Tutiur Rahaman vs Moin Uddin and Others

S. Talapatra, J.—1. This is an appeal by the victim under proviso to Section 372 of the Cr.P.C., against the order of acquittal dated 18.03.2013 delivered in S.T.30(NT/D) of 2012 passed by the learned Assistant Sessions Judge, North Tripura, Dharmanagar.

Heard Mr. D.C. Roy, learned counsel appearing for the appellant. Also heard Mr. A. Ghosh, learned P.P. appearing for the respondent State.

The respondent No. 1 has been acquitted by the impugned order of acquittal from the charge of committing rape punishable under Section 376(1) of the IPC. The prosecution against the appellant was initiated by lodging a complaint in the court of the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura, on 09.06.2011. The said compliant was sent to the concerned police station i.e. Churaibari Police Station for investigation by the said Court and accordingly a case being Churaibari P.S. Case No. 18 of 2011, under Sections 376/493/417 of IPC was registered and taken up for investigation.

After the investigation was complete the final police report was filed charge-sheeting the respondent No. 1. As the case is exclusively triable by the court of Sessions, the police papers were committed to that Court when the said court framed the charge under Section 376(1) of the IPC only as it appeared from the police paper that the respondent No. 1 committed rape on the victim (PW-2) on 15.01.2011 at 11.00pm at South Fulbari under Churaibari Police Station.

To avoid the repetition, the crux of the complaint as filed by the father of the victim (PW-1) is that his daughter had intimate relation with the respondent No. 1 and the respondent No. 1 proposed to marry her even though the respondent No. 1 was married at that point of time. He rejected such proposal of marriage. For that, on 14.04.2010 his daughter and the respondent No. 1 eloped at night taking the opportunity of his absence from his home as at the relevant point of time he was in jail. In the house of the respondent No. 1, the victim was abused by the inmates and they also forced the victim to come back to her parental home.

There was a village meeting to find an amicable resolution to the dispute, but that did bring no result. Finally, as the police station refused to accept the complaint, a complaint was lodged in the Court of the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura.

To substantiate the charge as stated, the prosecution adduced as many as 11 witnesses including the victim, PW-2, the complainant, PW-1, the victim''s mother PW-3 and the Investigating Officer, PW-11.

The prosecution also admitted in the evidence some documentary evidence Exbt.1 to Exbt.9 including the statement of the victim as recorded under Section 164 (5) of the Cr.P.C. and the medical examination report in respect of the victim.

It is not in dispute that the prosecution has successfully proved that the victim was pregnant and she delivered a child. So far the ossification test is concerned, it appears from the report, Exbt-7 that the victim was below 18 years of age. Thus, it can conveniently be assumed that the victim had in the consenting age of 16 years in terms of the Section 375 of the IPC. Having regard to such observation, sexual intercourse, pregnancy and age of the victim are not required to be elaborately appreciated.

As Mr. Roy, learned counsel appearing for the appellant has candidly submitted that the prosecution''s case against the respondent No. 1 is that without the consent of the victim he committed sexual intercourse and he has submitted alternatively that on assurance of marriage such sexual intercourse had taken place. Thus, the order of acquittal is the outcome of the perverse appreciation of the evidence.

There is a consensus in the bar that the prosecution''s case is entirely based on the oral testimonies of PWs. 1, 2 and 3 and the other witnesses have merely stated the transactions, not directly relating to the commission of occurrence but to the various part of the investigation. As a result, this Court has also examined the oral testimonies of PWs. 1, 2 and 3.

PW-1, namely, Tutiur Rahman is the complainant and the father of the victim. He has stated that when he was in jail at the time the respondent No. 1 took the victim (PW-2), his daughter to his house. There was a Panchayat meeting but he has not disclosed for what reason the said meeting was convened and after the meeting they were paid a sum of Rs. 30,000/- as compensation by the father of the respondent No. 1. He has stated in categorical terms as under:

"After lapse of 1 1/2 years same way between the accused Moin Uddin and **** (the name concealed for protecting the identity of the victim) an intimacy was developed and for that intimacy my victim daughter ****(name concealed for protecting the identity of the victim) became pregnant for a period of 4 months as I knew".

