Calcutta High Court
Sudhamay Nath Alias Bachhu vs State Of West Bengal on 15 July, 1999
Equivalent citations: (1999)3CALLT69(HC), 1999CRILJ4482
JUDGMENT G.R.Bhattacharjee, J.
1. This is an appeal against the judgment and orders of conviction and sentence under section 376 IPC passed by the learned Addl. Sessions Judge. Siliguri in Sessions Case No. 30 of 1993. The prosecution case as stated in the FIR which was lodged at Kharibari P.S. on 9.2.91 by PWI Sri Senabali Singha is that her daughter Saraswati Singha @ Mousumi aged about 14/15 years was a student of class V of Kharibari Uchaya Madhyamik Vidyalaya and the appellant/ accused Bachhu Nath @ Sudhamoy used to teach her for the last 2/3 years and he allured the said minor girl in various ways and also secretly became physically close to her on assuring that he would marry her as a result of which the said minor daughter became pregnant, the pregnancy running into three months when, in the middle of December, 1990, the girl became indisposed and then on enquiry she revealed the aforesaid facts. It is also stated in the FIR that on 21.12.90 the appellant/ accused came to the house of the complainant at night and he was confronted with the matter when he assured that he would marry the girl and take all her responsibility for her food and clothing and also given an undertaking in writing in his own handwriting and told them to keep quiet for a month and within that time he would make necessary arrangements and marry the girl. It is also the case in the FIR that after a month the accused however refused to marry the girl and accordingly the FIR was lodged when the girl was running pregnancy for 5 month. Charge was accordingly framed against the appellant/ accused under section 376 IPC and in the trial he was sentenced to rigorous imprisonment for 10 years and fine of Rs. 10,000/- i.d. to R.I. for 2 years. The learned trial Judge has also directed that the fine, if realised shall be paid to the victim girl to be spent for the maintenance of herself and her illegitimate son. Being aggrieved by the judgment and the orders of conviction and sentence passed by the trial court the appellant/accused has preferred the present appeal.
2. P.W.1 Smt. Sonali Singha is the mother of the girl Mousumi. She says that Mousumi was aged 12/13 years at the time of the incident when she was reading in class-V. She further says that she engaged the accused as a private tutor of her said daughter. Her evidence is that in course of such private coaching her daughter fell ill and then by interrogation she came to know from Mousumi that the accused had allured her by saying that he would marry her and had sexual intercourse with her as a result of which she became pregnent. Her further evidence is that in the evening when the accused came to her house she confronted him with the situation and he gave out that he would marry Mousumi and that is why he had sexual intercourse with her and that thereafter the accused gave a written undertaking to the effect that he would marry Mousumi. Ext. 1 is that undertaking said to have been written and signed by the accused in presence of P.W.1 her daughter and her husband. The defence case is, however, a case of denial and the accused also has denied that this document of undertaking was written or signed by him. The further evidence of P.W.1 is that after giving the said undertaking the accused visited her house for about a month and therafter he stopped coming to her house, and one day about 1- 1/2 month thereafter when P.W.1 came across the accused and asked him as to why he had stopped visiting her house, the accused told her that lie was not prepared to marry her daughter and further disclosed that his parents had objected to the proposed marriage and he would go away to Calcutta. P.W. 1 also says that the accused further gave out that the undertaking given by him was valueless and that they could do whatever they liked. Form her we get that her daughter subsequently gave birth to a child which is still alive and she also filed a petition before the learned S.D.J.M. for maintenance for herself and her child which is still pending. In her cross-examination she says that she herself went to the school for getting her daughter admitted to the school named Howdahvita Primary School. It has been suggested to her in cros-examination by the defence that many other persons also visited her house and that Mousumi had intimacy with other persons as a result of which she became pregnant, which however has been denied by the P.W.1.
