Mithun Kalita Vs State of Assam

Heard Mr. N. H. Borbhuiya, learned counsel for the appellant. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State Respondents.

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2. The present appeal has been instituted by the appellant herein under the provisions of Section 374 of the Code of Criminal Procedure, 1974, assailing the Judgment and Order dated 07/08/2013, passed by the Learned Sessions Judge, Goalpara, in Sessions Case No.141/2012, convicting the appellant under Section 417 IPC, and sentencing him to undergo Rigorous Imprisonment for a period of 6(six) months and also to pay a fine of Rs.5000/-(Rupees Five Thousand) in default to suffer Rigorous Imprisonment for 1(one) more month.

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3. The prosecution case in brief is that the victim had lodged an FIR on 21.05.2011, inter alia , alleging, therein, that the victim was in love with the appellant, herein, for a long period of time and in the pretext of marriage the appellant has taken the victim to a secret place in Balijana, on 18.05.2011, and had sexual intercourse with her without her consent.

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4. The materials as brought on record reveals that the prosecutrix hails from village Balijana and she was in love with the present appellant. The love affair continued for about more that 3 years and they had also established physical relationship in between them. The prosecutrix had projected that she had surrendered her chastity on the promise of marriage dolled out

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to her by the present appellant. On the date of the incident i.e on the intervening night of 17^th and 18^th of May, 2011, the prosecutrix along with her elder brother and sister-in-law had gone to watch a Bihu function that was organized in the area. The function continued till late night. Before the function concluded, the prosecutrix along with her 2 nephews went back home and the prosecutrix after dropping her nephews to their respective houses, proceeded towards her house. It was alleged that on her way, the appellant, herein, had intercepted her and forcefully dragged her to the verandah of a L.P. School that stands located adjacent to that place and after taking her there, the appellant allegedly committed rape upon her, against her will and consent. The matter was detected by her relatives and the accused fled away from the place. The victim not having courage to face her family members including her elder brother, had taken shelter in the night in the house of another brother and she stayed there. On the following day, it is alleged that she left with the present appellant who took her to Dudhnoi and kept her at the house of the elder sister of the prosecutrix. It is alleged that the appellant had deserted the victim thereafter and refused to honour the promise of marriage. The victim had waited for sometime and the accused on not having turned up, she had appeared before the Court of the Additional District Magistrate and filed the FIR, which was thereafter forwarded by the learned Magistrate to the Officer-In-Charage, Agia Police Station, for registration of the case.

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5. On receipt of the said FIR, the Agia P.S. Case No.59/12, under Section 376/419 IPC came to be registered. The police on conclusion of the investigation, laid charge-sheet against the appellant, herein, under Section 376/419 IPC. Thereafter, upon

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hearing the learned counsel for the parties of both sides, the Trial Court framed charges under Section 376/417 IPC against the present appellant to which the appellant had claimed to be not guilty and accordingly, a Trial was held in the matter.

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6. The prosecution for the purpose of establishing its case had examined 7 witnesses including the Medical Officer and the Investigating Officer. Thereafter, the appellant was examined under Section 313 of the CrPC. On such examination the appellant denied the charged framed against him and stated that the victim girl desired to marry him, which he had refused, leading to false case being instituted against him. The evidences coming on record in the Trial being relevant is noticed as under:

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7. The victim girl was examined as PW-1. The victim girl during her deposition stated that she along with her brother Nripen Barman, Balen Barman, Tilottoma Barman wife of Balen Barman and her friend Champa Gowala had gone to Balijana Bazar to watch Bihu Function. She deposed that she had remained there till late night, however, before the programme had concluded, she had left for her house along with two children of her elder brother, Nripen Barman. She further deposed that she after dropping her nephew at their house proceeded to her own residence. The PW1 further deposed that while she was on the road, proceeding towards her house, she found the appellant standing by the roadside. When she reached near the appellant, the appellant grabbed her hands and dragged her towards the L.P. School located nearby and brought her to the school verandah, disrobed her and committed rape upon her, against her will. She deposed that she had raised an alarm and upon hearing her outcry, her brother Balen and his

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wife Tilottama had come to the place. However, by that time the appellant had escaped from the said place. PW1 further deposed that she having been sexually ravished she got frightened regarding the consequence she would have to face when she returned home and accordingly she also left that place and took refuge in the house of her nephews for the night. She deposed that during the night she made a call to the appellant asking him if he was ready to marry her. The PW-1 deposed that the appellant had assured her that he would take her away from the place and accordingly the following morning the victim eloped with the appellant to the house of one Niru Barman, located at Dudhnoi. Niru Barman, is the elder sister of PW1. PW1 further deposed that the appellant along with her, stayed in the house of Niru Barman overnight and she had also narrated the incident to Niru Barman. It was further deposed by PW1, that during the night while she was staying in the house of Niru Barman, the appellant forcibly committed sexual intercourse with her, against her will and this time also she has raised a hulla, which had brought her sister Niru Barman to the place and Niru Barman had given a piece her mind to the appellant and he was turned out of that place. The PW1 also deposed that the following morning appellant without awakening her and without informing anything with regard to their marriage, left the house. On contact being made with the appellant by PW1, she deposed that he had refused to marry her. The PW1 deposed that she had stayed in her elder sister house for about a week and thereafter had proceeded towards her house by taking a journey in a bus, however, the bus having met an accident she had returned back to her sister’s house and stayed there. The PW1 deposed that subsequently her elder brother had come there and taken her

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back home.

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8. PW2, is the mother of the victim and she deposed that she was agreeable to give her daughter i.e. the prosecutrix, herein, in marriage to the appellant. She also deposed that before the incident occurring in the eventful night the appellant, herein, had made a promise even to her that he was going to marry the prosecutrix.

