Gauhati High Court
Mostafijur Ahmed vs The State Of Assam on 18 March, 2020
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/4
GAHC010047892020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB 759/2020
1:MOSTAFIJUR AHMED
S/O NABED ALI SHEIKH,
R/O WARD NO. 4, P.S.-GAURIPUR,
DIST-DHUBRI, ASSAM,
PIN-783331
VERSUS
1:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR,
ASSAM
Advocate for the Petitioner : MR. D DEKA
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
18-03-2020.
By this second application under Section 438 CrPC, the petitioner, namely, Mostafijur Ahmed has sought for pre-arrest bail in the event of his arrest, in connection with the Nagaon P.S. Case No. 3118/2019, under Sections 376/506 of the IPC.
Heard Mr. B.K. Mahajan, learned Counsel for the petitioner and Mr. N. Kalita, learned Addl. Public Prosecutor for the State of Assam. I have also heard Mr. S.B. Rahman, learned counsel appearing for Page No.# 2/4 and on behalf of the informant.
Today the case diary has been produced along with the report sought for, after verification of the relevant SMS and Facebook messages between the parties.
On the earlier occasion, this Court after considering the testimony of the informant, who has stated about the forceful allegation of rape, has rejected the bail prayer of the petitioner. Subsequent thereto, the petitioner has come up with the present petition along with certain SMS messages and some video clips to submit that the victim/informant who has a long relationship with the petitioner, was constantly in relation till filing of the FIR and subsequent thereto, which proved that such an FIR has been filed to take grudge against the petitioner who has solemnized his marriage with another woman prior to few months of the occurrence. The text of the SMS messages as well as the video clips have been brought on record and the I.O. was directed to verify the same as regards their authentication and in turn the I.O., after verification of the messages has given a report along with the CDR, which supports the contention raised by the petitioner that the victim girl one sidedly used to send lots of messages since the middle of the year 2019 till the date of occurrence and subsequent thereto.
It is the admitted position that the informant is in love and relationship with the present petitioner since 2015 and there was a marriage proposal but subsequently the petitioner married another woman. In this context, the learned counsel for the petitioner cited certain SMS messages, sent by the victim girl dated 08.05.2019, 08.06.2019, 16.09.2019 as well as 20.01.2020, through which the informant has threatened the petitioner that if he treated her in like manner, she will file rape case against him and that she will commit suicide after fastening all the serious allegation against him. On 20.09.2019, the informant stated that she cannot live without him and recently, after the incident of 20.01.2020, she had sent a message wishing him happy birth date. Such a conduct of the informant itself reveals that she was in deep love with the present petitioner and she was however not happy as the petitioner did not maintain his relation with her for which the victim uploaded a video on 20.01.2020, i.e. on the date of occurrence under the heading " me phir vi tumko sahunga".
The petitioner herein by filing additional affidavit has also brought on record another video clip dated 06.10.2019, wherein the informant/victim has called the public to stop the marriage between the petitioner and one Jenifar Rahman, going to be solemnized between the duo, vide Annexure-8. In the said message, she also revealed about her cordial relationship with the petitioner since last five years and that they used to live together.
The learned counsel for the informant has, on the other hand filed objection by way of an affidavit Page No.# 3/4 that once the victim has stated there was not consent for the incident that happened on 20.10.2019; so it will amount to rape within the purview of law. The informant however admitted all about the aforesaid messages and the video clips etc., to contend that it were all prior to the incident and so they have no bearing in the incident that had happened on 20.10.2019. In the objection so filed by the informant side in para-4, it is categorically admitted that the parties are in love relationship and the petitioner had committed rape upon her on many occasions including on 20.10.2019 and he has cheated her by not disclosing his marriage on 04.09.2019. Such a contention has totally negated the stand taken by the informant in the FIR. She has stated that she does not believe in such physical relationship prior to the marriage and so resisted the petitioner from committing the offence but he however forcefully committed rape upon her. On the earlier occasion, the informant never comes up with the allegation of rape, but she maintained the physical relationship with him. Subsequently she has also filed the FIR on the allegation of rape for the incident that took place on 20.10.2019.
The Hon'ble Supreme Court, in Criminal Appeal No.1443/2018 (Dr. Dhruvaram Murlidhar Sonar vs. The State of Maharashtra & others) has dealt with such an offence of consensual sex between the partied and it has been held that acknowledged consensual relationship between the parties would not constitute an offence under Section 376 of the IPC.
After considering all details and the subsequent conduct that has been brought on record, there is no hesitation to hold that the informant who maintained such consensual relationship with the petitioner for a long period, has suddenly raised the allegation of rape, which may be for her frustration for non- solemnization of marriage between them. The informant's admitted SMS messages indicate her mental position. The denial of marriage after such a long relation may obviously offended the victim but in the given circumstances, it is difficult to hold that the accused/petitioner has committed rape within the purview of law.
Accordingly this Court is of the opinion that custodial detention of the accused/petitioner is not warranted in the given facts and circumstances. Accordingly the earlier order so passed on 11.02.2020, in A.B. No.3967/2019, is hereby recalled and the present petitioner, named above is allowed to go on pre-arrest bail of Rs.10,000/-, with one surety of like amount, in the event of his arrest by the arresting officer in connection with the Nagaon P.S. Case No. 3118/2019, with further direction to the petitioner to appear before the I.O., within fifteen days from today and he shall cooperate with investigation of the case.
The bail petition stands disposed of.
Return back the case diary forthwith.
Page No.# 4/4 JUDGE Comparing Assistant