Accused committed rape on Minor girl on the pretext of giving false assurance that he would marry her, Consent of prosecutrix was obtained by deceitful manner - Gauhati HC

GAUHATI HIGH COURT

(Agartala Bench)

Before :- R.B. Misra, J.
Cri. A. No. 21 of 2001

Santosh Sinha Versus State of Tripura D/d. 20.9.2006
For the Appellants :- B. Das, Sr. Counsel, Ms. S. Das and D. Chakraborty, Advocates.
For the Respondents :- D. Sarkar, PP.

Indian Penal Code, 1860, Section 376 - Rape - Proof - Accused and minor girl resided together for a long time as husband and wife without actual marriage - Accused committed rape on minor girl on the pretext of giving false assurance to her that he would marry her - Evidence of minor girl was natural and inspires confidence - Fact of repeated physical interaction and sexual exploitation intercourse of accused with prosecutrix was corroborated by evidences of her mother as well as of grandmother - Act and subsequent conduct of accused resiling from assurance of actual marriage with prosecutrix - Showing that consent of prosecutrix was obtained by deceitful manner tantamounting lack of her consent - Therefore prosecution beyond reasonable doubt has been able to prove guilt/offence against accused - Hence, conviction of accused under Section 376, held, proper. [Para 18]

Cases referred :

Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551 : 2004 Cri LJ 1.
Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : AIR 2005 SC 203.
Kamalanantha v. State of T. N., (2005) 5 SCC 194 : AIR 2005 SC 2132.
Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 Cri LJ 19.
State of H. P. v. Shree Kant Shekari, (2004) 8 SCC 153 : 2004 Cri LJ 4232.
State of M. P. v. Babbu Barkare, (2005) 5 SCC 413 : 2005 Cri LJ 3117.
State of M. P. v. Dayal Sahu, (2005) 8 SCC 122 : 2005 Cri LJ 4375.
State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 : 1996 Cri LJ 1728.
State of Rajasthan v. N. K., (2000) 5 SCC 30 : 2000 Cri LJ 2205.
State of U. P. v. Pappu, (2005) 3 SCC 594 : 2005 Cri LJ 331.
Vimal Suresh Kamble v. Chaluverapinake Apal S. P., (2003) 3 SCC 175 : 2003 Cri LJ 910.
Visveswaran v. State Rep. by S. D. M., (2003) 6 SCC 73 : 2003 Cri LJ 2548.

JUDGMENT

R.B. Misra, J. - The present criminal appeal has been preferred under Section 374(2) of Cr. P. C. against the Judgment and Order dated 11-5-2001 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar in S. T. No. 10 (NT/D) of 2000 convicting the accused-appellant under Section 376 of I. P. C. and sentencing him to suffer 10 years' imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to undergo further one year imprisonment.
2. The prosecution story, in brief, is that the accused/Sri Santosh Singh having acquaintance with the family members of Smt. Namita Sinha, had stayed in her house for about three months. During his stay the accused developed love with her minor school going daughter, the prosecutrix giving allurement and assurance to marry the victim/prosecutrix socially, subsequently, however, had claimed performed notional marriage by 'Gandharva' tradition in front of portrait of 'Goddess Kali' during his stay at her residence after having entered into sexual relation with the victim. The accused had been living with her daughter as husband and wife having sexual relation, committing repeated rape on her from 9-5-1997 and onwards however, having sexually exploited for long time, the accused resiled to marry the victim, i.e. daughter of Smt. Namita Sinha, therefore, she had to file the case before learned sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura.
3. The accused was initially charge sheeted under Sections 493/420 of IPC and cognizance of such offence was taken. During examination it was revealed that the accused had been sexually exploiting the victim on the false assurance for marriage, thereby, committing repeated rape on the prosecutrix during his stay at the residence of the informant/complainant. Even on insistence of prosecution upon the Court to commit the case to the Court of Session, learned Sub-Divisional Judicial Magistrate did not agree to commit the case to the Court of Session, however, a revision petition was preferred before the Court of Session, whereby the order of learned Sub-Divisional Judicial Magistrate was set aside and the learned appellate Court below directed to commit the case to the Court of Session, accordingly, charge under Section 376 of IPC was framed against the accused where he pleaded not guilty and claimed to be tried.
4. On behalf of the prosecution eight witnesses were examined before learned Sub-Divisional Judicial Magistrate and four prosecution witnesses were produced and examined before the Court of Session, in addition to Ext. 2, Seizure List, Ext. 5, 5/1, Hand Sketch Map, Ext. 6, 6/1 Index of Hand Sketch Map of P. O. and Exht. D-2, a petition, on the other hand, except examination under Section 313 of Cr. P. C., accused did not produce any witness in support of his defence. In the examination under Section 313 of Cr. P. C. the accused had totally denied the charges with assertion that the informant with mala fide intention has falsely implicated him in this case.
5. The Sessions Court considered two points for determination :