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9. PW3, Champa Gowala, who is the next door neighbour of the victim, deposed that there was a love affair between the victim PW1 and the appellant, herein. She further deposed that she also happened to visit the Bihu function site on the eventful night and it was she who claims to have seen the appellant having sex with PW1 inside the L.P School and both were deposed to be in a naked condition.

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10. The PW4, Balen Barman, elder brother of the prosecutrix also made his deposition in the line as made by the PW1, PW2 and PW3. He however, deposed that he was not agreeable to the relation between the prosecutrix and the appellant, herein, and that too before their marriage. He further deposed that after the incident occasioning in the matter discussion was held between the families but the appellant refused to honour his promise of marriage.

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The other evidences are not of significance and accordingly, discussion, thereon, is not called for.

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11. The said evidences coming on record, the learned Trial Court on appreciating the same came to a conclusion that the appellant at the time of the incident was above 16 years of age, inasmuch as, the victim was at the relevant point of time,

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student of Higher Secondary 1^st year and in her statement under Section 164 CrPC, she had given her age as 17 years at the relevant point of time. However, while deposing in the Trial, the appellant had mentioned her age as 20 years. The incident is of 2011 and the PW1 had deposed in the Trial in the year 2012. Accordingly, the learned Trial Court held that the appellant was about 16 years of age. Further by appreciating the evidence of the PW1, the learned Trial Court had drawn a conclusion of a love affair existing between the appellant and the victim PW1 and that the victim basing on the promise held out to her of marriage by the appellant, herein, had surrendered her chastity to the appellant.

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12. On the drawing the said conclusions, the learned Trial Court further proceeded to conclude that the allegation of rape as leveled by the prosecutrix was not established by the prosecution against the appellant, herein. The learned Trial Court held that the evidence available on record suggested the fact that there was consensual sex in between the parties and it continued for a long time and there was a promise of marriage being dolled out to the victim PW1 by the present appellant but he had failed to honour his promise and thereby, deceived the accused. The learned Trial Court held that the prosecution was able to only establish a charge under Section 417 IPC beyond all shadows of doubt against the appellant. Accordingly, the appellant was convicted under Section 417 IPC and sentenced as noticed, hereinabove.

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13. Having noticed the evidences coming on record and the conclusions drawn thereupon by the learned Trial Court for convicting the appellant under Section 417 IPC, this Court is now

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required to examine as to whether the said conclusions would mandate acceptance.

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14. A perusal of the provisions of Section 417 IPC, it comes to the forefront that “Cheating has been defined in section 415, IPC. The ingredients of the offence of cheating require (i) deception of a person, (ii) whereby, fraudulently or dishonestly, inducing the person, so deceived, to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person 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. Deception of a person is common to the second and third requirements of the provisions of section 415. The ingredients, as pointed out under (1) and (ii) hereinbefore, are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". The definition of the offence of cheating embraces cases in which no transfer of property is occasioned by the deception and also cases in which such a transfer occurs. Deception is the quintessence of the offence. [See Devender Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15 ].

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15. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused

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would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under section 417 IPC. To put it differently, had such a victim not been deceived, she would not have permitted sexual act or would have refrained from allowing such sexual act and, clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation.

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16. Since the definition of the offence of cheating indicates, as already pointed out above, that even when no parting of property is occasioned by deception, the deception may still amount to cheating if, as a result of the deception, a woman does anything or omits to do anything, which she would not have, but for such deception, done or omitted to do, it logically follows that when an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual Intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to an offence of cheating, if the act of the woman in letting such a man have sexual intercourse with her or the act of the woman in omitting to resist the act of sexual intercourse by such a man with her, causes or is likely to cause damage of harm to the person of such a woman, her mind or reputation.

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17. On a perusal of the conclusions drawn by the learned Trial Court in the light of the evidences coming on record, this Court is of the considered view that the said conclusions drawn by the learned Trial Court are not erroneous, the ingredients of cheating

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as defined in the Section 415 IPC, having been established against the appellant, herein, the conviction of the appellant under Section 417 of the IPC would not mandate an interference.

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18. Having drawn the above conclusions, this Court notices that the incident had occasioned on some time in the year 20102011. Long 15 years had elapsed since the date of the incident and both the appellant and the victim(PW1) have moved on in their respective lives.

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19. Section 417 IPC being relevant is extracted hereinbelow.

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“ 417. Punishment for cheating --- Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

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20. A perusal of the provisions of Section 417 IPC, would bring to the forefront that the punishment prescribed is of imprisonment of either description which may extend to one year or with fine or with both. Accordingly, in a given case punishment can be confined to that of a fine. Considering the long lapse of time since the date of the incident and the fact that the appellant and the victim have moved on in their respective lives, this Court is of the considered view that ends of justice would be met if the sentence as imposed by the learned Trial Court of 6(six) months Rigorous Imprisonment with fine of Rs.5,000/-(Rupees Five Thousand) is modified and the same is prescribed as a fine of Rs.5,000/-(Rupees Five Thousand).

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21. Accordingly, by maintaining the conviction of the appellant, herein, under Section 417 IPC, the sentence as imposed upon the appellant by the learned Trial Court vide the Judgment And

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Order dated 07.08.2013, stand interfered with and the same is replaced with that of the sentence of fine of Rs.5,000/-(Rupees Five Thousand) for the offence punishable under Section 417 IPC, in default Simple Imprisonment for 3(three) months.

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22. The appellant to appear before the learned Sessions Judge, Goalpara, and deposit the fine amount. The fine amount so realized be paid to the victim as already directed by the learned Trial Court.

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23. With the above observation and directions, the present Criminal Appeal stands disposed of.

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JUDGE

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Mithun Kalita v. State of Assam

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Mithun Kalita v. State of Assam

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