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2012 Supreme(Gau) 470
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
SWAPAN CHANDRA DAS, J.
Shri Durjoy Chakraborty, S/o Late Digbijoy Chakraborty of Narsinghar, P.S. Airport, District-West Tripura – Appellants
Vs.
The State of Tripura – Respondent
Crl. Rev. Pet. 61 of 2004
Decided On: 17.04.2012
Advocate Appeared
For Appellant/Petitioner/Plaintiff:Mr. P.K. Biswas, Advocate, Mr. H.K. Bhowmik, Advocate and Mr. P. Majumder, Advocate
For Respondents/Defendant: Mr. A. Ghosh, Spl. P.P.
Headnote:
Criminal Procedure Code - Section 401/397 – Indian Penal Code - Section 417 – Compensation – Quash FIR – Condo nation of delay - Accused advised her to terminate pregnancy and also threatened her and her family members - She reported incident to Chairman of Village Panchayat but Panchayat did nothing in matter and therefore she lodged FIR with police – Held, Accordingly provisional application is allowed judgment and order of conviction and sentence is set aside accused petitioner is set at liberty from the charge leveled against him - He should pay a compensation from today and deposit amount before learned Chief Judicial Magistrate West Tripura and on such payment been made by accused petitioner learned Chief Judicial Magistrate shall issue notice to victim woman to appear before Court with her daughter who was born to her because of her relationship with accused and, on such appearance being satisfied learned Chief Judicial Magistrate shall arrange payment by way of making a fixed deposit in name of said girl for her future settlement - Send back LC records along with a copy of this judgment - Who was born out of illicit relation between accused petitioner and victim woman for false and fraudulent promise made by accused petitioner - Taking into consideration all aspects court think an amount of may be a reasonable compensation for girl and amount should be paid to said girl and may be kept in her name in a fixed deposit scheme which girl may spend for her settlement in life - Application allowed
Hon'ble Mr. Justice S.C. Das
1. This revisional application, under Section 397 read with Section 401 of Cr.P.C., is directed against the judgment and order dated 24.07.2004, passed by learned Sessions Judge, West Tripura, Agartala, in Criminal Appeal No. 37 (2) of 2001, under which the learned Sessions Judge affirmed the judgment and order of conviction and sentence dated 22.05.2001, passed by learned Judicial Magistrate, First Class, Agartala, West Tripura, in case No. GR 379 of 1993, whereby and whereunder the learned Magistrate found the accused-petitioner guilty of committing offence under Section 417 of IPC and sentenced him to suffer RI for one year. Brief Fact:-
Smt. Gayatri Acharjee(PW. 1), lodged an FIR with the O/C of Airport P.S. on 13.03.1993, alleging that in the Bengali calendar months of Baisakh to Falgun of the year 1399 B.S., she with her father, sister and brothers, were residing as a tenant in the house of the father of accused petitioner Durjoy Chakraborty at Vibekananda Pally, Narsingarh and the accused-petitioner with the assurance of marriage undergone intercourse with her, and as a result, she became pregnant. She insisted the accused to marry her but the accused was not ready to do so, and, in the meantime, her pregnancy became seven months. The accused advised her to terminate the pregnancy and also threatened her and her family members. She reported the incident to the Chairman of the Village Panchayat but Panchayat did nothing in the matter, and therefore, she lodged FIR with the police.
Airport P.S. case No. 8 (3)/1993 under Sections 493, 420 and 376 of IPC was registered and after investigation police submitted charge sheet against the accused-petitioner for commission of offence punishable under Sections 493 and 376 of IPC, and accordingly, on the basis of charge sheet, cognizance was taken and the case was committed to the Court of Sessions for trial.
Learned Sessions Judge, considering the materials on record found no ingredient of offence under Sections 376 and 493 of IPC and framed charge under Section 417 of IPC and remanded the case to the Court of Chief Judicial Magistrate, West Tripura, Agartala for trial. Learned Judicial Magistrate, First Class, West Tripura, Agartala was entrusted to try the case, and on completion of trial, learned Magistrate passed impugned judgment and order of conviction dated 22.05.2001 and sentenced the accused-petitioner to suffer RI for one year. The accused-petitioner challenged the judgment and order of conviction and sentence before the learned Sessions Judge but the learned Sessions Judge dismissed the appeal, and, hence, this revisional application.
2. Heard learned counsel, Mr. P.K. Biswas for the petitioner and learned Addl. P.P., Mr. A. Ghosh for the State respondent.
3. It is submitted by learned counsel, Mr. Biswas that the victim Gayatri Acharjee was admittedly aged about 21 years at the time of alleged occurrence, and she was a consenting party to the sexual intercourse with the accused petitioner, and therefore, there was no case of rape as was rightly decided by the learned Sessions Judge. He has further submitted that there is no evidence at all to show that the accused petitioner cheated the victim in any manner or that her consent was obtained under fear or misconception. She was a full-grown girl and she consented to have sexual intercourse having understanding the consequence of such intercourse before her marriage and her allegation that the accused promised to marry her and subsequently refused to do so is of no consequence at all to prove a criminal offence against the accused petitioner. In support of his contention, learned counsel referred the following case laws:
(i) K.P. Thimmappa Gowda vs. State of Karnataka, reported in AIR 2011 SCW 2281.
(ii) Deelip Singh alias Dilip Kumar vs. State of Bihar reported in 2005 (1) SCC 88.
(iii) Udai vs. State of Karnataka reported in 2003 (4) SCC 46.
4. Learned Addl. P.P., on the other hand, has submit