3. P.W.2 is Mousumi Singha. Her evidence is that since she was a student of class -III the accused used to teach her as a private tutor and a love affair grew between them and at the relevant time she was 13 years old and was a student of class-V and thereafter he used to bear all expenses of her education. She says that when she was a student of class-III she had cohabitation secretly with the accused for which she became pregnant and she was first taken to Kharibari Hospital by the accused where she was medically examined by a doctor and thereafter the accused took her to a woman at Bihar side with help of whom her pregnancy was terminated. She says that her parents did not know this incident, and besides herself and the accused none else knew the incident. That is however not a subject matter of the present charge. Her further evidence is that even thereafter the accused used to visit her house and teach her regularly and thereafter he again promised to marry her and in view of such promise she again had sexual intercourse, and she told the accused about it and thereafter the accused sent some medicines for her which she did not take. She says that thereafter she fell ill and narrated the incident to her mother and thereafter her mother called the accused who confessed everything and told her mother he would marry her and also gave a written undertaking, Ext.1. She says that she herself, her father and her mother were present when the accused wrote the undertaking. She also deposes that subsequently the accused refused to marry her. She also says that she gave birth to a male child who is still alive and she filed an application under section 125 Cr.PC before the learned SDJM, Siliguri praying for maintenance for herself and her child (against the accused). She denies that she ever mixed with any other person besides the accused.
4. In her cross-examination she says that it is true that since Puja festival of 1990 she had cohabitation with the accused. She also says that she used to love the accused and that at first she did not like to love the accused but subsequently she used to rely on him. She also admits that due to their love affair she had cohabitation with the accused. She says that the accused promised that he would marry her after four years and also told her that he would marry her after getting an employment. She says that towards the middle of December, 1990, she disclosed about her pregnancy to her mother. She says her mother did not know about her first pregnancy.
5. P.W.3 Gouranga Debnath is the person who scribed the FIR, Ext.2. P.W.5 Kanak Bhusan Roy says that Ext.1 (the undertaking) was seized in his presence and he went through the contents of that document. He says that the said document was written and signed by the accused and the knows the handwriting and the signature of the accused. In his cross-examination it has been taken that he was convicted in a case under section 379 1PC for committing theft of jute of one Subedar Prosad. Professionally he is a registered Amin(Surveyer). He says that he has seen many hand-writings of the accused and he is acquainted with his handwriting. P.W.6 Suren Singh is the father of Mousumi. He speaks in support of the statements made by his wife and daughter. He also says that he was present when the accused wrote the undertaking, Ext. 1. In his cross examination he says that he married Sonali about 30 years back. He deposed on 31.1.95. The learned Advocate for the appellant submits that his evidence thus shows that he married Sonabali in or about 1965. P.W.6. further says that his eldest son Ganesh was born within two or three years after his marriage, and his second son Ramesh was born two years thereafter and within two and half years thereafter his eldest daughter Mousumi was born. This, according to the learned Advocate for the appellant, show that the girl Mousumi was born about 7 or 8 years after the marriage of her father which indicates that Mousumi was born about 22 or 23 years prior to 1995. That being so Mousumi was about 18 years old and at any rate more than 17 years of age at the relevant time in October-November, 1990. It is submitted on behalf of the appellant that since the girl was over 16 years at the relevant time.
and sexual intercourse had taken place if at all, with the consent of the girl there is no question of attracting section 376 IPC. In this connection, the learned advocate for the appellant also attracts our attention to the evidence of P.W.8. Dr. Saibal Gupta who conducted medico-legal examination on the girl Mousumi on 16.2.91. Considering teeth. X-ray examination and clinical findings the doctor is of the opinion that the age of the girl was between 17 years and 19 years on the date of her X-ray examination on 18.2.91. He also opines that the girl was habituated to sexual intercourse and that there was evidence to declare that the girl was pregnant for four months. In cross-examination he says that Modi's latest view is three years but they still hold that the margin of age is two years. P.W. 10 Subimal Sarkar is the Sub-Inspector of police who investigated the case. He collected the school certificate of the girl Mousumi(Ext.8) from the headmaster of the Kharibari School. He says that the certificate was written by the clerk of the school and signed by the headmaster in his presence. He says that he did not seize the admission register. He also says that he tried to collect the birth certificate of Mousumi from the Birth & Death register but he failed.
