Tripura High Court
Md. Ali Hossain @ Ali Hossain vs State Of Tripura on 12 February, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) 4 of 2024
Md. Ali Hossain @ Ali Hossain
......Appellant(s)
Versus
State of Tripura
.......Respondent(s)
For the Appellant(s) : Mr. Ratan Datta, Advocate.
Mr. S. Debnath, Advocate.
For the Respondent(s) : Mr. R. Saha, Addl. P.P.
Date of hearing & delivery
of Judgment & order : 12.02.2025.
Whether fit for reporting : Yes/No __
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
J U D G M E N T & O R D E R(ORAL)
[T. Amarnath Goud, J]
Heard Mr. Ratan Datta, learned counsel appearing along
with Mr. S. Debnath, learned counsel for the appellant. Also heard
Mr. R. Saha, learned Addl. PP appearing for the State-respondent.
[2] This present appeal is filed under Section 374(2) of
Cr.P.C against the impugned Judgment and order of conviction and
sentence dated 21.12.2023 passed by the learned Additional
Sessions Judge, Sepahijala District, Bishalgarh in Case No. ST (T-I)
10 of 2016 whereby and where-under, the appellant has been
convicted under Section 376(1) of IPC and thereby sentenced to
suffer RI for 10 (ten) years and to pay a fine of Rs 1,00,000/- only
and in default of payment, to suffer RI for further one year.
[3] The prosecution story in brief is that on 26.02.2012 at
about 23:00 hours the informant of Pramodnagar Patrompara
submitted a written FIR to the effect that on 24.02.2012 his
daughter was under treatment at Bishramganj Sen Medical Hall by a
private doctor due to her illness. During check up by that doctor, he
came to know that his daughter was pregnant for 6 months and
upon query, she disclosed her parents that one Md. Ali Hossain of
their locality had raped upon her about 8 months back, but due to
shame and fear she did not disclose the said fact to them.
[4] On the basis of the written FIR of the informant, O/C
Bishramganj PS registered the instant case against the accused
person namely Md. Ali Hossain and the investigation was endorsed
to an SI and on his transfer, the case was re-endorsed to another
SI. Thereafter, he was also transferred and on his transfer, the case
was again endorsed to a PSI of Bishramganj PS to complete the
investigation. After conclusion of investigation, the I/O filed the
Charge Sheet vide No. 70 of 2012 dated 30.11.2012 U/S 376 of IPC
against the accused person namely, Md. Ali Hossain before the
Court. Charge was framed and Prosecution adduced their respective
evidences and the accused was examined under Section 313 CrPC
and he also adduced oral evidences. After hearing the parties and
on the basis of material evidence on record, the learned Trial Court
convicted the appellant U/S 376 (1) of IPC and sentenced him to
suffer RI for 10 (ten) years and to pay a fine of Rs 1,00,000/- only
and in default of payment of fine he shall suffer RI for further one
year.
[5] Aggrieved by the aforesaid judgment and order of the
learned Court below passed on 21.12.2023, the accused person,
appellant herein, has preferred the instant appeal seeking following
reliefs:
"i. Admit this appeal;
ii. Call for the record;
iii. Issue notice upon the respondent; and
iv. After hearing the parties be pleased enough to set aside the
impugned Judgment of conviction and sentence dated 21.12.2023
passed by Ld. Additional Sessions Judge****, Bishalgarh,
Sepahijala, in Case No. S.T. (T-1) 10 OF 2016 whereby and where
under the appellant has been convicted Under Section 376(1) of
IPC and thereby sentenced him to suffer RI for 10 (ten) years and
to pay a fine of Rs 1,00,000/- only, and in default of payment, he
shall suffer RI for further one year........"
