State Of Tripura And Ors vs Binoy Debbarma

Heard Mr. A Nandi, learned counsel appearing for the appellant, the State of Tripura as well as Mr. N Majumder, learned counsel and Mr. B Debnath, learned legal aid counsel appearing for the accused-respondent.

This is an appeal under Section 378(1)(b) of the Cr.P.C. against the judgment and order of acquittal dated 15.12.2014 delivered in case No.ST 127 of 2013. By the said order, the accused respondent stood acquitted from the charge framed under Section 376 of the IPC.

The genesis of the prosecution case is rooted in the complaint filed by one Ranabir Debbarma (PW-22) on 17.05.2012 to the Officer-in-Charge, Sidhai P.S. revealing that his younger sister [name is withheld for protecting the identity of the victim] aged about 15 years had developed a love affair with the accused-respondent. The accused-respondent, according to the complaint, had developed physical relation with his sister "on promise of marriage". In the course, she became pregnant and when the dispute was raised in a village Baithak, the accused-respondent denied to acknowledge the said relation, or to marry the victim.

Based on the said complaint, Sidhai PS Case No.27/2012 under Sections 376/417 of the IPC was registered and taken up for investigation. After the investigation was complete, the final report was submitted sending up the accused respondent to face the trial. The police papers were committed to the jurisdictional court, i.e. the court of the Sessions Judge, West Tripura, Agartala. The said trial was, however, transferred to the court of Assistant Sessions Judge, Court No.2, West Tripura, Agartala being Sessions Trial No.127/2013. The charge against the accused-respondent was framed under Section 376 of the IPC and no alternative charge was framed under Section 417 of the IPC.

In order to substantiate the charge, as many as twenty five witnesses were adduced by the prosecution, including the victim, the forensic expert (PW-20) and the complainant. That apart, twelve documentary evidence including the DNA test report [Exhibit-8] was introduced by the prosecution. At the instance of the defence, one document containing the original entry in the admission register (Exhibit-A) has been introduced in the evidence.

The accused-respondents, in order to probabalize the falsity of the charge, adduced three witnesses, including himself and one George N Debbarma, (DW2) who brought the original admission register to admit the pages from the said register.

After the prosecution evidence was recorded, the accused-respondent was examined under Section 313 of the Cr.P.C to have his response to the incriminatory materials those surfaced in the evidence. The accused-respondent denied the incriminating materials to be truthful, as according to him, those are fabricated. He reiterated his innocence what he had projected in response to the charge.

Mr. Nandi, learned counsel has strenuously argued that the appreciation of evidence is grossly perverse. Inasmuch as, the victim (PW21) has categorically stated that on the promise of marriage she was induced to the sexual act and thus her consent cannot be brought within the category of consent obtained by misconception of fact as provided under Section 90 of the IPC. Section 90 of the IPC provides inter alia that a consent is not such a consent, as it is intended by any section of the penal code, if the consent is given by a person "under fear of injury, or under a misconception of fact and if the person doing the act knows or has reason to believe, that the consent was given in consequence of fear or misconception, that is not a consent."

Mr. Nandi, learned counsel has submitted that initially the victim was reluctant to engage herself in the love affair. But later on, she agreed only because there was a proposal of marriage and the accused-respondent having earned the confidence of the victim girl extended the promise of marriage and had the sexual intercourse with her and as it appears for several times. Ultimately, the victim girl was pregnant and in the course, of time delivered a baby. The biological samples of that baby was sent for DNA test to the Tripura State Forensic Laboratory (TSFL) and the result was positive.

Mr. Nandi, learned counsel has proved the report [Exhibit-8 series] which bears a clear finding that the biological mother of the baby is the victim and the biological father of that baby is the accused-respondent. On the basis of that finding, Mr. Nandi, learned counsel has emphatically submitted that the sexual intercourse is well established and proved. Further, Mr. Nandi, has submitted that the consent was on misconception of fact and as such, that is no consent.

Having contended that, Mr. Nandi, learned counsel has further submitted that sexual intercourse without consent comes within the definition of Section 375 of the IPC. As such, the prosecution has successfully established the commission of rape. But the trial court has acquitted him on the ground that the sexual act on assurance of marriage has not been proved. Rather, it has been accepted as a consensual sex, not constituting rape under Section 375 of the IPC. In support of his contention, Mr. Nandi, learned counsel has relied on a series of decisions, including one, which was relied before the trial court.

In Yedla Srinivasa Rao vs. State of A.P. reported in (2006) 11 SCC 615, the apex court while considering the extent and ambit of Section 90 of the IPC has observed that it is clear that the prosecutrix had sexual intercourse with the accused on representation made by the accused that he would marry her. This was a false promise extended by the accused. Had this promise not been given, perhaps she would not have permitted the accused to have sexual intercourse. Therefore, even if this amounts to consent but the accused obtained consent by fraud. Section 90 of the IPC says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained cannot be construed to be a valid consent. Such inference only can be drawn if it can be proved that right from the very beginning the accused was not honest and he made promise of marriage having knowledge that he would only satisfy his lust.

