High Court
Case Details
Crl.A. 115/2009 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER (ORAL) This appeal is presented against the judgment dated 06.03.2009 in the Se ssions Case No.13 /2008 rendered by the learned Addl. Sessions Judge (FTC), Kari mganj, whereby the accused/appellant is convicted U/s.376 of Indian Penal Code ( hereafter referred to as the IPC) and was sentenced to rigorous imprisonment for 7(seven) years and to pay fine of Rs.10,000/- and in default, to undergo R//I f or another 1(one) year.
Legal Reasoning
2. I have heard Mr. M.H. Rajbarbhuiyan, learned counsel for the app ellant. The State is represented by Mr. K.A. Mazumdar, the learned Addl. Public Prosecutor, Assam. 3. The prosecution story, according to the FIR lodged by Madhu Karm akar (PW-1) is that his is a garden labourer of the Aulabari Tea Estate and the prosecurtix aged about 17 years is his 2nd daughter. The accused Sibu Choudhury is also a teagarden worker and had visiting terms in the informant’s house. Th e accused and the victim had a love-affair and the accused with a false promise to marry the informant’s daughter, induced her to submit to sexual intercourse a s a result of which, the victim became pregnant and when the accused thereafter refused to marry her and the (cid:28)Bagan Panchayat (cid:29) also could not persuade the accus ed to marry the victim, the FIR was filed leading to registration of the Karimga nj Police Station Case No.509/2006 U/s.376 IPC. Initially, the ejaher was filed in the Longai Police Out Post and after G.D. Entry was made the same was forward ed to the Karimganj Police Station for registering the case. After investigati on was over, the case was committed to the Sessions Court, where charge U/s.376 IPC was framed against the appellant. As the accused pleaded not guilty, trial commenced and 9(nine) witnesses were presented by the prosecution, while the def ence did not adduce any witness. 4. PW-1 is the father of the victim, who lodged the FIR in the case . He stated that the accused was a neighbouring teagarden labourer and he was t old by his pregnant daughter that the accused with a promise to marry induced her to submit herself to sexual intercourse with the accused. When the informan t learnt of this, he informed the matter to the mother of the accused and also t o the (cid:28)Bagan Panchayat (cid:29) , but when the Panchayat failed to settle the matter, th e FIR was lodged. Subsequent to the FIR, a baby boy was born to the prosecuritx . 5. PW-2 is the prosecurtix herself. The witness testified that the accused initially used to give bad proposal to her but she did not respond favou rably. One day, while returning from work through the T.E. jungle, the accused threatened her with a dao and raped her. Thereafter because of his promise to marry her the prosecurtix engaged in severa l sexual intercourse with the accused, but eventually, when she became pregnant and the accused did not abide by his promise, she informed her parents whereafte r the FIR was lodged by her father. In her cross-examination, the prosecurtix admitted of her love-affair with the accused and stated because of his promise of marriage, she submitted herself to his sexual advances. But she stood by the story that the first sexual encounter with the accused was a forced one, as the accused threatened her with a dao. 6. PW-3 is Dr. Arunava Choudhury, was posted as the Sr. Medical & H ealth Officer at Karimganj Civil Hospital on 12.11.2006. The victim was pregnan t by about 34-36 weeks when she was examined by PW-3. The doctor did not determ ine the victim’s age since the X-ray plate of the victim was not furnished. 7. id not support the prosecution story, they were declared hostile witnesses. PW-4, PW-5 & PW-6 are neighbourhood witnesses. But since they d 8. PW-7 Smti Sita Karmakar is the mother of the victim. She was inf ormed by her daughter that the accused by promising marriage, indulged in sexual intercourse with the victim, which led to her eventual pregnancy. Later when t he accused did not abide by his promise, a complaint was lodged before the (cid:28)Baga n Panchayat (cid:29) but since no settlement could be reached, her husband lodged the FI R. In her cross-examination witness stated that the accused used to visit their house during their absence and with a promise to marry the prosecur tix indulged in sexual acts and made her pregnant. 9. PW-8 was the court clerk in the court of Judicial Magistrate, 1s t Class at Karimganj. He proved the Magistrate’s recording of the statement of t he accused U/s.164 Cr.P.C. He also proved the handwriting of the Magistrate sin ce in the meantime, he was transferred out of Karimganj. PW-9 is the Investigating Officer of the case, who on the basis 10. of the verbal information given by the informant on 12.11.2006, made the G.D. En try No.183 in the Longai Police Patrol Post. He arranged for medical examination of the victim at the Karimganj Civil Hospital. Subsequently, on 17.11.2006, a written ejaher was filed and accordingly the I/O made G.D. Entry No.267 on 17.1 1.2006 which was forwarded and the Karimganj P.S. Case No.509/2006 U/s.376 IPC was registered on that basis. In his cross-examination, the I/O stated that the victim had not disclosed about the first forcible rape with threat by dao. In the statement U/s.164 Cr.P.C. g iven by the prsecurtix before the Magistrate on the first sexual encounter, alth ough threat by the accused to