High Court
Case Details
Crl.A. 210/2011 BEFORE HON’BLE MR. JUSTICE A.K.GOSWAMI This appeal is directed against the judgment dated 22/9/2011 passed by the learn ed Addl. Sessions Judge (FTC) Sankerdev Nagar, Hojai, in Sessions Case No.48/N/1 0 convicting the accused appellant under Section 376 IPC and sentencing him to s uffer rigorous imprisonment for 7 years and to pay a fine of 5000/- in default t o suffer rigorous imprisonment for 6 months. The learned trial Court, however, h eld that charge under Section 417 IPC was not established against the accused. 2. I have heard Mr. M. Choudhury, learned counsel for the appellant and Mr. B.J. Dutta, learned Addl. P.P. Assam. The prosecution case in brief is that an ejahar was lodged before the in 3. -charge Udali Police Out Post on 21/3/07 by the informant, namely, Md. Atabur Ra hman to the effect that the accused No.1 Musaraf Hussain, finding her alone rape d his daughter, hereinafter referred to as ’X’, while she was returning home aft er cooking mid-day meal for the students of the school. She had become pregnant and when she informed him about everything, he talked to the father of the accus ed (accused No.3) and the brother of the accused (accused No.2) about the incide nt, who then assured him that they would solemnize the marriage of Md. Musaraf H ussain with the daughter of the informant. His daughter was progressing towards full term of pregnancy and yet marriage was not arranged and the ’Vichar’ given to the people had also not yielded any result. Based on the aforesaid, GD entry No.406 was registered. Subsequently, on the basis of the said ejahar, Lanka PS C ase No.38/07 under Section 376/493 IPC was registered. Police started investigating the case and on completion of the investiga 4. tion, submitted charge-sheet only against the accused No.1. Md. Musaraf Hussain under Section 376/493 IPC. The case was committed to the Court of Sessions Judge and Sessions Case No.48 (N)/10 was registered. The case was transferred to the Court of the Additional Sessions Judge (FTC), Sankardev Nagar, Hojai for disposa l. Charge under Section 376/417 was framed against the accused person. The same having been read over, the accused pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined 7 witnesses. The evidence of the alleged victim girl was recorded as PW 3. PW 1 and 2 are the father and mother o f the victim girl. PW 4 is the Doctor. PW 5,6 and 7 are the persons who knew bot h the victim and the accused and PW 8 is the Investigating Officer. Defence addu ced no evidence. PW 1 stated that the accused had committed rape on his daughter while sh 6. e was coming back after cooking mid-day meal for the students of Lanka L.P. Scho ol in the jute field about 9 to 10 months back. His daughter had informed his wi fe about the incident and later on she told him about the same. It is also state d by him that his daughter had made statement before the Magistrate also. In his cross-examination he had stated that prior to the incident, his daughter was gi ven in marriage to one Sirajuddin. After about a year, keeping his daughter in h is residence, Sirajuddin fled away. There was no house of any other person in be tween the school and his residence. He was informed about the incident by his wi fe about 3 months from the date of the incident and thereafter, on the next day, he had asked his daughter about the same. The daughter had not informed about t he incident to anybody. She disclosed about the incident after the mother had be come aware that the daughter had become pregnant. It is also stated by him that in the (cid:28)Vichar’ it was suggested that the accused should marry the girl and thou gh at the initial stage the accused party had agreed to the proposal, subsequent ly they resiled from that assurance and therefore, case was lodged. He also stat ed that when he came to learn about the incident, his daughter was about 3 month s pregnant and this was informed to him by his wife. In cross-examination, he stated that Sirajuddin had left his daughter 7 months prior to the incident. He has also stated that if Musaraf had married his daught er, the case would not have been filed. It is also stated by him that his daught er was about 20 to 22 years at the time of incident. 7. PW 2 deposed that at the time of the incident, her daughter was about 25 years old. She had stated that while her daughter was returning from the school after cooking mid-day meal, in a field where jute was cultivated, the accused s exually assaulted her daughter and he had told her that he would marry her and t herefore, this should not be disclosed to anybody. She told about the incident a fter 4-5 months later that she was sexually assaulted by the accused and that sh e had become pregnant. Accordingly, village ’Vichar’ was given. It was further s ated that her daughter was given talak by Sirajuddin. It was stated by her that when she asked her daughter after finding out that she was pregnant, she was car rying pregnancy of about 4 to 5 months. Her daughter had not informed her before and she was also not aware of anything. After knowing from her daughter about the incident, she had informed about the same to her husband. At no point of tim e prior to her being pregnant for about 4 to 5 months, her daughter had stated a nything about the incident. She also stated that if the accused married her daug hter, she would have no objection. 