He has also stated that he had learnt all about from his wife, PW-3. As the police did not registered any case he lodged the complaint in the Court. He has also stated that the respondent No. 1 is his nephew.

PW-2, the victim, is the most vital witness for the prosecution''s case. She has stated that on assurance of marriage the respondent No. 1 took her to his house but in his house the parents of the respondent No. 1 and other house inmates assaulted her and sent her back to the paternal house. There was a meeting at the village level. Then she stated as follows:

"last year one day, the accused forcibly committed sexual intercourse with me for a few days. For sexual intercourse with the accused person I became pregnant and lastly I given birth of child. That child is now 11 months of age. The child was born as a female child".

She has also stated that her statement was recorded by the Magistrate and she has identified that statement as Exbt.1. But in the cross examination she has admitted that the statement that she made before the Magistrate was tutored in the police station. In the same breath she has stated in the trial that she did not narrate the true story to none but to her parents.

PW-3, Khairun Nesa, the mother of the victim has stated that the respondent No. 1 took her daughter to his house but the parents of the respondent No. 1 and other inmates assaulted her and returned her back to her parental home. She has stated that at that time her husband was in jail. After release of her husband from jail, there was a meeting at the village level and in the meeting it was decided that the father of the respondent No. 1, would pay compensation and accordingly, the respondent No. 1 paid Rs. 30,000/- to the victim. PW-3 has categorically stated as under:

"After release of my husband from jail, there was meeting at village level. As per decision of the village level meeting Rs. 30,000/- was paid by the father of the accused to my husband. 1/11/2 years back one day my victim girl ****(name concealed for protecting the identity of the victim) came out of dwelling room and the accused Moin Uddin forcibly taken under a lichi tree and they are set up sexual relation with each other".

PW-3 has also stated in the trial as under:

"Thereafter communication was set up in between the accused and my victim daughter and thereby with the assurance of marriage the accused person developed physical relationship with my daughter and failing which my victim daughter became pregnant".

There are three distinct statements by PWs. 1, 2 and 3. PW2 has not narrated how, where and when the sexual intercourse had taken place with or without her consent. He has candidly admitted of the intimate relation. From the victim''s statement it can be gathered that she was intimately related to the respondent No. 1. She has also stated in the trial that she has narrated true story only to her parents.

PW-1 has stated that for the intimacy between the victim and the respondent No. 1 the victim became pregnant. He has stated nothing more. PW-3, the mother of the victim has stated a different story. She has stated that in the day time one day, there had been a sexual intercourse under a lichi tree in her house. Even if the entire story is believed no prudent person can believe that in such a situation a rape can occur. Moreover, the charge as framed against the respondent No. 1 is that the sexual intercourse occurred at 11.00pm on 15.01.2011 at south fulbari.

As has been already observed, the victim on the day of alleged commission of rape was more than 16 years of age according to the scientific examination. Even though the parents deposed in the trial, they did not invest a single word as to the age of the victim. Therefore, the material before the trial court was only the report of the ossification test as Exbt.7.

From the entire narrative, as provided by the PW-1, PW-2 and PW-3, it would irresistibly appear that pregnancy was outcome of intercourse between the victim and the respondent No. 1. From the testimony of PW-3 it is clear that the first intercourse had taken place in her house and before that intercourse there was no assurance of marriage and the assurance of marriage was given subsequently. As such this Court is also unable to subscribe the submission of Mr. Roy, learned counsel appearing for the appellant that the said commission by the respondent No. 1 is attracted by Section 415 of the IPC. Hence the respondent No. 1 cannot be convicted under Section 417 of the IPC after reframing the charge in exercise of powers granted to the Court under Section 222 of the Cr. P.C.

Since we are of the considered view that the prosecution has miserably failed to prove the charge under Section 376(1) of the IPC and there is no element to satisfy the standard of beyond reasonable doubt, to hold that the commission of the sexual intercourse on assurance of the marriage had taken place. Therefore, we do not find any infirmity in the order of acquittal.

In the result, this appeal stands dismissed. Send down the LCRs.