High Court
Case Details
Crl.A. 216/2009 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY This Appeal is presented against the judgment dated 14.12.2009 in Sessions Case No.135(N)/2007 rendered by the learned Addl. Sessions Judge (FTC), Nagaon, where by the accused/appellant was convicted under Section 376 and 417 of IPC. For the conviction under Section 376 of IPC, the accused was sentenced to R.I. for 4 ye ars and fine of Rs.1,000/- and in default of fine to undergo S.I. for 15 days. F or the second conviction under Section 417 of IPC, he was sentenced to undergo S .I. for 1 year. 2.
Legal Reasoning
I have heard Mr. I.A. Hazarika, the learned Counsel appearing fo r the appellant. The State is represented by Mr. K.A. Mazumdar, the learned Add l. Public Prosecutor. 3. The prosecution case as revealed by the Ejahar is that the accus ed Sirajul Haque proposing marriage to the informant (hereinafter referred to as the victim) developed a love relationship and used to treat the victim as his w ife by presenting her with cloths, chains etc. In this manner, physical intimacy developed for a few months. In the village meeting held on 21.2.2006, the victi m and the accused admitted the affair and their physical relationship and the ac cused agreed to accept the victim as his wife in presence of his co-villagers. But at the instigation of Hanif Ali, Monowar Begum and Abdul Rasid, the accused declined to marry the victim and thereafter an F.I.R. was lodged by the victim, leading to registration of the Kaliabor P.S. Case No.17/2006 registered under Se ction 493/376/120(B) of the IPC. After investigation was completed, the police c harge sheeted the accused and 3 others and when the case was committed to the Se ssions Court, all the 4 accused pleaded not guilty to the charge drawn up under Section 417/376 of IPC. Accordingly the trial commenced. 4. The prosecution examined 6 witnesses while the defence did not adduce any evidence. 5. P.W.1 is the victim and she testified that she had a love affair with the accused/appellant for last about 6 years. According to P.W.1, the accu sed used to treat the victim as his wife and had sexually exploited her for abou t 3 months with promise of marriage. Then the victim learnt that the family of t he accused are opposed to their marriage. Thereafter the victim’s marriage was f ixed elsewhere but the accused intervened and derailed the marriage proposal of the victim. Then there was a village Bichar where the co-villagers and both the family were present. The accused admitted in the meeting about his affection tow ards the victim but when the Gaon Bura asked the accused to accept the victim as his wife, the co-used Hanif Ali, Monowar Begum and Abdul Rasid caused disturban ce and since the Bichar disbanded, the accused fled away. In her evidence, the PW.1 stated that the accused even thereafte r visited her and asked her for Rs.20,000/- so that he could marry the victim in Court. In her cross-examination, the PW.1 admitted about the mutual lov e between her and the accused and she stated that she did not shout or scream at the time of the sexual encounters as because, she loved the accused. 6. P.W.2 Musstt. Naseha Khatun is the mother of the victim. She sta ted that the accused and her daughter were in a love relationship. When the moth er arranged marriage of the victim with another groom the accused broke that pro posal. Only when the victim’s marriage was proposed to be given to some other gr oom, the mother was informed by the victim about being impregnated by the accuse d. The witness admitted that in the village Bichar, her daughter and the accused acknowledged their mutual affair but she stated that only because of interventi on of the 3 accused Hanif Ali, Monowar Begum and Abdul Rasid, the public decisio n for the accused to marry the victim did not fructify. 7. P.W. 3 is a co-villager and stated that the accused used to be s een at all hours in the house of the victim. He was present in the village Bicha r and testified about the love affair between the accused and the victim. 8. P.W.4 is Sunita Kheruar who was a co-villager. According to the witness, the accused was in love with the victim and had proposed to marry her. In the village Bichar also, the accused agreed to marry the victim but the propo sal was thwarted by Hanif Ali, Monowar Begum and Abdul Rasid. 9. P.W.5 is Dr. C.R. Hazarika who was serving as the Senior Medical Officer on 8.3.2006 at the B.P. Civil Hospital, Nagaon. According to report of the Radiologist, the age of the victim is 19 to 20 years and there was no recent sign of sexual intercourse was noticed when the victim was examined on 8.3.2006 In his response given under Section 313 Cr.P.C. the accused Sir . P.W.6 Prabhat Kalita was the Investigating Officer of the case. 10. After the case was registered, he arranged for recording the statement of the vi ctim and also for her medical examination. 11. ajul Haque gave negative response to the questions. 12. Assailing the conviction under Section 376, Mr. I.A. Hazarika, t he learned Counsel argues that the victim was a major and considering the medica l report and her own testimony, the sexual encounters between her and the accuse d can’t be treated as a non-consensual. Accordingly the Counsel contends that th e conviction under Section 376 of IPC was erroneously ordered. 13. Mr. K.A. Mazumdar, the learned Addl. Public Prosecutor however s ubmits that only because the accused promised to marry the victim, she did not r esist his sexual advances and such submission by the victim can’t be treated in law as a consensual encounters. 14. In such cases of sexual assault, the testimony of the prosecutri x is very vital and here it is seen that the prosecutrix allowed the accused to cohabit with her only because, he had promised to marry the victim. Section 375 of IPC defines rape inter alia, as (cid:28)when a man has s 15. 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. 16. 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 by the victim will not exculpate the accused from the ambit of the 2nd clause of Secti on 375 of IPC. 17. Having regard to the above legal position pertaining to consensu al sexual intercourse, let us now examine the evidence on the point of consent. It has to be decided whether the promise of marriage was false from the very inc eption. The evidence in the case clearly shows that the accused and the victim w ere in a love relationship and it was well known in the village that the accused intends to marry the victim. In fact when the marriage of the victim was propos ed with another person, the accused intervened and derailed the marriage negotia tion. That apart, in the village Bichar also the accused agreed to marry the vic tim but only because of disruption by the 3 co-accused i.e. Hanif Ali, Monowar B egum and Abdul Rasid, the public decision in the village Bichar did not fructify . The prosecutrix in her evidence stated that even thereafter, the accused visit ed her and requested the victim to give him Rs.20,000/- to arrange Court Marriag e with the victim. 18. From the above discussion it is noticed that the promise of marr iage made by the accused was intended to be honoured and although the marriage d id not happen, the evidence doesn’t suggests that a false marriage promise was m ade from the very inception of the promise. The evidence suggests that the accus ed did intend to marry and of course the victim consented to sexual intercourse only because of the marriage promise of the accused. The accused at the time whe n he proposed to marry the victim did, in my view, have the intention to honour the promise and accordingly I hold that the consent given by the victim wasn’t o n account of any misconception of fact or any false representation of the accuse d. Having concluded thus, the conviction under Section 376 of IPC is held to be unsustainable and the same is accordingly quashed. However since the victim was induced to submit herself to the accused by his promise of marriage, his convict ion under Section 417 of IPC is left undisturbed. 19. Consequently as the accused is on bail, he shall surrender in th e Court of learned S.D.J.M., Kaliabor to serve out the remainder of his sentence for the conviction under Section 417 of IPC. The benefit of set off for the per iod spent in custody shall be given. The Appeal is accordingly partially allowed . 20. Send down the L.C.R.