Mokleswar Rahaman vs The State of West Bengal

Kanchan Chakraborty, J.—The challenge in this appeal is to the judgement and order dated 24.8.2010 passed by the learned Additional Sessions Judge, Fast Track Court, Mal, District- Jalpaiguri in Session case no. 91 of 2008 thereby convicting the appellant for committing offence u/s 376 of IPC and sentencing him to suffer R.I. for 7 years with fine of Rs. 1000/-. On 19.8.2007 Sabada Begum, aged about 15 years lodged one F.I.R. in Mal police station of District Jalpaiguri stating therein that the appellant Md. Mokbehhar Rahaman had established physical relation with her since last 3 years alluring her to marry and as a result, she became pregnant for 3 months. Mokbehhar Rahaman not only declined to marry her but suggested her to go for abortion to which she did not agree out of fear of death.

On the basis of said F.I.R., Mal police station case no. 181 of 2007 was registered against the appellant. The prosecutrix were examined by Doctor and found that she was pregnant. Her statement u/s 164 Cr.P.C. was also recorded in course of investigation. she gave birth of a female baby on 27.2.2008. On conclusion of investigation, the I.O. of the case filed charge-sheet u/s 376 IPC against the appellant. Charge u/s 493 and 376 was framed against the appellant to which he pleaded not guilty. As a result, the trial commenced. In course of trial, 10 witnesses were examined on behalf of the prosecution. The F.I.R., Potency report, medical report, sketch map of the P.O., seizure list and school transfer certificate of the prosecutrix were admitted into evidence and marked exhibit on behalf of the prosecution. No witness was examined on behalf of the appellant in the trial. The learned Court, upon consideration of the evidence on record found that the appellant committed the offence u/s 376 of IPC and accordingly recorded his conviction and sentence which is impugned in this appeal.

The judgement impugned has been assailed in this appeal on the following grounds.

i) that the learned Trial Court failed to appreciate the evidence on record in true and proper perspective;

ii) that the learned Court failed to take into consideration that there was discrepancy and conflict in the evidence of prosecution witnesses on material points;

iii) that the learned Court erred in not considering the different versions of the prosecutrix at the time of lodging F.I.R. and at the time of examination in Court;

iv) that the learned Court failed to appreciate that there was inordinate delay in lodging the F.I.R. and that the conduct of the prosecutrix was abnormal and unnatural;

v) that the learned Court failed to appreciate the fact that there was no forceful cohabitation between the prosecutrix and the appellant and that the entire incident, if any was because of the love affairs between them with the consent of the Prosecutrix who on becoming major and pregnant only had taken shelter of law;

vi) that the incident allegedly taken place in the cinema hall was neither believable nor acceptable;

vii) that the learned Court was oblivious of the fact that the prosecutrix developed the case stage by stage and what She stated in the F.I.R. was not supported by her statement u/s 164 Cr.P.C. and the same statement u/s 164 Cr.P.C. was not also corroborated while she was examined in Court;

viii) that the learned Court failed to determine that the prosecutrix was a major when the alleged incident had taken place in the cinema hall which caused her pregnancy and that was done with her full consent.

Mr. Chatterjee, Learned Counsel on behalf of the appellant contended that there are number of discrepancies in the statement of the prosecutrix on material points which, according to him, made her statement not trustworthy atall. He contended that in the F.I.R. She has not stated anything about the fact allegedly taken place one year prior to filing of the F.I.R. and the incident took place in the cinema hall. She did not also mention in the F.I.R. that any such incident about one year ago took place on the 1st floor of her house in absence of any inmates. She did not also mention in the F.I.R. that the appellant told her not to disclose the incident (s) to anybody.

According to Mr. Chatterjee, the case was developed time to time. While the prosecutrix''s statement was recorded u/s 164 of the Cr.P.C., she stated about the incident allegedly took place about one year ago in her house and the plan chalked out by the appellant for establishing the sexual relation for the first time. At that time of recording statement u/s 164 Cr.P.C., she disclosed that the appellant told her about his plan to which she obviously agreed and had established sexual relation with him. She stated for the first time in her statement u/s 164 Cr.P.C that on many occasions they indulged themselves in such sexual intercourse and lastly on 23.6.2007 in the Mayanaguri Cinema hall which caused her pregnancy. These material facts have not been stated in the F.I.R.