"(A) Whether the accused committed rape on the prosecutrix who was a minor girl alluring her that he would marry her?

(B) Whether the accused committed rape on the victim/prosecutrix by way of deceiving her that he had married her in front of a portrait of Goddess Kali and she surrendered her to his unnatural lust considering him as her husband?"

6. P. W. 1, Smt. Namita Sinha, the complainant, the mother of the prosecutrix has stated that the accused Santosh Singh was allowed by her to reside in her residence continuously for about three months and thereafter also the accused used to stay in her house at his convenience. On the assurance and allurement given by the accused that he would marry her daughter, they were allowed to live as husband and wife in the house of the complainant, subsequently, the accused refused to marry her daughter betraying her family, therefore, a complaint petition was initially filed before learned Sub-Divisional Judicial Magistrate and the complaint was got written by Advocate Sunil Nath on her dictation and after completion, the same was read over and explained to her and thereafter she had put her signature. In cross-examination, P. W. 1 did not admit that the accused did not reside in her house.
P. W. 2, Smt. Laxmi Sinha, the mother of the informant, the grandmother of the prosecutrix has stated that the accused Santosh Singh used to reside in her house as husband and wife having sexual relation as the accused had promised to marry her granddaughter. P. W. 2 has stated that the accused had been committing repeated rape on her granddaughter in the garb of assurance that he would marry her and even deceitfully the accused had married her granddaughter in front of portrait of 'Goddess Kali' and thereafter also the accused had been assuring her granddaughter to marry her socially. Subsequently the accused has resiled from his assurance and did not marry her granddaughter.
P. W. 3, Sri Gari Singh has stated that she knew the informant and the prosecutrix since long past and has also stated that he identifies accused/Santosh Singh, who used to visit the house of the informant and was in love affairs with the daughter of the informant. In cross-examination, P. W. 3 has stated that his house is situated adjacent to the house of the informant, P. W. 1 and did not admit that the accused had never visited the house of the informant.
P. W. 4, the victim/prosecutrix, has stated that she knew accused/Santosh Singh prior to the date of incidence and she was in love with the accused as he has been visiting her residence alluring her to marry her and on having sexual intercourse on 9-5-1997, the accused had even notionally married her in front of 'Goddess Kali' according to 'Gandharva' system and had also assured her that he would subsequently marry her socially. On such allurement and assurance to marry, the accused used to enjoy sexual relation with her as husband and wife and she also started treating the accused as her husband and the accused also pretending to treat her as wife, on believing the assurance of accused she had surrendered to his unnatural lust who had repeated sexual intercourse, however, the accused refused to marry her, therefore, her mother has filed the instant case. The prosecutrix has also stated that the accused used to keep his pass book in her custody and the Investigating Officer had seized the said pass book, as well as the joint photographs of the victim/prosecutrix and the accused. In the cross-examination, she did not admit that on 9-5-1997 her mother and her grandmother were not stayed in her house. She also did not admit that the accused had not stayed in her house and had not led sexual relationship with her as husband and wife.
