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Kartick Kundu Vs. the State - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Reported in1967CriLJ1411
AppellantKartick Kundu
RespondentThe State
Cases ReferredBhola Nath Mitter v. Emperor
- p.b. mukharji, j. 1. the petitioner in this criminal revision was convicted by the assistant sessions judge, hooghly under 8s. 376 and 493 of the penal code and sentenced to four years rigorous imprisonment under each of these two charges and the sentences were to run concurrently. the petitioner's appeal was dismissed by the learned additional sessions judge and the order of his conviction was confirmed, so also the sentence of four years rigorous imprisonment in respect of the charge under section 493 of the penal code. but the appellate court set aside the separate sentence in respect of the charge under section 376 of the penal code. the petitioner has come up in revision against that order of conviction and sentence.2. the prosecution case is briefly as follows:raj mohan rana, was an.....

P.B. Mukharji, J.

1. The petitioner in this criminal revision was convicted by the Assistant Sessions Judge, Hooghly under 8s. 376 and 493 of the Penal Code and sentenced to four years rigorous imprisonment under each of these two charges and the sentences were to run concurrently. The petitioner's appeal was dismissed by the learned Additional Sessions Judge and the order of his conviction was confirmed, so also the sentence of four years rigorous imprisonment in respect of the charge under Section 493 of the Penal Code. But the appellate court set aside the separate sentence in respect of the charge under Section 376 of the Penal Code. The petitioner has come up in revision against that order of conviction and sentence.

2. The prosecution case is briefly as follows:

Raj Mohan Rana, was an inhabitant of village Teghoria within Aramhagh police station in the district of Hooghly. He shifted to his father in. law's house at Dihiaoira where he used to live with his wife Drmila and children including a grown-up daughter Pratima. Eajmohan and his family came down there after the death of his father-in-law Ashutosh Nandy who had a brother Sarat Chandra Nandy and a cousin Kapil Nandy. Sarat's son Biswaratb. lived in the same house. Similarly, Tinkaribala, widow of Kapil also lived in the same house and the accused Kartic was the daughter's son of said Tinkari Bala. The position of the house is important in so far as it is material for the purpose of the case. They lived within the same compound. The house was separated in three blocks but within the same compound although they had boundary walls in each case. The three families used to live side by side. The petitioner Kartick Kundu was related and acquainted with the family of Raj Mohan since his childhood. Raj Mohan's eldest daughter Pratima was acquainted with the petitioner since her childhood. Both the petitioner and the girl Pratima used to play together and in course of time there grew up love and attachment between the two. Petitioner Kartick expressed his intention to marry Pratima in the month of Aswin 1368 B. S. The girl's mother naturally asked accused Kartiok to have the consent of his parents. Upon that Kartick proposed to marry Pratima by registration and he told Urmila, mother of Pratima that his parents would not give consent to such marriage. Then what happened is of some importance for the purpose of this case. In the middle of Asrahayan 1368 B. S. when Urmila had gone to Tagharia, Kartiok informed Pratima that he would be marrying her on the following morning by registration. Then began the journey for registration when Kartick took Pratima to Khanakul Registration office in the early morning. Pratima's father used to work at Midnapore and would occasionally come down to Dihiboica. On the following morning Pratima left her father's house at Dihiboira for Khanakul Registration office along with Kartick. Kartick asked Pratima to wait outside the Registration office. After sometime he brought some stamped paper on which Kartick obtained the thumb impression and signature of Pratima and he signed himself representing that he would marry Pratima by registration. The prosecution case further is that the girl Pratima in good faith put her thumb impression and signature on the paper and she was convinced that marriage was effected by registration. When Kartick returned after sometime from inside the Registration office and told her that marriage hid been registered, both Kartick and Pratima returned home. The prosecution case also is that in the meantime Urmila, mother of Pratima and Pratima's brother were anxious for Pratima's temporary absence from their house. Bat when they returned they learnt that their marriage was effected by registration. Urmila accepted the marriage in good spirit. Friends and neighbours of Kartiok managed to have a village dinner from Kartick and a dinner party was actually arranged to entertain the village people. Then followed co-habitation between Kartick and Pratima. They used to sleep in the same house and share the same bed, as husband and wife. In course of time Pratima conceived and she came to learn only a few months after her conception that there was in fact no marriage at all. The occasion for the discovery of this fraud was a quarrel arising out of Pratima'a demand for ornaments from her husband Kartick. This quarrel was about the end of Sravan 1369 B. S. At that time Kartick denied his marriage with Pratima and wanted to avoid the marriage. It appears that the alleged marriage took place on or about the 1st December, 1961. The birth of a child was in the first week of December 1962. The dates are telling and very relevant.

