Judgment:
Pranab Kumar Deb, J.
1. This appeal has been directed against the conviction and sentence under Section 376 IPC passed by the learned Additional Session Judge, Kalna in connection with Sessions Case No. 27 of 2001/Sessions Trial No. 29 of 2001.
2. The prosecution case, as recorded in the FIR, and elaborated further in course of the trial was to the effect that the appellant, who frequented the house of the father of the victim girl, had developed intimate relationship with her. Taking advantage of the absence of the parents of the victim girl, the convict continued to enjoy her company. Holding out the promise of marrying her, the convict was involved in physical relationship with her. The victim girl had a firm belief that the convict would give her recognition as his wife by marrying her. The victim girl conceived in the wake of her having sustained intimate relationship with the convict. When the victim girl earnestly implored him to marry her, the convict adopted a dilli-dally approach. He egged her to cause abortion. He sounded his proposal to marry her only after her causing abortion of her child. The victim girl spurned the suggestion of causing abortion of the fetus. With days wore on, the parents of the victim girl and residents of the locality were apprised of the pregnancy of the victim girl. They mounted pressure on the convict to marry her. A meeting of the Panchayat was also called wherein the convict acknowledged his affair with the victim girl. He also acknowledged that the victim girl had been made pregnant by him. The convict, however, backed out from his earlier promise to many her even after making the firm commitment in the Salisi called by the Panchayat. The victim girl, who was in advance stage of pregnancy, delivered a child in the meantime.
3. Alleging that the convict had developed physical relationship with her by practicing deception, the victim girl lodged an application under Section 156(3) CrPC before the learned S.D.J.M., Kalna. Accordingly, a case under Sections 420 and 376 IPC was registered against the appellant on the basis of the FIR lodged by the victim girl.
4. In course of the investigation, the appellant was arrested. The Investigating Officer also made arrangement for medical examination of the victim girl. He also went on examining the material witnesses including the inmates of the locality. The appellant having denied the parentage of the child, the D.N.A. test was conducted. It revealed that the child of the victim girl was fathered by the appellant. Eventually on completion of investigation, chargesheet was submitted. The case was committed to the court of Session in due course of time. On perusal the materials in the case diary, the learned Additional Session Judge framed charges under Sections 420 and 376 IPC. The convict having pleaded innocence, the prosecution examined as many as 12 witnesses including the victim girl, her father, inmates of the locality, the doctor who examined the victim girl and the police officer conducting the investigation.
5. On scanning the oral evidence and the medical papers, the learned Additional Sessions Judge convicted and sentenced the appellant under Section 376 IPC. The appellant was sentenced to rigorous imprisonment for ten years and fine of Rs. 10,000/-, in default, to suffer further rigorous imprisonment for one year for commission of offence under Section 376 IPC. The appellant was, however, exonerated of the charge under Section 420 IPC.
6. Aggrieved by and dissatisfied with the order of conviction and sentence under Section 376 IPC, the appellant has preferred this instant appeal.
7. Appearing on behalf of the appellant, Mr. Joymalya Bagchi has submitted that from the statements of the victim girl and her parents it would be quite evident that the consent had not been given under misconception of fact, as projected by the prosecution. It is argued by Mr. Bagchi that in order to constitute misconception of fact, it must be shown that the person had procured the consent of the woman on the basis of representations of fact which he had believed to be false at the time when he made such representation. In other words, if a person represents to a woman that he would marry her in the future but subsequently does not do so the same, that itself would not constitute misrepresentation of fact. It must be established beyond reasonable doubt that at the time when the person made the promise to marry, he knew or had reason to believe that he would not honour the same. To vindicate his stand, Mr. Bagchi has relied on the following cases.
i) 1984 Cr LJ 1535 Jayanti Rani Panda v. State of West Bengal and Anr.
ii) 1990 Cr LJ 650 Hari Majhi v. State
iii) 2003 SCC (Cri) 775 Uday v. State of Karnataka
iv) : AIR2005SC203 Deelip Singh @ Deelip Kumar v. State of Bihar
8. Claiming that there was no iota of the evidence to show that the appellant did not intend to marry the victim girl at the time when he made the promise of marriage, Mr. Bagchi has contended that mere promise to marry and the subsequent failure to live upto such promise would not constitute an offence. Relying on the evidence of the victim girl and her parents namely P.W.2 Manju Ghosh and P.W.3 Tapan Ghosh, Mr. Bagchi has submitted that the girl was matured enough to accord voluntary consent to sexual relationship. It is submitted that the girl having reached the threshold of majority, it must be presumed that she was well aware as to what she had been willfully doing with another person. The consent having been freely and voluntarily given, such consent cannot be said to have been given under misconception of fact, as urged by Mr. Bagchi.
