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2003 DIGILAW 929 (JHR)

Islam Ansari v. State of Bihar

2003-07-31

AMARESHWAR SAHAY

body2003
Judgment Amareshwar Sahay, J.- The sole appellant has been convicted for committing the offence under Section 376 of the Indian Penal Code and has been sentenced to undergo Rigorous Imprisonment for seven years by Judicial Commissioner, Ranchi in S.T. no. 616 of 1995 vide his judgment dated 4.10.1997. 2. Being aggrieved by the said Judgment the present appeal has been filed. 3. The Officer-in-charge of Pithoria Police station recorded fardbeyan of Gulshan Nisha, informant, (P.W. 1) on 8.5.1995 and on the basis of which, the F.I.R. was registered, under Section 376 of the Indian Penal Code. 4. The prosecution case in short, is that the informant, Gulshan Nisha, was married with Suleman Ansari and both of them resided in the house of the informant's mother of about four months and thereafter husband of the informant fled away deserting her. The informant was having a son aged about 3 years from her husband. When her husband did not return, she fled away with her Dewar and Nandoshi and lived with them of about 22 days but she again came back to her Naihar and started living there. It is stated that three months prior to the lodging of the F.I.R. the appellant Islam Ansari came to her house in the night at about10 P.M. and asked the informant to have sexual intercourse with him. She objected saying that she will become pregnant but he told her that in case of pregnancy, he will marry her. Thereafter the appellant caught hold of her and thereafter forcibly committed rape on her. Since, thereafter, the appellant was regularly coming to her house in the night and used to rape her. Due to this she became pregnant and on the date of lodging F.I.R. she was having pregnancy of three months. When this fact came to the notice of her mother and brother, they asked her about the pregnancy and then she told them that she got the pregnancy from the appellant. The appellant gave her some medicine for abortion. When the victim asked the appellant to marry, he refused. 5. In order to establish the charge altogether six witnesses were examined on behalf of the prosecution and defence also examined three witnesses. 6. P.W. 1 is the informant Gulshana Nisha, the informant i.e. victim lady. She has stated in her evidence that the occurrence is of 1-1/2 years back. When the victim asked the appellant to marry, he refused. 5. In order to establish the charge altogether six witnesses were examined on behalf of the prosecution and defence also examined three witnesses. 6. P.W. 1 is the informant Gulshana Nisha, the informant i.e. victim lady. She has stated in her evidence that the occurrence is of 1-1/2 years back. She further stated that her mother had constructed separate room for her living and she used to live there alone. She further stated that on the point of Chhura the appellant committed rape on her and also threatened that if she would disclose about the same to anyone, she would be killed. She further stated that she became pregnant and on her request, the appellant Islam Ansari refused to marry her. She further stated in her deposition that the child in her lap was born out of the sexual relationship between her and the appellant. The victim in her cross-examination has stated that her brother and sister-in-law had threatened her to assault and then she instituted the case against the appellant. 7. Dr. Reeta Lal, P.W. 5, who examined her medically, found her to be aged about 22 to 25 years and she was having pregnancy of about 23 weeks old. 8. P.Ws. 3 and 4 i.e. Quasim Khan and Sabrati Khan has been declared hostile. P.W. 6 is a formal witness. 9. From the evidence of the victim i.e. P.W. 1 it appears that she lived with her husband only five months after the marriage and after her husband deserted her she fled away with her Dewar and Nandoshi and lived with them 22 days. She further stated that she was having sexual relationship with the appellant for quite a long time. Therefore, it appears that the victim lady• was of a questionable character and was having sex with the appellant as well as other persons such as Dewar and Nandoshi with whom she had fled away. 10. According to the Dr.P.W. 5, at the time of examining the victim was having pregnancy 23 weeks i.e. comes to about six months, whereas according to the victim herself, the appellant had raped her for the first time, three months prior to the lodging of the F.I.R., therefore it appears that she was carrying pregnancy even prior to the alleged rape by the appellant. She has herself stated that she lodged a case only because her Dewar and sister in law threatened her to assault. From the facts and circumstances it appears that the informant, who as a major lady, was having sexual intercourse with the appellant with her consent and only because of the pressure on her she lodged the F.I.R. against the appellant. In such a situation there cannot be any inference other than the fact that the informant was having sexual relationship, if any, with her consent and as she was a major lady at the relevant time, therefore the occurrence as alleged cannot come under the definition of the rape and the child on her lap was not born out the sexual relationship with the appellant. 11. In view of my discussions and findings above, I hold that the conviction and sentence passed against the appellant by the trial court for committing the offence under section 376 of the Indian Penal Code is not sustainable in the eyes of law. 12. In the result this appeal is allowed and conviction and sentence passed by the trial court against the appellant are set aside. The appellant is on bail, he is discharged from the liability of his bail bonds.