Diptesh Roy vs The State of West Bengal and Others

Sudip Ahluwalia, J.—This Revisional Application has been preferred against the Order No. 1 passed by the Ld. Additional Sessions Judge, 3rd First Track Court at Malda on 06.12.2013 in ST Case No. 32 of 2013 of his Court. By virtue of the said order the Ld. Trial Judge had been pleased to frame charges under Sections 417 , 376 and 313 of the IPC against the petitioner.

The background of the matter is that the de-facto complainant namely Smt. Rina Mardi had lodged the FIR against the petitioner in the English Bazar P.S. on 23.11.2011. The substance of her complaint was that she was a lady deserted by her husband; that the petitioner asked her to work in his houses as a maid servant; that the petitioner appointed her for such work in presence of his mother who later on went to Kolkata; that the petitioner thereafter told the complainant that he had already been divorced from his wife; that he thereafter had intimate relationship with the complainant by promising to marry her; that subsequently the complainant become pregnant and asked the petitioner to marry him to which he replied that he would do so after his mother''s return; that even after his mother''s returned the petitioner did not marry her, but later terminated her pregnancy.

The contention of the petitioner is that the aforesaid FIR does not show the existence of any ingredients to sustain the allegations of the offence of cheating, rape or causing miscarriage of the complainant''s pregnancy, in the light of the material available as well as the settled law.

In Hemant Choubey Vs. State of M.P.--> the High Court had quashed the proceedings under sections 417 /376 of the IPC in which the accused had been similarly alleged to have had sexual intercourse with the prosecutrix on a false promise of marriage, after considering several previous decisions on this point. The discussion of the previous decisions in the High Court''s decision are as follows -

"In the case of Uday Vs. State of Karnataka, , Hon''ble the Apex Court has held that:--

"A. Penal Code 1860 - Ss. 375 & 90 and 376

- Rape -- "Consent" Voluntary consent or consent under misconception of fact - Determination of - Consent given by the prosecutrix to sexual intercourse with accused -appellant, with whom she was deeply in love, on a promise that he would marry her on a later date - Prosecutrix continuing to meet accused and often having sexual intercourse and becoming pregnant - Complaint lodged on (Hemant Choubey v. State of M.P.) 4 Cr. R. No. 845/2014 failure of appellant to marry her - In such case, held, the consent cannot be said to be given under misconception of fact - A false promise is not a fact within the meaning of the Penal Code - For determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, held, there is no straitjacket formula and each case has to be decided considering the evidence and surrounding circumstances of that case - Where (I) the prosecutrix (aged 19 years on the date of occurrence) had sufficient intelligence to understand the significance and moral quality of the act she was consenting to, (ii) she was conscious of the fact that her marriage with the appellant was difficult on account of caste considerations, (iii) it was difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix, held, appellant''s conviction and sentence under S. 376 IPC was liable to be set aside- Question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under S. 375 fourthly and fifthly, or whether consent given under misconception of fact contemplated by S. 90 has a wider application so as to include circumstances not enumerated in S. 375 , held, not necessary to be considered herein."

In the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar, , it is held that:--

"A. Penal Code, 1860 - Ss. 375 secondly and 90 - Rape --"Without her consent" -- Meaning - Consent as explained under S. 90 relevant -- "Consent" compared with "will" and "submission"-- Consent given by a woman believing the man''s promise to marry her would fall within the expression "without her consent" only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax - Nature of consent -Questions relevant for determining - Burden on prosecution to prove absence of consent from attendant circumstances -Evidence should be scanned carefully - Past, contemporaneous and subsequent conduct are relevant - On facts, held, prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accused''s promise to marry her - But accused''s promise was not false from its inception with the intention to seduce her to sexual act - Hence cl. Secondly of S.375 not established -Instead, accused committed breach of promise for which he would be liable for (Hemant Choubey v. State of M.P.) 6 Cr. R. No. 845/2014 damages under civil law - Words and phrases -- "consent"."

The High Court ultimately quashed the proceedings after having recorded the following observations-

"7. In the present case it is difficult to say that the petitioner knew or had reason to believe that the prosecutrix had consented to have sexual relationship with him only as the consequence of her believe based on his promise that they will get marriage in due course. From the record the same is hardly seen. On the contrary, petitioner has reason to believe that the consent given by the prosecutrix was the result of their deep love for each other.

In such case, the consent of the prosecutrix was obtained or given in consequence of misconception of a fact arising from his promise is difficult to impute. In any event it was not possible for the petitioner to know what was in her mind when she consented because there were more reasons then one for her consent."

In Partho Pratim Phukan @ Meja Vs. State of West Bengal and Another, , on similar allegations of having committed rape upon the prosecutrix by procuring her consent on false promise(s) of marriage, another Bench of this Court had similarly quashed the proceedings with the following observations -

"8. Mr. Milon Mukherjee, appearing as learned Counsel for the petitioner, submitted that there can be no question of any offence of cheating as it was not legally possible for the petitioner to marry a person who was married to another person. After referring to the relevant dates, it was submitted that after about a month from the date of the complaint, the marriage between the defacto complainant and her former husband was dissolved by a decree of divorce. It was next submitted that having regard to the age of the defacto complainant as well as other facts and circumstances, question of commission of offence of rape under Section 376 also could not arise. It is clear from the materials in the case diary that the complainant freely exercised a choice between the resistance and assent. It cannot be said that she did not know the consequences of the act. Since materials on record suggest that the complainant freely, voluntarily and consciously consented to having sexual intercourse with the present petitioner, her consent could not be in consequence of any misconception of act.