3. Continuing with the facts of the case for the prosecution, Urmila then sent her eldest son and another person to the Registration Office at Khanakul to enquire whether there was at all any registered marriage between Pratima and Kartick. On enquiry she came to learn that no such marriage by registration took place at the relevant time. A complaint was filed by Pratima before the Judicial Magistrate at Arambagh on 18.8.63, That in brief is the prosecution case.

4. The defence was that Pratima conceived due to her intercoure with some other person and the accused was not responsible for it. The defence further was that Eartick was made a scope goat by the villagers and that when Kartick tried to enclose his land to the east of the house of Urmila by constructing a fencing, there was a quarrel between Kartick and Urmila and Biswanath and they managed to induce the girl Pratima to lodge a false complaint.

5. The Assistant Sessions Judge framed charge under Section 376, I. P.C. and also under Section 493, I.P.C. and held the trial with the result indicated above.

6. A number of arguments have been advanced by Mr. Ajit Kumar Dutt for the petitioner before us. It is contended that the Assistant Sessions Judge was wrong in framing charge under Section 493 of the Indian Penal Code when the learned Magistrate committing the accused to the court of Sessions, framed charge only under Section 376, I.P.C. It is also contended that though the accused was summoned under Section 493, I.P.C., as he was not committed on that charge, therefore, there was an implied cedes of discharge of the accused in respect of the charge under Section 493, I.P.C. Therefore, it was contended that the conviction and sentence passed by the court under Section 493, I.P.C. was illegal and void. The next point that is argued is that the offence of rape not being a continuing offence, each act should he the subject of separate charge and the petitioner has been seriously prejudiced by a charge under Section 376, I.P.C. framed in the manner set out in the charge covering a long period of about eight months. It is also contended on behalf of the petitioner that the charge under Section 376, I.P.C. in this case contravenes the provision of Sections 333/234 of the Code of the Criminal Procedure and the defeat ia not curable under Section 537 of the Code of Criminal Procedure. It is said in support of his argument that it is a kind of lump charge lumping various acts of rape in one charge. Finally, Mr. Dutt for the petitioner contends that Section 493, I.P.C. cannot be applied to a girl who is minor under 16 years of age. Therefore, the conviction under that section was wrong. This in brief is the outline of the arguments advanced for the petitioner in his defence.

7. Some of the preliminary points may be disposed of before we take up the more substantial contentions. We are of the opinion that the Assistant Sessions Judge was not wrong on the ground that the committing Magistrate held the inquiry in respect of the charge under Section 376 I.P.C. only and did not take into consideration the charge under Section 493, I.P.C. Though the accused was summoned in respect of an offence contemplated in Section 493, I. P.C., such an act of the learned Magistrate holding the inquiry in respect of the charge under Section 493,1. P. C. cannot amount to or imply a discharge of the accused in respect of the offence under that section. The Assistant Sessions Judge holding the trial of the petitioner in respect of an offence under Section 376, I. P.C. had full jurisdiction to hold trial in respect of some other charge which he thought proper and fit in view of the facts and circumstances in the case and on the materials on the record. Indeed, the Assistant Sessions Judge framed charges under Section 376 and also under Section 493 of the Indian Penal Code on the materials on the record and the accused petitioner had the fullest opportunity to meet the charge framed against him. Therefore the petitioner was not and could not be in any manner prejudiced by framing the charge under Section 493 of the I.P.C. Nor do we consider that the Assistant Sessions Judge was wrong in framing such a charge under Section 493 of the Indian Penal Code and in convicting and sentencing the accused in respect of the offence contemplated in that section though at the same time the Assistant Sessions Judge found the petitioner guilty in respect of the charge under Section 376, I.P.C. for committing rape on the girl Pratima.

