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Where a woman does not ‘consent’ to sexual acts described in main body of Section 375, offence of rape has occurred: High Court at Calcutta

“Individuals, who make a reasonable choice to act after evaluating various alternative actions (or inaction) as well as various possible consequences flowing from such action or inaction, consents to such action.” The Hon’ble High Court at Calcutta before the Hon’ble Mr. Justice Shivakant Prasad in the matter of Tapan Porel vs. The State of West Bengal [CRA 83 of 2016], also stated that “…when the discretion has been properly exercised, an Appellate Court should not interfere unless there are very strong reasons and in case where the sentence cannot be said to be grossly inadequate as to amount to a miscarriage of justice.”

It was an instant appeal directed against the judgment and order of conviction and sentence passed by the Additional District and Sessions Judge, Chandernagore, Hooghly, wherein the appellant was convicted for the charge under Section 376 of the Indian Penal Code and sentenced to suffer for rigorous imprisonment of 7 years and to pay a fine of Rs. 25,000/- in default to suffer rigorous imprisonment for one year, along with a charge under Section 417 of the Indian Penal Code and rigorous imprisonment for 6 months. These sentences were directed to run concurrently with a further direction to set off the pre-trial detention undergone by the appellant under the provision of Section 428 of the Code of Criminal Procedure.

It all started with an instant appeal wherein the son of the complainant, Tapas Ruidas (accused), who was a professional cook having frequent visiting terms with the complainant’s house for the past 7-8 years, was found in the kitchen without dress with Jharna Das (victim). Jharna Das, a 22-year old deaf and dumb girl, the niece-in-law of the complainant, developed intimacy with the accused, and it reached an extent where the accused assured Jharna to marry her, and such sexual intercourse happened from the assurance of marriage by the accused. When they were found by Laltu Ruidas and Sanjoy Ruidas, there was a round of meeting wherein it was asked to the accused to marry Jharna. However, he refused to marry her. Hence, the de facto informant lodged a written complaint against the accused, and upon such a complaint, the Singur Police Station registered a case under Section 376 of the Indian Penal Code. After the commitment of the case to the Court of Sessions, who took cognizance under Section 193 of the Cr.P.C., and transferred the case onto the Additional Sessions Judge, Chandernagore for trial, and upon trial, the Court framed the charges under Section 376 IPC and Section 420 IPC, to which the appellant abjured his guilt and claimed a trial. The prosecution further adduced as many as 16 witnesses. The defense denied the charges raised against him from the trend of cross-examine of prosecution witnesses.

Upon hearing both the prosecution and the defense, the trial court held the appellant guilty of the charges under Section 376 and Section 417 of the IPC. Now, the question arose on behalf of the defense as to on what basis a deaf and dumb girl such as the victim girl could possibly narrate her about the allegation leveled against the appellant. Mr. Ujjal Kumar Roy, learned Advocate of the appellant alleged that the parents of the victim girl were compelled by the villagers and the de facto informant’s relatives to lodge an FIR against the appellant since the victim girl’s family were threatened to be ousted from the village. A couple of incidents also bring forth a question on the consensus of the victim girl in the physical relationship and whether it was an incident of rape.

However, there was no suitable evidence that proved the commission of rape. The Hon’ble Court relied on whether the consent that has been the subject of debate, in this case, was extracted or not within the meaning of Section 90 of IPC as spelled out in the provisions of Section 90 of the IPC concerning Section 375 of IPC. This is where the Hon’ble Court before the Hon’ble Mr. Justice Shivakant Prasad, owing to the precedents provided in the case of Pramod Suryabhan Pawar vs. the State of Maharashtra [(2019) 9 SCC 608] held that “While Section 90 IPC does not define term “consent”, “consent” based on a “misconception of fact” is not consent in the eye of law. Thus, in case of a woman engaging in sexual relations on false promise to marriage, her “consent” is based on “misconception of fact”, and such sexual act(s) will amount to rape.” The Court was convinced with the adequate evidence that from the very beginning, the appellant had no intention of keeping his promise to marry the victim girl and for the failure to keep his promise, the Court opined that the victim girl had given her consent for a physical relationship with the appellant relying upon the false promise of the appellant to marry her, and thus, such an act of the appellant could be construed as a consent given to the victim girl on the misconception of fact under Section 90 of the IPC.

It also stated that the legislature had incorporated a provision under Section 114A of the Indian Evidence Act, under which the Trial Court had to presume that the victim girl had given the consent of physical relationship with the accused-appellant relying upon the promise of marriage proposed to her. However, considering the purview of Section 417 of the IPC in this case, the Hon’ble Court implied that the charge of under Section 417 of the IPC was of no account, and the punishment thereof shall be liable to be set aside, since the appellant had already been punished for the major charge under Section 376 of the IPC, applying rigorous imprisonment for seven years with a fine of Rs. 25,000/- in default to suffer rigorous imprisonment for one year. The Court was convinced with the discretion and execution of the Trial Court and stated that the Appellate Court should not interfere unless there are strong reasons, and the sentence cannot be said to be grossly inadequate to amount to a miscarriage of justice.

Thus, the Hon’ble Court stayed the discretion of the Trial Court with the application of the sentence of seven years and found it adequate for the appellant, and that he was likely to serve out within the shortest period. It also considered its view about the sentencing of rigorous imprisonment of 7 years, stating it to be substantive to suffice the ends of justice by waiving the imposition of a fine of Rs. 25,000/-. Hence, the appellant was ordered to be released from the Correctional Home after completing the rigorous imprisonment of 7 years as mentioned above.

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