Majen Ray vs State Of West Bengal

Joymalya Bagchi, J.

The appeal is directed against judgement and order dated 16.1.2015 passed by learned Additional Sessions Judge, Fast Track Court, Cooch Behar in

Sessions Case No.140 of 2003 arising out of Sessions Trial No. 03(05)/2006 convicting the appellant for commission of offence punishable under

Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.40,000/-, in default to

suffer rigorous imprisonment for one year more with a further direction that upon realisation of fine, Rs.30,000/- shall be given to the prosecutrix and

her minor child for their welfare under Section 357 Cr.P.C.

The prosecution case as alleged against the appellant is to the effect that the appellant had a love affair with the victim and out of such affair they had

cohabited together resulting in her pregnancy. The appellant prevented her to abort and promised to marry her. Initially she suppressed the pregnancy

from her parents, but subsequently she divulged the matter to her parents and when her parents confronted the appellant over the issue, although the

appellant agreed to marry the victim, such marriage could not fructify due to the objection of his parent who, however, offered monetary compensation

to the victim. Under such circumstances, father of the victim took out an application under Section 156(3) Cr.P.C. resulting in registration of

Kuchlibari P.S. Case No.27 Dated 20.11.1999 under Sections 376/109 of the Indian Penal Code against the appellant and his parents, namely, Narim

Roy and Basanti Bala Roy.

In conclusion of investigation, charge sheet was filed against the appellant and co-accused persons and the case was committed to the Court of

Sessions and transferred to the Court of the Learned Additional Sessions Judge, Fast Track 2nd Court, Cooch Behar for trial and disposal. Charges

were framed under Section 376 of the Indian Penal Code against the appellant whereas the other accused persons, namely, Narim Roy and Basanti

Bala Roy were discharged. In the course of trial, prosecution examined eight witnesses and exhibited a number of documents whereas the defence

did not examine any witness. In conclusion of trial, the learned Trial Judge by the impugned judgement and order dated 16.1.2015 convicted and

sentenced the appellant, as aforesaid. The appellant, being aggrieved with such judgement and order of conviction and sentence, preferred the instant

appeal before this court.

It was the specific defence of the appellant that he was a minor at the time of occurrence. Pursuant to direction passed by a co-ordinate bench of this

court, the Trial Judge held an enquiry into such plea of juvenility and upon examination of the witnesses and verification of documents placed on behalf

of the appellant the learned Judge by order dated 28.8.2015 held that the appellant was not a minor at the time of occurrence. This order was

challenged before this court in C.R.R. No. 2166 of 2016 wherein one of us, (Joymalya Bagchi, J.) by order dated 14.2.2018 directed ossification test

of the appellant to be conducted by a panel comprising of three doctors headed by the Head of a teaching hospital in North Bengal. Pursuant to such

direction, report has been filed by the Medical Board wherein it is stated that the appellant was more than 35 years and less than 40 years on the date

of examination i.e. 14.3.2018. The appeal as well as the revision petition has been taken up for hearing analogously.

Mr. Debabrata Roy, learned counsel appearing for the appellant submits that if the lower age as specified in the ossification test report is accepted,

the appellant would be a minor on the date of occurrence i.e. in 1999. That apart, he submits that the evidence of the victim shows that she was a

major and had voluntarily cohabited with the appellant. Due to supervening circumstances, the marriage could not fructify and hence, it cannot be said

that the conduct of the appellant would tantamount to rape as defined under Section 376 read with Section 90 of the Indian Penal Code.

Learned Public Prosecutor with Mr. Das appearing for the State argues that the ossification report is inconclusive as to the age of the appellant and it

cannot be said with certainty that the appellant was a minor at the time of occurrence. The victim was a minor girl aged about 15 years at the time of

incident and was induced to sexual intercourse with the appellant on the false promise of marriage. She became pregnant and thereafter the appellant

refused to marry her. Accordingly, the appeal is liable to be dismissed. Before going into the dispute as to the age of the appellant at the time of

occurrence, let me examine the rival versions of the parties with regard to the fact whether the conduct of the appellant in cohabiting with the victim

would amount to an offence of rape or not.

