Calcutta High Court (Appellete Side)
Sk. Maidul vs The State Of West Bengal & Anr on 24 May, 2019
Author: Tirthankar Ghosh
Bench: Md. Mumtaz Khan, Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
&
The Hon'ble Justice Tirthankar Ghosh
C.R.A. 346 of 2010
Sk. Maidul
-Vs-
The State of West Bengal & Anr.
For the Appellant : Mr. Suman De,
Mr. Debanshu Ghorai
For the State : Mr. Narayan Prasad Agarwala,
Mr. Debabrata Dasgupta
Heard on : 5.3.2019, 6.03.2019, 26.03.2019.
Judgment on : 24.05.2019.
Tirthankar Ghosh, J. :-
The appeal has been preferred against the judgement and
order of conviction dated 08.04.2010 and sentence dated
09.04.2010 passed by the learned Additional District & Sessions
Judge, Fast Track Court, Amta, Howrah in Sessions Trial
No.159/08 arising out of G.R. Case No.553/05 corresponding to
Amta P.S. Case No.44/05 dated 18.05.2005, wherein, the
learned Trial Court was pleased to convict the appellant under
Section 376 of the Indian Penal Code and sentenced him to
suffer rigorous imprisonment for 10 years and also to pay fine of
Rs. 50,000/- (Fifty Thousand) i.d. to suffer rigorous
imprisonment for six months more.
The prosecution case as alleged in the First Information
Report was initiated by Sk. Rasho, father of the victim girl which
is to the effect that his next door neighbour Sk. Maidul son of
Sk. Mohammad, Village Khasnan, P.O. Sonamui, District
Howrah, enticed his daughter to marry her and by taking such
plea used to come to his house and mixed as husband and wife
for 9 months. As a result his daughter became pregnant and
when she asked Sk. Maidul to marry her, he refused. The
complainant thereafter informed the father of Sk. Maidul and
requested him to come to a compromise by getting them
married. But the father of Sk. Maidul i.e. Sk. Mohammad
refused to the proposal and started threatening his family. The
complainant thereafter requested the Officer-in-Charge, Amta
Police Station to take appropriate steps for his 7 months
pregnant daughter.
On the complaint of the father of the victim (PW-1), Amta
P.S. Case No.44/05 dated 18.05.2005 was registered for
investigation, against the appellant under Section 376 of the
Indian Penal Code.
The investigating officer (PW-10) on completion of
investigation submitted charge-sheet under Section 376 of the
Indian Penal Code on 28.11.05 before the learned ACJM,
Uluberia, Howrah, against the appellant and the said case was
committed on 05.12.07 to the learned District and Sessions
Judge Howrah. The records were received by the learned District
and Sessions Judge, Howrah on or about 02.04.2008, who
thereafter by an order dated 03.04.2008 was pleased to transfer
the case to the court of the learned Additional Sessions Judge,
Fast Track Court, Amta, for trial and disposal in accordance
with law.
The learned Additional Sessions Judge, Fast Track Court,
Amta, Howrah by an order dated 10.09.08 was pleased to frame
charge under Section 376 of the Indian Penal Code against the
appellant and the charges were read over to him to which, he
pleaded not guilty and claimed to be tried.
The Prosecution in order to prove its case relied upon 12
witnesses and number of documents. The witnesses who
appeared in support of the prosecution case are P.W.-1, father of
the victim girl, P.W.-2 victim girl, P.W.-3 mother of the victim
girl, prosecution witnesses 5, 6, 7, 8, 9 & 11 are Doctors and
experts, prosecution witnesses 4, 10 & 12 being the witnesses
relating to the police department.
The defence case is that the victim being a major girl she
was consenting party and as such the offence under Section 376
cannot be attributed to the accused/appellant.
The learned Judge after conclusion of prosecution
evidence examined the appellant under Section 313 of the Code
of Criminal Procedure and after hearing the arguments arrived
at a finding of guilt, thereby convicting the appellant by
judgement and order dated 08.04.2010 and 09.04.2010 and
sentencing him, as aforesaid.
