Kajal Sarkar vs State Of Tripura

[1] Heard Mr. Raju Datta, learned counsel appearing for the convict-appellant. Also heard Mr. Samrat Ghosh, learned Addl. P.P. appearing for the State-respondent.

[2] This appeal is directed against the judgment and order of conviction dated 07.02.2017 passed by the learned Sessions Judge, Unakoti Judicial District, Kailashahar, Tripura, in connection with case No. S.T. 10 (U/K) of 2015, whereby and whereunder, the appellant has been convicted and sentenced to suffer RI for 7(seven) years and fine of Rs. 10,000/- for committing offence under Section-376(1) of IPC and further to suffer RI for a period of 3 (three) years and fine of Rs. 2,000/-for committing offence under Section-306 of IPC with default stipulations.

[3] The victim girl lodged a complaint to the Officer-in-Charge of Pencharthal P.S. stating inter alia that 3/4 years back, the convict-appellant was tempting her with a promise to marry, though initially she turned down the proposal of the convict-appellant but, when the accused-appellant threatened himself to commit suicide, she agreed to that proposal. Thereafter, they developed physical relationship on so many occasions. There was also a joint photograph. On 14.12.2013 at about 7.00pm she went to a marriage ceremony in the house of Ranjit Sarkar of Machmara and the convict-appellant also went to that house. It was her complaint that on the basis of a promise made by the convict-appellant that on that day itself he would marry her, she accompanied him but she was taken to a jungle nearby the bank of Deo River and there she was subjected to satisfy his lust. At that time, they were caught hold by the villagers and ultimately, the brother and brother-in-law of the accused-person rescued them and went back to the house of Uttam Sarkar. She further complained that the guardians of the accused-person had sent him elsewhere on that very night. However, according to her, guardians of the convict-appellant assured that they would arrange marriage with the convict-appellant but, ultimately, no marriage was solemnized between the complainant-victim and the convict-appellant.

[4] Subsequently, on 26.01.2014 another complaint was lodged to the Officer-in-charge of Pencharthal P.S. stating inter alia that she committed suicide on 17.01.2014. On the basis of those two complaints, the case was registered against the accused-person under Sections-376(1)/417 of IPC.

[5] After thorough investigation, the Investigating Officer submitted charge-sheet against the convict-appellant under Section-376,306 of IPC as well as against two persons separately. It is transpired that I.O. has recorded the statement of the victim girl under Section-164(5) of Cr. P.C. and also recorded the statement of the available witnesses under Section-161 of Cr. P.C. The victim girl was medically examined.

[6] After receipt of the copy of the charge-sheet, cognizance was taken by the Magistrate Court and since the case was triable by the Court of Sessions, it was committed to it. After receipt of the records, learned Judge has framed the charges against the convict-appellant under Section-376(1), 306 and 417 of IPC. Charge was also framed against Sajal Sarkar and Shanti Sarkar under Section-306 of IPC by the Court of Sessions. During trial, as many as 24 witnesses were examined and altogether 13 documentary evidences were exhibited.

[7] After completion of recording evidences, the appellant was examined under Section-313 of Cr. P.C., where he denied the charges and the incriminating materials leveled against him by the prosecution witnesses and pleaded innocence and claimed to be tried.

[8] The learned Sessions Judge after considering the aggravating and mitigating circumstances and the materials brought on record came to the finding that the convict-appellant had committed offence punishable under Section-376(1), 417 and 306 of IPC and sentenced him as aforestated. However, the learned Sessions Judge had acquitted other two accused persons namely, Sajal Sarkar and Shanti Sarkar from the charge leveled against them under Section-306 of IPC.

[9] The learned Judge while convicting the convict-appellant came to the finding in the manner as follows:

"As already mentioned above, in the present case, I am satisfied that looking to the antecedent and subsequent events that the accused never intended to fulfill the promise of marriage, this was not a case where the accused was deeply in love. The accused persuaded her by expressing his love by asserting that if she did not agree he would commit suicide and took her to a temple and promised before the God that he would marry her. Said gestures of the accused prompted the victim to believe in his assurance and due to that promise held out by the accused she must have agreed to the act of sexual intercourse with him.

Had the accused not persuaded the prosecutrix so relentlessly and had he not promised to marry her and not proclaimed that he would commit suicide if she did not acknowledge his love or not professed before the Deity that he would marry her, perhaps she would not have agreed to sexual intercourse with him."

