Calcutta High Court: While addressing a matter under Section 376 of Penal Code, 1860 Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., observed that, it cannot be said that appellant had no intention to marry from the inception of the relationship, infact the relationship did not fructify due to obstruction from the elders of the family.
The instant appeal was directed against the decision passed by the lower court arising out of Sessions Case under Section 376 of the Penal Code, 1860.
Background
Prosecution alleged that the appellant cohabited with the victim girl who was a minor, on the false promise of marriage, due to which the girl became pregnant.
When the girl asked the appellant to marry, he evaded the issue. The said matter came to the knowledge of the family members, after which a salish was held, wherein the appellant refused to marry the victim girl due to the strong objection of his family members.
In view of the above, first information report was filed and charges were filed against the appellant under Sections 376/493 of IPC.
Analysis, Law and Decision
Bench noted that the evidence on record clearly established that the appellant had cohabited with her on the promise of marriage.
However, Court found it was difficult to accept that the initial cohabitation was forceful as such allegation was significantly absent in the FIR by PW1. It was argued that the appellant had agreed to marry her, but the marriage could not fructify due to the resistance of his parents. Hence, it could not be said that the appellant did not intend to marry her at the time when they cohabited.
Court found substance in the above contention.
Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception.
Bench observed the evidence that the appellant and the victim girl wanted to marry each other and cohabited and as a result, she became pregnant but due to the resistance of the parents of the appellant marriage was not held.
It appeared that the date of birth of the victim was 18-3-1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent.
Therefore, Court opined that it cannot be said that the appellant did not have the intention to marry the victim, in fact the marriage could not fructify due to obstruction from elders in the family.
The materials on record also indicated that the cohabitation was consensual.
Concluding the matter, the conviction and sentence of the appellant was set aside and the appellant was acquitted. [Saddam Hussain v. State of West Bengal, 2021 SCC OnLine Cal 3012, decided on 7-12-2021]
Advocates before the Court:
For the appellant: Debarshi Brahma, Adv.
Ms. Ankita Das Chakraborty, Adv. Mr. Sagnik Mukherjee, Adv.
For the State: Mr. S. G. Mukherjee, P.P. Ms. Amita Gour, Adv.
Mr. N. P. Agarwal, Adv.
