- (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. P.W. 1 is an acquaintance of Jibanananda Pandey, the father of the appellant. She knew Sukla, P.W. 12, as the daughter of sister -in -law of Jibanananda Pandey. She stated that Bibhuti Bhusan Mishra, P.W. 11, is the father -in -law of Jibananda and grandfather of Sukla. She stated that Sukla stayed at the residence of her maternal grand father at Gholaichak and Jibananda had house at Maanchapally, Malda. She, however, stated that she was not aware of the marriage between the appellant and Sukla. In cross -examination she admitted that Sukla is the cousin of the appellant. P.W. 2 is the mother of the appellant. She stated that she was aware of the love affair and objected to the marriage as it was within prohibited relationship. In salish, they were asked to pay Rs.1.5 lakh. As they denied to pay the money the case was filed. She denied that there was any marriage between the appellant and Sukla. She categorically stated to the Court that there was no custom of giving marriage between cousins in their community. P.W. 3 is the co -villager who only spoke of the fact that Sukla used to visit to the house of the appellant. P.W. 4 is the owner of the hotel 'Paramount'. He exhibited the hotel register from where it appears that on 03.07.2003 at 9.15p.m. the appellant and Sukla came to the hotel and they were allotted room no. 105. They introduced themselves as husband and wife. He stated that the appellant made entries by his own hand. In cross -examination he stated that the father's name or guardian of the boarders in respect of relevant entry was missing He also admitted that apart from foreigners no enquiry was made to verify the identity of the boarders. P.W. 5, Babu Sarkar, was tendered for cross - examination. In cross, he stated that house of Jibanananda was at Malanchapally. P.W. 6, Dr. Kalyan Mishra, examined the appellant. According to him, Sukla had sexual intercourse but there was no mark of injury of forcible intercourse. P.W. 7 is the home guard who took Sukla for medical examination. P.W. 8 is the doctor who examined the appellant at Malda Sadar Hospital. P.W. 9 is the home guard who accompanied the appellant for such medical examination. P.W. 10 signed the seizure list. P.W. 11 is the grand father of the victim. He stated that Sukla used to stay at his house for the purpose of studying. She had close relationship with her cousin, Utpal. In the year, 2006 he found Sukla in a depressed mood. On enquiry he was told by Sukla that Utpal took her to Malda to the office of Marriage Registrar and they got married under Special Marriage Act. She also told him that after marriage Utpal took her to Malanchapally where vermilion was put on her forehead. Utpal proclaimed to her that she was married. Thereafter they went to hotel 'Paramount' at Farakka and had sexual intercourse. He approached the father of Utpal for marriage and Jibanananda assured that marriage will be arranged next date. But on that date Utpal went missing. He stated that there was practice in their society to contract marriage between cousins. He gave a particular example. In cross -examination he admitted that he was the guardian of Sukla and she was older than the appellant. P.W. 12 is the star witness and the victim of the case. She stated that she was residing with her grand father, P.W. 11. Appellant was his cousin and they became intimate with one another since 2000. From 2002 the appellant insisted her to have cohabitation. But she did not agree as they were not married. On 03.07.2003 the appellant filled up form for marriage registration. Thereafter she was taken to the house of Jibanananda and vermilion was put on her forehead and the appellant proclaimed that she was married. On the self -same day in the evening she was taken to hotel 'Paramount' at Farakka where they stayed as husband and wife and cohabited together. Thereafter they went to their respective houses. She was requested not to disclose anything about their marriage to anyone. Since 2005 she started to insist the appellant to acknowledge their relationship and to take her to his house. The appellant, however, refused to do so and stated that they were not married. Under such circumstances, she disclosed the incident to P.W. 11 and P.W. 11 went to the house of the appellant. The appellant denied their social marriage. Jibananda assured P.W 11 that the date of their marriage would be fixed but on the next date the appellant fled away and she filed criminal case. She was examined by a doctor and police seized the hotel bill and admission card. She admitted that she had completed secondary education. She stated that she did not disclose the incident between 2003 to 2006. P.W. 13 is recording the First Information Report. P.W. 14 is the Investigating Officer of the case. He exhibited the seized document. He stated that he medically examined the victim. He seized the original bill, cash memo of hotel Paramount. In cross - examination he stated that he did not get any paper of relationship between the victim and the appellant. He stated that the P.W. 11 did not tell him that custom marriage took place between the cousins in their society. In cross -examination he stated that P.W. 11 did not tell him that in cross -examination he stated that Sukla told him that they were in love but nobody knows about it. He further stated that the parents of Utpal did not agree to the marriage as they were cousins and the same was not permissible.;