1. Heard Mr. Raju Datta, learned counsel appearing for the appellant as well as Mr. A. Roy Barman, learned Addl. P.P. appearing for the State-respondent.
2. The instant appeal is directed against the judgment and order dated 08.12.2015, passed by the learned Special Judge, North Tripura, Dharmanagar, in case No. Special (POCSO) 0000001/2014, convicting and sentencing the appellant under Section 376(2)(i) of IPC to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs.5,000/-, i.d. to suffer rigorous imprisonment for 6(six) months and also sentencing him to suffer rigorous imprisonment for 6(six) months for having committed offence punishable under Section 417 of IPC with a direction that both the sentences shall run concurrently.
3. The prosecution case, sans details, may be taken up for discussion here-in-below:
4. The brother of the victim, Dilip Nath(PW5) had lodged a complaint with the Officer In-charge, Kadamtala Police Station on 05.03.2014 stating, inter alia, that in absence of the house inmates at home, his neighbour accused-appellant, Pranay Nath used to commit sexual intercourse upon his minor sister(PW8, name suppressed) over a period of time. On 18.02.2014, he was caught red-handed by the house inmates when he was committing such acts upon his sister at about 8 o?clock in the night. The FIR was delayed because the informant wanted their panchayet to settle the matter. There being no settlement, he reported the matter to the police.
5. The said complaint was registered as Kadamtala P.S. Case No.14/2014 under Sections 417 and 376(2)(i) of IPC and endorsed the case to the investigating officer. The investigation was commenced immediately visiting the place of occurrence by the investigating officer, who examined the material witnesses and also recorded their statements under Section 161 of CrPC. The investigating officer arranged medical examination of the victim (PW8). He also produced her before the Judicial Magistrate First Class for recording her statement under Section 164(5) of CrPC. The wearing apparels and the birth certificate of the victim were seized which revealed that the victim (PW8) was minor being her date of birth was 28.09.1998. After completion of investigation, the investigating officer submitted charge-sheet against the accused-appellant Pranay Nath under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short, POCSO Act, 2012) and under Sections 376(2)(i) and 417 of IPC.
6. The cognizance being taken, the learned Special Judge framed the following charges:-
"Firstly, that you on or about the 18th day of February, 2014 at about 8 pm and on several other dates preceding to 18th February, 2014 had penetrated your genital organ into the vagina of Smt. .(name withheld), a minor aged about 15 years 5 months, daughter of Sri Manoranjan Nath at her house at Jolaibassa under Kadamtala PS and thereby committed the offence of penetrative sexual assault upon said Smt(name withheld) punishable under section 4 of the Protection of Children from Sexual Offences Act, 2012 and within the cognizance of this court.
Secondly, that you on or about the dates, time and place as mentioned in the preceding charge you committed rape upon Smt..(name withheld) and thereby committed an offence punishable under section 376(2)(i) of the Indian Penal Code and within the cognizance of this court.
Thirdly, that you on the dates, time and place as mentioned in the preceding charge cheated Smt..(name withheld) by dishonestly inducing her to have sexual intercourse with you on false assurance of marriage which she would not do if she was not so induced and such act of you caused damage and harm to her body, mind and reputation and you thereby committed an offence punishable under section 417 of the Indian Penal Code and within the cognizance of this court.
And I hereby direct that you be tried by this court on the said charges."
7. The appellant pleaded not guilty to the charges and claimed to stand the trial.
8. In order to prove the charges framed against the appellant, the prosecution had examined as many as 11(eleven) witnesses including the victim and her brother, the medical officer and the investigating officer. After completion of prosecution evidence, the accused-appellant Pranay Nath was put to examination under Section 313 of CrPC, where he pleaded his innocence, but declined to adduce any evidence on his defence.
9. After hearing the arguments of both the sides, the learned Special Judge convicted the accused-appellant and declared sentence as afore-stated.
