UTPAL PANDEY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The judgement and order dated 02.08.2008 passed by the learned Additional Sessions Judge, Fast Track, 6th Court, Malda in Sessions Trial No. 33/08 (Sessions Case No. 67/08) convicting the appellant for commission of offence punishable under Section 493 of the Indian Penal Code and sentencing him to suffer imprisonment for three years and to pay a fine of Rs.15,000/ - in default to suffer simple imprisonment for one year more has been challenged. The prosecution case as alleged is follows: - The appellant, Utpal Pandey is the first cousin of the victim, Sukla Pandey (P.W. 12). The mothers of Utpal and Sukla are own sisters. P.W. 11 is the grand father of the parties. It is alleged that Sukla used to visit the house of Utpal and intimacy developed between them. On 06.02.2003 and subsequent thereto the appellant proposed to have sexual intercourse with Sukla but the latter turned down such proposal before their marriage. Then the appellant brought Sukla to the office of the Marriage Registrar and filled up a form for marriage registration. Thereafter they left for the house of father of the appellant at Malanchapally which was empty and the appellant put vermilion on the forehead of the Sukla and proclaimed that they were married. On such premise Sukla gave in to the appellant's proposal to cohabit with her. The appellant took her to hotel 'Paramount' where they booked room no. 105 and stayed there as husband and wife. On the following day, they went back to their respective houses. On different occasions the appellant and Sukla cohabited together. The appellant forbade her disclosing the episode of marriage and that they were living together and informed her that they would disclose the same after he got employment. On 30.10.2005 the appellant claimed that no marriage had taken place between them and stated that he created such circumstances to convince her for sexual intercourse. Then Sukla informed her grandfather (P.W. 11) who brought the incident to the knowledge of the parents of the appellant and others. A meeting was arranged to settle the dispute. Appellant admitted everything in the meeting in presence of his father and agreed that he would marry Sukla. It was further agreed by the appellant and his father that on the next date i.e. 31.10.2005 minutes of the salish would be prepared but on that date the appellant was sent somewhere else by his father. As a consequence, the victim, Sukla filed a petition before the learned Chief Judicial Magistrate, Malda under Section 156 (3) of the Code of Criminal Procedure. Pursuant to the direction of the learned Chief Judicial Magistrate, Kaliachak P.S. Case No. 278 dated 06.09.2007 under Section 493/376 of the Indian Penal Code was registered for investigation. The matter was committed to the Court of Sessions, Malda and transferred to the Court of learned Additional Sessions Judge, Fast Track, 6th Court, Malda for trial and disposal. Charges were under Section 493/376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined as many as 14 witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the learned Judge by impugned judgement and order convicted the appellant for commission of punishable offence under Section 493 of the Indian Penal Code and sentenced him to suffer imprisonment for three years and to pay fine of Rs.15,000/ - in default to suffer simple imprisonment for one year more.

(2.) Mr . Ganguly, learned Counsel appearing on behalf of the appellant submits that the prosecution case has not been proved beyond reasonable doubt. The victim, P.W. 12, was an educated and major lady having sufficient maturity and it is patently impossible that she was duped to believe that she was married to the appellant and induced to have sexual intercourse. He further submits that the evidence of filling up of form at the marriage registration office has not been proved. Marriage Registrar has not been examined. Such form was neither been seized nor exhibited in the course of trial. He also submits that the evidence with regard to putting of vermilion on the forehead of the P.W. 12 at the house of the appellant is not corroborated by other evidence. He further submits that the prevalence of custom and usage of marriage between cousins in the community of the parties has not been proved by the prosecution. Mere statement of one solitary instance as alleged by P.W. 11 cannot partake the character of proof of such custom and usage contrary to the statutory provisions as laid down under Section 5 of the Hindu Marriage Act. He accordingly prayed for setting aside the judgement and order of conviction and sentence.

(3.) Mr . Ghosh, learned Junior Standing Counsel appearing on behalf of the State, supports the judgement and order of conviction and sentence. He submits that the evidence of P.W. 12 was corroborated by her grandfather, P.W. 11, and the same is sufficient to prove guilty of the appellant. He further submits that false impression was created in the mind of P.W. 12 that she was married to the appellant and was convinced to have sexual intercourse. The ingredients of offence under Section 493 of the Indian Penal Code has been established. He further submits that instance of marriage between cousins in their community as divulged in the evidence of P.W. 11 remained unshaken in cross -examination. He, accordingly, prayed for dismissal of the appeal.