9. Dwelling on the social status of the victim girl, Mr. Bagchi has submitted that in view of the elicitation of the fact that the victim was a married lady and her marriage was still subsisting at the time of the alleged incident, the victim lady was not entitled to marry another person during the subsistence of her marriage with a person called Kartik Chowdhury. The fact that the victim was minor at the time of marriage would not make the marriage either void or voidable. It is argued that a marriage solemnized in contravention of Clause (iii) of Section 5 of the Hindu Marriage Act is neither void, nor voidable under Sections 11 and 12 of the Hindu Marriage Act. Mr. Bagchi has relied on the case of Krishna Prasad Paul v. State of West Bengal reported in 2005 (4) CHN 308 and Manish Singh & Etc. v. State Govt. of NCT and Ors. Etc. reported in : AIR2006Delhi37 , in support of his contention that a marriage of a minor would be deemed to be a valid one and it would never be construed as void or voidable. In view of the subsistence of her marriage, there was no scope or semblance of a chance for the appellant to marry the prosecutrix during the subsistence of her marriage with another person. Establishment of physical relationship with a married girl would not, thus, constitute an act of rape of the victim lady by the appellant.
10. Refuting the claim that the victim, a rustic girl, was not aware of the position that she could not contract the second marriage before the annulment of the previous one, Mr. Bagchi has contended that the statement of P.W.2 would falsify the claim of the prosecution that she was not aware of the legal bar to contracting a second marriage during the subsistence of the first marriage. It is submitted that P.W.2 had testified that the victim lady had discussed with P.W.6, Prodhan of the village, as to the necessity of initiation of proceeding against her husband called Kartik Chowdhury. It is clearly manifested by such startling disclosure that the victim lady and her family were well aware that a decree of divorce was required for contacting a second marriage. It is argued that the victim girl having accepted live in relationship with another person maintenance of physical relationship in such a situation would not constitute an act of rape.
11. Putting emphasise on the legal maxim 'ignorantiajuris non excusaf, Mr. Bagchi has contended that a party cannot claim advantage by taking the plea of ignorance of law. It is argued that the plea of ignorance of law would vitiate consent is completely based on absurd proposition. It is contended that the failure to perform promise is not due to the volitional act of the parties, but by operation of law. Claiming that the instant case fairly falls under the context of misconception of law, Mr. Bagchi has argued that the submission of the prosecution that the girl under the spell of misconception that she could contract a second marriage notwithstanding the subsistence of the first marriage is not tenable either in law or in fact.
12. On the question of admissibility of DNA test report, Mr. Bagchi has submitted that since the finding made in DNA test report was not explained to the appellant at the time of his examination under Section 313 of the Code of Criminal Procedure, that report cannot be taken into consideration for forming an opinion as to whether the appellant had intimate relationship with the victim girl. The very purpose of examination under Section 313 of the Code of Criminal Procedure is to afford an opportunity to the accused to explain the circumstances going against him. That opportunity not having been provided, banking on the DNA test report is totally uncalled for, as urged by Mr. Bagchi.
13. The pivotal issue is whether the consent given pursuant to a false representation that the accused intends to marry can be regarded as consent given under misconception of fact. It is to be decided whether it is a case of passive submission in the aftermath of psychological pressure exerted on the girl or allurements held out by the accused or it was a conscious decision taken by the prosecutrix herself. It is to be judged whether the consent given by the prosecutrix was the result of a misconception created in her mind. In explaining the terminology 'consent', as incorporated in Section 90 of the Indian Penal Code, the apex Court in Deelip Singh @ Dlip Kumar v. State of Bihar reported in : AIR2005SC203 has underlined that consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.
14. In Uday v. State of Karnataka reported in 2003 SCC (Cri) 775, the apex Court has further underlined that there is no straightjacket formula for determining whether consent given by the prosecutrux to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. The Court must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. It has also been laid down that 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 provided that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. It has been highlighted that consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code.
15. As per statement of the prosecutrix, their affairs started in the month of Baishakh, 1404 B.S. and continued upto Bhadra 1406 B.S. Her father, a day labourer, worked in the land and the shop of the accused who hailed from a well to do family. He frequented their house. Gradually, a love affair between the appellant and the prosecutrix developed. In the absence of her parents, the accused Swapan Chatterjee mixed with her like husband and wife. He behaved with her as husband and wife on four to five occasions and on such occasions he held out the promise of marrying her. The prosecutrix was made pregnant as a result of free mixing with the accused. On being informed about her pregnancy, the accused gave the assurance that he would marry her. Even after such assurance being given by him, he asked the prosecutrix to abort the child. He conveyed to the prosecutrix that he would marry after her terminating the pregnancy. The prosecutrix, however, rejected his proposal for undergoing abortion.
