Hasibul Mallick @ Kana vs The State of West Bengal

Kanchan Chakraborty, J.—This Criminal Appeal is directed against the judgement and conviction dated 21.8.2010 and order of sentence dated 23.8.2010 passed by the learned Additional District and Sessions Judge, Fast Track, 1st Court, Tamluk, Purba Medinipur in S.T. No. 114(09)/2004 corresponding to sessions Trial no. 04(05)05 thereby convicting the appellant u/s 376 and 417 of the Indian Penal Code and sentencing him to suffer R.I. for 7 years with fine of Rs. 1000/- for the offence committed u/s 376 of the Indian Penal Code and to suffer R.I. for 1 year with fine of Rs. 1000/- for committing the offence u/s 417 of the Indian Penal Code. One Sk. Ansar Ali lodged one complaint in the Court of learned Chief Judicial Magistrate, Tamluk, Purba Medinipur with a prayer to refer the same to the concerned police station u/s 156 (3) of Code of Criminal Procedure, stating therein that the appellant being his neighbour enticed his minor daughter Mansur Khatun in various way and ensuring her to marry, established sexual relation with her. Mansur Khatun became pregnant. The matter came to the notice of the neighbours as well as father of Mansur Khatun five months thereafter. The matter was also referred to the village meeting wherein the appellant was present and confessed his guilt. The appellant and his relation also agreed to arrange marriage between appellant and Mansur Khatun but after words they removed the appellant from the place and ultimately denied to give marriage of appellant with Mansur Khatun. On the basis of said F.I.R., Bhawanipur police station case no. 59 of 2001 dated 22.7.2001 was registered against the appellant and three others u/s 376 of IPC. The case was investigated into and ultimately a charge-sheet was filed against the appellant and co-accused u/s 376/120B of IPC. The learned Trial Court, however, arrayed the appellant Hasibul Mallick to face charge u/s 376 and 417 of IPC while the other accused persons were charged for committing offence u/s 114/376 and 114/417 of IPC. The appellant and other accused pleaded not guilty and as a consequence, the trial commenced. The learned Judge upon consideration of the evidence on record found that the appellant Hasibul Mallick @ Kana was guilty of offence u/s 376 and 417 of IPC. The co-accused were found not guilty to the charges. The appellant Hasibul Mallick has come with this appeal challenging the sustainability of the judgement impugned on manifold grounds mentioned below :

i) that while the learned Court accepted the fact that the victim was a major and the F.I.R. was lodged after 7 months of the incident, the trial Court ought to have concluded that the victim was a consenting party to the alleged sexual intercourse with the appellant;

ii) that the learned Court was oblivious of the fact that not only there was inordinate delay in lodging the F.I.R. but there was delay also in sending the F.I.R. to Court by the police authorities which obviously had given the prosecution a chance of embellishment and development of the case;

iii) that the learned Court recorded the order of conviction and sentence on the basis of contents of a Salishnama which was not atall admitted into evidence;

iv) that the learned Trial Court failed to take note of contradictory statements on materials points which touched the root of the prosecution case;

v) that the learned Court misread and misinterpreted the provisions of law laid down u/s 90 of the Indian Penal Code in order to record the order of conviction and sentence;

vi) that the learned Trial Court was oblivious of the fact that the statement of victim on important and material issues were not supported by the Investigating Officer and;

vii) that the learned Court failed to take note of the fact that the appellant was a juvenile at the relevant point of time;

Mr. Mukherjee, Learned Counsel appearing on behalf of the appellant contended that the judgement is entirely confusing as the learned Court observe something but came to a conclusion in a different way. Mr. Mukherjee contended further that the learned Court ought to have read the evidence of the witnesses as a whole and not in an isolated manner. The contradiction of the statement of the P.W. 2 (victim) and the P.W. 12 (I.O.) not only have given rise to a strong suspicion but also demolished the entire prosecution case. He contended again that the learned Court did not accept the prosecution case that the victim was a minor. When the learned Court came to such a findings, it ought to have considered that the victim was a consenting party to the sexual intercourse with the appellant especially when she never resisted the appellant to have sexual relation with her. Mr. Mukherjee contended that learned Court should have taken all the facts into consideration. The alleged incident had taken place in the 1st week of December 2000. The fact of her pregnancy was disclosed 5 months thereafter i.e. in the month of May. The F.I.R. was not lodged then and there. The victim and her relation tried to settle the matter. The village meeting was called on and ultimately, the appellant and his guardian disagreed to obey the decision taken in the meeting. Even then, the F.I.R. was not lodged before 9.7.2001. After receiving the petition of complaint u/s 156 (3) Cr.P.C. the police authorities did not sent the F.I.R. before 22.7.2007. In course of this period, the prosecution has developed the case because the fact stated in the F.I.R. and the fact stated by the witnesses found contradictory to each other. Mr. Mukherjee contended further that the charge-sheet, column X shows that no article was seized by the I.O. in course of investigation but, Salishnama was placed before the Court and signatures thereon were marked Ex. The contents of the Salishnama were never admitted into evidence and marked Ex. That the learned Court relied on the contents of such unadmitted evidence and recorded conviction. It is contended further that the learned Court agreed to the proposition of the defense that it was not a rape but co-habitation. If so, in a case of a major girl it can well be stated that such co-habitation was only possible as the victim was a consenting party to that cohabitation.