In such view of the matter, I am of the opinion that there is no rational justification for proceedings further with the case under reference. Accordingly, the application being C.R.R. No. 441 of 2007 be allowed. The case being B.G.R. Case No. 395 of 1999 pending before the learned Court of Additional Chief Judicial Magistrate, Alipore arising out of the Jadavpur Police Station Case No. 51 dated 30th January, 1999 under Sections 376 /420 of the Indian Penal Code be quashed."

In "Shyamapada Tewari v. The State of West Bengal & Anr." reported in 2009(1) CCLR (Cal) 266 the accused similarly alleged to have committed rape by obtaining consent on false promise of marriage, was let off with the observations -

"8. It appears from the C.D that the victim woman is aged 34 years. The Statement of the witness Arobinda Ghosh under Section 161 , Cr.P.C discloses that whenever the victim woman and the accused used to visit Maynapur they used to stay in his room and to take key of the room and when they used to leave the room they used to handover the key to him. So it appears that intimacy developed between the accused and the victim woman and it is admitted that victim woman in her statement 164 , Cr.P.C that for a number of times accused had sexual intercourse with her in different places and the victim woman did not object or resist. So, the fact remains that the victim woman had consent to such sexual intercourse. According to the statement under Section 164 , Cr.P.C the said consent was obtained on the promise of marriage.

In the instant case before us there are glaring contradictions between the statement of the victim woman in the FIR and her statement under Section 164 , Cr.P.C. in the FIR the victim girl stated that on 9.1.2005 the accused committed rape on her and then on being asked as to why the accused caused great harm to her and on her cry the accused assured her to marry and on 27.1.2006 the accused also committed rape on her. But as per the statement of the victim girl under Section 164 , Cr.P.C the victim woman had intimacy with the accused in connection with their work and the accused had sexual intercourse with the victim girl at first in the house of daughter of her maternal-uncle. The accused asked him to go to the up stairs stating that he would make the victim woman understand the table relating to programme of Peerless agency and take rest. The victim woman had been to the up stairs and placed mat in the room of the upper floor and accused closed the door. The accused wanted to have sexual intercourse with the victim woman. The victim woman stated that she had consent if the accused would marry her and the accused agreed and she had sexual intercourse with the accused. Then they returned their home and after that there was cohabitation at a different places in her house and the house of her relative and Shilabati Lodge for longtime as husband and wife and lastly on 27th January, 2006 the accused also had sex with her in the house of Arabinda Ghosh. Whenever the accused was asked to marry he stated that he would marry her later on and when the victim girl heard that the marriage of the accused was settled elsewhere she asked the accused over the matter and the accused denied.

In this case the victim woman is a fully-grown lady aged 34 years. There was intimacy between her and the accused. There is no mark of injury on her private parts and according to medical report she was habituated to sexual intercourse. She was quite aware of the consequence of pre marriage sexual intercourse. She had sufficient intelligence to understand that significance and moral quality of the act she was consenting. She took the accused to the house of daughter of her maternal-uncle and voluntarily went up stairs and placed the mat on the floor. Even where she was proposed by the accused for sexual intercourse she did not resist the overtures of the accused and in fact she succumbed to them. Only she put a condition for such sexual intercourse i.e. the promise of marriage considering her future. The first occurrence referred in the statement under Section 164 , Cr.P.C shows that both of them were overcome with emotions and passion and found themselves in situations and circumstances where they, in a weak moment, succumbed to the temptation of having sexual relationship. The victim woman willingly consented to having sexual intercourse with the accused with whom she was intimated not because he promised to marry her but because she also desired it. So, it cannot be said that the consent given by the victim woman was actuated by misconception of fact. To the contrary, the act of the victim woman is an act of promiscuity on her part and the facts and circumstances of the case before the Apex Court reported in (2007)1 SCC (Cr) at page 557 are different from the facts and circumstances of the present case and the principles laid down in that case do not help the learned Counsel for the State."

In the present case according to the FIR itself the complainant was a woman "deserted" by her husband. It is nowhere the case that her marriage with her husband had already been dissolved. So, there could not have been any question of her remarriage during subsistence of her first marriage even assuming that she was a deserted wife. Admittedly she had attained the age of majority when she had intimate relationship with the petitioner. So, she is presumed to have been fully aware of implications of her conduct and also mindful of the fact that even otherwise in the long run it would be virtually impractical to expect that there was any chance of her marriage with her own employer, particularly since her own marriage was a still subsisting. The facts and circumstances of the present case are therefore clearly covered by the aforesaid decisions in relation to the offences U/Ss. 417 /376 of the IPC.

There is absolutely no indication in the FIR nor any material available in the CD show in what manner the petitioner had been instrumental in causing miscarriage of the complainant''s pregnancy. The Medical evidence on record in the form of her Examination report by the concerned Medical Officer on 24th of November 2011, as also the Hospital''s Discharge Certificate dated 11th September 2011 do not in any manner support the allegations. The examining Medical Officer did not find marks of injury etc. on her person, and the Discharge Certificate only mentions that she had been admitted for treatment from the 9th till the 11th of September, without disclosing what was the complaint or reason of her admission or the treatment administered.

Consequently in the opinion of this Court continuation of the criminal proceedings against the petitioner would clearly be an abuse of the process of the Court. The Revisional Application is therefore allowed after setting aside the impugned order passed by the Ld. Additional Sessions Judge, and the charges framed against the petitioner accordingly stand quashed.