Rahamat Ali Mondal - Petitioner @HASH State of West Bengal

Joymalya Bagchi, J. - Judgement and order dated 13th June, 1988 passed by the learned Additional Sessions Judge, 6th Court, Alipore in Sessions Case No. 7(8) 1985 (Sessions Trial No. 5(1) 1988) convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer detention for a period of five years in a reception home during the said period has been assailed.

The prosecution case as alleged against the appellant is as follows:

On 2nd July, 1984, the informant, Anwara Khatoon (PW1) alleged that on 1st day of Pous, 1390 B.S. while she was alone in the house, appellant had come to her house as they were known to each other. The appellant committed rape upon her on the promise of marriage. After that the appellant left the house and thereafter, they cohabited together a number of times on such promise. As a result of cohabitation, she became pregnant but the appellant did not marry her and she reported the incident to her mother and in the course of Salish, appellant stated that he would marry her if she swore by the Quran that the child was his. Later on his maternal uncle, Jafar Ali took him away and the marriage was not solemnised. Accordingly, FIR was lodged. Upon conclusion of investigation, charge-sheet was filed under Section 376 IPC. In the course of enquiry, the appellant was held to be below 18 years of age at the time of commission of offence and the case was committed to the Court of Sessions to be tried under the provisions of the West Bengal

Children Act, 1959. Charge was framed under Section 376 of the Indian Penal Code and the appellant pleaded not guilty and claimed to be tried. In 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 trial Judge convicted the appellant for commission of offence punishable under Section 376 IPC and directed that he shall suffer detention for five years in a reception home. Hence, the present appeal.

Ms. Sriparna Das, learned Amicus Curiae, submitted that it appears from the evidence of PW3 that the victim girl was between 16 to 17 years of age and accordingly, had attained the age of consent. Evidence of PW1, victim, would show that the appellant and the victim had cohabited together out of love and it cannot be said that such cohabitation was against her consent or will. She further submitted that there is nothing to show that at the time of cohabitation the appellant did not intend to marry but subsequently, the marriage could not be solemnised due to the advice of the elders in the family of the appellant.

Accordingly, she prayed for acquittal.

Mr. Ranadeb Sengupta, learned advocate appearing for the State, submitted that the evidence of PW1 is to the effect that the intercourse was forcible and thereafter, the promise for marriage was made. Accordingly, it cannot be said that the sexual intercourse with PW1 was with her consent. He further argued that the evidence on record also does not establish that the appellant was even willing to marry the victim subsequently. Hence, the appeal is liable to be dismissed.

PW1 is the victim and de-facto complainant in the instant case. She stated that she resided with her mother and was known to the appellant. Her mother had gone to work as a maidservant leaving her alone at home. On 1st day of Pous, 1390 B.S., appellant came to their house and started talking with her. Thereafter, he put out the lamp and opened her wearing apparels. She started crying. Thereafter, the appellant laid her on the ground. When she protested the appellant caught her feet and pleaded with her and told her that he would marry her. Then the appellant forcibly had sexual intercourse with her. Thereafter, the appellant left. As the appellant had promised her marriage, she did not disclose the incident to anyone and they cohabited thereafter on a number of occasions. As a result of cohabitation, she conceived. The appellant, however, refused to marry her. So, she disclosed the incident to her mother. On 9th day of Asar, 1391 B.S. a Salish was held. At the Salish, appellant agreed to marry her if she swore by the Quran that the child was his. Thereafter, while she was having bath, maternal uncle of the appellant, Jafar Ali told something in his ears and took away the appellant from the spot. As the appellant did not marry, she lodged a complaint with the police station. In the course of investigation, she made her statement before the Magistrate. She was also examined at Bangur hospital. On 1st day of October in Ashwin 1391 B.S., she gave birth to a male child.

PW2 examined the victim girl and found her to be six months pregnant. He did not find any sign of rape or injury on the private parts of the girl. He referred the girl for ossification test.

PW3 conducted the ossification test of the victim and stated that she was between 16 to 17 years of age.

PW4 took the victim for ossification.

PW6 is a local villager who deposed relating to the Salish held in the village over the incident. He stated that the appellant had agreed to marry but on the instruction of Jafar went away from the spot.

PW7 is the doctor who proved the admission register wherefrom it appears that the victim gave birth to a male child on 1st October, 1984.

