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2010 DIGILAW 798 (CAL)

Feroza Khatoon v. Harun Sk.

2010-07-14

KALIDAS MUKHERJEE

body2010
Judgment : KALIDAS MUKHERJEE, J.: 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure assailing the judgment and order passed by learned Additional Sessions Judge, Fast Track Court, Bolpur in Sessions Trial No. 9 of 2003 corresponding to Sessions Case No. 128 of 2002 arising out of Nanoor P.S. case No. 31 of 2001 dated 13.3.2001 under Section 376/493 of the Indian Penal Code. 2. The victim lodged a complaint with the O.C., Nanoor P.S. on 13.3.2001 alleging that for more than a year she developed love affairs with Harun Sk. who promised to marry her. 10/11 months prior to the date of lodging the F.I.R. the accused came to the house of the victim at about 10/11 P.M. and knocked at her door. The victim opened the door. Her sister Khalida was sleeping with her. Harun committed rape upon her and proposed to marry her within 10/15 days. After that incident Harun came to her room 5/6 times at night and committed rape upon her. Due to such cohabitation the victim girl became pregnant. After 4/5 months, the victim informed her grandmother Toioba Bibi and she in turn informed the parents of the victim. Victim’s father went to the father of the accused and told that the victim conceived for 4/5 months, but, as the father of the accused did not take any action. The victim informed the Panchayat, but, to no effect. On 24th Magh, 1407 B.S. the victim gave birth to a female child. After the receipt of the complaint, the Nanoor P.S. case No. 31 dated 13.3.2001 was started. The charges were framed under Section 376/493 of the I.P.C. to which the accused pleaded not guilty and claimed to be tried. 3. The learned Judge upon consideration of the materials on record acquitted the accused person. The learned Judge while recording the order of acquittal observed that there was no explanation either in the F.I.R. or in the evidence of P.W. 1 regarding the cause to remain silent for five months and in lodging the complaint after the birth of the child. The learned Judge upon consideration of the materials on record acquitted the accused person. The learned Judge while recording the order of acquittal observed that there was no explanation either in the F.I.R. or in the evidence of P.W. 1 regarding the cause to remain silent for five months and in lodging the complaint after the birth of the child. The learned Judge further observed that the P.W. 1 has admitted that after the first incident of alleged rape, she allowed the accused to have sexual intercourse 5/6 times on different dates at her house at night which clearly suggested that rape was never committed on P.W. 1. The learned Judge observed that Ext. A was the certified copy of the petition under Section 125 Cr.P.C. being Misc. Case No. 16 of 2002 filed by P.W. 1 against the accused Harun Sk. which showed that the date of first incident of alleged rape by the accused Harun was in the month of November, 2000. The learned Judge observed if the alleged rape was committed in November, 2000, how could she give birth to her child on 7.2.2001 as stated by P.W. 1 in her deposition. 4. The learned Judge held that there was vital contradiction between the date of first rape as alleged in FIR and the Ext. A. The learned Judge observed that the doctor suggested for further medical examination for Firoza, her baby and the male partner to ascertain the paternity of the baby, but, it could not be done due to the unwillingness of P.W. 1 as stated by the I.O. (P.W. 12). The learned Judge held that the parents, the grand mother and the relatives of P.W. 1 were in dark about the love affairs of P.W. 1 with the accused and regarding the pregnancy of P.W. 1 till she was carrying 5/6 months. Learned Judge observed that even after the first incident of alleged rape, P.W. 1 allowed the accused to have further sexual intercourse with her 5/6 times subsequently, knowing fully well the fate of her such illegal cohabitation as a major lady. It has been held that there was vital contradiction between statement recorded under Section 164 Cr.P.C., her evidence and the FIR. It has been held that there was vital contradiction between statement recorded under Section 164 Cr.P.C., her evidence and the FIR. Learned Judge further held that P.W. 1 being a major girl gave her consent to the act of sexual intercourse and she continued to indulge in such activity until she became pregnant. The learned Judge held that obviously the aforesaid act of P.W. 1 was an act of promiscuity on her part and not induced by misconception of fact and the consent given by P.W. 1 for such sexual intercourse could not be said to have been given under misconception of fact. 5. The learned Counsel appearing on behalf of the petitioner has submitted that the FIR is not supposed to contain every detail of the incident. It is submitted that after the commission of rape the lady became pregnant and gave birth to a child. It is contended that in the statement under Section 164 Cr.P.C. the victim lady raised the allegation of rape upon her. It is submitted that the learned Judge was not justified in holding that the P.W. 1 gave consent. It is contended that rape was committed only on the promise of marriage and the statement of P.W. 1 was corroborated by other P.W.s. It is submitted that the learned Judge did not ascertain the paternity of the child. The learned Counsel submits that the case should be sent back to the learned Court below for retrial, in as much as, the impugned judgment suffers from illegality and perversity. 