The learned lawyer for the appellant challenged the
judgement and order of conviction and sentence passed by the
learned Sessions Judge and argued that from the evidence on
record it is palpably clear that there was a relationship between
the appellant and the victim, he further submitted that the
circumstances under which the victim narrated the first incident
of forceful cohabitation is an improbable one. The subsequent
plea of promise to marry is a ploy of implicating the accused in a
case under Section 376 of the Indian Penal Code and which is
against the spirit of the evidence available before the Court. The
absence of using the term "rape" by the victim before the learned
Magistrate, Doctor and the investigating officer goes on to reflect
a relationship wherein physical attachment with the appellant
and the victim was existing. In support of his contention the
learned lawyer for the appellant relied upon the following
judgements:
1.Uday Vs. State of Karnataka, 2003 SCC (Cri)775;
2. Krishna Pada Mahato Vs. The State of West Bengal, (2004) CCrLR (Cal) 945;
3. Sudhangshu Pramanick & Ors. Vs. State of West Bengal, (2005) 2 CCrLR (Cal) 67;
4. Deelip Singh Alias Dilip Kumar Vs. State of Bihar, 2005 SCC (Cri) 253;
5. Parkash Chand Vs. State of Himachal Pradesh, 2019 SCC Online SC 180.
The learned lawyer for the State opposed the contentions advanced on behalf of the appellant and drew the attention of the court to the evidence of the complainant (PW-1), the victim (PW-2) and Dr. A.K Sharma (PW-6). According to the learned lawyer for the State there is consistency in the version of the evidence deposed by the complainant and the victim before the Court and the same is substantiated by the statement under Section 164 of the Code of Criminal Procedure, Exhibit -2/1. He further submitted that the DNA report (being Exhibit-7) along with the evidence of Dr. A.K. Sharma (PW-6) is the conclusive proof of the offence being committed by the appellant, as such the judgement and order of conviction and sentence do not call for any interference.
In order to appreciate the facts of the case a brief analysis of the witnesses who deposed in this case, are required for arriving at a finding, which are as follows:
PW-1, Sk. Rasho is the father of the victim, he stated that the accused Sk. Maidul was his nephew and his father Sk. Mohammad was his own brother. He identified accused Sk. Maidul in court. He deposed that the FIR was lodged in May, 2005 and he lodged the case as the accused Sk. Maidul raped his daughter. He further deposed that the accused assured his daughter of marrying her before commission of rape and he mixed with his daughter as a result of which his daughter became pregnant for 7 months. According to him his daughter told him and his wife that the accused refused to marry her, thereafter a talk of compromise was held and after the compromise failed, written complaint was lodged with the Amta Police Station, the written complaint was scribed by Thakur Das Santra and he put his signature on the same after it was read over and explained to him. The witness further deposed that his daughter was medically examined at Uluberia S.D. Hospital and her statement was recorded by the Judicial Magistrate. He identified his signature in the written complaint which was marked as Exhibit-1 and he stated that the baby which was born died after one hour. In cross-examination he stated that when the police officer came to his house he did not narrate the incident but he narrated the incident at the police station. He further stated that he had three other brothers and eight sons and daughters, the victim being the eldest child. He stated that he and his brothers reside in the adjacent rooms and their house is a mud house with tile shed and mud floor, the roofs of all their rooms are closely held and about 30/40 family members reside within the house complex. He denied the fact that his wife administered poison to his elder brother Sk. Mohammad in order to grab the property. He admitted the fact that he did not mention in the FIR that Sk. Maidul committed rape upon his daughter and the accused did not promise to marry before commission of rape. He further denied that the accused person has been working 10 years at Bombay and visited his native house once/twice in a year.
The witness was recalled and the written complaint was identified by him and marked as Exhibit 1/2, in cross- examination he denied the fact that the written complaint was not scribed by Thakur Das Santra.
