Court: Calcutta High Court (Appellete Side)
Bench: JUSTICE INDIRA BANERJEE
Jayanti Rani Panda vs State Of West Bengal on 31 March, 2015
Law Point:
JUDGEMENT
Leave is granted to the petitioner to correct the cause title as also the body of the application by rectifying the inadvertent error in the Sessions Trial case number and Police Station case number.
This application under Section 389(1) of the Code of Criminal Procedure, 1973 for grant of bail and suspension of sentence during the pendency of the appeal is in relation to the appeal being CRA 76 of 2015 being an appeal from a judgment and order of conviction dated 20th Janaury, 2015 and order of sentence dated 21st January, 2015, passed by the learned Additional Sessions Judge, Fast Track Court, Cooch Behar in Sessions Case No. 168 of 2012 corresponding to Sessions Trial No.4(5) of 2012, whereby the accused appellant has been convicted of offence of rape punishable under Section 376 (1)of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and fine of Rs.40,000/-, in default of which he was to suffer further rigorous imprisonment for one year.
The case of the prosecution is that the prosecutrix, who was a student of Sewing Centre, met the accused appellant through a common friend. The accused appellant used to call up the prosecutrix often and friendship developed between them. According to the prosecutrix, the accused appellant in course of time, professed his love for the appellant and proposed to marriage to the prosecutrix. The prosecutrix contends that she was persuaded to agree to sexual intercourse with the accused appellant, by reason of his promise to marry her.
The judgment and order under appeal indicates that the prosecutrix cohabited with the accused appellant on several occasions. Disputes cropped up between the prosecutrix and the accused appellant when the accused appellant refused to marry the prosecutrix.
From the judgment and order under appeal it appears that the accused appellant first cohabited with the prosecutrix sometime in October 2010 and lastly on 25th January, 2011. The FIR was lodged on 22nd March, 2011, that is, almost two months after the accused appellant and the prosecutrix last cohabited together.
In Jayanti Rani Panda Vs. State of West Bengal, reported in 1984 Criminal Law Journal 1535, a Division Bench of this Court held that the failure to keep the promise to marry at a future uncertain date, due to reasons not very clear from 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 activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC 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.”
The same view was reiterated by this Court in Hari Majhi Vs. State reported in 1990 Criminal law Journal 650 (Cal) and Abhoy Pradhan Vs. State of West Bengal reported in 1999 Criminal law Journal 3534.
The judgment of the Division Bench of this Court in Jayanti Rani Panda (supra) has been relied upon and approved by the Supreme Court in Uday Vs. State of Karnataka reported in 2003 S.C. Cases (Criminal) 775. The Supreme Court held ” it therefore appears that the consensus of judicial opinion is in favour of the view that the 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. We are inclined to agree with this view… ..”
It is true that the Supreme Court went on to add that there is no strait-jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the test 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. It 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.
Considering the judgment and order under appeal, we are of the prima facie view that the evidence on record on the basis of which the accused appellant has been convicted of rape under Section 376(1) of the Indian Penal Code and sentenced, inter alia, to suffer rigorous imprisonment of ten years does not lead to conclusion beyond reasonable doubt that the accused appellant, cohabited with the prosecutrix by making a promise, which he know was false from the very inception of the relationship.
It is made clear that the above observation is a prima facie observation. Whether, in fact, the promise to marry was false from the inception is an issue which has to be decided in the appeal.
The application being CRAN 643 of 2015 is, therefore, allowed.
The order of sentence shall remain suspended during the pendency of the appeal and the accused appellant shall be enlarged on bail subject to conditions and sureties to the satisfaction of the learned Chief Judicial Magistrate, Tufanganj, District Cooch- Behar.
We also deem it appropriate to expedite the hearing of the appeal. The Lower Court Records shall positively be transmitted to this Court within four weeks from the date of communication of this order. The requisite number of Paper Books shall be made ready within six weeks thereafter. Let the appeal be listed for hearing in the monthly combined list of July, 2015.
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