8. The real point of Mr. Dutt's contention for the petitioner turns on the language of the charge under Section 376. of the Indian Penal Code in this case. According to his argument the charge in this case contravenes Section 233/234 of the Cr. P.C. and makes the trial bad and incurable by Section 537 of the Code of Criminal Procedure. To appreciate this point it is better to quote the material portion of the charge under Section 376 of the Indian Penal Code in this case. The charge reads as follows:

That you Kartick Kundu in between the 15th Agrahayan 1368 B. S. and 31st Sravan 1369 B. S. corresponding to 1, 12.1962 and 10.8.62 at Dihiboira, P. S. Ararnbugh committed rape on Pratima Dasi, a minor below the age of 16 years with her consent obtained by fraud and misrepresentation and thereby committed an offence punishable under Section 376 of the Indian Penal Coda and within the cognizance of the court of sessions Hooghly.

Mr. Dutt's contention is that the charge covers a long period which is about eight months. The charge also covers a series of acts of rape, each of which should have been the subject of a separate charge by reason of the provision of Section 237 of the Code of Criminal Procedure. Therefore, he argues that such kind of trial of this charge has prejudiced the petitioner.

9. We have carefully considered this point and we are unable to accept it. Before dealing with the law on this point, it is necessary to dispose of a short point of fact to say this that the charge as such does not mention different acts of rape or lump a series of acts of rape in one charge because the charge only says-'committed rape on Pratima Dasi. .. and thereby committed an offence punishable under Section 376. of the Indian Penal Code'. The words are 'rape' and 'offence'. The charge does not say rape in plural, nor does it say offence in plural. The legal argument therefore of Mr. Dutt that this charge is bad because it is a lump charge containing many acts of rape in one charge, strictly speaking, does not arise in the facts and circumstances of this case. That ia the short answer on facts, to his argument. Secondly, the time also is not vague or too long in the facts and circumstances of the case. The time indicated in the charge is between 1.12,62 and 10.8,62. They are not whimsical dates in the charge; they are significant dates when the alleged marriage was supposed to have taken place by the deceit of the petitioner and the date when the quarrel broke out for claim for ornaments by Pratima and when she was in fact carrying. Therefore, on the facts also of this particular case the time is neither vague nor too long and these dates could not in any manner prejudice the petitioner at the trial because he knew exactly what the allegation against him was and what those dates meant.

10. Having disposed of Mr. Butt's argument on facts, we shall now briefly discuss the law arising on this point of his submission. Section 233 of the Code of Criminal Procedure provides that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Exceptions are made only in cases mentioned in 8s. 234, 235, 236 and 239 of the Code of Criminal Procedure. Apart from those exceptions, which we shall presently note, it is essential to emphasise the expression 'every distinct offence'. If different distinct offences are charged, then separate charge must be made for every distinct offence. The statutory illustration to that section makes it clear saying that where A was accused of theft on one occasion and caused a grievous hurt on another occasion, A should be separately charged and separately tried for theft in one case and grievous hurt in the other case,

11. The first exception in Section 234 of the Code of Criminal Procedure suggests that three offences of the same kind within one year may be charged together. Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or any special or local law of the land. Mr. Dutt also refers to Section 222 of the Code of Criminal Procedure to suggest that the charge shall contain the particulars as to the time, place and the person and relies on Sub-section (2) of Section 222 of the Code of Criminal Procedure dealing with the charge for criminal breach of trust or dishonest misappropriation of money where special provision is made to say that it shall be sufficient to specify the gross sum in respect of the charge or offence alleged to have been committed and the dates of such offences as alleged to have been committed without specifying the particular items or exact dates. On that basis Mr. Dutt argues that this is the only provision where exception is made and this being the only exception mentioned impliedly it means that no other offence can be joined together in one charge. In support of that proposition Mr. Dutt relies on the well-known decision of the Privy Council in N. A. Subrahmanya Iyer v. King Emperor (1901) 28 Ind App 257 (PC) and the observations made by the Lord Chancellor in that case at pages 262-63 of the report. That case was a case where there was a trial on an indictment in which the accused was charged with no less than 41 acts covering a period of two years. Lord Chancellor observed that that was plainly in contravention of Section 234 of the Criminal Procedure. In explaining the reasons the learned Lord Chancellor observed that the reason for such provision is obviously in order that the jury might not be prejudiced by the multitude of charges and the inconvenience of hearing together of such a number of instances of culpability and the con. sequent embarrassment both to judges and the accused. The view was expressed by the Lord Chancellor in the following terms:

It is likely to cause confusion and to interfere with the definite proof of a distinct offence, which it is the object of all criminal procedure to obtain. The policy of such a provision is manifest, and the necessity of a system of written accusation specifying a definite criminal offence is of the essence of criminal procedure.