[10] On the basis of the aforesaid finding, the learned Judge had convicted the accused. Now, to find out whether the judgment and order of conviction is sustainable or not, let a survey of the evidence as let in by the prosecution may be made.

[11] PW-1, Sri Paritosh Sarkar is the younger brother of the deceased prosecutrix and he deposed that on 14.12.2013 when his sister attended one marriage ceremony in the house of his relative at Ramgunapara she was called by the accused Kajal Sarkar from that house and in the promise of marrying her he forcibly raped his sister where they caught hold red handed from the place of rape and ultimately, both of them were sent back to their respective houses. His sister narrated the entire incident to his family members. He further deposed that the convict-appellant had promised to marry his sister but he fled away denying to marry her. He further deposed that one day on 17.01.2014 his sister had left the house without informing anybody in the house and one day he got telephonic information from the Pecnharthal hospital that his sister was hospitalized in the hospital and after going there she was found dead. He was told by the doctor that she consumed poison and committed suicide. He further deposed that he was told by his sister that after lodging police case on 31.12.2013 accused Sajal Sarkar and Santi Sarkar used to disturbed his sister and threatened to withdraw the case.

[12] In cross-examination, PW-1 has stated that for about 3 years the love affair between his sister and the convict-appellant was known to the family members. He further stated that they were caught by the people of Ramgunapara when they were gossiping and sent back to their respective houses. He further stated in his cross examination that they tried to compel his sister to lodge complaint against Kajal Sarkar when they were gossiping and relationship was detected by the people.

[13] PW-2 Bhusan Chakma deposed that he had seen the victim moving across the railway track with a mobile in music sound.

[14] PW-3 Makaddas Ali, is not a vital witness being a constable of the Pencharthal P.S.

[15] PW-4 Dr. Sabyasachi Nath is the scientific officer in State Forensic Science Laboratory, Narsingarh who medically examined the victim girl and deposed that he did not detect any seminal stain/ spermoatozoa of human origin in the exhibits marked as Exbt. A, B and C.

[16] PW-5, Kamal Sarkar who, happens to be the father of the victim girl. He stated that on 14.12.2013 his daughter went to attend marriage ceremony of the brother of Uttam Sarkar. On the following day Uttam Sarkar informed him over telephone to go to their house and when he went there he was told that his daughter was taken to a place near by a bridge by accused Kajal Sarkar and his daughter was sexually harassed by the convict-appellant with a hope to marry her. He further deposed that both his daughter and the convict appellant were caught red handed by some people of the locality and Sajal Sarkar, the brother of the convict-appellant and one Jhantu Talukder, the brother-in-law of Kajal Sarkar went to the spot to rescue them and promised that they would arrange their marriage. He further deposed that his daughter came to the house of Uttam Sarkar and the accused went to their house. In his further deposition, this witness stated that he visited the house of the accused Kajal Sarkar with Direndra Roy and Subhas Sarkar of Ramgunapara and at that time they were told by Sajal Sarkar that Kajal Sarkar was not in the house and so they could not do anything. Thereafter, they approached the panchayet of Ramgunapara. They assured him to look into the matter. But despite efforts taken by the panchayet to settle the issue, could not be done because of non appearance of the accused persons. He further deposed that subsequently, his daughter lodged complaint against the accused persons, namely, Kajal Sarkar, Sajal Sarkar and Shanti Sarkar. In examination-chief he stated that when his daughter was brought back from the house of Uttam Sarkar she told them that the accused Kajal Sarkar contacted physical relationship with her with a promise to marry her and she also told that their relationship continued for the last 3 years. On 17.01.2014 he was telephonically informed by the police to come to Pencharthal P.S. and on the way to P.S. he was again told by the police to come to Pencharthal PHC and after reaching there he found the dead body of his daughter.

[17] In his cross-examination he has stated that it was not known to him whether the convict appellant was in jail custody at the time of death of the victim girl. He denied the suggestion put forth by the defence that after lodging of the FIR his daughter visited the police station to compromise the case but not supported by them. He also denied the suggestion that they forcefully compelled his daughter to put signature on the written ejahar against the accused person.

[18] PW-6 Puspa Ratan Chakma and PW-8 Arun Bala Biswas are not material witnesses since they did not say anything about the love affairs and abetment of the victim girl.

[19] PW-9, Satya Rn. Debnath, is a seizure witness.

[20] PW-10, Ratna Debnath is also not a material witness.