Mr. Chatterjee contended further that the case of the prosecutrix was developed further when she was examined as P.W. 1. She stated that she had love affairs with the appellant and about one year prior to the filing of the F.I.R. the appellant came to her house, took her on the 1st floor of the house and committed rape on her. She also stated that the appellant told her not to disclose the fact to any third person and assured her that in case she becomes pregnant, he would marry her. She stated further as P.W. 1 that on 23.6.2007, she was taken to a cinema hall at Mayanaguri where she was raped and she became pregnant. This fact although was stated in the statement u/s 164 but not in the F.I.R. Therefore, there was trace of development, step by step, in the prosecutrix version.

Mr. Chatterjee contended that this fact of development of the prosecution version is very important in this case inasmuch as the F.I.R. was lodged neither after the alleged incident took place one year prior to filing of the F.I.R. nor immediately after the alleged incident took place inside the cinema hall. The fact of pregnancy was disclosed about 3 months after the alleged incident of the cinema hall. Even, thereafter also, the F.I.R. not lodged quickly. The prosecution side had taken time to negotiate the matter. When the appellant disagreed to marry and the matter was made public, the F.I.R. was lodged blaming the appellant for the pregnancy.

Mr. Chatterjee contended further that the most questionable point is that the investigating officer neither interrogated the prosecutrix nor recorded her statement u/s 161 of the Cr.P.C. All these factors if are taken together obviously creates a great doubt on the version of the prosecutrix. It is really doubtful whether she made a correct statement in the Court and whether her evidence is credible.

Like almost all other cases, this prosecution was initiated by filing of one F.I.R. (Ex. 1). The F.I.R. is reproduced below :

To

The Officer-in-charge,

Mal, police Station,

Dist. Jalpaiguri

Dated 19.8.2007

Sub : A complaint against the culprit who committed physical relation with me alluring me to marry but refused to marry me.

Complaint

Sabeda Begam aged 15 years

D/o Afajaddin

Vill. Kodalkanti

P.O. Rajadanga, P.S. Mal,

Dist. Jalpaiguri.

Respondent

Md. Mokbehhar Rahaman

S/o Late Samsuddin

Vill. Uttar Khalpara,

P.O. Kranti, P.S. Mal,

Dist. Jalpaiguri

Sir,

My humble submission is that I, that above named complainant, lodging this complaint with deef grief that I am a student of class VIII of the Debijhora Higher Secondary School. It is stated that the said respondent has been committing physical relation with me since last three years alluring me to marry. As a result now I am pregnant of 3 months. In this circumstances not only the respondent did not marry me but also he suggested me to feticide. I did not commit the said incident for the hear of my death. In this circumstances still I am living in my home. I am unable to mix with other people being ashamed of the neighbors. Perhaps I shall have to commit suicide for the respondent. So, I am compelled to come before you with my allegations against the respondent.

I, therefore, pray to you that receiving the complaint of mine please enquire the matter thoroughly and to save my life in future take all the steps against the respondent according to law.

Yours faithfully,

Sd/- Sabeda Begam.

Writer and reader-

Sd.- Sri Ranjit Some,

Dhalabari

19.8.2007

Translated by

Addl. Translator Dist. Judges Office

Jalpaiguri

A careful appraisal of the facts narrated in the F.I.R., it is found that (a) the appellant established sexual relation with the prosecutrix alluring her to marry, (b) that she became preganant for 3 months, (c) that she informed appellant who declined to marry her but advised for abortion which she did not choose to do out of fear and that (d) the F.I.R. was lodged on 19.10.2007 i.e. when she was carrying for 3 month and matter was disclosed to everyone.

If the F.I.R. story is accepted it has also to be accepted that before pregnancy, the prosecutrix and the appellant were having sexual relation for three long years and that relation was established by the appellant who allured her to marry.

A cursory perusal the judgment impugned makes it clear that the prosecutrix was a minor when such sexual relation was established. She, however, became little more than 16 years when the alleged rape had taken place inside the cinema hall at Mayanaguri which caused her pregnancy and which prompted her to lodged the F.I.R. 3 months thereafter.

