SUKUMAR GHOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Sukumar Ghosh, the petitioner herein, was placed on trial before the learned Assistant Sessions Judge Hooghly to answer the following two charges:, First-That you on or about the last week of Baisakh, 1386 B.S. at Village Bamandanga under P.S. Chanditola, District Hooghly, Committed rape on Kumari Kalyani Ghosh and thereby committed on offence punishable under Section 376 of the Indian Penal Code, Secondly - That you on or about the same date and (It the same place pretended to marry Kumari Kalyani Ghosh and on that pretence you induced her to allow you to have intercourse with her and thereby committed and offence punishable under Section 417 of the Indian Penal Code. On conclusion of trial the learned Judge recorded an order of conviction and sentence in respect of both the charges. Against the said order the petitioner preferred an appeal which was dismissed by the learned Additional Sessions Judge, Hooghly. Thereafter the petitioner moved this Court in revision and obtained the present Rule.

(2.) Having considered the materials on record, we are constrained to say that the findings of the learned Courts below that the petitioner is guilty, of the charges levelled against him are perverse. Evidence was led only to show that the petitioner had sexual intercourse on a number of occasions with the victim girl, who at the material time was aged more than 16 years, as a result of which she conceived and that she consented to such sexual intercourse as she was given to understand by the petitioner that he would marry her. According to the learned Courts below such a consent was not a valid consent within the meaning of Section 90 of the Indian Penal Code and as such the offence committed by the petitioner was one under Section 376 Indian Penal Code. We are unable to accept the above view having regard to, the Division Bench decision of this Court in the case of Jayanti Rani Panda v. State of West Bengal1, wherein while dealing with a similar question this Court held that if a full grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she became pregnant, it was an act of promiscuity on her part and not an act induced on misconception of fact. Since the principle laid down therein applies in all fours with the facts of the instant case, we must hold that no offence under Section 376 Indian Penal Code can be said to have been committed by the petitioner. For the self same reason the charge under Section 417 Indian Penal Code fails.

(3.) In the result, the application succeeds and the Rule is made absolute. The impugned order of conviction and sentence passed against the petitioner is hereby set aside and he is acquitted of both the charges. The petitioner, who is on bail, is discharged from his bail bond. Fine if realised, than refunded to him. Application allowed.