6. The learned Counsel appearing on behalf of the State submits that in the FIR it has been alleged that the accused confessed his guilt in presence of some of the villagers, namely, Sk. Khalek and Sk. Hanif and others, but, the learned Court below having ample power under Section 311 Cr.P.C. did not exercise that power in summoning in those persons as witnesses. The learned Counsel submits that the evidence of those witnesses would be vital in bringing home the charge against the accused person. 7. It is submitted that Harun did not turn up in the salish. It is contended that the learned Court committed illegality in holding that the victim girl was a major lady. It is submitted that the victim girl was minor and, as such, the question of giving consent would not arise. 7. It is submitted that Harun did not turn up in the salish. It is contended that the learned Court committed illegality in holding that the victim girl was a major lady. It is submitted that the victim girl was minor and, as such, the question of giving consent would not arise. It is submitted that the DNA test was necessary and the learned Court below ought to have passed order for holding DNA test to ascertain the paternity of the child. It is submitted that there was no enmity between the parties. 8. Mr. Kasem Ali Ahmed learned Advocate appearing on behalf of the State has referred to and cited the decision reported in AIR 1987 SC 98 State of Assam Vs. Muhim Barkataki and another. Relying on this decision Mr. Ahmed submits that no particular number of witness shall in any case be required to the prove any fact. In that case the accused sprinkled and poured kerosene oil in the shop of the deceased as well on the person of the deceased and set fire on deceased as well as to the shop. A dying declaration was made by the deceased implicating two accused persons as his assailants. The evidence of the eye witnesses was found to be truthful and reliable and in that circumstance the order of acquittal passed by the High Court was set aside. It is the settled position of law that it is the quality of the evidence of witness and not the quantity which is to be considered while deciding a case. 9. The FIR was lodged on 13.3.2001 wherein it has been alleged that one day at night about 10/11 months ago at about 10/11 P.M. the accused came to her room and knocked at his door; the victim opened the door; Khalida, the sister of the victim was sleeping there; the accused committed rape upon her and promised that 10/15 days later he would marry her. So, according to the FIR the alleged incident of first rape was committed around May, 2001. It is also alleged in the FIR that this incident of first rape was preceded by love affairs between them. In the statement recorded under Section 164 Cr.P.C. on 16.3.2001 it has been stated by the victim that there was love affairs between them for about one year. It is also alleged in the FIR that this incident of first rape was preceded by love affairs between them. In the statement recorded under Section 164 Cr.P.C. on 16.3.2001 it has been stated by the victim that there was love affairs between them for about one year. In the FIR, in the evidence before the Court and in the statement under Section 164 Cr.P.C. the victim girl stated that after the commission of alleged first rape the accused came to her room 5/6 times at night and committed rape upon her and, as a result, she became pregnant for 5/6 months. 10. It is significant to note that the victim girl filed a case under Section 125 Cr.P.C. wherein it was alleged that the incident of first rape took place in the month of November, 2000 and she gave birth to a child on 7.2.2001. She filed the case under Section 125 Cr.P.C. on 12.2.2002 claiming maintenance for her child. The leaned Judge of the Court below held if the first incident of rape took place in the month of November, 2000, how could she give birth to a child on 07.2.2001 as stated by P.W. 1 in her deposition as well as in the FIR. 11. As regards the age of the victim girl, it is in her statement under Section 164 Cr.P.C. that her age is 19 years as on the date of her statement recorded under Section 164 Cr.P.C. i.e. on 16.3.2001. It is in her statement that the love affairs continued for about one year. So it shows that she completed 18 years at the time of the alleged incident of rape. 12. P.W. 1 in her cross-examination stated that save and except she and Harun, nobody knew that Harun assured her to marry within 10/15 days. It is in the evidence of other P.Ws that they knew about the pregnancy of P.W. 1 when she was carrying for about 5/6 months. P.W. 1 has further stated in cross-examination that Harun has one brother and they have landed property in the village; if she could marry Harun, it would be good to her. She has, however, denied the suggestion that with an intention to marry Harun she lodged complaint against him on false allegation. 