6. From the evidence discussed above we have indeed no manner of doubt that the girl Mousumi conceived as a result of sexual intercourse with the accused some time in October/November, 1990. Thus she was carrying for about four months on the date of examination by P.W.8, Dr. Saibal Gupta in the middle of February. 1991. We are also convinced from the evidence on record which we have discussed that although denied by the accused, the Ext. 1 which is the undertaking dated 21.2.90 was written and signed by the accused. In that undertaking the accused not only acknowledged his responsibility for the pregnancy of Mousumi but also gave an undertaking that he will marry her and also bear her maintenance. From the evidence of Mousumi herself as discussed we are also convinced that a love affair developed between the girl and the accused resulting into voluntary sexual intimacy between them.
7. The question that has to be now dealt with by us is whether in the facts and circumstances the accused/appellant can be found guilty of the charge framed against him under section 376 IPC for committing rape on Mousumi in or about the middle of November. 1990. The pivotal question in this context is the question of age of the girl. If the girl were above 16 years of age on the material date and if the sexual intercourse took place with her consent, in that case the accused cannot be held guilty of rape in view of the definition of rape as contained in section 375 IPC. On the other hand if the girl were under 16 years of age on the material date, in that event it will be a case of rape irrespective of the question whether the act of sexual intercourse was committed with or without her consent. As we have seen, in the FIR lodged by the mother of the girl, the age of the girl has been stated to be 14/15 years at the time when the FIR was lodged. The FIR was lodged on 8.2.91. The prosecution have exhibited one letter dated 21.2.91 addressed to the Officer in-Charge of the concerned P.S. by the Headmaster of Kharibari High School wherein it is stated that the date of birth of Saraswati Singha--another name of Mousumi. as we get from evidence- is 15.1.80 and the date of admission has been recorded as 18.5.90. The Headmaster of the school however, has not been examined in the case, nor has the admission register of the school been produced. Significantly, the said certificate purportingly issued by the Headmaster regarding the age of the girl is however not at all consistent with the prosecution case. It her date of birth is 15.1.80 as mentioned in the said certificate, in that event she was only about 10 years and a few months in October/November , 1990 when the alleged occurrence of rape took place. It is extremely doubtful whether at the age of 10/11 years she was capable of conceiving as a result of any sexual intercourse when the established fact is that she conceived and even gave birth to a child as result of the sexual intercourse that took place in October/November, 1990. Moreover, the prosecution case in the FIR is that the girl was about 14/15 years in February, 1991. The purported school certificate thus stands condemned by the FIR itself. In the circumstances no credence whatsover can be at all given to the said purported certificate issued by the Headmaster The said certificate also stands condemmed again by the deposition PW. 1., the mother of the girl who says that the girl was 12/13 years (sic) the time of the incident which again is a deviation from her own case in the FIR regarding the age of her daughter. P.W.2, the girl herse (sic) says in her evidence that at the relevant time she was 13 years ok She thus gives an age lower than what is stated by her mother in the FIR. We have also seen that she stated in her cross-examination that since the Puja Festival of 1990 she had cohabitation with the accused P.W.8 Dr. Saibal Gupta. as we have seen, has opined that considering teeth, x-ray examination and clinical findings the age of the girl was between 17 and 19 years (in the middle of February, 1991). That would show that the girl was well above 16 years of age in October-November, 1990 when the incident of sexual intercourse between the accused and the girl took place. If that be so, and it was a voluntary affair between them as we have seen, in that event it is indeed difficult to hold that it was a case of rape.
