Alok Mahato vs The State of West Bengal

Indira Banerjee, J. - This appeal is against a judgment and order dated 28th March, 2012 passed by the Additional District and Sessions Judge, Fast Track Court No. 3, Purulia in Sessions Case No. 123/08 corresponding to Sessions Trial No. 46/08 whereby the accused appellant, Alok Mahato has been held guilty and convicted of offence punishable under Section 376/417 of the Indian Penal Code and an order of sentence passed later the same day, whereby the accused appellant has been sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- to the victim for the said offence failing which he would have to suffer further rigorous imprisonment for one year.

The prosecutrix lodged a complaint in writing with the Purulia (M) Police Station alleging that the accused appellant had promised to marry her and had on the promise of such marriage allured her to cohabit with him on several occasions, as a consequence of which she became pregnant. She stated that she was pregnant for seven months. After investigation, charge was framed against the accused appellant under Section 376 and 417 of the Indian Penal Code. The accused appellant pleaded not guilty and claimed to be tried.

Six witnesses were examined on behalf of the prosecution. The accused appellant did not adduce any oral evidence. He was however examined under Section 313 of the Indian Penal Code. He denied the allegations against him.

The 1st Prosecution Witness was the prosecutrix herself, who in effect and substance deposed that the accused appellant induced her to cohabit with him on the assurance of marriage. As a result of cohabitation, the prosecutrix became pregnant. On becoming pregnant, she informed the accused appellant. The accused appellant assured her that he would marry her and asked her not to divulge her pregnancy to anyone. However, when the accused appellant did not agree to marry her even after seven months of pregnancy, she lodged a complaint with the Police Station. It appears that the accused appellant later delivered a girl child. She stated that the accused appellant was the father of the child.

From the evidence of the prosecutrix, it appears that she had been cohabiting with the accused appellant since 2003 and she gave birth to a child in 2007, after four years.

The 2nd Prosecution Witness, the mother of the prosecutrix deposed that her daughter had been raped three years ago when she had gone to the pond to ease herself. Thereafter, on assurance of marriage, the accused appellant cohabited with the prosecutrix on several occasions. However, when the prosecutrix became pregnant, he retracted from his promise to marry. She deposed that the prosecutrix had given birth to a daughter.

The 3rd Prosecution Witness denied knowledge of the incident, was declared hostile and subjected to cross-examination. Nothing emerged from her cross-examination.

The 4th Prosecution Witness deposed that the prosecutrix was unmarried. She became pregnant and gave birth to a child. She stated that she did not know anything more about the incident. This witness was also declared hostile and subjected to cross-examination by the prosecution. In cross-examination, she categorically denied having been interrogated by the Investigating Officer. She denied having told the Investigating Officer that she had heard that the prosecutrix would be getting married to the accused appellant in the month of ''Agrahayan''.

The 5th Prosecution Witness, Dr. Chiranjib Mukherjee, attached to Purulia Sadar Hospital as Medical Officer, who had examined the prosecutrix and performed urine test, found that she was pregnant.

The 6th Prosecution Witness is the Investigating Officer, who investigated the case. In his examination, he stated that he had prayed for blood of the accused appellant for DNA test, after birth of the child. But the accused appellant refused to give his blood.

The only adverse inference that can be drawn from the refusal of the accused to submit to a DNA test is that the accused appellant is possibly the father of the child. However, that in itself does not establish that the accused appellant is guilty of rape.

There can be no doubt that the accused may be convicted for rape on the sole evidence of the prosecutrix. The evidence of the prosecutrix may not even require corroboration. It is not necessary for us to discuss the various judgments referred to by the Court below, in this regard.

What transpires from the evidence on record is that there was prolonged cohabitation between the prosecutrix and the accused appellant which led to pregnancy of the prosecutrix and the prosecutrix gave birth to a child.

From the evidence it may reasonably be inferred that the accused appellant is the father of the child born to the prosecutrix. A DNA test would have conclusively proved whether the accused appellant was the child''s father or not.

A DNA test may have conclusively established that the accused appellant was the father of the child. In other words, a DNA test would have established whether there was cohabitation between the accused appellant and the prosecutrix. However, the question of whether cohabitation was consensual or whether the prosecutrix had been raped by the accused appellant would not be resolved by a DNA test.

Sexual intercourse without consent constitutes rape. Consent under misconception of fact or under misrepresentation is no consent in the eye of law.

