Calcutta High Court (Appellete Side)
Farmuj Ali @ Farmiz Ali vs The State Of West Bengal on 3 May, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
C.R.A.129 of 2021
Farmuj Ali @ Farmiz Ali
VS.
The State of West Bengal
For the Appellant : Mr. Soumyajit Das Mahapatra,
Mr. Somnath Adhikary,
Ms. Madhurai Sinha, Advocates
For the State : Mr. Saswata Gopal Mukherji, Ld. P.P.
Mr. Partha Pratim Das,
Mrs. Manasi Roy, Advocates
Hearing concluded on : 03.05.2023
Judgement on : 03.05.2023
DEBANGSU BASAK, J.:-
1.
The appeal is directed against the judgment of conviction and
order of sentence dated January 18, 2021, passed by learned
Additional District & Sessions Judge, 4 th Court, Berhampore,
Murshidabad in Sessions Trial No.5(9)2005 arising out of
Sessions Trial Case No.395/2002 convicting the appellant under
Section 376 of the Indian Penal Code, 1860.
2. A written complaint was lodged by the prosecution witness
(P.W.) 1, against the appellant claiming that she was raped
several times by the appellant. She became pregnant. She
disclosed the matter of rape to her parents. Thereafter, her father
along with others called a village mediation on March 24, 1996.
The appellant agreed to marry her. However, the appellant
refused to marry her subsequently. Two further mediation
meetings took place on May 5, 1996 and May 14, 1996. However,
such mediation failed. Therefore, the police complaint.
3. On the basis of such written complaint of P.W.1 the First
Information Report (F.I.R.) was lodged by the police under
Sections 417/376 of the Indian Penal Code, 1860. Appellant was
chargesheeted. Charge under Section 376 of the Indian Penal
Code, 1860 was framed as against the appellant. Appellant
pleaded not guilty and claimed to be tried.
4. At the trial, prosecution examined 11 witnesses to prove the
charge. On completion of the evidence of the prosecution, the
appellant was examined under Section 313 of the Criminal
Procedure Code where he claimed to be innocent and falsely
implicated.
5. The case of the prosecution at the trial was that, the
appellant on different dates at a particular village committed
rape on the victim who was a minor aged about 13 years and as
a result of which, the victim became pregnant.
6. Victim deposed as P.W.1. In her deposition, she spoke of a
relationship between her and the appellant for 10 years. She
claimed that she was 12/13 years old at the time of the incident.
She spoke of an incident of rape. She claimed that she confided
in her elder brother and sister-in-law about the rape and about
the attempts. Attempts of matrimony between her and the
appellant ultimately failed. She spoke of a male child being born
to her. She also speaks of DNA test being held to ascertain the
paternity of the appellant. She stated that she lodged the written
complaint as per advice of her advocate.
7. In cross-examination, her age was questioned. She denied
that she was 37 years old at the time of deposition. She denied
the suggestion that, she was not 13 to 14 years old at the time of
incident. She, however, acknowledged that she wished to marry
the appellant and as such, she filed the case with "this story".
8. The grand-father of the victim deposed as P.W.2. He was not
an eyewitness to the incident. He spoke of the village mediation.
He also spoke about the pregnancy of the victim. In cross-
examination, he stated that he did not know about truthfulness
of the incident.
9. Father of the victim deposed as P.W.3. He stated that the
victim was 13/14 years old at the time of incident. He was not an
eyewitness to the incident. He spoke about the village mediation
being called.
10. In cross-examination, he described his age and time when he
was married. He stated the age of her spouse and the time when
the victim was born.
11. P.W.4 is the village head who corroborated the fact that a
village mediation was held between the families of the victim and
the appellant.
12. The cousin sister of victim deposed as P.W.5. She also spoke
about the village mediation. She was not an eyewitness to the
incident. She, however, could not speak about the date of birth
of the victim in her cross-examination.
13. The maternal uncle of the victim deposed as P.W.6. He spoke
about the relationship between the victim and the appellant. He
also corroborated that a village mediation was held.
14. The first Investigating Officer deposed as P.W.7. He prayed for
extension of the period of investigation. He submitted the charge-
sheet against the appellant.
15. P.W.8 is the second Investigating Officer. He drew the rough
sketch map along with index which was tendered in evidence
and marked as Exhibit-1. He tendered the First Information
Report which was marked as Exhibit-2. He also tendered written
complaint written by a police personnel which was marked as
Exhibit-3.