After lodging the F.I.R., the prosecutrix got her statement recorded u/s 164 Cr.P.C. on 4.10.2007 i.e. about 25 days after lodging of the F.I.R. In the instant case, the prosecutrix was not examined by the I.O. of the case and her statement was not recorded u/s 161 of the Cr.P.C. She was 16 years and 6 months old at the time her statement was recorded on 4.10.2007. The statement u/s 164 Cr.P.C., which was marked Ex. 3/4, shows that within this 25 days period her case was developed to great extent. Her statement u/s 164 Cr.P.C., in a nutshell, is that she had love affairs with the appellant for about 3 years. The appellant told her that he would marry her. One day, in absence of others the appellant came to her house, caught hold her and made her understood that they had to do something special so that his family would agree to their marriage. Thereafter, he unfastened her pant and taken her ''izzat''.He also placed himself atop her after opening his pant. He told her not to disclose the fact to anybody and when she would became pregnant, none would disagree to arrange their marriage. They, thereafter, indulged themselves in such sexual intercourse on many occasions. Lastly, on 23.6.2007, they went to Mayanaguri cinema hall where she was raped and because of that rape, she was conceived. He subsequently disagreed to marry her but wanted to compensate her by giving money and insisted her to go for abortion.

It is to be noted here that on 23.6.2007, the appellant crossed 16 years of age. She did not disclose that fact to anybody till her pregnancy was disclosed.

There are sharp distinction between the statement in the F.I.R. and the statement of the prosecutrix recorded u/s 164 of Cr.P.C. Firstly, according to the F.I.R., they had physical relation for last 3 years continuously but, according to the statement u/s 164 Cr.P.C., the first of such incident took place about one year prior to lodging of the F.I.R. and number of times thereafter till 23.6.2007. Secondly, in the F.I.R. the prosecutrix never stated that the appellant told her the reason or plan to establish such a sexual relationship which is stated in the 164 statement. Thirdly, in the F.I.R. it is not stated that the appellant committed rape in the house of the prosecutrix and the cinema hall or other places and times. But the statement u/s 164 Cr.P.C. disclosed about the incident allegedly took place for the first time in her house and thereafter on may occasions and lastly on 23.6.2007 in Mayanaguri cinema hall which caused her pregnancy. Fourthly, the common fact in both the F.I.R. and statement u/s 164 Cr.P.C. is that nowhere she stated how the matter was disclosed.

Now it is high time to look at what the prosecutrix has stated as P.W. 1 in course of trial. She stated that she had love affairs with appellant about 3 years prior to the lodging of the F.I.R. One day, about one year prior to the lodging of the F.I.R., appellant came to her house when there was no other inmates. He took her to the first floor of the house and committed rape on her. He told her not to disclose the fact to the third person and assured her that in case the prosecutrix becomes pregnant he would marry her. She stated further that thereafter one day on 23rd June, 2007 she was taken to a cinema hall at Mayanaguri and was raped therein by the appellant. As a result, she became pregnant. She informed about her pregnancy to the appellant over phone. The appellant did not come but sent Asrafbul with a proposal that she should go for abortion. At that time she disclosed everything to her parents and others. In her crossexamination she stated that there was a two storied building on the western side of the courtyard of their house. The incident of rape took place on the first floor of said two storied building. In her crossexamination she stated that she shouted in the cinema hall while she was raped but no one was attracted. She was raped for two hours inside the cinema hall. She further stated that she returned back home at 3 P.M. from the Cinema hall but did not inform anything to anyone. She never disclosed about any incident which had taken place earlier also and that appellant promised her to marry. In her cross-examination she stated also that she had never mentioned anywhere that the appellant forcibly raped her. She was not examined by the I.O. also.

A careful scrutiny of the evidence of the P.W. 1, the prosecutrix, indicates that the prosecutrix developed her case subsequently at the time of her examination in Court. Neither she stated in the F.I.R. nor in the statement of 164 Cr.P.C. that the appellant assured her that when she becomes pregnant he would marry her. The cinema hall incident appears to be not acceptable and believable because according to the prosecutrix it continued for about two hours inside the hall wherein many onlookers were present. Her statement in cross-examination leaves no room of doubt that there was no resistance from her side. Had there been any such resistance, there would not have been any such incident of rape in a cinema hall full of onlookers. In fact, she has accepted that fact in her cross-examination. She never mentioned that fact also to any one inside the cinema hall or outside the cinema hall even to her close persons. She returned back home but did not disclose anything to anybody. This facts are conspicuously absent in the F.I.R. as well as her statement 164 Cr.P.C. On 23.6.2007, admittedly she was major. It can be taken for granted from the facts and circumstances of the case that what happened on 23.6.2007 that had caused her pregnancy. It is also clear that she was a consenting party to the sexual intercourse taken place inside the cinema hall for which she became pregnant.