This case however, was not a case of rape, but a case of extortion, obtaining illegal gratification and conspiracy. Tie famous observation made by the learned Lord Chancellor in that decision appears at page 263 of 28 I. A. in these words:

The remedying of mere irregularities is familiar in most systems of juriprudence, but it would be an extra-ordinary extension of such a branch of administering the criminal law to Bay that when the Code positively enacis that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity.

12. The difficulty with this authority today is that the decision was rendered as early as 1901 and long before the amendment of Section 537 (b) of the Criminal Procedure Code introduced recently in 1953 expressly mentioning any mis joinder of charges as a curable defect. Even apart from that the subsequent decision of the Privy Council in Babulal Chaukhani v. King Emperor makes the position of the law quite clear on this subject. There the point was that the charge of theft of electricity was not properly framed in that case on the particular ground that it was alleged that multiplicity of offences between April, 1934 and 16th January, 1935 had been alleged and that such offences did not constitute a single continuing offence and that there were separate offences committed on particular dates and should have been separately charged and tried. The crucial observation of the Privy Council on that point was made by Lord Wright at page 135 of that report in the following terms:

Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. But they cannot regard this objection as one which in the circumstances of this case should receive effect, especially because they agree with the High Court that no injustice was inflicted on the appellants. The specific offences of which they were accused were satisfactorily proved by competent evidence, corroborated in all necessary respects. There was no miscarriage of justice In addition the irregularity was sucb as could be, and was cured under Sections 225 and 537 by the finding that the accused had not been prejudiced.

13. The centre of the debate on this point has always been on the question in each case whether what is complained of is a mere irregularity or illegality. Judges have talked in different voices on this point from time to time That was observed also by a Division Bench of this Court in Kanailal Paladi v. Emperor reported in 49 Cri. L J 449 : AIR 1948 Cal 274 where at p. 450 (of Cri L J) : (at p. 275 of A I R) Harries C. J observed, 'On the present state of authorities it is difficult for this Bench to hold that, the failure to comply with the provisions of Section 233, Criminal P. C., is an illegality, though as I have said, there are a number of cases which support that view. The more recent cases, however, suggest that it is an irregularity.' The duty of the Court however, remains unchanged and that duty is to see in each case after examining the facts whether what has been done is prohibited by the Criminal Procedure Code or not, A working test for irregularity in that event can be operated without always touching upon the principle whether every irregularity is a case of illegality or not. Mr. Dutta for the petitioner realised his difficulty in the present situation specially on the facts of this case. Reference in this connection may be made to two Supreme Court decisions. In Banwari v. State of Uttar Pradesh : AIR1962SC1198 , the Supreme Court observed that proceedings in each separate trials should be separate and that on that basis the procedure adopted by the Sessions Judge was wrong. But the question for determination then is whether his following the wrong procedure vitiates the trial and conviction of the appellant or is curable under Section 537, Criminal P. C. There reference was made to the Privy Council decision and the Supreme Court made the observation at page 1203 in paragraph 29 of that report as follows ;

We are of opinion that such a defect does not invalidate the trial in view of Section 537 of the Code.