7. From the statement of Smt. Namita Sinha, P. W. 1, it is revealed that she was not agreeable initially for the marriage of her daughter because of her minority and was to be agreeable only after completion of her daughter's Madhyamik Examination. The defence did not, however, deny or had put suggestive question to the witnesses that the victim/prosecutrix was not a minor girl at the relevant time of rape. On the basis of the Birth Certificate the victim/prosecutrix was born on 18-10-1983 and on the date of examination before the Court on 9-5-2000 she was not even 17 years of age. The Sessions Court has, therefore, accepted rightly that the victim/prosecutrix as a minor was victimized for rape on her by the accused/Santosh Singh by falsely alluring her to marry. Sessions Court on the basis of the statement of the victim/prosecutrix has gathered that the accused had married her in front of portrait of 'Goddess Kali' according to 'Gandharva' system and had also assured the victim to marry her socially and in the garb of such notional marriage both had lived together and have led sexual life as husband and wife and she had surrendered herself to the unnatural lust of accused as his wife treating him as husband. The statement of the victim/prosecutrix in respect of living as husband and wife and having sexual life with the accused was corroborated by the statement of the mother and grandmother of the victim/prosecutrix. The Sessions Court did not give due weightage to Ext. D/2, which was in the form of application and it was neither verified nor filed with an affidavit. In the facts and circumstances and on the basis of the prosecution witnesses, the Sessions Court answered the Point No. 'A' in favour of the prosecution.
8. In respect of the Point No. 'B', the Sessions Court has relied on four prosecution witnesses, i.e., (1) P. W. 1, Smt. Namita Sinha, the mother of the victim/prosecutrix, (2) P. W. 2, Smt. Laxmi Sinha, the grandmother of the victim/prosecutrix, (3) P. W. 3, Sri Gari Singh, neighbour of the victim/prosecutrix, and (4) P. W. 4, the victim/prosecutrix and also keeping in view the observations made by the Supreme Court in AIR 1996 SC 1393 : (1996 Cri LJ 1728) (State of Punjab v. Gurmit Singh), the Sessions Court has opined that the accused/Santosh Singh by deceit caused the victim/prosecutrix who was not even lawfully married, to believe her that she was lawfully married to him and inspired her to cohabit and have sexual intercourse with him. The fact of sexual relation of accused and the prosecutrix is corroborated by P. W. 1 and P. W. 2, as according to them both were living as husband and wife and was having sexual relation. The Sessions Court had rightly found that the prosecution had proved the case beyond reasonable doubt that the accused/Santosh Singh committed rape on the prosecutrix, a minor, by way of deceiving her giving false assurance that he would marry her socially, subsequently, as they had married in front of a portrait of 'Goddess Kali' after she had surrendered to the accused to his unnatural lust considering him as her husband, accordingly, Point No. 'B' was also answered in favour of the prosecution. Consequent upon the Sessions Court has convicted accused-Santosh Singh under Section 376 of IPC and sentencing him to suffer 10 years' imprisonment with a fine of Rs. 5,000/-, and in default of payment of fine he has to undergo more one year imprisonment.
