A conviction for sexual assault cannot rest solely on the testimony of a victim if it lacks consistency or corroboration. Consent is not invalidated by a misconception of fact unless the prosecution proves the accused possessed an intention to deceive from the very inception of the promise.

JUDGMENT :

CHAITALI CHATTERJEE DAS, J.

1. This application under Section 374(2) of the Code of Criminal Procedure, 1973 is filed against the judgement and order dated November 29, 2008 passed by learned Additional Sessions Judge, Fast Track Court I krishnanagar, Nadia in Sessions case no. 40(7) 2006 by the applicant has been convicted under Section 376 of the Indian Penal Code and sentenced him to suffer for 7 years and to pay a fine of Rs.2000 in default to rigorous imprisonment for three months.

Brief resume of the case

2. In order to set the police in motion a complaint was lodged by the victim, alleging against the applicant that on July 23, 05 at 5:30 PM, the accused called her to his house with on the plea he would marry her when nobody was present in their house and then he made her lying on the court, stripped and raped her as a result she suffered bleeding from her private part. The accused washed the bedsheet with detergent powder after committing rape on her. He confined her up to July 31, 2005 on the ground of marrying her, but left to some other place, keeping her in the house. The mother of the accused also left due to fear.

3. Over the complaint, the Kotwali P.S. case no. 261 of 2005, dated August1, 2005 under Section 376 IPC started against the accused person and on completion of in the investigation, the charge-sheet was submitted. The matter was transferred after commitment before the learned Fast Track Court 1, Krishna Nagar for trial.

4. The learned court on considering the materials framed the charge against the accused under Section 376 of IPC and the contents of the same was read over and explained to the accused in Bengali to which he pleaded “not guilty” and claimed to be tried. Hence, the trial commenced. In order to prove the case the prosecution witnesses adduced evidence. The learned Court after hearing both the learned prosecution as well as the defence counsel and considering the evidence passed the order of conviction. Being aggrieved thereby this appeal has been filed.

Submission

5. The learned Advocate representing the appellant argued that the victim got married with the appellant which she suppressed in her complaint and disclosed only during the cross examination hence the allegation to commit rape is not sustainable. The incident took place as alleged on July 23/2005 with an allegation of false promises to marry. The victim alleged of confinement for nine days at the house of the appellant but no complaint was lodged. P.W. 4, 5 & 6 turned hostile. The marriage held between the parties on August 8,005 under Special Marriage Act and a civil suit is pending challenging such marriage. They lead matrimonial life for 2 months and her husband qua the appellant was kidnapped and filed a case. Admittedly, there was a love relation which subsequently turned soured, and this false case has been filed against the appellant. The P.W. 3 mother corroborates that her room was locked but admittedly though her daughter was confined in the house of accused no one lodged any complaint against the accused person.

More so, when the victim was aged about 18 years at that point of time, the appellant, during his examination under Section 313 of the Criminal Procedure also admitted the marriage and also that he got married to a different lady as the complainant left with another boy of a different locality . The doctor could not opine that rap