After quoting from the previous Supreme Court decision in Payare Lal v. State of Punjab : (1962)ILLJ637SC the Supreme Court in this case came to the conclusion that the impugned procedure adopted by the Sessions Judge in the case under review did not relate to competency of the Court to try various offences at one trial. The test that was laid down by the Privy Council in Pulukuri Kotayya v. Emperor 74 Ind App 65 : AIR 1947 P C 67 is whether the trial was conducted in a manner different from that prescribed by the Code : but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in course of such conduct the irregularity can be cured under Section 537 and none, the leas so because the irregularity involves, as must nearly always be the cage, a breach of one more of the very comprehensive provisions of the Criminal Procedure Code. In other words, the law is that in every case it has got to be deter-mined whether it is a case of irregularity or want of competency. The Supreme Court in Banwari's case observed at page 1203, para-graph 31 of that Report as follows:

The amendment made in Section 537 of the Code by the Code of Criminal Procedure (Amendment) Act (Act 26 1955) does not in any way go in favour of the appellants as the result of the amendment is that the scope of Section 537 is made wider, covering cases of misjoinder of charges as well.

14. It is, therefore, essential to emphasise that misjoinder of charges which was really prohibited before the amendment was regarded a matter of competency and therefore a trial held under misjainder of charges could not be cured. That was the very reason why the Legislature expressly included misjoinder of charges within the category of irregularity or at any rate within the category of curable defects. Fundamentally and essentially the contention of Mr. Dutta for the petitioner on this point also is one of misjoinder of charges and is nothing more and nothing less. Unless, therefore, the petitioner can show that he has been in any manner prejudiced at the trial on this charge we have no hesitation to hold today in the light of the amendment and the modern decisions, that the facts of this case bring it within the clear language of the amended Section 537 (b) of the Criminal P. C.

15. More in dispair than in hope Mr. Dutta finally fell back on another Supreme Court decision in Chittaranjan Das v. State of West Bengal : [1964]3SCR237 . There the Supreme Court lays-down the leading principle that requirements of procedure were generally intended to subserve the ends of justice and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial may-sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves. Bat the Supreme Court made it clear that where the provisions made by the law of procedure were not of vital importance, but were, nevertheless, intended to be observed, their breach might not necessarily vitiate the trial unless it was shown that the contravention in question had caused prejudice to the accused. See the observations of the Supreme Court at page 1699. That case was also a case of rape under Section 376, I.P.C. There also the charge stated that the accused had committed the same offence in the same place in respect of the same girl on the 1st and 6th December. 1958 and also the same offence between the 9th and the 15th December, 1958. Mr. Dutta's contention, therefore, must fail on the authorities, but he wanted to cite another point from this Supreme Court decision relying on the following observations of the Supreme Court in that case at the same page 1699.

It is quite clear that if the charge mentions an unduly long period during which an offence is alleged to have been committed, it would be open to the criticism that it is too vague and general, because there can be no dispute that the requirement of Section 222 (1) is that the accused person must have a reasonably sufficient notice as to the case against him. The basic requirement in every criminal trial, therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which be is .to face, and the validity of the charge must in each case be determined by the application of the test, viz., had the accused a reasonably sufficient notice of the matter with which he was charged It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal Courts naturally take the precaution of framing charges with sufficient precision and particularity in order to ensure a fair trial, but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify the particular date and time at which any offence is alleged to have been committed.

If these observations are applied to the facts of this case, they really go against the petitioner. We have already said that the dates are very specific dates within which the offences were said to have been committed. The dates specify a period between the alleged marriage and the break up of that alleged marriage with a conception in between. The acid test whether the accused had reasonably sufficient notice of the offence with which he was charged was more than amply satisfied in the facts of the present case.

16. What remains now is to notice a Division Bench decision of this High Court in Bhola Nath Mitter v. Emperor : AIR1924Cal616 dealing with a case of adultery, inducement and marriage. There the charge relating to adultery alleged the commission of the offence between September and 24th October 1922 and also between 15th November and 29th December 1922. According to Mr. Dutta's argument this charge would have been bad. In fact that argument was made in that case. But the Division Bench overruled that contention and Fanton J. delivering the judgment of the Division Bench observed at page 493 of that report (ILR Cal)=(at p. 617 of AIR) as follows:

The evidence as to their conduct there fully justifies the inference that sexual intercourse occurred during the periods specified in the charge. It was clearly impossible, in the circumstances such as these, that particular dates could be assigned in the charge for the intercourse alleged, and we are satisfied that the manner in which the charges were framed they were, in the circumstances of the present case, in full compliance with what the law requires.

We have no hesitation in saying the same thing in the facts of the present case before us.

