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IN THE HIGH COURT OF CALCUTTA
Tirthankar Ghosh, J.
Dilip Das @ Nani - Appellant
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 469 of 2015; C.R.A.N. No. 2 of 2019, 3 of 2019
Decided On : 16-12-2020
Indian Penal Code - Rape - Sections 417/376 - The court held that the accused never intended to marry the victim and gave false promises of marriage, leading to a consent of misconception of fact as per Section 90 of IPC. The court found the accused guilty of the charges and convicted him, but reduced the sentence considering his age and commitment to pay a monthly amount to the minor son.
Fact of the Case:
The appellant was convicted for the commission of offences punishable under Sections 417/376 of the Indian Penal Code, based on the prosecution's case that the victim, a minor, became pregnant as a result of a relationship with the appellant, who had promised to marry her.
Finding of the Court:
The court found the accused guilty of the charges and convicted him, but reduced the sentence considering his age and commitment to pay a monthly amount to the minor son.
Issues: The issues revolved around the consent of the victim, the accused's intention to marry, and the applicability of Section 90 of the Indian Penal Code.
Ratio Decidendi: The court held that the accused's false promises of marriage led to a consent of misconception of fact as per Section 90 of IPC, and thus, could not excuse the appellant from the charge of rape.
Final Decision: The court modified the sentence to the period already undergone by the appellant and directed him to pay a monthly amount to the minor son, and ordered his release if not wanted in connection with any other case.
JUDGMENT
Tirthankar Ghosh, J. - Affidavit filed on behalf of the appellant be kept with the record. The present appeal has been preferred against the judgment and order of conviction and sentence dated 23.06.2015 and 24.06.2015 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Barrackpore, North 24 Parganas in connection with the Sessions Case No. 10(7)08 corresponding to Sessions Trial No. 7(3)09, thereby holding the appellant guilty and convicting him for commission of offence punishable under Sections 417/376 of the Indian Penal Code. The learned Court thereafter sentenced the appellant to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- i.d. further RI of two years for the offence under Section 376 of the Indian Penal Code and RI for one year and fine of Rs.1,000/- i.d. to suffer RI for one month for the offence punishable under Section 417 of Indian Penal Code.
2. Prosecution case in brief is that one Minati Gurung informed the Officer-in-charge, P.S. Nimta to the effect that her youngest daughter (the victim) had a relationship with the appellant (Dilip Das), the youngest son of Nepal Das and they had an affair. The informant further alleged that 15 days prior to the complaint she had taken her daughter to a gynecologist for illness and there it was informed that her daughter was pregnant. The informant further alleged that she had concealed the matter of her pregnancy on the assurance of Dilip Das, however, her daughter was eight months pregnant and as such she requested the police authorities to take proper legal steps against the appellant.
3. On receipt of such information on 21.09.2007 at about 21.15 hours Nimta P.S. case No. 60/2007 was registered for investigation under Sections 417/376 of the Indian Penal Code. On completion of investigation the Investigating Officer submitted a charge-sheet and the case was thereafter, committed to the Court of Sessions after compliance of the provisions under Section 207 of the Code of Criminal Procedure and the learned Sessions Court being the trial Court framed charges under Section 417 and Section 376 of the Indian Penal Code. The charges were read over to the accused person who pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case relied upon 9 witnesses being PW1, Minati Gurung, Mother of the victim; PW2 Papiya Dhamala, elder sister of the victim; PW3, victim; PW4 Gourango Ghosh, a neighbor; PW5 Putul Chandra Pramanik, a neighbor; PW6 Mithun Chakraborty, an acquaintance of the victim and her family; PW7 Dr. Parag Baran Pal, doctor who examined the victim and accused and also collected samples of blood for D.N.A. Test; PW8, Madan Mohan Maity, ASI of police who received the written complaint from PW1; PW9, Ananta Kumar Bhowmick, the Investigating Officer of the case.
5. Prosecution also relied upon number of documents to prove its case being Exbt.1, which is the signature in the complaint; Exbt1/1 which is identification of PW1 s signature; Exbt.2 which is the signature on the seizure list dated 21.09.2007; Exbt.2/1 signature of PW4 in the seizure list dated 21.09.2007; Extb.3 which is her signature for receiving the original copy of the Birth Certificate after seizure; Exbt.4 is the Birth Certificate of the victim; Exbt.5 the signature of the victim PW3 in the statement under section 164 of the Code of Criminal Procedure; Exbt.6 Medical Report prepared by PW7 (doctor) in respect of the victim PW3; Exbt.7 is the Medical Report prepared and signed by PW7 (doctor) in respect of the appellant; Exbt.8 and Exbt.8/1 are the consent forms of PW3 and the accused; Exbt.9, 9/1 and 9/2 are the Xerox copy of three forms of blood for D.N.A. Test of victim, baby of the victim and the appellant; Exbt.10 is formal FIR which was identified by PW8; Exbt.11 is the rough sketch map along with index prepared by PW9; Exbt.12 is the Xerox copy of discharge certificate of NRS Medical Collage and Hospital; Exbt.13 i
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