicates that she is above 16 years of age. Now the question is whether she is a consenting party or not.
The 164 statement of the victim girl shows that she knew the impact of her free mixing with the accused. Several times she intercoursed with the accused. On the date of the incident her mother went to hear song in a function at a nearby place. What prompted her to remain alone in the room is not clear. It is expected that she will go with her mother or her mother will remain at the residence with her. The evidence further shows that local people were aware of free mixing between them. This indicates that she not only had love affairs with the accused but she had also consent to the intercourse with the accused person. She admitted that she used to mix up with the accused for three years in her house. It suggests that the victim girl was promiscuity and totally a consenting party. Before that she ought to have known the consequence of free mixing but rather she went on enjoying the affairs. Her cross-examination shows that on the date of incident she raised alarm and hearing her hue and cry her cousin brother came to P.O. and he closed the door from outside. He called the neighbours. Neighbours came to the P.O. and they were inside the room for 2/3 hours.
PW-2 claimed that he identified the accused and the incident took place on 04.04.2007. When he was returning from work he heard shouting of the victim. He opened the door and found that Barik Mistri mounted on the victim. He closed the door of the room from inside and called neighbours. Kohinoor is his cousin sister.
PW-3 is another relation. She stated that hearing the hue and cry she came to the P.O.. She stated that she does now know what they have done inside the room. But she heard there was a talk of marriage and papers were prepared for marriage but after that Barick did not marry Kohinoor.
PW-4 is the aunt of Kohinoor. He stated that the accused and Kohinoor were co-habiting. After that Kohinoor told him that prior to that incident Barick co- habited with her for 3/ 4 times. This indicates that the victim was a consenting party.
PW-5 is an A.S.I. of Police who receives the complaint and filled up the formal F.I.R.
PW-6 wrote the complaint on the instruction of Kohinoor, which is marked as exhibit - 1.
PW-7 is the sister in law of the victim. She stated that the accused co- habited with her sister-in-law and his brother-in-law saw the incident. She stated that Barik confessed the guilt and promised to marry the victim but he did not.
PW-8 is a Doctor. He examined the victim. He found no marks of injury all over the body. He examined the private parts of the victim also. He stated that hymen was raptured at 7 - O'clock position and easily admitting two fingers at the time of examination when she has not complained any pain. Medical report shows that she was experienced in having intercourse. If at all against her will rape was committed, it is expected there shall be marks of injuries. It is not her evidence that she was put to fear. So, she should have been taken as a consenting party.
PW-9 is another Doctor. He examined Barik Mistry and opined that he was capable of performing sexual intercourse.
PW-10 is the Headmaster of Nazrul Madhyamik Sikkha Kendra. He proved the School Leaving Certificate (ext - 5) showing that the victim is above 16 years of age.
PW-11 is the Investigating Officer. After investigation he submitted chargesheet.
PW-12 is the Magistrate who recorded the 164 statement of the victim girl. The accused was examined under Section 313 of the Code of Criminal Procedure and all incriminating matters of offence were put to him. But he simply avoided all answers to the allegations and stated that the allegations are false.
The Hon'ble Division Bench of High Court at Calcutta in the case of Jayanti Rani Panda Vs. State of W.B. (1984 CR.L.J 1535) observed as follows:-
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 activities until she become pregnant it is an act of promiscuity on her part and not an act induced by the 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.
Therefore, considering the totality of circumstances, I am of the opinion that the findings of the learned Court below cannot be supported and accordingly the same is set aside because the victim was a consenting party.
This being the position, the appeal is allowed. The accused is discharged from bail bond.
Let the copy of the judgment and the Lower Court Record be sent back to the Lower Court immediately.
Urgent Xerox Certified copy of this order be given to the parties, if applied for, upon compliance of necessary formalities.
(Toufique Uddin, J.) snandy