The fact stated by the prosecutrix (P.W. 1) are can well be divided in two parts. One part started from 23.6.2007 when she became major and another part was prior to 23.6.2007 which lasted for 3 years. That time she was a minor but did not become pregnant although she was habitual in sexual intercourse with the appellant. Therefore, the sole question arises whether the appellant caused rape on the prosecutrix on 23.6.2007 or caused rape one year prior to lodging of the F.I.R. as stated by the prosecutrix when she was a minor. It is important to take note of the fact that all the witnesses examined besides the prosecutrix stated nothing about any incident taken place prior to 23.6.2007 because, they came to know about the incident only when the prosecutrix became pregnant for three months. Therefore, their evidence relating to any incident allegedly taken place prior to 23.6.2007 carry little wight and importance.

As per as sexual intercourse with the appellant on 23.6.2007 is concerned, all the evidence recorded by the learned Trial Court together with the document showing date of birth of the appellant and date of birth of the female child by the appellant established clearly that said incident dated 23.6.2007, had taken place with consent of the prosecutrix and as a result of said sexual intercourse with the appellant on 23.6.2007 she became pregnant. I reiterate that she was major at that time in view of Ex. 10. I also reiterate that the fact of rape without consent and without resistance inside the cinema hall packed with on lookers neither acceptable nor believable. The conduct of the prosecutrix is also noteworthy. She did not inform the fact to anybody till she became pregnant for 3 months. Accordingly, it can safely be said that she was a consenting party to the incident dated 23.6.2007 and, as such, the appellant cannot be held guilty for that particular incident dated 23.6.2007.

The another part of the prosecutrix version started backward from 23.6.2007. According to the F.I.R., the appellant allured her to marry and established relation with her continuously for three years prior to lodging of the F.I.R. According to the statement u/s 164 Cr.P.C., she was in love with the appellant and about one year prior to lodging of the F.I.R. she had experienced sexual intercourse with the appellant for the first time inside her house on the first floor. That fact has been stated also by the P.W. 1 in her examination-in-chief. She, however, did not state that the appellant disclosed her plan for getting their marriage successful.

The I.O. did not examine the prosecutrix. The I.O. of the case visited the place of occurrence and prepared a sketch map of the same which was marked Ex. 8 and Ex. 9. The sketch map indicates that there existed no two storied building. In his examination as P.W. 8 the I.O. of the case stated that in his sketch map (Ex. 8 and Ex. 9) there was no two storied building structure. If so, there is contradiction in the statement of the prosecutrix and the I.O. regarding the existence of two storied building. According to the prosecutrix, P.W. 1, she was taken to the first floor to her house where she was raped and that was about one year prior to filing of the F.I.R. If no such two storied building is situated or found by the I.O. at the P.O., that particular version of the prosecutrix becomes doubtful especially when neither she stated that fact in the F.I.R nor in the statement u/s 164 Cr.P.C.

In the instant case, the incident started long back but came to public only at the time of lodging of the F.I.R. i.e. after the prosecutrix became pregnant due to incident dated 23.6.2007 when she already became a major. In her statement as P.W. 1 she did not state that she had physical relation with the appellant for three years continuously. She only stated that about one year prior to lodging of the F.I.R., in absence her inmates, the appellant came in her house, took her on the first of her house and committed rape. She did not mention as P.W. 1. that she had sexual intercourse with the appellant on other occasions also before 23.6.2007. In her statement 164 Cr.P.C., she did not mention about her sexual relationship with the appellant for 3 years. She stated about one incident which took place about one year prior to the lodging of F.I.R. but, did not state whether she was taken to the first floor where the rape was committed. In her statement u/s 164 Cr.P.C. she did not mention what actually appellant did on that particular date. It is pertinent to mention here that for continuous sexual relation with the appellant for three years prior to 23.6.2007, she never became pregnant. According to her statement u/s 164 Cr.P.C. as well as in the statement in the F.I.R., she indulged herself in sexual intercourse with the appellant on many occasions. She did not mention in her statement u/s 164 Cr.P.C. that when, how and where those incidents of sexual intercourse had taken place. All these factors together obviously raises question as to credibility and truthfulness of the evidence of the prosecutrix. It has already been stated that incident dated 23.6.2007 caused her pregnancy and that time she was a major. The F.I.R. was written by somebody else and long after the alleged incident when she became pregnant for 3 months. She never disclosed the fact to anybody. Nobody had seen them doing anything. Therefore, it is doubtful whether or not, the prosecutrix stated about the incident allegedly had taken place one year prior to filing of the F.I.R., in order to make her case that during her minority she was allured to marry by the appellant who established sexual relation with her on that pretext.