10. Aggrieved by, the appellant has preferred this appeal.
11. Let us examine first what prompted the learned Special Judge to convict the appellant. In his findings, the learned Special Judge had appreciated the evidence of Smt. Namita Nath(PW9) who was the eyewitness to the commission of rape upon the victim(PW8). We also have taken note of her evidence in course of trial. She has stated that on the fateful day there was some ceremony in their house and she was cooking food for the invitees. To bring some material she went to the room of Dilip(PW5) and when the door being pushed she saw that accused Pranay and her niece i.e. the victim(PW8) were having sexual intercourse. Horrified by the scene, she called the victims mother. Being asked, the victim told her that she allowed the accused-appellant to have sexual relationship with her because the accused assured to marry her. There is no material cross-examination.
12. The said statement of PW9 has taken us to consider the evidence of the victim(PW8). She has stated that both the victim and the appellant were known to each other and they had love affairs for the last one year. She has categorically stated that the appellant assured her that he would marry her and, on his assurance she allowed the appellant to have sexual relationship with her. On such assurance, he committed sexual intercourse upon her for 9/10 times. Lastly, on 18.02.2014, the appellant came to their house being an invitee of a sraddha ceremony in her house. All the family members were busy on that time. The accused-appellant took the opportunity and committed sexual intercourse upon her in the southern viti hut of their house. She also had supported the version of PW9, Namita Nath that she(PW9) suddenly entered into the room and saw them having sexual intercourse. Then, the appellant fled away. But, their relationship was exposed. She told her parents and relatives that they were having physical relationship for the last one year preceding to 18.02.2014. Evidently, there was a village meeting which was held to settle their marriage. But according to her statement, in course of trial, the accused and his family members did not attend the said village meeting. Under compelling circumstances, her brother(PW5) lodged the complaint to the police.
13. In her cross-examination, her attention was drawn to the police statement and it was found that in her 161 statement she told to police that "After our relationship was exposed my parents made contact with accused Pranay Nath through our relatives for a settlement. But Pranay denied his involvement and refused to marry me. Being helpless my brother lodged the case." The prosecutrix being denied to have made such statement to police, her statement is marked as Exbt.A(subject to confirmation by the I.O.). In her further cross-examination, she stated to Magistrate that Pranay tried to commit sexual intercourse in a vacant room in their house and she clarified that by saying so she meant to say that before Pranay completed sexual intercourse, her aunt came and noticed it. She denied the suggestion that Pranay did not assure to marry her.
14. Mr. Raju Datta, learned counsel appearing for the appellant has painstakingly submitted that it was a consensual sex, out of love affairs between the appellant and the prosecutrix. Learned counsel has candidly submitted that it is a case of acquittal and the accused-appellant should be acquitted from the charges leveled against him.
15. Per contra, Mr. A. Roy Barman, learned Addl. P.P. has submitted that the case is well proved, beyond any shadow of doubt and the statements of the prosecutrix(PW8) as well as PW9 are quite consistent, corroborating and trustworthy and on the basis of such evidence the accused can safely be convicted for the charges. The learned Addl. P.P. has defended the findings of the learned trial Judge.
16. It is now well settled that, the sole testimony of a victim of rape can form the basis of conviction. The submission of learned counsel for the appellant leads us to take note of the meaning of the expression consent.
17. Section 90 of IPC defines the expression consent, which is reproduced here-in-below, for convenience:-
"90. Consent known to be given under fear or misconception. -- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
Consent of insane person. -- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child. -- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
18. Section 375 of IPC reads as under:
375. Rape. -- A man is said to commit "rape" if he --
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First. -- Against her will.
Secondly. -- Without her consent.
Thirdly. -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. -- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. -- 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 is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. -- With or without her consent, when she is under eighteen years of age.
Seventhly. -- When she is unable to communicate consent.
Explanations 1. -- For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2. -- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. -- A medical procedure or intervention shall not constitute rape.
Exception 2. -- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
19. In our opinion, Section 90 of IPC has a direct bearing upon the definition of rape when both are put to correlate each other. In the case at hand, it is clear that there was a love affair between the prosecutrix and the appellant. The appellant assured the prosecutrix to marry her and the prosecutrix on that assurance surrendered her to fulfill the sexual desire of the appellant. So, the appellant represented himself to the prosecutrix as a person, who would marry her.