8. PW 3 stated that the accused had promised to marry her about 4 years bac k but did not marry her. She had also deposed that while she was returning from her work of cooking, she was taken from the road to the field having jute cultiv ation where he had raped her. It was stated that when she started hue and cry, s he was consoled by the accused by stating that he would marry her and that he wo uld kill his wife or throw her out. She informed about the incident to her paren ts and the parents had consoled her stating that they would talk to the accused party. However, as the accused did not accept to marry her, ’Vichar’ was given t o public but public refused to do any ’Vichar’. She also stated that no one from the public was on their side. It also came from her evidence that she had given birth to a son. She also had a son from her previous husband but he died. In the cross-examination, she stated that she was having an affair with the accu sed from before. Even before she was married to her husband, the accused was pro posing to marry her and she was also keen to marry the accused. However, father of the accused was not agreeable to the match. Her father had got her married to Ziabur against her will and she had lived with Ziabur for 3 to 4 months. Even a fter her husband had given her talak, the accused was saying he would marry her. From the evidence it appears that immediately, she had revised her statement th at only after committing rape in the field, he had assured her to marry. She sta ted that she had informed her parents about the rape committed immediately. She stated that the accused had committed rape only once on that particular day and had not committed rape either before or after that incident. In cross-examination, she denied the suggestion that she had informed her parent s only after being pregnant for 3 months. She stated that she had no objection i f the accused took her with her son and she would not prosecute the case. 9. PW 4 is the Doctor who examined PW 3 on 16/3/07. In his deposition, he s tated that PW 3 was above 20 years and she was carrying pregnancy of about 21 we eks. 10.
Legal Reasoning
PW 5 stated that he was told by PW 3 that she was raped by the accused i n a jute field while she was going home from school after finishing her cooking work for the mid-day meal. In cross-examination, he stated that the distance between the school in which he was working and the school in which PW 3 used to cook is about 3 Kms. He also stated that he had heard that before the marriage of PW 3, she was having some affair with the accused. He also stated that he had not seen or heard PW 3 mixin g with the accused after she left her husband. He stated that he was informed wh en he was alone about 3 to 4 months from the date of the incident and at the tim e she was carrying pregnancy of about 3 to 4 months. 11. PW 6 stated that he knew both the parties. One day when he had gone to t he place where PW 3 was working, he had heard that PW 3 was called by the accuse d but he did not know whether PW 3 had gone to the accused. He further stated th at one day she came along with her parents and informed that she had become preg nant. One ’Vichar’ was called in the house of village President Moniruddin in wh ich the accused confessed that he had committed rape, as a result of which PW 3 had become pregnant and he also stated that he would accept PW 3 as his wife. It was decided that they would perform Court marriage but as the accused did not c ome for Court marriage, the case was filed. In cross-examination, he disclosed that father of PW 3 is son of the sister of h is mother. He stated that at the time of ’Vichar’, ’X’ was about 4 months pregna nt. About 20 to 25 persons had gathered at the house of Moniruddin for the ’Vich ar’. He came to learn about the pregnancy of PW 3 only when they had informed hi m about the same 3 to 4 days prior to the date of the ’Vichar’. The parents of P W 3 also informed him that they had also come to learn about the pregnancy about one month earlier and had scolded her as to why she had not disclosed that befo re. He had stated that he had not told the Police that decision was taken at the village ’Vichar’ that PW 3 and the accused would solemnize Court marriage. 12. In paragraph 21, learned lower Court recorded as follows: The evidence of PW 5 i.e. the Investigating Officer is formal in charact PW 7 is a related person being his neice. He also deposed that PW 3 had informed him that she was 4 to 5 months pregnant and ’Vichar’ was held on 2 occ asions- one in the house of Sofiruddin and the other on the very same day in the evening in the house of Moniruddin. Decision was taken in the ’Vichar’ that acc used was guilty and it was decided that they would solemnize the marriage social ly and also in Court. He was also supposed to attend the Court marriage but the accused who was supposed to take him did not come on the pretext that he could n ot find a car. In cross-examination, he informed that PW 3 was having love affair with the accu sed before her marriage but the alliance was not approved by the father of PW 3. PW 3 lived with her husband for about 4 to 5 years and the ’Vichar’ had taken p lace after about 4/5/6 years after PW 3 had come back from the house of her husb and. He had not heard from anybody that PW 3 had become pregnant till such time he was informed about the same by PW 3. 13. er and he had proved Ext.3 and Ext.4, charge-sheet and F.I.R., respectively. 14. The accused was examined under Section 313 Cr.PC and thereafter, the lea rned trial Court passed the impugned judgment which has already been noted. In h is Section 313 Cr.PC statement, while denying the incriminating materials appear ing against him, he stated that he was married with children. 