PW8 received the written complaint from PW1 and drew up the formal FIR.

PW9 is the mother of the victim girl. She has corroborated her evidence.

PW10 is another villager who had deposed relating to the Salish and has exhibited the Salishinama in the instant case.

PW11 was tendered for cross-examination and has stated in cross-examination that PW1 was held with one Hafiz on the bank of the tank of Kolupukur in an obscene condition.

PW13 was the Sub-Divisional Judicial Magistrate at Barasat, North 24-Parganas who has proved the statement of the victim recorded under Section 164 of the Code of Criminal Procedure.

PW14 is the investigating officer in the instant case who investigated the offence and filed the charge-sheet.

The evidences of PW1 (victim) and her mother (PW9) are most vital in the instant case. An analysis of the said evidence would show that the victim was known to the appellant and on the fateful day i.e. 1st day of Pous, 1390 B.S., the appellant had visited the house of the victim in the absence of her mother. They started talking with each other whereupon the appellant took of the clothes of the victim and made her lie down on the ground. The victim was unwilling to the act of the appellant whereupon the appellant pleaded with her by touching her feet and requesting her that he would marry the victim. It has been deposed that thereafter, the appellant has forcibly committed rape on the victim. The victim, however, did not complain of such conduct of the appellant but in view of the assurance of marriage continued to cohabit with him on two or three more occasions.

Ultimately, when she became pregnant, the appellant did not agree to marry. She complained to her mother (PW9). From the aforesaid evidence on record when viewed in the backdrop of normal conduct of teenaged youngsters, it is difficult to believe that the act of intercourse between the appellant and PW1 was forcible. On the other hand, it appears that due to an intimate relationship between the two and an understanding that they would marry each other, the couple had cohabited with each other. This fact is further probabilised by the conduct of PW1 that she did not promptly complain about the misbehaviour of the appellant to her mother but continued to cohabit with him on a number of times thereafter. Had the appellant forcibly violated PW1 then I am of the opinion that PW1 would have immediately intimated her mother about such unlawful conduct. On the other hand, it appears that bearing in mind the proximity of age of the appellant and the PW1 and the intimacy between themselves, they had cohabited with each other pursuant to such intimacy and not out of force, as alleged. Hence, I am unable to accept the prosecution case that the cohabitation between the appellant and the PW1 is a product of forcible rape.

The age of PW1 at the time of commission of the offence was around 16 to 17 years as transpired from the evidence of PW3. Therefore, PW1 had crossed the age of consent and hence the sexual intercourse between the appellant and PW1 could not also be said to be one of statutory rape where the victim is below 16 years and therefore, incapable of giving consent.

Let me, therefore, examine whether the consent of the victim was procured by way of any dishonest inducement.

There is nothing on record to show that at the time when the victim and the appellant had cohabited together, the appellant did not intend to marry the victim. However, subsequent conduct of the appellant shows that he resiled from such promise. Merely because the appellant had subsequently resiled from his promise, one cannot come to an invariable conclusion that the appellant did not intend to keep his promise at the time when the parties had cohabited together.

On the other hand, in the instant case, it has transpired through the evidence of PW11 that the victim had been caught with another boy namely, Hafiz in an obscene state in the village. Still then, the appellant in the course of Salish had stated that he was willing to marry the victim if she swore by the Quran that the child belonged to him. However, the elders in his family were unwilling and upon the instruction of his maternal uncle, Jafar, he was taken away from the said Salish.

The aforesaid facts probabilise a case where the appellant may have been precluded due to supervening circumstances including the event of the victim being caught in an obscene state with another boy and the unwillingness of the elders in the family in keeping his promise of matrimony with the victim and not due to dishonest intention of not keeping such promise from its inception.

It is trite law that mere failure to keep a promise of marriage due to circumstances beyond the control of an accused would not make him liable for conviction of the offence of rape and cheating as held in the case of Uday v. State of Karnataka [(2003) 4 SCC 46] and Deelip v. State of Bihar [(2005) 1 SCC 88].

In view of the aforesaid discussion, I am of the opinion that the prosecution case against the appellant has not been proved beyond reasonable doubt. The conviction and sentence of the appellant is accordingly, set aside.

The appeal is allowed.

The lower court records 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 assistance rendered by Ms. Sriparna Das, 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.