As held by the Supreme Court in Karthi alias Karthick v. State Rep. by Inspector of Police, Tamil Nadu reported in AIR 2013 SC (Criminal) 1740, there is no straitjacket formula for determining whether consent of the prosecutrix to sexual intercourse was voluntary or whether it had been given under a misconception of fact.

In Uday v. State of Karnataka reported in 2003 SCC (Cri) 775, the Supreme Court held that consensus of judicial opinion was in favour of the view that consent given by the prosecutrix to sexual intercourse with a person with whom she was 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.

In each and every case, the Court is required to be 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 of whether consent was voluntary or was given under a misconception of fact. As held in Uday v. State of Karnataka (supra), the Court must weigh the evidence, keeping in view the fact that the burden on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

In Karthi alias Karthick v. State Rep. by Inspector of Police, Tamil Nadu (supra), the Supreme Court found on facts that at the time of first sexual intercourse the accused had gagged her mouth. He had promised to marry her by placing his hand on her head. The subsequent acts of sexual intercourse were acts of actively cheating her by giving her the impression that he would marry her. At the Murugan temple the accused appellant Karthi for the first time told the prosecutrix that he would not marry her.

There can be no doubt that consent given under misconception of fact is no consent as held in State of Uttar Pradesh v. Naushad cited by Mr. Ranabir Roy Chowdhury, appearing on behalf of the State. The question is whether the consent was under misconception.

There can be no doubt that in appreciation of evidence, minor inconsistencies in the testimony of the prosecutrix might be ignored. However, the onus is on the prosecution to establish each ingredient of offence beyond reasonable doubt on the basis of cogent evidence and materials on record. The prosecution cannot establish its case merely on the basis of suspicion and moral belief howsoever strong it may be or by taking support from the weakness of the defence case. This proposition finds support from the judgment of the Supreme Court in Narender Kumar v. State (NCT of Delhi) reported in (2012) 7 SCC 171.

There can be no doubt that Courts must deal with cases of rape with utmost sensitivity. The prosecutrix cannot be treated as an accomplice. Evidence has to be read in its totality. However, if the story projected by the prosecutrix is found to be improbable, the case becomes liable to be rejected and the accused would be entitled to benefit of doubt.

In Kaini Rajan v. State of Kerala reported in (2014)1 C Cr LR (SC) 105, the Supreme Court held that where false promise of marriage had given rise to misconception of fact and consent to sexual intercourse had been given by such misconception of fact, such consent was no consent in the eye of law. The Court observed that the version of the victim commands great respect and acceptability but if there are some circumstances which casts some doubt in the mind of the Court of the veracity of the victim''s evidence, then, it is not safe to rely on the uncorroborated version of the victim. The Supreme Court also held that a promise to marry without anything more would not give rise to misconception of fact within the meaning of Section 90 of the Indian Penal Code. It is to be established that at the very inception of the making of promise of facts, the accused did not really entertain the intention of marrying her and the promise to marry was a mere hoax.

K.P. Thimmappa Gowda v. State of Karnataka reported in (2011) 14 SCC 475 was a case where the accused had assured the prosecutrix that he would marry her and had sexual affair, which was repeated on several occasions as well. But he did not marry and she became pregnant. That was a case where there was delay of eight months in filing the complaint. The accused was given the benefit of doubt holding that it would not be possible to conclude that the alleged sexual act was committed without the consent of the prosecutrix.

In Kaini Rajan v. State of Kerala (supra), the appeal of the accused was allowed and the order of conviction of the Trial Court confirmed by the High Court was set aside.

In Jayanti Rani Panda v. State of West Bengal and Anr. reported in 1984 Cri. L.J. 1535, a Division Bench of this Court held :

"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."

In Vijayan v. State of Kerala reported in (2009) 3 SCC (Cri) 585, the prosecutrix lodged a complaint seven months after the alleged commission of rape, when the prosecutrix was carrying a child of seven months. The explanation of the prosecutrix for the delay that she had initially not protested in view of promise of the accused to marry her. At the appellant''s refusal to her proposal after she was pregnant for seven months, she filed the complaint. The Supreme Court held that the prosecutrix having waited for seven months for filing the FIR, in the absence of any other supporting evidence, it would not be unsafe to convict the appellant wholly on the basis of the testimony of the prosecutrix.

Having regard to the evidence on record, we are constrained to hold that the prosecution has not been able to prove the accused appellant guilty of rape. There can be little doubt that the accused appellant has committed a moral wrong. However, the conviction under Section 376 cannot be sustained. In appropriate proceedings the accused appellant may be compelled to maintain his child.

The appeal is allowed.

The conviction and the sentence is set aside.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.