20. According to us, it is on this backdrop, the present case is to be tested on the basis of the facts and circumstances and also considering the evidence on record whether the accused-appellant is guilty of committing the offence of rape under Section 376 of IPC, as held by the learned Special Judge.
21. As we already have held that, in the context of the present case Section 90 of IPC has a direct bearing upon the definition of Section 375 of IPC, which also has to be related. At this juncture, it would be apposite to take note of some of the judicial pronouncements on Section 90 and Section 375 of IPC and further on the aspect of consent & consensual sex to arrive at a reasonable decision in the context of the present case.
22. In the case of State of Uttar Pradesh v. Naushad, (2013) 16 SCC 651, the Apex Court while considering the various features for commission of offence under Section 376 of IPC has held as under: [SCC pp 657, 658 paras 17, 18 & 19]
"17. Section 376 IPC prescribes the punishment for the offence of rape. Section 375 IPC defines the offence of rape, and enumerates six descriptions of the offence. The description "secondly" speaks of rape "without her consent". Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix "against her consent". The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of "bad character".
18. How is "consent" defined? Section 90 IPC defines consent known to be given under "fear or misconception" which reads as under:
"90. Consent known to be given under fear or misconception. -- A consent is not such consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception." (emphasis supplied)
Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated.
19. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her."
23. In a recent case of Anurag Soni v. State of Chhattisgarh being Criminal Appeal No.629 of 2019 arising out of SLP(Criminal) No.618/2019 decided on 09.04.2019, we find reference of paragraphs 21 and 24 of the case of Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. At para 10.2, we find a reference which reads as under:-
"10.2 In the case of Deepak Gulati v. State of Haryana (2013) 7 SCC 675, this Court observed and held in paragraphs 21 and 24 as under:
"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. 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 whether 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
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."
24. In para 15 of the case of Anurag Soni (supra) the Apex Court had observed and held as under:
"15. Now, so far as the submission on behalf of the accused-appellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inception the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.
As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tentamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him."
25. In the present case, what we have seen till now are that:
(i) The prosecutrix and the accused-appellant were known to each other, being neighbour.
(ii) Relationship between the two was ripened and both were involved in love affairs.
(iii) A clear assurance of marriage was given by the accused-appellant to the prosecutrix.
(iv) One day in a ceremony, the aunt of the prosecutrix had witnessed their sexual intercourse all on a sudden and that had exposed the extent of their relationship.
(v) At that moment itself, the prosecutrix divulged that she made herself involved in sexual intercourse only after the assurance of marriage by the accused-appellant.
(vi) A village meeting was arranged to settle the matter with the purpose of marriage of the prosecutrix with the appellant but, despite repeated attempts, neither the appellant nor the parents of the accused-appellant were turned up in the said meeting, rather, they refused to participate in the process of settlement.
26. Keeping in mind the law, as enunciated in the authorities discussed supra, we are of the opinion that, non-participation or non-attending in the process of settlement makes the prosecution story believable that the accused-appellant had committed rape upon the prosecutrix. In our considered view, the accused-appellant allured the victim-prosecutrix that, he would marry her and the said assurance was made only to satisfy his lust. The prosecutrix, being minor, as evinced from the evidence that she is below the consenting age of eighteen years [in view of the Criminal Law(Amendment) Act, 2013 w.e.f. 03.02.2013] had surrendered her precious esteem and dignity to the sexual desire of the accused-appellant, as he represented himself as a person, who would marry her. The conduct of the appellant to keep himself away from participating in the settlement process makes it clear that he was not having any willingness or intention to marry the prosecutrix at any point of time. But the accused-appellant by way of misrepresentation of the fact that he would marry the prosecutrix, ensured to grow the relationship between him and the prosecutrix and, ultimately, obtained consent to involve in sexual intercourse and the girl also surrendered herself on that misconception of fact.
27. It cannot be said, in the facts and circumstances of the present case that, the prosecutrix made herself involved in sexual intercourse voluntarily, as we have already stated that the prosecutrix had given her consent on the basis of misconception of fact and, therefore considering Section 90 of IPC, such a consent cannot be said to be a consent and, therefore, the accused-appellant had committed the rape as defined under Section 375 of IPC and thereby has committed an offence punishable under Section 376 of IPC.