[21] PW-11, Dilip Debnath, is the scribe who in his cross-examination stated that there was no certificate on the body of the FIR indicating that after reading out the FIR the victim put her signature admitting it to be correctly written.

[22] PW-12, Bindeswari Debbarma is the seizure witness of vaginal swab of the victim girl.

[23] PW-13, Pranika Chakma who has recorded the statement of the victim girl after being instructed by the Investigating Officer under Section-161 Cr. P.C.

[24] PW-14, Sri Sarbajit Choudhury who was posted as Judicial Magistrate 1st Class at Kanchanpur. On 04.01.2014 he recorded her statement under Section-164(5) of Cr. P.C. In his cross-examination he has stated that "It is fact that I did not specifically record any certificate indicating that the statement given by Sumitra Sarkar was given to me voluntarily. W.V.- It was not a confessional statement and so I did not record it."

[25] PW-15, Sougat Chakma, he filled up the FIR form.

[26] PWs-16, 17, 18, 19 and 20 they have stated that they did not know anything about the case.

[27] PW-21, Guruprasad Das, who was posted as constable of police in Pecharthal P.S. who seized the photographs of the victim girl and the convict-appellant.

[28] PW-23, Himangshu Debsarkar, was posted as constable of police at Pecharthal P.S. and he is the witness to the seizure of vaginal swab of the victim girl.

[29] PW-24, Jitendra Nama, was the S.I. of Pencharthal P.S. and he deposed that after took up the investigation he visited the place of occurrence and recorded statement of the victim girl as well as other available witnesses. He also arranged medical examination of the victim girl. He further deposed that the victim girl was medically examined by the doctors.

[30] I have carefully scrutinized the evidences and materials on record. At the outset, I have gone through the statement recorded by the Judicial Magistrate, 1st Class under Section-164(5) of Cr.P.C. Keeping in mind that such statement is not a substantive piece of evidence but can be used for corroboration. In her statement under Section-164(5) of Cr.P.C. the victim girl has stated that the convict-appellant had promised to marry her which she refused initially but later on, when he threatened to commit suicide, then, she consented to his love proposal. During their relationship, they were involved in sexual intercourse on several occasions. Thereafter, she stated that she did not like to have sexual intercourse with him but he always used to force her to have it. Finally, she has stated that on the night of 14.12.2013 when she had gone Machmara to attend a marriage ceremony, at that time the convict-appellant was also went there and asked her to accompanied him and told her that he would marry her on that night itself. She further stated that though initially she refused him but, finally accompanied him when she was taken towards Deo River bridge and then forcefully had sexual intercourse with him at a secluded place where they were caught hold by some local people.

[31] The victim also has made statement under Section-161 Cr.P.C. in her 161 statement also she divulged that the convict-appellant had approached her by saying that he used to love her very much and asked "will you enter into the bond of love with me if you love me I will marry you". On the subsequent day also the convict-appellant approached the victim girl in the same manner but she did not agree. She has stated that on such refusal, the convict-appellant had threatened her that if she does not agree to his proposal, then, he would commit suicide by consuming poison. Thereafter, they entered into the physical relationship out of love in absence of her father, brother and sister, sometimes in her own house or sometimes in the nearby jungle. She has stated in her 161 statement that on 14.12.2013, Saturday at about 7.00pm the convict-appellant on getting her in the house of Ranjit Sarkar at the feast arranged on the occasion of his son's marriage, took her to the jungle adjacent to the bridge over the Deo River, located at Machhmara with temptations and wanted to develop physical relationship with her. Then, some people had detained them and handed over to their respective guardians. She has further stated that the accused did not marry her on that night, but, on that very night he fled away elsewhere.

[32] However, on the following day, at about 10/11am she went to Kukichherra to take bath and there the convict-appellant met her and said that he would marry her. He urged her not to file any case. About two years back the appellant took her to a studio of Machmara and got snapped a joint photo. She has stated that keeping faith in him she did not file any case at the police station. However, subsequently, on Monday last dated 16.12.2013 A.D. he left the house and fled away somewhere else. At about 5.00pm he told her over phone that he had fled away from the residence and he would not come back home and would not marry her. According to her the convict-appellant had subjected her to brutal deception. She has further stated that the relative of the accused person also deceived her and delay of lodging FIR was cause in anticipation of amicable settlement but, she lodged the FIR on 13.12.2013 A.D.