[6] Mr. Ratan Datta, learned counsel for the accused
appellant submits that the FIR was lodged after 8 months of the
alleged incident stating inter-alia that on 24.02.2012 daughter of
the complainant was under treatment at Bishramganj Sen Medical
Hall by a private Doctor due to her illness and during checkup by
that Doctor, he came to know that his daughter was pregnant for 6
months. On being asked, the victim girl disclosed her parents that
one Md. Ali Hossian had raped upon her about 8 months back, but
due to shame and fear she did not disclose the said fact to them. He
further submits that from the said fact, it is clear that the victim
was consenting party as she did not disclose the alleged incident till
she became pregnant but the learned Court below failed to
appreciate the same. Learned counsel, for the purpose of reference,
has placed reliance on the judgment of the Hon'ble Supreme Court
in Deepak Gulati v. State of Haryana reported in AIR 2013
Supreme Court 2071. The relevant contents of the said judgment
as referred by the learned counsel is quoted herein-below:
"......18. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent is an act
of reason, accompanied by deliberation, the mind weighing, as in a
balance, the good and evil on each side. There is a clear distinction
between rape and consensual sex and in a case like this, the court
must very carefully examine whether the accused had actually
wanted to marry the victim, or had mala fide motives, and had
made a false promise to this effect only to satisfy his lust, as the
latter falls within the ambit of cheating or deception. There is a
distinction between the mere breach of a promise, and not fulfilling
a false promise. Thus, the court must examine whether there was
made, at an early stage a false promise of marriage by the
accused; and whether the consent involved was given after wholly,
understanding the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the accused,
and not solely on account of mis-representation made to her by
the accused, or where an accused on account of circumstances
which he could not have foreseen, or which were beyond his
control, was unable to marry her, despite having every intention to
do so. Such cases must be treated differently. An accused can be
convicted for rape only if the court reaches a conclusion that the
intention of the accused was mala fide, and that he had
clandestine motives......."
[7] He further submits that the victim stated at the time of
recording her statement by the Ld. Judicial Magistrate, 1 class U/S
164 (5) of Cr.P.C, that she was raped by the accused three times
and in the evidence before the Trial Court she deposed that she was
raped once by the accused. The victim girl was also examined by
the I.O. immediate after registration of the case and she stated that
she was raped three times by the appellant and said contradiction
has been proved by the I.O. (PW-13) as Exhibit A and Ld. Judicial
Magistrate 1st Class, (PW-8). Due to such contradictory statements
made by the victim girl, learned counsel for the accused, therefore,
prays before this Court that the impugned order dated 21.12.2023
passed by the learned Trial Court be set aside. To support his
contention, Mr. Datta, learned counsel has placed reliance on the
judgment of the Hon'ble Supreme Court in Manak Chand alias
Mani vs. State of Haryana reported in 2023 SCC OnLine SC
1397. The relevant contents of the said judgment as referred by
the learned counsel for the accused appellant is quoted here-under:
"...10. Does the testimony of the prosecutrix in the present case
inspire confidence? We are afraid it does not. Let us appreciate the
facts once again. Although, the first incident of rape is alleged to
be of 12.09.2000, the prosecutrix does not disclose this to anyone
immediately. She then alleges rape again on two or three different
occasions later, though no date and time are disclosed. She only
discloses it to her mother after one and half months. It has then
come in the evidence led by none other but the prosecution (in the
school register submitted in the court by PW-2 i.e., Ram Sahay),
that the prosecutrix had attended her classes in the school on
12.09.2000 at Dabwali, where she resides with her parents. We
must note that she has alleged rape on the same day at village
Sanwat Khera, where she was staying at the relevant time with
her sister in her matrimonial house. This seems improbable, if not
impossible. The other aspect is the admitted position of the
prosecution itself that the FIR was ultimately filed as the initial
proposal of marriage was then turned down. All these facts do cast
a doubt on the story of the prosecution........"
[8] On the contrary, Mr. R. Saha, learned Addl. P.P. for the
State opposes the above submissions made on behalf of the
accused. He contends that due to shame and fear the victim did not
disclose the incident of rape committed to her parents and there
was no consent from the side of the victim regarding sexual
intercourse. He further submits that as per the DNA Test, it is clear
that the accused is the biological father of the baby and as a result
of the rape committed by the accused that baby was born by the
victim. Learned Addl. P.P., therefore, urges this Court to dismiss the
instant appeal filed by the accused appellant.
[9] Heard learned counsel for the respective parties. Perused
the record.