16. The accused having backed out from his promise of marrying the girl, a meeting was called. In the said meeting, the accused Swapan Chatterjee once more made the commitment of marrying her. Subsequently, he took the stand that he would marry the prosecutrix only after her giving proof that he fathered the child of the prosecutrix.
17. Denying the claim that she had physical relationship with so many persons, the prosecutrix asserted that she had physical relationship only with the accused Swapan Chatterjee. She also vehemently denied that she had physical relationship with a person called Banamali and also with her brother-in-law.
18. Her mother P.W.2 Manju Ghosh also testified that the accused Swapan Chatterjee declared in the meeting called by the villagers that he would marry her daughter if it was proved that he was responsible for the pregnancy of her daughter. Similar statement was made by P.W.3 Tapan Ghosh, the father of the proseccutrix.
19. The prosecutrix came from lower rung of the society. Her father was a day labourer. She had read upto Class-VI only. The accused exploited the position by making her believe that he would marry her. Pinning faith on such repeated assurance, the proseccutrix consented to her having physical relationship with the accused. It is not a case of simple allurement or mere promise to marry. The accused hailing from a well to do family made her believe that their physical relationship would culminate in marriage.
20. The accused held out the promise of marrying her from time to time only to back out on such occasions. It is clear manifestation of his intention to ditch her. He never evinced any positive intention to marry the prosecutrix. Fraudulent consent was obtained from a girl who was still in the tender age. As observed in the case of Yedly Srinivasa Rao v. State of U.P. reported in (2007) 1 SCC (Cri) 557, fraudulent consent cannot be said to be a consent so as to condone the offence of the accused. In Pradeep Kumar Vienna v. State of Bihar and Anr. reported in (2008) 1 C Cr LR(SC) 173, it is viewed that promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90. A representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause second. The appellant belonging to an affluent family fraudulently induced and convinced a teenage girl belonging to an economically weaker class with little education behind her that their physical relationship would be sanctified by marriage. He even made out such promise even in the meeting called by the villagers only to back out from such assurance of marrying her. Even he went to the extent of denying the fatherhood of the child. His entire conduct right from the beginning would indicate that he never had the intention of marrying her. He exploited the situation by establishing physical intimacy with the girl who had been hoaxed by his false assurance of marrying her.
21. It is argued by Mr. Bagchi that since the marriage of the prosecutrix with the person called Kartik Chowdhury had not been annulled by the decree of the Court, there was no question of the appellant marrying her during the subsistence of the valid marriage of the prosecutrix with another person. Since the prosecutrix was under the impression that she could marry the appellant without obtaining a divorce from her husband, she must be deemed to be under the spell of misconception of law. The consent given under misconception of law will not be construed as an act of fraud on the part of the appellant. At this juncture, it may be mentioned that what is to be judged is whether fraudulent consent had been obtained by the appellant. It is on record that there was no information as to the whereabouts of the husband of the prosecutrix. She had no contact with Kartik Chowdhury for a long time. The prosecutrix came from a economically backward class. Her father was a day labourer who worked directly under the appellant. The prosecutrix had read just up to Class VI. Exploiting the situation and taking advantage of absence of her parents, the appellant established physical relationship with the girl by repeatedly assuring her that he would marry her. It is not expected that a girl coming from a weaker Section of the society and having little education will be well conversant with the intricacies of law relating to marriage.
The consent, as evidenced by the conduct of the appellant was obtained by playing fraud. The consent obtained by fraudulent means cannot be said to be a consent so as to condone the offence of the appellant. The conduct of the appellant, as explained by the prosecutrix and her parents, does indicate that he made the repeated deliberate representations to elicit the assent of the victim without having the intention or inclination to marry her. He repeatedly backed out from his promise of marrying her. It does reflect that he never really entertained the intention of marrying her and the repeated promise that he had made was nothing but a mere hoax
22. The trial Court on appreciation of the facts and circumstances and having regard to the provision as Section 90 IPC and interpreting the terminology 'consent' came to the view that the appellant did establish physical relationship with the prosecutrix by fraudulently obtaining consent of her. His own conduct amply demonstrates that he never entertained the Intention of marrying the prosecutrix. He held out the false promise of marrying her just to fraudulently obtain consent of the prosecutrix for having sexual relationship with her. Deceived by such fraudulent act, the prosecutrix submitted to his sexual advance. We do not find any justification for differing with the view of the trial Court. The appeal, thus, does not call for any interference.
23. In the result, the appeal is dismissed, with a direction upon the appellant to surrender before the learned Additional Session Judge, Kalna within 15 days of passing of this judgment to serve out the sentence, failing which, the learned Additional Session Judge, Kalna shall issue a non-bailable warrant against him for securing his arrest.
Send a copy of the judgment to the learned Additional Session Judge, Kalna for information and follow up action.
Urgent xerox cetified copies, if applied for, are to be supplied.
Debi Prasad Sengupta, J.
24. I agree.