Calcutta High Court (Appellete Side)
Nakul Biswas vs The State Of West Bengal on 8 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
Item no. 11/Aloke/s.das
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 610 of 2008
Nakul Biswas
Versus
The State of West Bengal
For the Appellant : Mr. Prabir Majumder, ld. Adv.
For the State : Mr. Saswata Gopal Mukherjee, ld. P.P.
Mr. Pradipta Ganguly, ld. Adv.
Heard on : 08.12.2017
Judgement on : 08.12.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 18.11.2006 passed by the learned Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia in Sessions Trial No. XV(7)06 arising out of Sessions Case No.29(7)06 convicting the appellant for the offence 2 punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for four months.
The prosecution case, as alleged, against the appellant is to the effect that the victim had a love affair with the appellant and it is alleged that they became intimate to one another. On 28.11.2005 when the parents of the victim were not in the house she was taken by the appellant to his house and the latter forcibly raped her. After returning home, she informed the incident to her parents and thereafter they went to the house of the appellant and informed his mother and elder brother about the incident who assured that the matter would be settled and marriage would be arrayed between the parties. Three days after the incident the appellant refused to marry the victim and first information was registered at Kotwali P.S. being Kotwali P.S. case no. 76/06 dated 17.03.2006 under Section 376 of the Indian Penal Code. On the complaint of Dukhiram Sadhukha, father of the victim, the case was investigated. On completion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Fast Track Court IV, Krishnagar, Nadia for trial and disposal. Charges were framed under Sections 376/493 of the Indian Penal Code against the appellant.
The appellant pleaded not guilty and claimed to be tried. The defence of the appellant was one of innocence and false implication. 3
It was the specific case of the appellant that the victim was major at the time of incident and a consenting party. All witnesses except the parents of the victim were declared hostile. He accordingly prayed for acquittal.
Learned Public Prosecutor with Mr. Gantuly, learned counsel submits that P.W. 1 stated that victim was forcibly raped and had become pregnant. Hence, appeal is liable to be dismissed.
P.W. 1 is the victim. She deposed that she had a love affair with the appellant and on the relevant date that is 12th agrahan around 5 p.m. she went to the house of appellant and the appellant committed rape on her against her will. She came back and after two days she disclosed the incident to her parents. Her parents brought up the issue with the parents of the appellant who stated that the matter shall be resolved amicably and assured that she would be given in marriage to the appellant. After 2/3 months of the incident, parents of the appellant refused to consent to the marriage. Accordingly, the instant case was instituted. Her statement was recorded under Section 164 Cr.P.C. Her evidence is corroborated by P.Ws. 2 and 3, her parents. However, all other witnesses have turned hostile and have not supported the prosecution case.
With regard to the age of the victim, P.W. 8 the doctor who held the ossification test of the victim deposed that she was aged about 19 years with allowable variation.
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P.W. 9, the Headmaster of Gokhurapota Netaji High School stated that the date of birth of the victim as mentioned in her certificate is 09.08.1987.
From the aforesaid evidence it is clear that the victim was above 18 years at the time of the incident. From the deposition of the victim that there was a love affair between herself and the appellant and her subsequent conduct of keeping silent even after the alleged forcible rape, I am of the view that the cohabitation between the victim and the appellant was consensual and the allegations of forcible rape is not supported by the attending facts and circumstances of the case.
It appears that the marriage between the victim and the appellant was scuttled by the parents of the appellant and subsequently the criminal case was registered. In view of the fact that the marriage could not be fructify due to the opposition on the part of the parents of the appellant, one cannot say with certainty that the appellant did not have any intention at the time of cohabitation not to marry the victim and had acted in a dishonest or fraudulent manner.
Hence, I am of the opinion that the ingredients of the offence punishable under Section 376 of the Indian Penal Code have not been proved in the facts of the case.
The appeal is, accordingly, allowed.
The conviction and sentence of the appellant is set aside. 5 The appellant shall be released forthwith from custody if not already released in accordance with law.
Copy of this judgment along with the lower court records be sent down to the trial court at once for necessary compliance.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)