MD SARIFAT HUSSAIN vs STATE OF WEST BENGAL

The appeal is directed against the judgement and order dated 1st October, 1994 passed by the learned Additional Sessions Judge, Islampur in Sessions Case No. 22/93 convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for six months more. Since nobody appears on behalf of the appellant, Ms. Faria Hossain, learned advocate, is requested to appear as Amicus Curiae in the matter.

Mr. Ayan Basu, learned advocate, who ordinarily appears for the State, is requested to appear in the instant case for the State.

The prosecution case as alleged against the appellant and other accused persons is to the effect that the victim, Marjina Khatoon used to reside in the house of her maternal aunt and the appellant was her son. On 9th March, 1992 at 10:00 P.M. it is alleged that the appellant committed rape upon the victim on the false promise of marrying her. It is further alleged that she was 15 years of age at the time of occurrence. The victim became pregnant because of such sexual intercourse and when she was at an advanced stage of pregnancy, the appellant took the victim to the house of one Sabratu where she was confined for ten days and the aforesaid Sabratu with the help of his wife, Ajifa Khatun administered medicine to cause miscarriage without the consent of the victim. Subsequently, on 9th August, 1992 the appellant along with one Hakimuddin and Isarul Haque took the victim to Dr. Mojibar Rahaman of Chakulia P.H.C. and aborted the unborn child. Thereafter, the appellant brought the victim back to her home and she narrated the incident to her mother, Hasira Khatun and other witnesses. Over the said issue, the victim took out an application before the learned Magistrate and pursuant to the direction of the learned Magistrate, FIR was registered against the appellant under Sections 376/315 IPC and against the other accused persons namely, Sabratu, Hakimuddin, Isarul Haque and Ajifa Khatun under Sections 315/344/109 of the Indian Penal Code. In conclusion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge for trial and disposal. Charges for the aforesaid offences were framed against the appellant and other accused persons who pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined six witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgement and order convicted the appellant for commission of offence under Section 376 IPC and sentenced him, as aforesaid. Appellant and the other accused persons were acquitted of the other charges levelled against them.

Ms. Faira Hossain, learned Amicus Curiae, submitted that there is no cogent evidence to show that the victim had not attained the age of consent at the time of occurrence of the incident. The conduct of the victim at the time of occurrence and thereafter throws serious doubt as to the fact that she had been forcibly ravished by the appellant. Hence, the appeal ought to be allowed.

On the other hand, Mr. Ayan Basu, learned advocate appearing for the State, submitted that there is evidence on record to show that the victim was a minor and the appellant had sexual intercourse on the false promise of marriage. Hence, the appeal is liable to be dismissed.

Pw1 is the victim and the most vital witness in the instant case. She deposed that she used to reside in the house of her masi since the tender age of nine years. When she was fifteen years of age, the appellant committed rape on her. The incident happened in the absence of her masi. She was dragged out of the house on the verandah. On the promise of marriage, appellant raped her. As a result, she became pregnant. She told the appellant that she had become pregnant. The appellant told her not to disclose it to anybody. When she stayed in the house of Sabratu for fifteen days, the appellant administered medicine for the purpose of abortion but was unsuccessful. The appellant brought her to Chakulia P.H.C. for abortion. The doctor gave injection to her against her will. She was administered medicines including saline for three days. After three days she regained her consciousness and found blood stains in her private parts. She stayed there for a week. Dr. Mojibar Rahaman failed to abort on the day she went to the P.H.C. She was shifted to his house where the abortion was done. Thereafter, she came to her father''s house and narrated the incident to her mother. She went to police who advised her to file a case. As she was weak there was delay in filing the case.

In cross-examination, she stated that her mother told her that she was fifteen years of age. She could not state when her name was enlisted in the voters'' list. She used to meet her bhagnipati and sister while she stayed at her masi''s house. She does not know her actual date of birth.

Pw2 is the mother of the victim. She deposed that the victim used to reside in the house of the appellant on the request of her sister, Jahara. She had sent the victim to their house for work. She came to know of the pregnancy of the victim from the appellant when the victim was sent to Chakulia P.H.C. for abortion. She could not say when the victim was released from Chakulia P.H.C.

In cross-examination, she could not state when the victim''s name was listed in the voter''s list. She, however, admitted that the victim used to cast vote during her stay in the village.

Pw3, Jamiruddin is the neighbour of PW2. He came to know of the pregnancy of the victim after she came to her mother''s house. The victim told that she was made pregnant by the appellant. He heard that the abortion was done in Chakulia.

Pw4 is the brother-in-law of the victim. He deposed that she used to stay in the house of her aunt. Subsequently, she became pregnant due to cohabitation with the appellant.

Pw5 is the Medical Officer who was posted at Chakulia P.H.C. on 24th September, 1992. He proved the certificate issued by him (Exhibit-2).

In cross-examination, he stated that abortion was done in order to save the life of the victim as she was in severe pain.

Pw6 is the lawyer who drafted the complaint on the dictation of the victim. He proved the complaint (Exhibit-1/1).

From the evidence-on-record it appears that the victim was residing in the house of her maternal aunt since she was a child. It is alleged that on the date of occurrence, on the promise of marriage, the appellant had sexual intercourse with the victim. The victim, however, kept quiet till she discovered that she was pregnant. Even after coming to know of such pregnancy, the victim narrated the incident only to the appellant and not to her mother or other relations, although there is evidence on record that the mother and other relations of the victim including her brother-in-law (PW4) used to meet her at the residence of the appellant. Subsequently, the victim was taken to Chakulia P.H.C. and aborted by PW5. PW5 does not depose that such abortion was against the will of the victim. On the other hand, it appears that the victim was aborted in order to save her life. Although the victim claimed that after the abortion she narrated the incident to her mother (PW2), the latter, however, states that she came to know of the incident from the appellant. The aforesaid state of affairs gives an impression that the victim and the appellant had become intimate with each other and had developed physical intimacy. Upon realising that the victim had become pregnant, they together went to Chakulia P.H.C. and the victim was aborted. Thereafter, the appellant narrated the incident to the mother of the victim.

In this backdrop, I am unable to accept the prosecution case of alleged forcible sexual assault on the victim. Mere failure to live up to the promise of marriage does not show that the appellant did not intend to marry the victim at the time when they had cohabited with each other. No incriminating circumstance has transpired in evidence to show that the appellant had refused to marry the victim subsequently. Hence, it cannot also be said that the consent of the victim had been procured due to misrepresentation or deceit.

Coming to the issue as to whether the victim had attained the age of consent, I find that no ossification test was done on the victim to determine her age. No contemporaneous document was also placed on record to establish the age of the victim. PW2, the mother of the victim was silent as to her age. On the other hand, in crossexamination, she deposed that the victim was casting her vote from the time she was residing with her i.e. immediately after the occurrence. Version of PW1, the victim, as to her own age is inadmissible in the absence of corroboration of such fact from her mother (PW2). Hence, the prosecution has not been able to prove beyond reasonable doubt that the victim was below the age of consent i.e. sixteen years at the time of commission of the offence.

In view of the aforesaid discussion, I am of the opinion that the conviction and sentence imposed upon the appellant is liable to be set aside.

Accordingly, the appeal is allowed. The conviction and sentence imposed upon the appellant is set aside.

The appellant shall be discharged from his bail bond after six months from date in terms of Section 437A of the Code of Criminal Procedure.

The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.

I record my appreciation for the able assistance rendered by Ms. Faria Hossain, learned advocate, as Amicus Curiae in disposing of the appeal.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.