This apart, Mr. Mukherjee contended that while the learned Sessions Judge granted bail to the appellant noted clearly that he was a juvenile if so, the learned Trial Judge ought to have ascertained the juvenility of the appellant. That was not done and it was a mistake on the part of the Court which cannot be overlooked.

On perusal of the record it is found that the F.I.R. was lodged by the father of the victim. He was examined as P.W. 1. He stated that Jarina Bibi, Jamila Bibi and others reported him about the pregnancy of her daughter. She was carrying for five months at that time. He enquired into the matter and came to know that the appellant came to his residence at one evening and raped Mansur resulting in her pregnancy. Therefore, he discloses the matter to the village people and arranged for a meeting. He stated further that the meeting was held the residence of Aube Mallick. He named some persons who were also present in the meeting wherein the appellant admitted that due to sexual intercourse with him, Mansur became pregnant. In the meeting it was decided that marriage between them would be solemnized. But, the appellant ran away to avoid the marriage and thereafter the case was initiated.

The most important witness in this case is the victim Mansura Khatun, the P.W. 2. She has stated that on the date of occurrence the appellant came to her house and committed rape upon her by force. She tried to shout but the appellant promised her that he would marry her and in case of disclosure, he would kill her. In the her cross-examination, she stated that first of all, the appellant caught hold her hand before committing rape and promised her to marry. Thereafter, she did not raise any protest. She also stated in her cross-examination that she reported the I.O. that the appellant committed rape upon her and threaten her with dire consequences in case of disclosure. She stated further that he reported the I.O. that she narrated the cause of pregnancy and case of pregnancy to Jarina Bibi, Jamila Bibi, Hazira Bibi and others including her father, about the Salish held by co-villagers and the appellant agreed to marry her.

Hazira Bibi, Jamila Bibi and Jarina Bibi were examined as P.W. 3, P.W. 4 and P.W. 6 respectively. They stated that Mansura reported them that she became pregnant for about 5 months as she was raped by the appellant.

P.W. 5 is a local man and has stated that father of Mansura disclosed in the local mosque that Hasibul caused pregnancy of his daughter Mansura. The P.W. 5 also stated about the Salish and confession of the appellant in that Salish. The P.W. 7 is also a local man who supported the statement of P.W. 5. The P.W. 11 is also a local man and supported the statement of P.W. 5 and P.W. 7.

P.W. 12 is the I.O. of the case who, in course of enquiry, came to know that age of the victim was 15 years, 11months and 20 days on the date of incident. No birth certificate was produced by the victim or her family members before him. In his cross-examination he has flatly denied that the victim girl stated him that the appellant raped her in her residence against her will, that appellant threaten her of dire consequences in case of disclosure and that she narrated the incident and cause of pregnancy to Jarina, Jamila and her father. The I.O. of the case denied further that the victim girl stated him that there was any village meeting in connection with the matter and that and the written document was prepared wherein the appellant and other villagers put their signatures. The P.W. 12 stated further in his cross-examination that no witness stated him about the said Salish or any document prepared in the Salish and name of the persons present therein. The P.W. 13 is another police officer who simply filed the charge-sheet on the basis of investigation done by P.W. 12.

In the Trial, one witness was examined on behalf of the appellant as D.W 1. The D.W. 1 was a Deputy Magistrate passed at Haldia at that time. He produced the original voter list for the purpose of establishing that the act of the victim was 22 years in the voter list of 1999 and in the daughter list in the year 2009. Those two voter lists were marked Ex. A and Ex. B for the defense.