17. Leaving aside now Mr. Dutta's argument; on the Criminal Procedure Code, we shall now deal with his contentions arising on the Indian Penal Code in this case. His first attack is that there was and could be no rape in this case in law under Section 376, Indian Penal Code. He relies naturally on the provision of Section 373 of the Indian Penal Code, defining rape, The fourth description given in Section 375, Indian Penal Code., was-inadvertently mentioned in the lower Court which naturally wag taken as a point of grievance by Mr. Dutta, That statutory provision reads as follows ;

Fourthly-with her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

It is unnecessary to pursue this matter any further because the facts bring the present case within the fifth description which reads as follows:

Fifthly-with or without her consent wham she is under 16 years of age.

Here in this case it has been proved beyond reasonable doubt that the girl was under 16 years of age. Therefore, with or without her consent this is an offence within the meaning of Section 375, Indian Penal Code.

18. But the main point on the Indian Penal Code which Mr. Dutta raised related to Section 493, Indian Penal Code., which reads as follows:

Every man who by deceit causes any woman who is-not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description, for a term which may extend to 10 years and shall also be liable to fine.

Mr. Dutta contends that the petitioner's conviction on this section of the Indian Penal Code was bad because this section does not apply where the girl is a minor under 16 years of age. The inspiration for his argument is provided by the commentary of Sir Hari Singh Gour on Indian Penal Code 6th Edition page 2280 where it has been said:

The commission of the offence here described is only possible when the woman is at least 16 years of age. 14 she is below that age her consent is immaterial and cohabitation with her is rape. If she is above that age the accused may induce her to believe him as a lawfully married husband.

19. A close scrutiny of the language of Section 493, Indian Penal Code, makes the point abundantly clear in our view. The first point that strikes one is that Section 493, I.P.C. does not use the word 'consent' at all as distinct from the provisions in Section 375, I.P.C., and the five different clauses given thereunder where 'consent' and 'will' are expressly mentioned. The second reason is also one of interpretation. The crux of the matter is that the man practises a deceit. That deceit causes the woman who is not his lawfully married wife to believe that she is his lawfully married wife and to have sexual inter-course with him in that belief. The essential words of accent and emphasis in this section are the words 'deceit' and 'belief'. It is not a real thing. The marriage is not real. What is done is that by practice of deceit a man makes a woman think that she is her lawfully married wife and by that deceit causes the woman to have sexual intercourse with him and that also the section says 'in that belief'. Whether the woman upon whom this deceit is practised by the man is a minor or a major is, therefore, irrelevant to the construction and interpretation of the section. A minor can be induced to believe or be deceived. Just as such as an adult can be induced to believe or be deceived. A minor may be deceived more easily than an adult but that is beside the point. It will be an unwarrantable encroachment upon the section to introduce a limitation on the ground of minority and to hold that a minor is excepted in Section 493, I.P.C. We are, there-fore, unable to subscribe to the correctness of the Commentary of Sir Hari Singh Gour.

20. This disposes of the points of law urged on behalf of the petitioner. Mr. Dutta, however has also addressed us on two questions of fact. One relates to the probabilities of the case and the other relates to the age of the girl. Both the Courts have come to the concurrent finding of fact against the petitioner on these two points. We have examined the records and the evidence is this case and we are satisfied that the findings of fact arrived at by both the Courts are correct and cannot be challenged. We may mention briefly the points that Mr. Dutta tried to make before us. His first point was that it was improbable that in this case the petitioner should commit rape on a girl who was so well-known to him from childhood and that being so it was just possible that the girl and the petitioner had sexual intercourse from long before. Incidentally, however, this line of argument advanced by Mr. Dutta strikes at the very root of the petitioner's defence which was that it was some. body else who had sexual intercourse with the girl and not the petitioner. But even taking this argument on its own merits for whatever they are worth, the facts in this case do not justify the conclusion because the conception which is a-telling circumstance in this case, happened after the alleged marriage by deceit and then its break? up within the dates which we have already specified and which the charge clearly indicated. There is evidence to show that it was after the alleged marriage that the petitioner started cohabiting and living with the girl and slept with her in the same room. This is not only the evidence of the girl herself but there is corroboration of that evidence by the girl's mother as well as the brother who lived in that family. Therefore, on the probabilities there is no circumstance which can favour the petitioner in the facts of this case. Knowing a girl and being friendly with her is one thing and to take the step of having sexual intercourse in circumstances such as these, is a quite different consideration. The first is not a carnal offence, the second is.