Reference has also been made to State of Uttar Pradesh vs. Naushad, reported in (2013) 16 SCC 651 where it has been held that the consent if procured on false promise of marriage for indulging in sexual act with her is not a consent [see section 90 of the IPC] if the victim becomes pregnant and the accused refuses to marry her, it can be safely held that accused committed breach of trust with the prosecutrix, and a "brazen fraud" was designed to satiate the lust. In such cases, the culpable act can be brought within the definition of Section 375 of IPC and the accused may be convicted under Section 376 (1) of the IPC. Further, reference has been made to Deepak Gulati vs. State of Haryana reported in (2013) 7 SCC 675 where the apex court has observed as under:

"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives." [Emphasis added]

Mr. Nandi, learned counsel has also placed his reference on Kaini Rajan vs. State of Kerala, reported in (2013) 9 SCC 113 where the apex court has re-stated the law. It has been held in Kaini Rajan (supra) that consent is stated to be an act of reason covered with deliberation. It denotes an active will in a mind of a person to permit the doing of an act,complained of. Consent, for purpose of Section 375 requires "voluntary participation" not only after exercise of intelligence, based on the knowledge of consequence of the act, but after having fully exercised the choice between the resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances and inference, as to the consent, can be drawn only based on evidence.

To draw such inference, in Kaini Rajan (supra) the apex court has relied their previous decision in State of H.P. vs. Mango Ram reported in (2000) 7 SCC 224. Further, the decision of the apex court in Tilak Raj vs. State of Himachal Pradesh, reported in (2016) 4 SCC 140 has been relied where the apex court had considered the aspect of cheating under Section 415 of the IPC and having referred the previous decision in Ram Jas vs. State of U.P., reported in (1970) 2 SCC 740 it had been stated 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."

Thus, Mr. Nandi, learned counsel has contended that the purported consent as argued by the defence cannot be acceptable. By accepting their plea, the trial court has committed serious aberration of law and the finding is grossly perverse, which warrants interference from this court.

The counsel for the respondents have, however, stated that this appeal being an appeal against the order of acquittal, this court should be circumspect in exercising the appellate jurisdiction, inasmuch as, the presumption of innocence has been consolidated unless a perverse finding is found and hence, this court should be loathe in exercising its jurisdiction.

Having appreciated the submissions made by the counsel for the parties, this court finds that the solitary objection that has been raised in this appeal is that the consent that was apparently given by the victim was on misconception of fact. In this regard, the trial judge has observed that it was proved on the documentary evidence on record that the victim was a full grown lady and above 18 (eighteen) years of age as on the earliest date of commission of the alleged offence. It cannot be gainsaid that the victim voluntarily consented to have sexual intercourse with the accused. The victim girl continued to indulge in sexual intercourses with the accused until she became pregnant. She did not disclose anything either to her friends or to her parents till February, 2012 when her mother and her other relatives noticed changes in her physical condition. The evidence on record clearly suggests that there was no misconception of fact in the instant case and the victim was a consenting party and her conduct was nothing but an act of promiscuity on her part. The evidence and circumstances clearly show that the victim consciously consented to have sexual intercourse with the accused and her consent was not in consequent of any misconception of fact. It is, therefore, manifestly clear that the subsequent refusal by the accused to marry the victim would be of no consequence when it has not been established that the representation was false to the knowledge of the accused when it was made. So, there is no element of cheating nor there is any element of misconception of fact.

Before we proceed further, this court is constrained to observe the use of word "promiscuity" against the victim is unacceptable, grossly mis-applied and this is not an appropriate expression in the context of the case. As such, this court would direct the trial court to expunge the word "promiscuity" from the record by blocking this word in the original judgment. "Promiscuity" carries a totally different meaning. It fundamentally connotes not the numerous sexual acts but sex with various other persons. Nobody has alleged that the victim had been indulging in promiscuity.

Having scrutinized the record, this court finds that PWs-1, 20, 21 and 22 are the vital witnesses and their evidence has been enormously relied on by Mr. Nandi, learned counsel. PW-1 is the victim's mother. She has narrated what happened after recognizing the pregnancy. That fragment of fact is not very material but her evidence is relevant for the fact that the victim was all through suppressing the incidence of her pregnancy, if she at all understood that she was carrying the pregnancy.

PW-20, Dr. Subhankar Nath, a forensic expert has introduced the DNA test report (Exhibit 8 series) wherefrom this court gathers that the baby delivered by the victim is biologically related to the accused person. In this regard, Mr. Nandi, learned counsel is absolutely right that the sexual intercourse is well established by the forensic report. Thus, the entire focus and the solitary point which are required to be appreciated in this case is as to whether the consent to sexual intercourse was a misconception of fact or not.