PW-2, is the victim. She stated that Sk. Maidul is the son of her elder uncle Sk. Mohammad and he resides at the adjoining house. She identified the accused on dock and deposed that he used to frequently visit her house and raped her in her house about 4 ½ years back. She deposed that it was Roja time when her parents went to her uncle's house at that time the accused raped her in spite of her resistance and as with passage of time the child in her womb was developing, she became pregnant and the accused on being asked to marry her flatly denied the incident. The act of the accused was thereupon divulged by her to her mother who narrated the same to her father. Her father thereafter told the accused person and his father who denied the incident and thereafter salish was held. She identified her signature in the statement recorded by the learned Magistrate, which was marked as Exhibit-2. In cross- examination she stated that they were 8 brothers and sisters and the accused were also 10 brothers and sisters. She deposed that her house and that of the accused are adjacent to each other and while her house is made of mud wall and tile shed, that of the accused is made of mud wall and sal leaves and both the houses are situated at a distance of 1½ ft. The house of her grandfather, uncle Sk. Sorab, other relatives being Ramjan, Samser, Sofia Khatun, Kurdus and others are adjacent to each other. All the houses are situated very closely and at a distance of 1½ ft. to 2 ft. and one can hear the discussion of the family members of the adjoining house. She stated that she had told the investigating officer that the accused behind the back of all others used to come to her house/room and cohabited with her several times and as a result of which she conceived. She stated that when FIR was lodged she was seven months pregnant. She denied the fact that the accused did not rape her or forcefully cohabited with her and substantiated the same by stating that when the male members went out for job and her mother was engaged with domestic household work, the accused would come and cohabit with her. She further stated that the case was initiated after the accused flatly denied to accept the fact that she became pregnant as a result of cohabitation with him and also denied to marry her.
PW-3, Nehar Begam is the mother of the victim. She deposed that the accused Sk. Maidul was the son of her elder brother-in-law, Sk. Mohammad and identified him on dock. She further stated that Sk. Maidul's house is adjacent to her house and he used to visit her house. She deposed that the accused raped her daughter 4/5 years back and it was Roja time when she and her husband went out, the accused took the opportunity to commit rape upon her daughter and as a result she became pregnant. The incident was reported to the father of Sk. Maidul, who denied and refused to give in marriage with her daughter. Her husband told the village people following which a salish was held in which proposal of marriage was made but such proposal was not complied with, thereafter her husband lodged written complaint with Amta Police Station. In cross- examination she stated that she had 8 sons and daughters and the accused Sk. Maidul, happens to be the son of her elder brother-in-law and the next door neighbour, who often used to visit her house and mixed with her daughter. She deposed that her daughter became pregnant because of her love affair with the accused and the case was filed as the accused refused the proposal for marriage. She reiterated that as the proposal for marriage was not complied, the case was filed against the accused person out of anger.
PW-4, is Badal Bose, ASI of Police attached to Panchala Police Station, who on 18.05.2005, was posted as ASI of Amta Police Station, on that date he received a written complaint from Sk. Rasho (PW-1) and started Amta P.S. Case No.44/05 dated 18.05.2005 under Section 376 of the Indian Penal Code. He also recorded the formal part of the FIR with his own hand writing.
He identified his endorsement on the written complaint which was marked as Exhibit-1/1. He also identified the formal part of FIR which was signed by him and the same was marked as Exhibit-3. In cross-examination he denied the fact that the written complaint was received from some other local female leader and not from the complainant (PW-1).
PW-5, Bimalandu Goswami is the Superintendent, Uluberia S.D. Hospital. According to him on 28.05.2005 as per the requisition of the I.O., he collected dry blood sample, skeletal muscles and skin tissue of the dead baby of the victim and thereafter requested the I.O. to collect the specimen in time for sending the same for D.N.A. test. He identified his endorsement on the prayer of the I.O. which was marked as Exhibit-4. In cross-examination he admitted that there is no note in the endorsement, from which body the three samples were collected.
PW-6, Dr. A.K. Sharma is the Assistant Director, Biology in C.F.S.L., Kolkata. He identified the acknowledgement letter dated 02.06.2005 which was marked as Exhibit-5 and which had the seal and signature of the concerned authority. He also identified the forwarding report dated 05.10.2005 issued by the C.F.S.L., Kolkata to the learned S.D.J.M., Uluberia which was marked as Exhibit-6. He thereafter identified the DNA report submitted by him under his seal and signature which was marked as Exhibit-7. According to his report he arrived at a conclusion that Sk. Maidul (source of Exhibit-A Blood sample-I) is the biological father of the baby (source of Exhibit-C1 blood sample III) of victim (source of Exhibit-B blood sample-II). In cross-examination he stated that the sample so collected should be preserved in cold freeze in a flask, he however, admitted that there is no record in his report that such procedure of collection and sending sample has been followed.
PW-7, Dr. Prabir Kumar De is a retired doctor who, on 20.05.2005, was posted as medical officer, Uluberia, S.D. Hospital. He deposed that he examined Sk. Maidul who was identified by a Constable and Sub-Inspector of Police attached to Amta Police Station. He identified the medical report prepared and signed by him which has been marked as Exhibit-9 and which categorically stated that Sk. Maidul was sexually potent. In cross-examination he said that his findings are based upon the observations and advice.