13. P.W. 1 has further stated in cross-examination that Harun has one brother and they have landed property in the village; if she could marry Harun, it would be good to her. She has, however, denied the suggestion that with an intention to marry Harun she lodged complaint against him on false allegation. 13. P.W. 3, mother of P.W. 1, in her cross-examination could not say the date, month on which she first came to know about the cohabitation between her daughter and Harun; when her daughter was carrying five months, at that time she came to know about the cohabitation of her daughter with Sk. Harun from her mother-in-law i.e. Toioba Bibi; prior to that she had no knowledge about the love affairs between her daughter and Harun. P.W. 3 has further stated in cross-examination that she had not seen Harun to visit her house at night. In the cross-examination she has stated that she did not hear the conversation between her daughter and Harun. It is in her cross-examination that the villagers were called for arriving at a settlement about five months prior to lodging of this case. But, it appears that no paper was written in the alleged salish. 14. P.W. 6 was declared hostile. P.W. 7 is the Doctor who has stated in cross-examination that specific test of the victim girl, the baby and the alleged male partner were required to ascertain the parentage of the baby. The I.O. (P.W. 12) has stated in cross-examination that he made no prayer to ascertain the parentage of the baby by any examination as the victim was not willing for her further medical examination. 15. Learned Counsel for the State has submitted that as per FIR the accused made extra judicial confession in presence of Sk. Khalek and Sk. Hanif, but, they were not examined and the learned Court below had ample power to summon them as witnesses. The I.O. on this point has stated that he did not examine Sk. Khalek and Sk. Hanif. These two persons were not cited as witnesses in the charge sheet. 16. As regards the charge under Section 493 I.P.C. the prosecution is to prove that the accused by deceitful means caused P.W. 1 to believe that she was lawfully married to him and then committed sexual intercourse with her. Khalek and Sk. Hanif. These two persons were not cited as witnesses in the charge sheet. 16. As regards the charge under Section 493 I.P.C. the prosecution is to prove that the accused by deceitful means caused P.W. 1 to believe that she was lawfully married to him and then committed sexual intercourse with her. It has also to be proved that from the very beginning the accused knew that his promise to marry was false. In the instant case, there is no evidence to that effect. It is an admitted position that there was love affairs between them for one year. It is in evidence of P.W. 1 that subsequent to the first incident of alleged rape, she had sexual intercourse with the accused 5/6 times. This love affair with P.W. 1, a major lady, makes the difference and the learned trial Judge rightly held that P.W. 1 was a consenting party and it was an act of promiscuity. The learned Judge rightly held that this act on the part of the P.W. 1 cannot be said to be under misconception of fact. 17. In case of revision arising out of order of acquittal, the interference can only be made where there is flagrant or manifest illegality and there is resultant miscarriage of justice. In the case reported in Bansi Lal and others Vs. Laxman Singh reported in AIR 1986 SC 1721 it has been held by the Apex Court in para 9 as follows:- “9. Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial Court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterised as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution.” In paragraph 10 it has been held as follows:- “10. …….The mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify the setting aside (of) the order of acquittal and directing a retrial of the accused…….” 18. In the instant case the learned Court below considered all the aspects of the case and the materials on record. It is not a case that the learned Court below did not consider a vital piece of evidence on record. It cannot, therefore, be said that there was manifest illegality, perversity or miscarriage of justice. 19. Such being the position I find that it is not a fit case to interfere with the findings of the learned Court below whereby an order of acquittal has been recorded. 20. In the result the Revisional Application fails and the same is dismissed. 21. Let a copy of this order along with the LCR be sent to the learned Court below immediately. 22. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.