15. (cid:28)Evidence on record proves the fact that the accused was desirous to marry PW 3. After her return to her parental house on being deserted by her husband, the fe eling of love degrades into beastial instinct in the mind of the accused who in a very cunning manner on promise of marriage co-habited with PW 3. Now we have t o see what offence this accused had committed. (cid:29) 16. Relying on a judgment of this Court in the case of Jasimuddin vs State o f Assam, reported in (2008) 2 GLR 306, dealing with consent as defined in Sectio n 90 IPC, the learned trial Court stated as follows:- (cid:28)Thus from the ratio as laid down by the Hon’ble Gauhati High Court in the judgm ent above it is apparent that consent given under fear of injury or under miscon ception is not a consent at all. From the evidence of PW 3 it come to the fore that at the time when the accused co-habited with her inside the cover of standi ng jute crop, he falsely made a representation to the victim that he desires to marry her. Being a rustic woman PW 3 falls a prey to the stratagem played by the said accused who was not at all sincere to keep his words and as because there was a previous love affair in between them and a proposal of marriage was also t here before she was married to a boy at Nagaon, the victim girl who was leading a dissolute and deserted life after divorce with her husband, a hope might have rekindled in her mind that the accused still loved her and he wanted to marry he r and in that belief she surrendered her body on a misconception of fact. Even i f there was a consent that consent was not voluntary and it was obtained through deceit. Once it is held that it was not a consented sexual intercourse then the case come well within clause 2nd of S.375 I.P.C. to the definition of rape. Thu s in view of what has been discussed above, it can be safely held that the accus ed committed rape upon PW 3 on the particular day as a result of which she becam e pregnant. (cid:29) 17. Mr. Choudhury, learned counsel for the appellant submits that there is n o dispute that PW 3 was about 22 years when the alleged incident had taken place and by the time she had disclosed about the alleged offence, she was about 4 to 5 months pregnant. That she was divorced and was left in her parental house abo I have considered the submission of the learned counsel for the parties ut 4 to 5 years prior to the incident is also apparent from the prosecution case . He submits that the evidence on record would demonstrate that there was consen t on the part of PW 3 which was not the result of any misconception created in h er mind as to the intention of the accused to marry her. The fact that she did n ot offer any resistance while she was allegedly forcibly taken away from the roa d would further vindicate the fact that she was a consenting party. He relies up on the decision of the Apex Court in Uday vs State of Karnataka, reported in (20 03) 4 SCC 46 to buttress his argument that the conclusion of the learned trial C ourt in assuming that in the facts and circumstances of the case there was no co nsent as consent, if given in fear of injury or under misconception, is no conse nt at all, is wholly not sustainable in law. He also relies on the judgment of t he Apex Court in the case of Vijayan vs State of Kerela, reported in (2008) 14 S CC 763. 18. The learned Addl. P.P. Assam submits that on the basis of the testimony of PW 3 itself, conviction can be sustained and the learned trial Court committe d no error of law as well as of facts in convicting the appellant and as such, t he impugned order is not liable to be interfered with. 19. and have perused the materials on record. 20. The prosecution case hinges solely on the testimony of PW3. From the evi dence of PW 1 and PW 2 it is crystal clear that they came to learn about the inc ident when PW 3 was carrying pregnancy of about 4 to 5 months. They have also ma de it very clear that they were not aware of the incident and the incident came to light only when PW 2 raised questions seeing signs of pregnancy and it was at that stage that PW 1 had disclosed about the incident. It must be borne in mind that though PW 3 stated that she had informed her parents immediately after the occurrence, in view of the categorical assertion of the parents of PW 3 that sh e had not informed about the alleged rape on the day of occurrence or immediatel y thereafter, her evidence cannot be acted upon. The evidence of PW 5,6,7 would also support such view inasmuch as they had also indicated that they were not aw are of the alleged incident. Evidence of PW3 discloses that she wanted to get ma rried to the accused and so also the accused. But the alliance was not accepted by the father of the accused. It also appears from her testimony that she was al so given in marriage against her wishes by her father and that marriage also did not last long. From the evidence it is not very clear when the husband of PW3 l eft her at her parental house. While PW1 had stated that Sirajuddin had left PW 3 about 7 (seven) months back, PW7 stated that she was left at the parental hou se about 4/5/6 years back. While the other witnesses are referring to the husban d of PW 3 as Sirajuddin, PW 3 referred her husband as Ziabur. It is in the backg round of these facts that the testimony of PW3 has to be weighed. She stated tha t at the time of intercourse, she was told that the accused would kill his wife or chase her away. There is no mistaking of the fact that their marriage allianc e was shot down by the parents and it would not be an easy task for them to get married. The statement that the accused would kill her wife or throw her out of the house shall also have to be taken with a pinch of salt. Having regard to the love and affection shown by PW 3 towards the accuse 21. d, it would be difficult to accept that she was terrorized to such an extent th at she could not muster enough courage to disclose the incident immediately on i ts occurrence. In the given scenario, her silence about the alleged incident is of considerable moment. It is difficult to hold that she was lured into a false belief that the accused would marry her, which as noted earlier, was not possibl e earlier and that on such misconception of fact she surrendered to the accused. She kept the incident to herself and having regard to the feeling that s 22. he had shared, it would not be unreasonable to hold that there was consent on th e part of PW 3. It is also difficult to believe that she had fallen prey to the machinations of the accused and believed that the appellant would kill his wife or chase his wife away. But for the pregnancy, the incident may not have come to light at all. 23. The evidence of PW3 also discloses that except for the particular occasi on, the accused did not rape her either before or after. It appears that overcom e with passion and emotions and the circumstances and situations they found them selves in, in a weak moment, they succumbed to the temptation of having sexual r elationship and that perhaps explains why the PW3 kept the incident a secret alt hough it was not possible to know at that instant that she would become pregnant . 