It is true that in a case of rape conviction can be recorded on the sole testimony of the prosecutrix. It is also needless to mention that consent on the part of a minor is not a consent and the person taking the opportunity of such misconception of fact is not protected u/s 90 of the Indian Penal Code. But, while Court recorded conviction for rape on the basis of sole testimony of prosecutrix, Court must come to a conclusion that her testimony is consistent, credible, trustworthy and believable in the facts and circumstances of the case. In the instant case, the learned Trial Court although discussed everything elaborately did not distinguish the series of incidents allegedly taken place prior to 23.6.2007 and the incident after 23.6.2007. On 23.6.2007, she was raped in a cinema hall without any resistance and protest. She was major at that time. She became pregnant due to said intercourse. Therefore, conviction of the appellant for that particular incident cannot be recorded.

The series of incidents allegedly taken place prior to 23.6.2007 have not been established beyond doubt. That part of the prosecution case and version of the prosecutrix cannot be accepted on many counts, such as, -

Firstly, the F.I.R. says about establishing physical relationship between the prosecutrix and the appellant for continuous 3 years prior to lodging of the F.I.R. but in the statement u/s 164 Cr.P.C. and statement of the prosecutrix as P.W. 1 together says that such physical relationship was first established about one year prior to filing of the F.I.R.

Secondly, the very existence of the first floor where the alleged incident had taken place prior to one year of lodging F.I.R. itself is doubtful in view of the evidence of the Investigating Officer and the sketch map prepared by him which was admitted into evidence and marked exhibit 8.

Thirdly, during the long period of three years she did not became pregnant although on may occasions she participated in the sexual intercourse with the appellant according to the facts narrated in the F.I.R. as well as in the statement u/s 164 Cr.P.C.

Fourthly, the prosecutrix astonishingly kept silent till she became pregnant after attaining majority.

Fifthly, nowhere she stated as to how, when and where they met again and again for the purpose of sexual intercourse during that long 3 years.

Sixthly, according to the F.I.R. the appellant allured her to marry but in the statement u/s 164 Cr.P.C. she stated that only one year prior the lodging of the F.I.R. the first time, disclose that the appellant would marry her only in case she becomes pregnant.

Seventhly, the prosecutrix while was cross-examined stated about love affairs for the first time but did not state that she was having sexual relation with the appellant for three years as stated in the F.I.R.

Eighthly, there was inordinate delay in lodging the FIR even after disclosure of the pregnancy and denial on the part of the appellant to marry the prosecutrix.

Ninthly, the prosecutrix/prosecution improved the case stage by stage with the progress with the investigation till the prosecutrix was examined in Court and

Lastly, from the very inception, the prosecutrix made inconsistent statement which cannot be basis of conviction

One small mistake may change one''s life. The prosecutrix, no doubt, freely mixed up with the appellant and took part in sexual intercourse in the cinema hall without any protest or resistance which caused her pregnancy. Now, she is mother of a female child and has to carry the stigma forever. She was a major at that time. She consented to sexual intercourse with the appellant in the cinema hall. Alleged incidents of sexual intercourse on many occasions prior to that incident when she was a minor are doubtful. The prosecutrix version on that material fact is inconsistent, tainted with embellishment, uncorroborated and not credible. Basing on such embellished, inconsistent and untrustworthy sole testimony of the prosecutrix recording of conviction is not safe and desirable.

Upon consideration of the peculiar facts and circumstances of the case, evidence recorded by the learned Court and judgement impugned, this Court is of considered opinion that there is doubt in the prosecution case and the appellant ought to have been given such benefit of doubt. In view of discussion above, I allow the appeal. The judgement impugned is set aside. The appellant be set at liberty and discharged from bail bond. Urgent Photostat certified copy of the judgement, if applied for, be handed over to the parties on compliance of necessary formalities.