kill her with a dao was mentioned, the victim stat ed that the accused had no dao in his hand, at that point of time. But out of f ear of the threat, the prosecutrix succumbed to his threat, without raising any hue and cry. 11. The statements of the prosecurtix and her parents given U/s.161 Cr.P.C. to the police show that the accused and the victim were in a love relati onship and this was known to their neighbours. In this case, multiple sexual en counter of the victim with the accused are clearly proved and it is also on evid ence that, a child was born to the victim through these encounters. The prosecu rtix here deposed that the first sexual intercourse was a forcible one because the accused threatened her with a dao. But in her statement given under Section 164 Cr.P.C., the prosecurtix stated that the accused on that occasion did not h ave any dao in his hand. Therefore, sufficient evidence is not available in my view to hold that the first one was a forced assault through dao threat. 12. Since forcible sexual assault is not proved in the present case, what is required to be seen is whether consent of the prosecurtix was voluntary or was induced because of the marriage promise given by the accused. In this c ontext, it must be borne in mind that the accused and the victim are T.E. worke rs and belonged to the same social background. Therefore, the inducement of marr iage by the accused could lead the victim to reasonably believe that marriage is likely to happen. Bearing this in mind, the court has to examine whether the se xual encounters were consensual within the meaning of the 2nd Clause, of Section 375 IPC. 13. The prosecutrix in her evidence clearly stated that the accused promised to marry her and only because of such promise, she cohabited with the a ccused. The prosecutrix as well as the other witnesses have stated that when the prosecutrix became visibly pregnant, the parents of the accused also initially agreed to get the accused and the victim married, by telling the informant not t o disclose the incident to anyone else. But the marriage promise was dishonoured . 14. Section 375 of IPC defines rape inter alia, as (cid:28)when a man has s exual intercourse with a woman without her consent (cid:29). The Penal Code does not def ine ’consent’ in positive term but what is not consented in law is explained by Section 90 of the IPC. When consent is given under fear of injury or under misco nception of fact, it is not ’consent’ in law. The second part of Section 90 exam ines the issue of consent from the perspective of the accused. It envisages that the accused too believed that the consent was given on misconception of fact. I n other words, it must be known to the accused that the consent was not free con sent with clear understanding of the facts. 15. The Supreme Court in Deelip Singh @ Dilip Kumar vs. State of Bih ar reported in (2005) 1 SCC 88 had held that consent given in pursuant to a fals e representation that the accused intends to marry could be regarded as consent given under misconception of fact. A false representation deliberately made by t he accused with a view to elicit assent of the victim without having the intenti on to marry her will vitiate consent. If it is established that at the very ince ption of making of the promise, the accused never intended to marry the prosecut rix and that promise was given only to secure the consent, the submission of the body by the victim will not exculpate the accused from the ambit of the 2nd cla use of Section 375 of IPC. 16. Having regard to the above legal position pertaining to consentu al sexual intercourse, let us now examine the evidence of the prosecutrix on the point of consent. It has to be decided whether the victim girl was misled into submitting herself to the accused by the false promise of marriage and whether only because of this, she consented to have sexual contacts with him. From her e vidence, it is clearly discernable that the only reason which influenced her in agreeing for sexual intimacy with the accused was the prospect of marriage, whic h the accused assured. Thus, it is apparent that without the promise to marry, s he would not have subjected herself willingly to the accused. 17. Next the issue of consent has to be looked at from the perspecti ve of the accused. The testimony of the victim clearly suggests that she was all ured to agree to sexual intimacy because of the marriage promise. Here the victi m not only consented to cohabitation but also gave birth to a child, following c ohabitation with the accused. The expression ’misconception of fact’ stated in Section 90 of I 18. PC is broad enough to include all cases where consent is obtained by misconcepti on and applying that principle to this case under Section 375 of the IPC, it can be safely accepted that consent given in pursuant to a false representation tha t the accused intends to marry, could be regarded as consent, under misconceptio n of fact. 19. The evidence in the case proves that the accused made false prom ise to marry which he never intended to honour and induced the victim to have se xual intercourse with him. Accordingly, I hold that the present case is covered under 2nd Clause of Section 375 of the IPC. Having reached the above conclusion, I see no merit in this appe 20. al and the same is dismissed. The judgment in the Sessions Case No.13/2008 stand s affirmed accordingly. 21. The L.C.R. be returned forthwith.