16. A pathologist, then in service, with the Sub Divisional
Hospital deposed as P.W.9. He tendered the certificate dated
August 26, 1999 which was marked as Exhibit-4. He also
tendered the report which was marked as Exhibit-5, 5/1 and 5/2
respectively.
17. The scribe of the written complaint, an advocate, deposed as
P.W.10. He identified his signature and the signature of the
P.W.1 in such written complaint, which was marked as Exhibit-
3/1 and 3/2.
18. Another Investigating Officer deposed as P.W.11. He spoke
about the arrest of the appellant and collection of the DNA test
samples. The DNA Report was tendered in evidence and marked
as Exhibit-6 under Section 294 of the Criminal Procedure Code.
19. The issues that fall for consideration in this appeal are:-
(i) Is the appellant guilty as charged?
(ii) Was the victim a minor at the time of the occurrence of this
incident?
20. The evidence of the prosecution established that there was a
relationship between the appellant and the victim. The DNA test
report being Exhibit-6 established that the appellant was the
father of the child born to P.W.1. P.W.1 claimed that at the
behest of the appellant, she became pregnant. She claimed rape
in her deposition and in the written complaint being Exhibit-1.
21. The claim of rape is not corroborated by any other witnesses
examined by the prosecution. There is no eyewitness to the
incident spoken of by the P.W.1. In fact she spoke of a
relationship between her and the appellant over a period of time.
22. Prosecution witnesses including relatives of the victim in
unison stated that there was a relationship between the victim
and the appellant. They also spoke of mediation. P.W.1 herself
stated that in the mediation, initially, the appellant agreed to
marry her but the marriage did not take place as the brother of
the appellant did not agree to it.
23. There are embellishments between the versions of the
incident of rape and the subsequent events as made out by
P.W.1 in her written complaint being Exhibit-1 with that of her
oral testimony in Court. In Exhibit-1 she stated that she confided
about incident with her mother and then her relatives intervened
for the village mediation. Such version stood altered to her
confiding in her elder brother and sister-in-law in her oral
deposition. Apart from that there are other embellishments about
the incident of rape itself. In her cross-examination, she
acknowledged that she wanted to marry the appellant and as
such, she filed the police case "with the story".
24. Accused can be convicted on the strength of the testimony of
a rape victim provided that such testimony inspires confidence
and is trustworthy. In the facts of the present case, the
testimony of P.W.1 and her subsequent conduct does not inspire
confidence of the Court as to her claims.
25. P.W.1 claimed that the relationship between her and the
appellant was of 10 years. In the same breath she claimed that
she was 13/14 years old at the time of the incident.
26. Taking the fact that there was a relationship between her and
the appellant of 10 years and she being 13/14 years when the
incident took place, then, she was 3/4 years when she developed
her relationship.
27. Age of the P.W.1 was not conclusively established at the trial.
Although, P.W.1 denied that she was 37 years old at the time
of her deposition which makes her about 24 years when the
incident occurred, as noted above, her age was not conclusively
established at the trial. Prosecution did not produce any birth
certificate of the victim at the trial.
28. Evidence of P.W.1, the victim, establishes a relationship
between her and the appellant. It is plausible to take a view that
the physical relationship which developed between the appellant
and the victim, was consensual in nature. Age of the victim was
not conclusively established. We are not in a position to
conclusively say that the appellant entered into a physical
relationship with a minor.
29. It is trite law that when two views are possible then the one
that favours the accused should be accepted.
30. In view of the discussions above, the first issue is answered
in the negative and in favour of the appellant. The second issue
is answered by holding that the prosecution failed to establish
the age of the victim at the time of the incident.
31. Consequently, we are of the view that the charge as against
the appellant was not proved beyond reasonable doubt.
32. We, therefore, set aside the impugned judgment of
conviction and the order of sentence and acquit the appellant of
the charge framed.
33. CRA 129 of 2021 is allowed.
34. Appellant is directed to be set at liberty forthwith, if not
required in any other case. He shall, however, furnish a bail
bond to the satisfaction of the Trial Court which shall continue
for six months from date in terms of Section 437A of the
Criminal Procedure Code.
35. A copy of this judgment and order along with the trial court
records be transmitted to the appropriate Court forthwith.
36. Urgent photostat certified copy of this judgment and order,
if applied for, be given to the parties on priority basis on
compliance of all formalities.
(Debangsu Basak, J.)
37. I Agree.
(Md. Shabbar Rashidi, J.)
CHC/AD