PW-8, Dr. Sunil Chakraborty, medical officer who, on 19.05.2005, was attached as Gynaecologist, Uluberia S.D. Hospital. He deposed that he examined the victim on the request of the Superintendent, Uluberia, S.D. Hospital for her medical examination. According to him (i) the victim was pregnant for 9 months,(ii) last menstrual period was on the month of Kartick,
(iii) general condition was average, (iv) patient was pale, blood pressure was normal, (v) abdominal examination was found to be 9 (nine) months pregnancy with a audible foetal heart sound,
(vi) patient was not in labour. He further deposed that during his examination the victim told him that she had physical contact with Sk. Maidul three times. He identified the medical report prepared and signed by him as Exhibit-10. In cross-examination he stated that for undergoing instrumental and clinical examination he came to the conclusion that the pregnancy period of the victim was 9 months, he further stated that with the aid of stethoscope he ascertained the length of pregnancy and the foetal heart sound.
PW-9, Dr. Chunilal Bhunia, medical officer who, on 20.05.2005, was pathologist at Uluberia S.D. Hospital. He identified the medical report prepared and signed by him as Exhibit-11. According to him after conducting microscopical examination in the pathology department of the hospital he came to the conclusion that Sk. Maidul is fertile for conception. In cross-examination, he denied the fact that the report is prepared being influenced by the police authority.
PW-10, Niranjan Adhikary is a S.I. of Police, who was entrusted with the investigation of Amta P.S. Case No. 44/05 dated 18.05.2005 pursuant to direction of the officer-in-charge, Amta Police Station. During investigation he visited the place of occurrence, prepared rough sketch map with index, which was marked as Exhibit-12 and recorded statement of witnesses. He arranged for recording the statement of victim under Section 164 of the Code of Criminal Procedure and also for medical examination of the victim. He also arranged for DNA test examination of the accused, victim and the dead child. The forwarding letter of the sample sent to C.F.S.L., Kolkata was marked as Exhibit-13 and thereafter the DNA report was collected from the C.F.S.L., Kolkata. After completion of investigation, charge-sheet was submitted by him under section 376 of the Indian Penal Code. In cross-examination he stated that the victim did not disclose to him that the accused raped her against her will and consent, but stated that behind the back of others the accused often used to come to her room/house and cohabited with her. He also stated that there was a salish and for which two witnesses were examined. He denied the fact that charge-sheet was submitted without proper investigation and the same was filed in connivance with the leader of the Mahila Samiti.
PW-11, Dr. K.D. Saha, is radiologist who was attached to Uluberia S.D. Hospital on 25.05.2005. He deposed that he examined the victim for determining her pregnancy by preparing USG fetoplacental Profile. He identified the photo copy of the USG which was marked as Exhibit-14 and the medical report prepared and signed by him as Exhibit-14/1. In cross- examination he deposed that the victim was in advanced stage of nearly 9 months and such opinion was arrived at after completion of all parameters.
PW-12, Nilanjan Dey is a Judicial Magistrate who recorded the statement of the victim on 19.05.2005 as per the direction of the ACJM, Uluberia he identified the statement which was prepared and signed by him and the same was marked exhibit 2/1. In Cross-examination he stated that there is no whisper in the statement regarding the rape of the victim against her will and consent.
So, from the deposition of PW-1(complainant) and PW- 2(victim) it is evident that the appellant and the victim were known to each other, they were related to each other and the appellant often used to visit the victim's house. It is also found consistently from the evidence of PW-1(complainant), PW- 2(victim) and PW-3 (mother of the victim) that the house/rooms of the appellant and the victim are adjacent to each other.
In addition to the aforesaid consistent version the relevant portion of the statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 (as translated and compared) are set out as follows, for proper appreciation:
"Maidul is our relative, he is my uncle's son. Maidul very often used to come to our house and used to sleep in our house. At the time of last Roja when there is none of my parents he used to mix with me forcibly and told that he would marry me and assured me not to worry about it. He often came to our house and used to do such evil things. When I became pregnant I told him that I became the mother of his child and requested to marry me. Then he told me that he don't know me. As he did not agree that I became pregnant for 9 months by him, my parents went to him he denied all this and told that if the blood of my child tallied with the blood of him he will marry me."
