Voluntarily Leaving Home With Accused Does Not Give Any Right To Invade Victim’s Privacy: Calcutta High Court Upholds Rape Conviction

The Calcutta High Court’s Circuit bench at Jalpaiguri has recently held that the actions of a girl in voluntarily leaving her home with the accused person did not give the accused any right to invade upon her privacy or commit sexual offences upon her.

A single-bench of Justice Siddhartha Roy Chowdhury upheld the appellant’s Trial court conviction for rape under Section 376 IPC and held:

If it is assumed that the victim was not abducted or kidnapped she left her house with accused person on her own, that does not give the accused person the right to invade upon the privacy of the victim girl or to commit any penetrative sexual offence within the meaning of rape as defined under Section 376 of the Indian Penal Code. In her evidence-in-chief the victim stated that the accused person kept her confined for three days in a house and committed rape upon her. Here in this case nothing has come out from the cross-examination of the victim to shake her credibility, therefore, there is no reason to seek corroboration as it would amount to add an insult to the injury already suffered by the victim.

In November 2007, the victim’s father approached the police complaining that the appellant had eloped with his allegedly minor daughter, who was a student of class VII, and an FIR was registered under relevant sections of the IPC.

At trial, the accused was convicted under s.376 IPC (rape), and was directed to undergo seven years of imprisonment, along with a fine, as well as under s.365 IPC (wrongful confinement) and sentenced to a further three years of imprisonment, with fine.

Appellants argued that prosecution had failed to prove the age of the victim through documentary evidence, and that while the victim’s mother and accused used to work in the same place, the de facto complainant lived elsewhere and had no knowledge of the relationship between the accused and the victim.

It was argued that the accused and victim were in love, and she had voluntarily left her home with the accused, after having attained age of ‘discretion.’

Counsel argued that there was no reason to convict the appellant under Section 365 IPC since there was no basis for the trial court to surmise that the victim through her voluntary actions, ‘had been taken out of the care of her guardian.’

It was further submitted that the relationship of the couple was known to the victim’s parents, and that there was no mens rea of the accused since the events were “adventures of two persons in love.”

Appellants pointed out further procedural improprieties in the prosecution case, and argued that even though the victim had stated informing her parents, no phone records were taken out to corroborate the same, and that the medical analysis by the doctor did not reveal any injuries on the girl.

State argued that the discrepancies pointed out by the appellants were trivial in nature. It was submitted that the evidence of the victim would need to be appreciated in its entirety and that she never gave her consent for a “physical union” with the appellant.

It was argued that the appellant used force and raped the victim, thereby justifying the conviction under Section 376 of the IPC, after having found evidence of sexual intercourse during medical examination of the victim.

State relied on the witnesses cross-examinations to point out that the victim had raised a hue and cry while being sexually assaulted by the accused, and that upon enquiries by locals the next morning, she had informed them that she was a victim of penetrative sexual assault at the behest of the appellant, thereby proving an offence under Section 376 IPC.

State concede its inability to prove the age of the victim, but submitted that the accused could not rely on the same to get any “discount” as he was still guilty of rape.

Upon hearing the arguments of the parties, the Court held that in the absence of any evidence regarding the age of the victim, the conviction under Section 365 IPC could not be sustained, but the same would not “strike at the root of the prosecution case.”

It was held that the victim had refused to accompany the appellant to his aunt’s house, but he forcibly took her there anyway and kept her there for three days, committing sexual assault on her. Court noted:

During cross-examination victim stated “I raised alarm by raising hue and cry while Hemanta raped him in that house. In the next morning the members of that house asked me the reason for which I raised alarm then I told them Hemanta raped me” This statement, made during cross-examination undoubtedly, proves the case of prosecution so far Section 376 of the Indian Penal Code is concerned. The victim was examined by doctor and as P.W. 10 doctor stated that victim was habituated in sexual intercourse. The victim not only with stood the test or cross examination, the defence counsel by way of cross-examination has extended support to the prosecution case.

In acquitting the appellant of offences under Section 365 IPC, but upholding the conviction under Section 376, the Court was persuaded by mitigating circumstances raised by the counsel for the appellant on the grounds that the case was 16 years old, and the appeal had been pending for 4 years, with the appellant being the sole bread-earner of his family.

Accordingly, heeding the submission praying for the Court’s interference with the quantum of sentence due to the “agony and anxiety” suffered by the appellant, the Court reduced the sentence of the appellant from 7 years to 4 years under Section 376 IPC.

Citation: 2023 LiveLaw (Cal) 275

Case: Hemanta Barman V The State Of West Bengal

Case no: CRA 4 of 2019

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