P.W.2 is the victim girl in the instant case. She deposed that she is aged around 30 years on the date of her examination i.e. 26.2.2009. She stated that

the incident occurred ten years ago. Her parents were day labourers. She used to go to school but subsequently she dropped out. She had a love affair

with the appellant. While her parents were away, the appellant used to come to her house and they cohabited together. The appellant assured to marry

her. As a result of such cohabitation she conceived. She informed such fact to the appellant who told her not to abort the pregnancy as he would

marry her. Initially she did not disclose the pregnancy to her parents but subsequently she disclosed such fact to her parents. Her parents took her to

the house of the appellant. The father of the appellant was not agreeable to give marriage of the appellant with her. The appellant was, however,

agreeable to marry her. Subsequently she filed the case at police station. Police interrogated her. She recorded her statement before the Magistrate.

She gave birth to a female baby in the Kuchlibari Primary Health Centre.

In cross-examination, she stated that they surreptitiously had an affair and that no one was aware of their relationship. Appellant was always willing to

marry her. She knew that the cohabitation would result in pregnancy. In spite of such knowledge, she continued to cohabit with the appellant. Her

father filed the case. She did not lodge any complaint. P.W.1, Jogesh Roy and P.W.3, Kunjabala Roy are the parents of the victim. P.W.1 stated that

her daughter was 15 years of age at the time of occurrence. He was a day labourer and used to go out in the morning. Her daughter had a love affair

with the appellant. As a result she conceived. He came to know of such pregnancy after six months. The father of the appellant had given him

assurance that he will give the marriage of his son with his daughter after sometime. The appellant fled away from his house. The father of the

appellant told him to take Rs.5,000/- as compensation. He refused to do so and informed such fact to the police station. As the police did not take any

step, he filed the case in court. He proved his signature on the written complaint.

In-cross examination, he admitted that his daughter never attended school. He could not say the date, month or year of birth of his daughter. P.W.3

has corroborated the evidence of P.W.1. However, in crossexamination, she stated that she could not state the date of birth of her daughter. P.Ws.4,

5 and 6 are neighbours of the victim. They, however, did not throw any light in respect of the incident. P.W.7 is the scribe of the application filed

under Section 1576(3) Cr.P.C. which was treated as first information report. He proved the written complaint (Ext. 1/3). P.W.8 is the Investigating

Officer of the case. He drew up the formal first information report (Ext. 3), visited the place of occurrence and prepared draft sketch map (Ext. 4 and

4/1). He examined the victim as well as the witnesses and submitted charge sheet.

From the aforesaid evidence, it appears that the appellant and the victim had a secret love affair leading to cohabitation. Both of them were willing

parties to such association and the victim was fully aware of the consequences of such cohabitation. Initially, she did not disclose her pregnancy to her

parents. She did so after she was six months’ pregnant. Her parents took her to the house of the appellant. The appellant was always willing to

marry her but the marriage in the instant case could not fructify due to the opposition of the father of the appellant. Age of the victim at the time of

occurrence has not been proved beyond doubt. No ossification test was conducted to determine the age of the victim. Evidence of her father that she

was a minor at the time of occurrence is not reliable as neither of the parents was able to state the date of birth of the victim. No birth certificate was

also proved to establish the age of the victim. On the other hand, the victim on the date of deposition i.e. 10 years after the incident stated that she

was 30 years of age. If this statement is taken into account, then I have no hesitation that the Trial Judge was right to come to the conclusion that the

victim was a major at the time of the occurrence.

It is also pertinent to note that the appellant was a young person who, even if the upper age limit as stated in the ossification report is taken into

account, would have been about the same age as the victim at the time of occurrence. Evidence has come on record that the appellant was always

willing to marry the victim. It appears that the marriage could not fructify due to the objection of the father of the appellant who has been discharged

from the case. In the aforesaid factual backdrop, I am of the opinion that the prosecution has not been able to show that the appellant had made a

dishonest promise to marry the victim which he knew to be false from the inception and had thereby induced the victim to sexual intercourse.

Mere failure to comply with a promise in future due to supervening circumstances as in the present case cannot be a ground to hold that the appellant

had acted dishonestly or fraudulently at the time when such promise was made. In this regard, reference be made to Uday Vs State of Karnataka

reported in (2003) 4 SCC 46. In the light of the aforesaid discussion, I allow the appeal and set aside the impugned judgement and order of conviction

and sentence imposed upon the appellant.

The appeal is allowed. Consequently, the revision petition being CRR 2166 of 2016 stands disposed of. The appellant shall be forthwith released from

custody upon execution of bond to the satisfaction of the trial court for a period of six months in terms of Section 437A Cr.P.C. Copy of the judgment

along with LCR be sent down to the trial court at once for necessary compliance. Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.