21. On the point of age of the girl the petitioner's case appears to be without any substance. Mr Dutta's contention on the point is that the prosecution has not succeeded in proving that the girl was a minor under 16 years of age. The record is overwhelming on this point. The evidence is almost conclusive. The certified copy of the Enky in the Birth Register, marked Ext. 1 maintained by the Union Board is a proof in support of the age. A comment was made by Mr. Dutta that it does not sufficiently identify the girl. To our mind it does. The father's name of the girl was clearly given. The place is clearly specified. No doubt the mother's name or the baby's name is not there, but even the grand father's name was correctly given. Apart from this documentary evidence there is the testimony of both the father and the mother of the girl m well as the cousin of the mother. They are competent persons to speak of the age of the girl. Nothing was done in cross-examination to shake, the accuraoy of their testimony. Superficial comments have certainly been made by Mr. Dutta such as that the mother could not remember the. exact date of her own marriage or when she had her first child or so on and so forth. Except scratching on the surface this argument, in our view, is not of any effective result. What is worse is that the petitioner himself in his examination under Section 342, Cr. P.C., made on 7-3-1963 gave his own impression of the girl's age as 16 then. Therefore, she must have been a minor under 16 at the time when the offence was committed, No doubt we do not lay very great weight on petitioner's own statement of the girl's age but the fact remains that even after, the whole trial and with direct evidence that the girl was a minor from a series of witnesses for the prosecution including the parents of the girl such a statement was in fact made by the petitioner. We hive no doubt that it could never have been made unless the girl was a minor which we find proved as a fact by overwhelming evidence. In that view of the matter the absence of medical evidence about the age of the girl in the fasts of this case cannot help the petitioner.

22. As a last resort Mr. Dutta attempted to raise a point that on the facts it has not been established that the petitioner and the girl ever went through the formality of a registered marriage. In support of this argument Mr. Dutta submits that there is no proof of the girl and the petitioner going to Khanakul registration office or that there was any registration office at Khantikul at all or that a registered marriage could be effected by a stamp paper of the nature described. These considerations, in our view, are immaterial. Section 493, Penal Code deals with deceit. It is not a real marriage that Section 493, Penal Code, speaks of. It deals with a case of a man deceitfully inducing & belief of a lawful marriage and inducing a woman to have sexual intercourse with him in that belief. The more therefore, Mr. Dutta presses the point that this Khanakul incident has not been proved the worse becomes his position because 'the deceit' then assumes bigger proportion than what even the prosecution suggested. Enquiry was made at Khanakul and it was found that there was no such registration of any marriage there, The evidence is given that the girl and the petitioner were absent from their house. No doubt no witness had been called from Khanakul to prove that they had been seen there by any local man of Khanakul. That as we have said is immaterial. Worse still on this paint is the other circumstances which follow immediately on their return. The evidence is unshaken that after their return the petitioner not only gave out that he had married the girl under registration but also to give effect to that alleged marriage two significant things occurred. One was that the petitioner was openly living with the girl aa husband and wife and sleeping in the same room aa such husband and wife. On that point the evidence is un-contradicted and unshaken. The second event is the dinner which was given to the villagers on account of the alleged faked marriage The test of deceit, therefore, as required under Section 493, Penal Code is more than satisfied in the facts of this case.

23. In conclusion Mr. Dutta made a point that the girl was really in the position of a prosecutrix and her evidence is not corroborated. The appeal court has dealt with this point and has shown the corroboration. It is not correct to say that the evidence of the girl has not been corroborated. It has not only been corroborated by the parents of the girl the cousin of the mother of the girl but also by the circumstances of (a) open co-habitation; (b) sleeping in the same room as husband and wife; (c) conception and (d) dinner party with publicity.

24. For these reasons this rule must be discharged. The conviction and the sentence imposed on the petitioner are upheld and the petitioner must surrender to his bail bond forthwith.

A.K. Das, J.

25. I agree.

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