[33] From the evidence of PW-1, the brother and PW-5, the father of the victim girl has not been substantiated beyond reasonable doubt that the convict appellant from the very beginning of love relationship, had intended to cheat her and he had involved in sexual intercourse with the victim girl on the basis of false promise of marriage for the reason that PW-5 in his evidence has stated that the victim had divulged her relationship with the convict-appellant for the first time after they were caught hold by the local people who had handed over his daughter to the house of Uttam Sarkar.

[34] Now, after close reading of the statement of the victim girl recorded under Section-164(5) and Section-161 of Cr. P.C. statement and after giving conscious consideration of these statements, this Court is of the opinion that from the said statement it is very difficult to come to a conclusion that the convict-appellant from the beginning had intention to deceive the girl and not to marry her and he induced the girl to have involved in sexual intercourse with him with the false promise of marriage. According to this Court, they were involved in the sexual intercourse out of passion and love. If the statement which she made in her 164 Cr. P.C. that being persuaded by the fact that he would marry her on that night itself, then, the question comes for consideration that why she had agreed to accompany the convict-appellant towards the jungle near Deo River bridge. This circumstance does not appear to be convincing to attract the ingredients of Section-376(1) and Section-417 of IPC. However, from the statements of the victim girl it reveals that on the next day at about 11.00am the convict-appellant had met the victim girl and urged that he would marry her.

[35] Cheating is defined under Section-415 of IPC which reads as under:

"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.-A dishonest concealment of facts is a deception within the meaning of this section".

[36] In the case of Tilak Raj vs State Of Himachal Pradesh, reported in (2016) 4 SCC 140, the Apex Court has held in para-19 of the judgment thus:

"19. The ingredients required to constitute the offence of Cheating have been discussed by this Court in the case of Ram Jas v.State of U.P.[1] as under: "(i) there should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)(a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or

(b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) In cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."

[37] Meticulous scrutiny of the evidence coupled with the statements recorded by the victim under Section-161 & 164(5) of Cr.P.C. clearly shows that there is no evidence against the appellant from which it can conclusively be inferred by this Court that there was any fraudulent or dishonest inducement of the prosecutrix by the appellant to constitute an offence under Section-415 of IPC.

[38] It has came to light that the relationship had been continued for 3 years and for all those years both the prosecutrix and the convict appellant were involved in sexual intercourse and the prosecutrix never complained of any forceful act of the accused- appellant. There is no evidence that the convict-appellant had fled away from his house for the reason that as soon as the complaint was lodged by the victim girl on 31.03.2013, but on the same day the convict-appellant was arrested from his residence and his bail application was rejected. So, in my opinion, the prosecution has miserably failed to establish the fact that from the very beginning the accused had any intention to deceive the victim girl and he involved in sexual intercourse with her on the false pretext of marriage. So, the conviction against the appellant under Section-367(1) and Section-417 of IPC has not been substantiated beyond reasonable doubt and the convict-appellant is entitled to benefit of doubt and the order of conviction is liable to be quashed.

[39] Now, the fact remains whether conviction under Section-306 of IPC is sustainable in the facts and circumstances of the case. The learned Judge had acquitted other two accused persons who were charged with Section-306 of IPC holding that they had no relation with abetment of the deceased to commit suicide. Now, it is to be examined that whether the convict-appellant had any scope to abet the victim girl to commit suicide. It reveals from the record that the convict-appellant was arrested on 31.12.2013 and the victim girl had committed suicide on 17.01.2014, that means the convict- appellant was in jail custody for the intervening period i.e. from 31.12.2013 to 17.01.2014. It further reveals from the record that the accused was released on bail on 22nd February, 2014. So, there was no question causing any abetment or instigating the victim girl to commit suicide on the part of the convict-appellant.

[40] In view of above analysis of the facts surfaced in the present case, according to this Court, the prosecution has failed to establish the case against the accused-appellant under Sections-376(1), 417 and 306 of and consequently, the judgment and order of conviction dated 07.02.2017 passed in ST. 10(U/K) of 2015 by the Court of Sessions Judge, Unakoti Judicial District, Kailashahar, Tripura, is hereby set aside and quashed.

[41] The appeal is allowed. The convict-appellant is discharged from his bail bond and accordingly, his surety is also discharged. The appellant is acquitted from the charges leveled against him.

In that view of the matter, the appeal stands allowed and thus disposed of. Send down the LCRs.