A comparison of the deposition of the complainant and the statement of the victim under Section 164 of the Code of Criminal Procedure would reflect that, while the complainant deposed that the accused promised to marry the victim and thereafter committed rape upon her, the victim in her statement before the Magistrate stated that the accused mixed with her forcibly and told her that he would marry her. PW-3 the mother of the victim in her cross-examination deposed that there was a love affair between the accused and the victim. However from the spirit of evidence of all the three witnesses it is clear that the accused and the victim met with each other in the absence of the parents of the victim and the same was confined to the house/room of the victim's family. In cross-examination of PW- 2(victim), she stated that they had one room and one bathroom, she further stated when her mother remained inside the room busy with her domestic work, it was at this time she cohabited with the accused.
It is clear that the accused happens to be the son of her uncle and the house of the accused is adjacent to that of the victim. Further it is not the only house which is adjacent and there are number of rooms/houses at a very close distance. Although evidence has been adduced that on the date of Roja the parents of the victim were not there in her house, yet no evidence is forthcoming as to whether the other members who were staying in separate rooms or adjacent houses who happen to be members of the extended family were there or not. This assumes importance because of the statement of the victim that the accused forcibly cohabited with her. If there had been force expectedly she would have raised hue and cry.
As the incident was belatedly reported at the police station the facts of the case require closer scrutiny as to whether there was consent of the victim, whether there was misconception of fact or the consent was obtained by fraud and the subsequent promise to marry at a later date could constitute an offence of rape as defined under Section 375 of the Indian Penal Code.
The word "consent" has been dealt with by the Hon'ble Apex Court in Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra & Ors., 2018 SCC online SC 3100, which is as follows:
"Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances."
In Deelip Singh alias Dilip Kumar Vs. State of Bihar, (2005) 1 SCC 88, the Hon'ble Supreme Court held that:
"......In Stroud's Judicial Dictionary consent is defined as "an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side".
In Jowett's Dictionary, while employing the same language added the following:
"Consent supposes three things -- a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind."
In Words and Phrases, Permanent Edn., Vol. 8-A, the following passages culled out from certain old decisions of the American courts are found:
"... adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent...."
......there is a difference between consent and submission [and] every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent, is quite apposite...." Again in Deelip Singh alias Dilip Kumar Vs. State of Bihar, (supra), the Hon'ble Supreme Court interpreted the phrase "against the will" and held that:
"The next question is whether the appellant had sexual intercourse with the victim girl against her will (vide first clause of Section 375). The expression "against the will"
seems to connote that the offending act was done despite resistance and opposition of the woman......" The Hon'ble Supreme Court in Uday Vs. State of Karnataka (2003) 4 SCC 46, after taking into account the decisions of the Calcutta High Court came to a finding on a factual interpretation that:
"........ In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant.
.......She had sufficient intelligence to understand the significance and moral quality 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 resistance and assent....... .......All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact."
An analysis of the facts of the present case bring us to a situation wherein the victim in her statement under Section 164 of the Code of Criminal Procedure stated that she was forced by the appellant to cohabit with her. Considering the circumstantial back ground, particularly the rooms/houses of the extended family members/neighbours being very closely situated it would be difficult to believe that without any resistance the appellant would be successful in forcibly commission of the offence and it would not be out of place to mention that at least on three occasions thereafter, the prosecutrix and appellant had consented to such physical intimacy and there was no complain of prosecutrix/victim till the date she understood that she became pregnant and divulged to her mother.
This Court is not convinced by the prosecution version that on the first occasion the cohabitation was without the consent of the victim and the subsequent plea of promise to marry as such do not assume much significance in the facts and circumstances of this case. The learned Trial Court as such did not appreciate the facts in its true and proper perspective as such the impugned judgement and order of conviction and sentence calls for interference of this Court. As such the judgement and order of conviction and sentence dated 08.04.2010 and 09.04.2010 is hereby set aside.
Accordingly the appellant is acquitted of the charge under Section 376 of the Indian Penal Code framed against him.
The appellant as such should be released forthwith, if he is not wanted in any other case.
The appeal is accordingly allowed.
Copy of this judgement be sent to the concerned correctional home where the appellant is presently detained for effecting necessary compliance.
Copy of the judgment along with the lower court records be sent down to the Trial Court at once.
(Tirthankar Ghosh, J.) I agree.
(Md. Mumtaz Khan, J.)