8. The question whether the medical opinion should be put to use in favour of the prosection in an elastic way keeping in mind that there is a chance of variation of the opined age by 2 or 3 years on either side, must however be considered very cautiously. It needs no emphasis that the question whether the theoretical elasticity of medical opinion beyond the range recorded by the doctor in his report should be used against the accused has to be considered with due circumspection, keeping in view the basic principle of our criminal Jurisprudence that the benefit of any reasonable doubt should be in favour of the accused and not in favour of the prosecution and it is for the prosecution to prove the guilt of the accused beyond all reasonable doubt and not for the accused to prove his innocence. In a case of rape-charge where there is no other evidence of no trustworthy and reliable evidence as to the age of the girl or the evidence is self-condemned and the medical opinion records the age of the girl, as in the present case, between 17 & 19 years at the material time, it will be surely unsafe to come to a Judicial conclusion that the girl was below 16 years of age by stretching downards the theoretical elasticity of the recorded age level when there are other equally potent possibilities that the actual age may be within the limits of the opined age range or may even be still higher than the opined upper limit if the theoretical elasticity is stretched upwards. The golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted (See Kali Ram v. State, AIR 1973 SC 1773, Sharad v. State, ). The benefit of doubt arising out of the three-pronged alternative possibilites embedded in the medical opinion, two of which go in favour of the accused as in our present case, must be given to the accused. - more so, where the other evidence adduced on behalf of the prosecution regarding age is also not convincing and the concrete medical opinion rather prima facie goes against the prosecution case. In such a situation the finding that is legitimately warranted, even without invoking the doctrine of benefit of doubt, is that the prosecution have not been able to prove the charge beyond reasonable doubt.
9. There is no doubt that the father of the girl is a very competent witness to tell about the age of the girt. We have already seen that the P.W.6, the father of the girl says in his evidence on 14.2.95 that he married the mother of the girl about 30 years back and his eldest son was born within 2 or 3 years after that marriage and the second son was born 2 years thereafter and within 2 1/2 years thereafter his eldest daughter Mousumi was born. That shows that the girl Mousumi was not less then 17 years of age in October/November. 1990 and she might have been even 19 years on that date. This again receives support from the concrete medical opinion about the age of the girl that the girl was aged 17 to 19 years at the relevant time. That being so when the evidence of the competent witness, namely, the father of the girl regarding her age coincides with the concrete medical opinion, it has to be held that the presecution have failed to prove the charge, as there is no scope of holding beyond reasonable doubt that at the material time the girl was below 16 years of age. Having regard to the totality of the facts, circumstances and evidence on the record we are therefore constrained to hold that the prosecution have not been able to prove beyond reasonable doubt that the girl was below 16 years of age at the relevant time.
10. It has been contended on behalf of the respondent that even if it is assumed that the girl was above 16 years of age at the material time yet her consent in this case was no consent in the eye of law as the accused in procuring her consent told that he would marry her, and believing on the same the girl submitted to sexual intercourse with the accused and that being so it cannot be said that the consent of the girl was a free or voluntary consent. In our opinion this contention is not tenable. In her cross-examination the girl indeed says that the accused told her that he would marry her. Even if that be so that does not, in our opinion, vitiate the consent which the girl had given for the sexual intercourse fully understanding the nature and implication of the act involved therein. It is not that the girl consented to the act on any understanding or misunderstanding that the concerned person was her husband (as distinct from 'would be' husband). It is also not that the girl had any misconception about the nature of the act to which she consented. In this case obviously the girl Knew that what they were going to commit was act of sexual intercourse. That being so, it does not become a case of rape when she consented to the act of sexual intercourse fully knowing the nature and implication of such act and when she was fully aware that the person concerned was not yet her husband, even if he had proposed to marry her. The question whether there has been a breach of contract to marry, even if there were any such contract, is a totally different matter with which we are not concerned in deciding whether a criminal charge of rape under section 376 IPC has been established. From the moral and humanitarian angle of view, highly reprehensible indeed is the inhuman conduct of the appellant in abandoning the unfortunate girl to face her fate all alone, after making her pregnant, yet much to our anguish we must hold that such conduct by itself does not become a ground for holding the accused guilty of a charge of rape under section 376 IPC. Indeed the question whether the girl can possibly seek her redress for other reliefs available under law is not a matter for our consideration and it is on record that she has already filed a case against the appellant for maintenance in respect of herself and her child begotten by the appellant.
However, for reasons discussed above, we have to find the appellant not guilty of the charge framed against him under section 376 IPC and we hold accordingly. The impugned orders of conviction and sentence passed by the learned trial court are hereby set aside and the appellant is acquitted of the charge framed against him under section 376 IPC. He be set at liberty. The appeal stands allowed.
M.K. Basu, J.
11. I agree.
12. Appeal allowed