Mr. Sur, Learned Counsel appearing for the Respondent/State of West Bengal contended that the judgement impugned is not required to be interfered with as it is passed on proper appreciation of evidence. He contended that the victim was, in fact, a minor girl at the relevant period of time. Although, the learned Trial Court did not accept that the prosecutrix was a minor, the Court has rightly came to the conclusion that she had given her consent to sexual intercourse with the appellant on false promise to marry amounting to misconception of fact squarely coming under the mischief of Section 90 of IPC. The appellant itself established that he had no genuine intention to marry the prosecutrix.

The question is to whether the victim was a minor or major on the relevant date and time when the alleged incident had taken place has been set at rest by the learned Trial Court.

The learned Trial Court taking all the evidence into consideration, oral and documentary, adduced by both the parties came to a conclusion that the prosecution case about the minority of the victim at the time of incident was not convincing and acceptable. In the page no. 10 the judgement impugned the learned Trial Court has recorded such findings. In the appeal also, the question of minority of the victim by the respondent State has not been raised seriously. I find that learned Court made no mistke in coming to the conclusion that at the time of alleged incident, Mansura Khatun was a major and grown up girl.

The next question comes is whether the alleged incident can be categorized at rape or co-habitation with consent of the girl.

The alleged incident had taken place, according to the FIR, about 7 months prior to lodging of the FIR. The victim Mansura became pregnant and the fact of her pregnancy was disclosed five months after the date of occurrence. The fact that Mansura became pregnant and carrying for five months has been categorically stated by Mansura herself, her father, Hajira Bibi, Jamila Bibi, Jarina Bibi and the Doctor. The medical papers showing birth of a child by Mansura has also established the fact that due to pregnancy for about five months prior to lodging of the F.I.R, that child was born. So, Mansura conceived a baby and given birth to that baby. The sole question in this case is whether that pregnancy was caused by the appellant or not. If so, whether sexual intercourse between the appellant and Mansura was mere a co-habitation wherein Mansura was a consenting party? The learned Court accepted the fact that it was a co-habitation not a rape because the case of prosecution of co-habitation was developed in course of trial as rape. At page 10 of the judgment impugned, the learned Court came to such a finding.

Even after coming to such a finding, the learned Court concluded that the victim Mansura consented to such a sexual intercourse only on the false assurance of the appellant that he would marry her. In such a case, according to the learned Court, consent was given under a misconception of fact which is invalid.

In the instant case there some loose ends which the prosecution failed to answer. Firstly, after commission of the alleged co-habitation or rape, Mansura kept silent for a considerable period of time. She disclosed the fact of her pregnancy to Jarina, Jamila, Hajira Bibi when she was carrying for five months. She did not even narrate that fact to any close relation like father or elder sister. Even after disclosure of the pregnancy, the F.I.R. was not lodged. The father of the victim and villagers tried to settle the dispute and ultimately arranged for marriage between Mansura and the appellant. According to the prosecution, in the said village Salish, the appellant admitted that Mansura became pregnant due to sexual intercourse with him. He agreed to marry her according to the decision taken in the Salish. But, he was not traced out thereafter. Even after that, no F.I.R. was lodged. The F.I.R. was lodged in the month of July i.e. two months thereafter in the Court in from of the complaint which was referred to the police station. The police authorities did not sent the F.I.R. promptly to the Court also. There was inordinate delay in lodging the F.I.R. and sending the F.I.R. to the Court by the police authorities. That goes to suggest that the prosecution party had enough time to embellish and exaggerate the case. In fact, it has been done. Firstly, the victim Mansura kept silent about the incident for five months. There was no reason for her to remain silent because she was having no love affairs with the appellant nor she had sexual intercourse again with the appellant within this period and was assured further about her marriage with the appellant. The father and elder sister of the victim who were staying with her in the same premises did not notice the physical change of the victim. When father came to know, according to the prosecution case, he did not rush to the police station but tried to arrange for settlement. It is not the prosecution case that the appellant did not agree to marry the victim in the alleged village meeting. He agreed to that and signed the Salish Nama. The learned Court believed and relied this fact and mainly on the said ground, recorded the order of conviction. Peculiarly enough, the Salish Nama had not been admitted into the evidence but the signatures only. When the contents of the Salish Nama were not admitted into evidence, Court was not supposed to consider the same as a piece of evidence and basis of its order. However, it has been established by sufficient and consistent evidence by the prosecution that there was a village meeting over the issue immediately after disclosure of pregnancy of Mansura and that happened in the month of May. Immediately after that meeting, the appellant was found missing. But, no prosecution was lodged. The father of the victim took two more months to move a petition of complaint in the Court.