24. In Uday (supra), the facts in a nut shell, were that the prosecutrix, wh o was a grown up girl studying in college was deeply in love with the appellant. She also knew that as they belonged to different cast, marriage was not possibl e or at least the proposal for marriage would be seriously opposed by the family members. In the aforesaid backdrop, the Supreme Court noted as under: (cid:28)23. Keeping in view the approach that the court must adopt in such c ases, we shall now proceed to consider the evidence on record. In the instant ca se, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they be longed to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. S he admits having told so to the appellant when he proposed to her the first time . She had sufficient intelligence to understand the significance and moral quali ty of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistenc e and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusi on that she freely, voluntarily and consciously consented to having sexual inter course with the appellant, and her consent was not in consequence of any misconc eption of fact. (cid:29) There is another difficulty in the way of the prosecution. There is no e 24. vidence to prove conclusively that the appellant never intended to marry her. Pe rhaps he wanted to, but was not able to gather enough courage to disclose his in tention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter go t complicated on account of the prosecutrix becoming pregnant. Therefore, on acc ount of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. There is yet another difficulty which faces the prosecution in this case 25. . In the case of this nature two conditions must be fulfilled for the applicatio n of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of the fact. Secondly, it must be proved that the person who obt ained the consent knew, or had reason to believe that the consent was given in c onsequence of such misconception. We have serios doubts that the promise to marr y induced the prosecutrix to consent to having sexual intercourse with the appel lant. She knew, as we have observed earlier, that her marriage with the appellan t was difficult on account of caste considerations. The proposal was bound to me et with stiff opposition from members of both families. There was therefore a di stinct possibility, of which she was clearly conscious, that the marriage may no t take place at all despite the promise of the appellant. The question still rem ains whether even if it were so, the appellant knew, or had reason to believe, t hat the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, t he circumstances of the case tend to support the conclusion that the appellant h ad reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in lov e. They met often, and it does appear that the prosecutrix permitted him liberti es which, if at all, are permitted only to a person with whom one is deeply in l ove. It is also not without significance that the prosecutrix stealthily went ou t with the appellant to a lonely place at 12 o’clock in the night. It usually ha ppens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As state d by the prosecutrix the appellant also made such promise on more than one occas ion. In such circumstances the promise losses all significance, particularly whe n they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of hav ing sexual relationship. That is what appears to have happened in this case as w ell, and the prosecutrix willingly consented to having sexual intercourse with t he appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In this circumstances it would be very dif ficult to impute to the appellant knowledge that the prosecutrix had consented i n consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prose cutrix when she consented, because there were more reasons than one for her to c onsent (cid:29). 25. In Vijayan (supra) the Apex Court stated that it is very dangerous to co nvict the accused, specially when the prosecutrix could venture to wait for 7 (s even) months for filing the FIR for rape. The Apex Court stated as under: (cid:28)5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodgi ng the complaint as a realisation dawned upon here that she has been subjected t o rape by the appellant-accused. No complaint or grievance was made either to t he police or the parents prior thereto. The explanation for delay in lodging th e FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, i t is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon afte r the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercou rse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to fin d out whether the child was born out of the said incident of rape and that the a ppellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the o pinion that the view taken by the trial Court and the learned Single Judge of th e High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial cour t as also of the High Court and quash the conviction and sentence of the appella nt-accused under Section 367 IPC. The accused may be released forthwith from cu stody if not required in any other case. (cid:29) In view of the aforesaid discussions, this court is of the considered op 26. inion that prosecution has failed to prove the guilt of the accused beyond reaso nable doubt and the appellant is entitled to be acquitted. In the result, the im pugned judgment is set aside. The appeal is allowed. 27. 28. ection with any other case. Send down the case record. The appellant shall be released from custody if he is not wanted in conn