28. We have taken note of the evidence of PW3, Dr. Ashis Das Kanango of Kadamtala PHC who examined the victim on 06.03.2014, i.e. about after 16(sixteen) days of the occurrence. He deposed that the prosecutrix used to be involved in repeated sexual intercourse. His report has been marked as Exbt.3.
29. From the evidence of Dr. Mriganka Datta Biswas, PW4 it is found that the accused-appellant is capable of performing sexual intercourse.
30. The prosecution has also led evidence to prove the age of the victim. Her birth certificate issued by the Registrar of Births & Deaths has been admitted into evidence and the photocopy after comparing with the original has been marked as Exbt.2.
31. PW1 Gouranga Nath, elder brother of the victim produced the original birth certificate in court during trial which was seized in his presence during investigation. According to that certificate, the date of birth of the victim is 28.09.1998. The accused allegedly committed sexual intercourse with her lastly on 18.02.2014. The prosecutrix was aged about 15(fifteen) years at the time of commission of the offence, i.e. the last date of sexual intercourse.
32. The prosecution also had produced PW7 Prsanta Kumar Chowdhury, who was the Headmaster of Jolaibasa S.B. School, where the victim read upto Class VIII. The PW7 testified during trial and proved the school certificate of the victim which was issued by him on 29.03.2014 in consultation with the admission register of the school and the school certificate was issued on the basis of the date of birth of the prosecutrix as 28.09.1998.
33. The neighbours of the accused were also aware of the physical relationship of the victim and the accused. PW2 Subodh Ranjan Nath who was present in a village baithak, which was gathered after the occurrence. In his cross-examination, he has stated that the accused denied his involvement in the alleged offence.
34. PW5 Dilip Nath, being the brother of the prosecutrix had deposed that the relation
Please Login To View The Full Judgment!
ship of the prosecutrix and the accused-appellant was first subjected and exposed by Namita Nath(PW9), aunt of the victim. He has further stated that keeping in mind the future of his sister, the prosecutrix herein, a marriage proposal was given to the accused, who refused to marry the victim and, thereafter he filed the FIR, Exbt.5 which was scribed by PW6, Niranjan Nath. 35. PW10 Pradip Kumar Laskar, Officer In-charge of Kadamtala Police Station received the FIR and registered Kadamtala P.S. Case No.14/2014 and endorsed the case to PW11, Asis Kr. Das, who confirmed that he recorded the statements of the material witnesses and arranged medical examination of the prosecutrix as well as the appellant. He also arranged the recording the statement of the prosecutrix under Section 164(5) of CrPC in course of investigation and finally submitted the charge-sheet. 36. The accused-appellant in his examination under Section 313 of CrPC has denied his involvement and claimed that false charges have been foisted against him. 37. In view of the evidence discussed here-in-above, such plea of the accused does not stand to reason. It is quite improbable that the elder brother of the prosecutrix and her close relatives would have exposed her to such scandal and put her future at stake by bringing false allegations of rape against the accused. 38. We have perused the findings of the learned Special Judge about the examination of the accused under Section 313 of CrPC. The learned trial Judge has observed that "There is no evidence that the victim or his informant brother or his aunt Namita Debnath had any animosity towards the accused. Therefore there is no reason of false implication of the accused". After perusal of the examination of the accused under Section 313 of CrPC, we find that the accused-appellant has only stated that he was innocent and he has been falsely implicated with the case for no vile of him. The accused-appellant has denied to adduce any evidence to prove his innocence. 39. In our considered view, had the accused-appellant appeared before the village meeting and participated the process of settlement, then, the case would have been looked upon otherwise, but, in the context of the present case, it is aptly proved that the accused-appellant obtained the consent of the prosecutrix by way of misrepresentation of fact that he would marry her and, thereby, the argued case of the appellant that it was consensual sex, is repelled in view of Section 90 of IPC. Accordingly, in our judicial conscious, we find no infirmity in the finding returned by the learned Special Judge while declaring the conviction and sentence against the accused-appellant and it does not call for any interference by this Court. 40. Consequently, the instant criminal appeal fails, and thus, dismissed. Send down the LCRs.