In the instant case, the star witness is the victim girl Mansura herself. She has never stated that she had any affair with the appellant. In her examination in chief, she stated that she was raped by the appellant by force. In her cross-examination, she stated that first of all the appellant caught hold her hands and promised to marry her. Thereafter, she raised no protest. The statement of the prosecutrix in examination-in-chief and cross-examination appears to be contradictory. If her statement in cross-examination is accepted, it can well be said that she surrendered willingly on a mere premise of marriage by a man with whom she had no love affairs at all. It is already found that she was major girl and obviously knew the consequences of such a sexual intercourse. She has not stated anywhere also that she and appellant met again and had any talk over the issue. It appears that all on a sudden, the appellant came there, promised to marry and had sexual intercourse with her. The matter was never reported to any one before Mansura became pregnant and carrying for five months. This part of prosecution case appears to be not believable. Mansura was not taken before any Magistrate for recording her statement u/s 164 of the code of Criminal Procedure. She had made statement to the I.O. according to the prosecution case as well as according to the statement of the prosecutrix. The I.O. of the case i.e. the P.W. 12 categorically stated that the prosecutrix did not make any statement to him that she was raped by the appellant in her residence against her will and that after commission of rape, he threatened her of dire consequences in case of disclosure. These statements of the P.W. 12 being the I.O. of the case makes the prosecution case doubtful. Prosecution case that Mansura was raped by the appellant also becomes doubtful. No doubt, as stated before, Mansura became pregnant and that was caused because of sexual intercourse with the appellant. But whether that act of sexual intercourse was a rape or not within the meaning of Section 375 of IPC is the only question to be decided in this appeal.

The learned Trial Court accepted that it was a co-habitation not a rape. Learned Court came to a finding that the said promise of marriage was made by the appellant which he never intended to fulfill. This findings of the learned Court is based on surmise and conjecture. There is no evidence whatsoever, direct or indirect, to indicate that, in fact, any such promise was made save and except, the statement of the prosecutrix who did not disclose the fact that the appellant promised to marry her before having sexual intercourse with her to the Investigating Officer. She and the appellant did not meet twice after the incident. She was a major girl knowing consequence of such a sexual intercourse. On the very first date she agreed to surrender herself to the appellant simply on such a promise and took part in sexual intercourse without raising protest. She kept silent for five months thereafter. When she became pregnant only, the matter was disclosed. There was a pressure from her family for her marriage with the appellant. That was not taken into shape. The prosecutrix or her father even did not approach the time or Court immediately thereafter but waited for two more months for reasons best known to them. All this factum, if taken together, creates a strong doubt about the allegation against the appellant that he committed rape by applying force on the prosecutrix. A grown up girl is not supposed to agree to sexual intercourse to a man on the very first date she was approached especially with whom she had no love affairs. It is reiterated that it is not the prosecution case that the appellant and prosecutrix met again or had sexual intercourse or discussion over their marriage in future. It is really doubtful whether the appellant made any such premise or not. Again, a promise to marry in future by tender aged boy to a tender aged girl who indulged themselves in sexual intercourse can not be said to be a misconception of facts. It might be that the appellant who was a tender aged boy at that time made such a promise with a genuine believe or intent. He also agreed to marry her subsequently. There is no whisper from the prosecution side that the said promise was made not to fulfill but to misrepresent or misguide the prosecutrix. It might be that the appellant became scared because of the fact of pregnancy and that he was kept aside by his family. The learned Court came to a conclusion that the prosecutrix given consent on the basis of false promise made by the appellant. That findings of the Court cannot be accepted in the facts and circumstances of the case. At the cost of reiteration it is stated that the statement of the prosecutrix and the statement of the Investigating Officer are totally contradictory to each other. There was no reason for the prosecutrix not to state the I.O of the case that she was raped by force and a false promise to marry her was made by the appellant. In my estimate, it is a case where the appellant is protected u/s 90 of the IPC.

Therefore, I find substance in the contention of Mr. Mukherjee. In view of the discussion above I allow the appeal.

Accordingly, the appeal is allowed and the judgement of conviction and sentence impugned is set aside. The appellant be set at liberty at once. Urgent Photostat certified copy of the judgement, if applied for, be handed over to the parties on compliance of necessary formalities.