Circumstances Not Put To An Accused Under Section-313Cr. P.C. Cannot Be Used Against Him: High Court Of Tripura

The observation came from Justice T. Amarnath Goud,

"It stands well settled that circumstances not put to an accused under Section-313 Cr.P.C. cannot be used against him and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt."

The appeal was filed under Section-374 of the Code of Criminal Procedure is directed against the judgment and order of Conviction passed by a sessions judge Tripura whereby appellant was convicted under Sections-376(1) of IPC and thereby sentenced him to suffer rigorous imprisonment for 12 years and also to pay a fine of Rs.50,000/- in default to suffer further RI for 1 year. Further convicted him under Section-417 of the IPC and sentenced to suffer RI for 1 year with a fine of Rs.10,000/- with default stipulations. Both the sentences shall run concurrently.

The factual background of the prosecution case is that one Bhabana Das, the complainant, complained that Sanjib Paul, the accused-person was in love affair with her daughter and being in relationship with her daughter, the accused-person have gone to the extent of developing sexual relationship, which was purely on the assurance of marriage given by the accused-appellant to her daughter. Her daughter then got pregnant and the families decided to get a court marriage. But on the fixed date for marriage neither the accused-person nor his family members turned up on that day in the Court. Their child was finally born on 25.03.2014 post which the accused started torturing the complainant's daughter. The matter was taken up with the members of a local club, namely, Aikyatan Club. Members of the club having failed in ending the dispute of the parties, advice was given to take the shelter of law. The complainant after realizing that every doors have been shut have then taken shelter of law and the complaint of the complainant was then registered by the OC Amtali P.S.

Complaint was registered against under Sections-376/417/109/506/34 of IPC. During trial, to substantiate the charge, prosecution has adduced as many as 11 witnesses including the complainant of this case. The defence case was that of total denial of the allegation of the prosecution and as such the convict-appellant during his examination under Section-313 of Cr. P.C, pleaded his innocence and denied to adduce any witness in support of his defence. After hearing both the parties, the learned Court below found that the appellant is guilty for committing offence punishable under Sections-376(1)/417 of IPC and thereby sentenced him.

Petitioner argued before Court that the findings of the court below are highly illegal, erroneous and perverse based on mere surmise and conjecture, which is liable to be set aside. He has submitted that the evidences on record and the statements made by the witnesses do not constitute any offence punishable either under Section-376(1) IPC nor under Section-417 of IPC and as such the order of conviction and sentence passed by the trial Court is liable to be set aside. The Court below should have held that physical relation developed between the victim and the appellant not because of assurance of marriage but, because of deep love and as such, the trial Court has committed serious error and illegality by convicting the appellant which is liable to be set aside.

The statements made by the prosecution witnesses are self contradictory and one is condemning the other and as such, the trial Court has committed serious error and illegality by placing reliance on the evidence of the prosecution witnesses. Petitioner submitted that the victim was examined the Magistrate during the investigation and here statement was recorded under Section-164(5) Cr.P.C. and the said statement contains no allegation of having sexual relation with her on the assurance of marriage and, as such, the trial Court should have acquitted the appellant on the basis of said statement which has been subsequently, proved by the Magistrate.

After carefully perusing the submissions the question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship.

"If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section-375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section-90 IPC a consent given under fear of injury is not consent in the eyes of law. In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury."

Court noted that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.

The Court after perusing the statements of the prosecutrix noted that no such allegation is made against the accused person to attract Section-417 and Section-376 since, the relationship was consented.

In view of the above, the court was of the view that the prosecution has not proved the case against the appellant beyond reasonable doubt and thus, the same stands allowed consequently, the order of the court below was set aside.