It may be noted here that by the evidence of DW-2, the admission register of the school was duly proved for purpose of brining the victim's age on records. The victim on the day of occurrence was of the age of 18(eighteen) years 2(two) days. Therefore, she was not minor; she was capable of giving the consent. For this purpose, the statement of the victim is of paramount importance. The victim has stated that the accused respondent was in love with her. He also proposed her to marry. Initially, she was not in love with him. Subsequently, she agreed to his proposal. In the year 2011, the accused respondent had sexual intercourse with her. She believed his assurance that he would marry her. Acting on that belief, she had submitted to him and had sexual intercourse with him on five to six occasions and thus, she got conceived. Binoy, the accused respondent refused to marry her in terms of the promise. There was a "village baithak" on that issue. But the accused respondent did not agree to marry her. Thereafter, her brother Ranabir, PW-22, lodged the complaint. The victim was also examined under Section 164 (5) of the Cr.P.C.

For purpose of going back to the statement, this court finds that the victim alleged that on the night when the said occurrence of alleged rape took place, the accused-respondent had stated her that if she was not agreeable he would forcefully rape her. The statement of the victim has been recorded under Section 164(5) of the Cr.P.C. It appears to be completely different. She had stated how the sexual intercourse took place. Moreover, she had stated that it was not a fact that the accused-respondent had no sexual intercourse with her on any occasion and PW-21 (the victim) volunteered that, the accused-respondent asked her not to disclose the matter.

The other suggestions as extended to her were denied sticking to the statements she made in the examination-in-chief. During the examination under Section 313 CrPC, the accused-respondent has denied the allegation and stated that he has been falsely implicated in this case. As stated, the accused-respondent adduced three witnesses including himself. He has denied the physical relationship with the victim.

PW-2 has produced the original admission register and having compared with the original entry, the relevant pages in respect of serial No.405 was admitted in the evidence as Exhibit-A. From the entry, it has been proved and it still remains unchallenged that the victim was more than 18 (eighteen) years of age on the day of occurrence.

DW-3, Sudip Sarkar, Inspector of Schools has stated that for purpose of obtaining a school certificate showing the victim a minor there had been attempt to interpolate the admission register. It relates to the school certificate [Exhibit-4] where the victim has been shown to be minor but that was not accepted for obvious reason by the trial court.

The extent of the jurisdiction of this court while deciding the appeal against the judgment and order of acquittal is well entrenched in Chandrappa & Ors. vs. State of Karnataka, reported in (2007) 4 SCC 415 where a workable guideline has been provided to the courts by the apex court.

The general principles have their roots in Lord Russel's speech where it has been stated that it is a misconception that the high court has no power or jurisdiction to reverse an order of acquittal. For restating the position of law, it is held that in the cases when the trial court has ostensibly committed perversity in appreciation of the evidence or for sheer incompetence, stupidity or glaring perversity has arrived at a distorted conclusion leveraging miscarriage of justice the appellate court may reverse the finding of acquittal. In Chandrappa (supra) the apex court has laid down the following guidelines after considering its precedents in respect of determination of an appeal from the order of acquittal:

"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

As such, unless there is compelling reason or glaring perversity or distorted conclusion is discovered in the judgment, ordinarily the appellate court would be reluctant to interfere with the judgment and order of acquittal. In this case, as already pointed out, this court has to find out whether the finding of the trial court comes within the said category or not.

From reading of the testimony of PW-21 (the victim) it is clear that the accused-respondent did not extend any promise to commit sexual intercourse. It transpires that it was conscious decision of the victim to have the sexual intercourse with the accused person. But, at the same time, it is true that in the love affair, the victim has stated that at some point of time, the accused-respondent has extended the assurance of marriage.

In Deepak Gulati (supra), the apex court has observed that there is a clear distinction between the rape and the consensual sex and the court should very carefully examine whether the accused actually wanted to marry the victim or he had mala fide motive in making a false promise to satiate his lust. The latter falls within the ambit of cheating or deception. There is distinction between a mere breach of promise and in not fulfilling a promise. The court, therefore, should examine whether that was made to hoodwink the victim or whether the consent involved was given after wholly understanding the nature of consequence of the sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused. It appears from the records of the case in hand that the victim agreed to have sex on account of her love and passion for the accused. Even the victim has nowhere categorically stated that on the basis of the promise she had the sexual act.

She has narrated how the relation developed and how the proximity had led to the physical relation. The victim has however stated that someday the accused person made the promise to marry her, and she had totally believed such promise.

Having observed thus, this court is of the consdiered view that the finding that has been returned by the trial court does not suffer from any infirmity and does not warrant any interference.

In the result, the appeal fails and accordingly, the same is dismissed.

Send down the LCR's forthwith.