[10] It is seen from record that the victim stated at the time
of recording her statement by the learned Judicial Magistrate, 1st
class under Section 164 (5) of Cr.P.C, that she was raped by the
accused three times. Whereas, before the Trial Court, as P.W. 4, the
victim deposed that she was raped once by the accused. The
Investigating Officer (P.W. 13) and the learned Judicial Magistrate
1st Class (P.W. 8) in their respective deposition also stated that at
the time of recording her statement, the victim girl stated that she
was raped by the accused on three occasions. The way prosecution
has projected the case and being found contradictions and
inconsistencies in the statements in course of trial, it would be very
difficult for this Court to believe the projected case of the
prosecution. It is settled proposition of law that the charge framed
against the accused person has to be established and proved
beyond reasonable doubt. In the present case, the statement of the
victim recorded by the I.O. and the statement recorded under
Section 164 (5) of Cr.P.C by the learned Judicial Magistrate, 1st
class, show contradictions with the deposition of the victim before
the Trial Court regarding the sexual intercourse. Prima facie, this
Court feels that the contradictions in the statements of the victim
can weaken the prosecution case and it may be difficult to
understand whether there was any consent or not as per version of
the victim.
[11] It is further revealed from record that P.W. 1, the doctor
deposed that he had conducted the DNA fingerprint test as per
standard protocol and opined that the victim girl is the biological
mother of the baby and the accused person is the biological father
of that baby.
[12] D.W. 2, the Panchayat Pradhan of Pramod Nagar
Panchayat deposed before the learned Trial Court in the following
manner:
"..... that Ali Hossain Committed an unsocial work with the
daughter of ****. The matter was resolve with a written resolution
were signatures of both the sides were obtained and I also put my
signature...."
The Panchayat Pradhan in her Cross-examination stated
that ".....We had knowledge on the date of resolution that the
victim girl gave birth to a male child. It is a fact that Ali Hossain
committed rape upon the daughter of **** due to which she
became pregnant and gave birth to a child......"
[13] On perusal of record, this Court finds that it is not fair on
the part of the accused since while in his examination under Section
313 of the Cr.P.C., he denied the said fact that he is the biological
father of that baby, but now, it is argued on behalf of him before
this Court that the victim is a consenting party in this case. As per
the DNA test, it is established that there was sexual intercourse
between the accused and the victim girl as they are the biological
parents of that child. This sort of act by the accused draws an
adverse inference upon him.
[14] Since as per FIR dated 26.02.2012, the alleged incident
was occurred in the year 2011, for the purpose of reference, the
provision of Section 376 (1) before its amendment in the year
2018, is reproduced herein-below:
"376. Punishment for rape.- (1) Whoever, except in the cases
provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall not
be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine
unless the woman raped is his own wife and is not under twelve
years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend to
two years or with fine or with both:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years........"
[15] In view of the above discussions, this Court is of the view
that though the statements of the victim regarding number of
committed rape upon her are contradictory, but, the accused has
also failed to prove his case that the victim was a consenting party.
From the conduct of the accused, it is clear that he had ill motives
only to satisfy his lust, and as a result, the victim and her family
had to suffer social and psychological impact. Thus, we are of the
considered opinion that ends of justice would be met if the accused
is sentenced under Section 376(1) to suffer Rigorous Imprisonment
for 2 (two) years and to pay a fine of Rs.2,00,000/- (Rupees Two
Lakhs) only and in default of payment to suffer R.I. for further one
year. Accordingly, the same is ordered and the impugned Judgment
and order of conviction and sentence dated 21.12.2023 passed by
the learned Additional Sessions Judge, Sepahijala District,
Bishalgarh in Case No. ST (T-I) 10 of 2016 is modified to the extent
as indicated above.
It is needless to observe that the period of detention in
custody already undergone, shall be set off.
With the above observations and directions, the instant
appeal is partly allowed and thereby, the same is disposed of. As a
sequel, miscellaneous application(s), pending if any, shall also stand
closed.
Send down the LCR.
B. PALIT, J T. AMARNATH GOUD, J
Sabyasachi G.
SABYASACHI GHOSH Digitally signed by SABYASACHI GHOSH
Date: 2025.02.14 16:50:06 +05'30'