9. In (2000) 5 SCC 30 : (2000 Cri LJ 2205) (State of Rajasthan v. N. K.) the Hon'ble Supreme Court has observed that in case of offence of rape, the testimony of prosecutrix should be appreciated on the basis of probabilities like testimony of any other witness and conviction can be based solely on such testimony. In (2003) 3 SCC 175 : (2003 Cri LJ 910) (Vimal Suresh Kamble v. Chaluverapinake Apal S. P.) the Hon'ble Supreme Court has held that conviction of an accused for the offence under Section 376 of IPC on the basis of the testimony of the prosecutrix alone is permissible, provided the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. In present facts and circumstances, the evidence of prosecutrix, P.W. 4, was natural and inspires confidence as the evidences of P. W. 1, Smt. Namita Sinha, the complainant, the mother of the prosecutrix as well as P. W. 2, Smt. Laxmi Sinha, the grandmother of the prosecutrix have also corroborated the fact that the accused had resided for a long time with the victim/prosecutrix in her house as husband, assaulting the victim sexually, deceiving her on giving false assurance to marry and betraying afterwards, therefore, in view of the decision of Vimal Suresh Kamble (supra) in the facts and circumstances, the conviction of the accused on the sole testimony of the victim/prosecutrix would be justifiable.
10. In (2003) 8 SCC 551 : (2004 Cri LJ 1) (Bhupinder Sharma v. State of Himachal Pradesh) the Hon'ble Supreme Court has observed that the evidence of victim in reference to offence under Section 376/34 of I. P. C. is not insisted to be corroborated by other evidences as corroboration is not the sine qua non for conviction in a rape case. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes the judicial mind as probable. The fact of repeated physical interaction and sexual intercourse of accused with victim/prosecutrix was corroborated by the evidences of P. W. 1 and P. W. 2, i.e., the mother and grandmother of the victim/prosecutrix.
11. In (2004) 1 SCC 64 : (2004 Cri LJ 19) (Ratansinh Dalsukhbhai Nayak v. State of Gujarat) the Hon'ble Supreme Court while dealing with the evidence of a child of tender age in reference to Section 118 of the Evidence Act has observed that the conviction on the basis of the child witness is permissible if such witness is found to testify and if it has intellectual capacity to understand questions and give rational answers thereto and the Court after careful scrutiny of its evidence about the quality and reliability can record conviction. In the present case, the victim/prosecutrix was undoubtedly of minor age, however, there was no evidence that she was tutored and also there was no material against her that she was not competent to testify and understand the gravity of the incidence and was having sufficient intellectual capacity to understand questions and give rational answers thereto. As such on careful scrutiny of the sole evidence of the child victim/prosecutrix, I am of the considered view that her evidence is convincing as it carries quality and adequate reliability.
12. In (2004) 8 SCC 153 : (2004 Cri LJ 4232) (State of H. P. v. Shree Kant Shekari) the Hon'ble Supreme Court has held that the testimony of victim in reference to the offence under Section 376 of I. P. C. could be treated as reliable and can be acted upon without corroboration in material particulars. However, if the Court of facts finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony and assurance, short of corroboration, as understood in the context of an accomplice, would suffice. Even filing of F. I. R. by inordinate delay based on satisfactory explanation and in any event delay per se in that respect is not mitigating circumstance for the accused when accusations of rape are involved. In case of offence under Section 376 of IPC, the question of consent is a matter of defence by the accused and for that purpose material was to be produced by the accused/defence to show that there was consent and it was not for the victim to show that there was no consent. Moreso, when the victim/prosecutrix is of minor age at the time of commission of offence, even the question of consent of victim/prosecutrix is of no consequence. It was held by the Hon'ble Supreme Court in Shree Kant Shekari (2004 Cri LJ 4232) (supra) as below :

"Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of woman, i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. In the present case, the accused who was a teacher gratified his animated passions and sexual pleasures by having carnal knowledge of his student, a girl of tender age. Such offenders are a menace to civilized society."

13. The Hon'ble Supreme Court in (2005) 5 SCC 413 : (2005 Cri LJ 3117) (State of M. P. v. Babbu Barkare) while explaining the meaning of 'rape' has indicated that legislative intent is to curb with an iron hand. In (2005) 1 SCC 88 : (AIR 2005 SC 203) (Deelip Singh v. State of Bihar) the Hon'ble Supreme Court has occasioned to deal with the consent in reference to the offence under Section 375 of IPC and has also explained the consent under Section 90 of IPC and has indicated that the burden on prosecution to prove absence of consent from attendant circumstances, for that purpose evidence should be scanned carefully. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence and the question as to whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. In that case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer the lack of consent on the part of the prosecutrix is the ultimate point to be decided.
14. In the present case, from the evidence of victim/prosecutrix, a minor, allured and falsely assured by the accused for marriage, was kept under psychological pressure exerted by the accused and under such allurement of marriage, out of passive submission, in view of the facts, i.e., in the garb of false assurance, marriage pretended to have been performed before the portrait of 'Goddess Kali', previous conduct and contemporaneous acts, subsequent conduct of the accused and family members of accused resiling from assurance of actual marriage with the victim/prosecutrix, knowing fully well, that she has been sexually exploited on the false and deceitful assurance of accused since inception are sufficient materials which give clear picture beyond reasonable doubt that the accused had no intention to marry her from the very inception, though had promised falsely to his knowledge. It was never revealed even subsequently, that the accused was ready to marry her but his father and family members were obstructing the marriage.
In the facts and circumstances, the accused with fraudulent intention of inducing the victim/prosecutrix for sexual intercourse had made false promise to marry and had acted as if he had married in front of portrait 'Goddess Kali', however, the fact of marriage was falsified by his subsequent conduct after his resiling from his earlier promise to marry the victim/prosecutrix and the bad intention of the accused by deceitful manner was predominant reason, whereupon, victim was agreeing to have repeated sexual intercourse with him, though victim was also keen to marry the accused as he had said so, but all along the conduct and activities of the accused before and after beyond all reasonable doubt reveal that the consent of the victim/prosecutrix was obtained by deceitful manner tantamounting lack of her consent. Moreso, when she was minor, her consent for physical interaction and sexual intercourse was not to be taken as adverse regarding proving the guilt against the accused.
15. In (2005) 3 SCC 594 : (2005 Cri LJ 331), (State of U. P. v. Pappu) the Hon'ble Supreme Court has held that there is no rule of law that testimony of victim/prosecutrix of rape cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of accomplice, would do.
16. In (2005) 5 SCC 194 : (AIR 2005 SC 2132) (Kamalanantha v. State of T. N.) and (2005) 8 SCC 122 : (2005 Cri LJ 4375) (State of M. P. v. Dayal Sahu) it was held by the Hon'ble Supreme Court that once statement of the prosecutrix inspires confidence and the same is accepted by the Court, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration of her testimony is required unless there are compelling reasons which necessitate the same. It was also held that the accused having dominion or control over prosecutrix physically, mentally and spiritually and many of them believed him to be God. In such circumstances, it was held by the Hon'ble Supreme Court in Kamalanantha (supra) that there was no reason why prosecutrix should depose falsely against the accused. Therefore, conviction based on the sole evidence of victim/prosecutrix can be justifiable.
17. The Hon'ble Supreme Court in (2003) 6 SCC 73 : (2003 Cri LJ 2548) (Visveswaran v. State Rep. by S. D. M.) has given a guideline regarding approach and duty of Courts while appreciating evidence in the case of offences under Sections 376, 346 and 366 of IPC and has indicated that any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. It was also held by the Hon'ble Supreme Court as below (Para 12 of Cri LJ) :

"The approach required to be adopted by Courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity. Courts have to show greater responsibility when trying an accused on charge or rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view."

18. I have heard the learned counsel for the parties, perused the documents as well as lower Court records and have also carefully gone through the evidences. The victim/prosecutrix, a minor, was deceitfully allured on the false assurance of marriage and under psychological pressure she had been agreeing for repeated sexual intercourse with accused while they were living together for long time as husband and wife and the accused since inception knowing it fully well that he would not marry had successfully exploited the virginity of victim and subsequently resiled from the assurance of marriage betraying her. In these circumstances, the whole testimony of minor victim/prosecutrix divulged in natural course, inspires confidence and is sufficient to prove the guilt of offence against the accused under Section 376 of I. P. C. and evidence of P. W. 1, the mother of the victim as well as P. W. 2, the grandmother of the victim are corroborating the fact of repeated physical interaction and sexual exploitation of the victim/prosecutrix by the accused. The fact of residing together having physical relation as husband and wife for long time gives sufficient support to the prosecution version. In my respectful consideration the prosecution beyond reasonable doubt has been able to prove the guilt/offence under Section 376 of IPC against the accused and keeping in view the facts and circumstances the conviction and sentence awarded by the Sessions Court is legally correct. Therefore, the sentence awarded by the Sessions Court is affirmed. The appellant is to suffer the sentence awarded by the Sessions Court. Since the accused is already enlarged on bail vide order dated 29-6-2001, his bail bond shall have to be recalled and the accused has to surrender to undergo the conviction and sentence awarded by the Sessions Court.
19. With the above observations, the appeal is dismissed.
Appeal dismissed.