IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
C.R.A. 279 of 1994
Md. Sarifat Hussain
State of West Bengal
Ms. Faria Hossain … appears as Amicus Curiae
For the State : Mr. Ayan Basu
Heard on : 04.07.2017
Judgement on: 04.07.2017
Joymalya Bagchi, J. :-
The appeal is directed against the judgement and order dated 1st October, 1994
passed by the learned Additional Sessions Judge, Islampur in Sessions Case No. 22/93
convicting the appellant for commission of offence punishable under Section 376 of the
Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and
to pay a fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for six months more.
Since nobody appears on behalf of the appellant, Ms. Faria Hossain, learned
advocate, is requested to appear as Amicus Curiae in the matter.
Mr. Ayan Basu, learned advocate, who ordinarily appears for the State, is
requested to appear in the instant case for the State.
The prosecution case as alleged against the appellant and other accused persons
is to the effect that the victim, Marjina Khatoon used to reside in the house of her maternal
aunt and the appellant was her son. On 9th March, 1992 at 10:00 P.M. it is alleged that the
appellant committed rape upon the victim on the false promise of marrying her. It is further
alleged that she was 15 years of age at the time of occurrence. The victim became
pregnant because of such sexual intercourse and when she was at an advanced stage of
pregnancy, the appellant took the victim to the house of one Sabratu where she was
confined for ten days and the aforesaid Sabratu with the help of his wife, Ajifa Khatun
administered medicine to cause miscarriage without the consent of the victim.
Subsequently, on 9th August, 1992 the appellant along with one Hakimuddin and Isarul
Haque took the victim to Dr. Mojibar Rahaman of Chakulia P.H.C. and aborted the unborn
child. Thereafter, the appellant brought the victim back to her home and she narrated the
incident to her mother, Hasira Khatun and other witnesses. Over the said issue, the victim
took out an application before the learned Magistrate and pursuant to the direction of the
learned Magistrate, FIR was registered against the appellant under Sections 376/315 IPC
and against the other accused persons namely, Sabratu, Hakimuddin, Isarul Haque and
Ajifa Khatun under Sections 315/344/109 of the Indian Penal Code. In conclusion of
investigation, charge-sheet was filed and the case was committed to the Court of
Sessions and transferred to the Court of the Additional Sessions Judge for trial and
disposal. Charges for the aforesaid offences were framed against the appellant and other
accused persons who pleaded not guilty and claimed to be tried. In the course of trial,
prosecution examined six witnesses. The defence of the appellant was one of innocence
and false implication. In conclusion of trial, the trial Judge by the impugned judgement and
order convicted the appellant for commission of offence under Section 376 IPC and
sentenced him, as aforesaid. Appellant and the other accused persons were acquitted of
the other charges levelled against them.
Ms. Faira Hossain, learned Amicus Curiae, submitted that there is no cogent
evidence to show that the victim had not attained the age of consent at the time of
occurrence of the incident. The conduct of the victim at the time of occurrence and
thereafter throws serious doubt as to the fact that she had been forcibly ravished by the
appellant. Hence, the appeal ought to be allowed.
On the other hand, Mr. Ayan Basu, learned advocate appearing for the State,
submitted that there is evidence on record to show that the victim was a minor and the
appellant had sexual intercourse on the false promise of marriage. Hence, the appeal is
liable to be dismissed.
PW1 is the victim and the most vital witness in the instant case. She deposed that
she used to reside in the house of her masi since the tender age of nine years. When she
was fifteen years of age, the appellant committed rape on her. The incident happened in
the absence of her masi. She was dragged out of the house on the verandah. On the
promise of marriage, appellant raped her. As a result, she became pregnant. She told the
appellant that she had become pregnant. The appellant told her not to disclose it to
anybody. When she stayed in the house of Sabratu for fifteen days, the appellant
administered medicine for the purpose of abortion but was unsuccessful. The appellant
brought her to Chakulia P.H.C. for abortion. The doctor gave injection to her against her
will. She was administered medicines including saline for three days. After three days she
regained her consciousness and found blood stains in her private parts. She stayed there
for a week. Dr. Mojibar Rahaman failed to abort on the day she went to the P.H.C. She
was shifted to his house where the abortion was done. Thereafter, she came to her
father’s house and narrated the incident to her mother. She went to police who advised
her to file a case. As she was weak there was delay in filing the case.
In cross-examination, she stated that her mother told her that she was fifteen years
of age. She could not state when her name was enlisted in the voters’ list. She used to
meet her bhagnipati and sister while she stayed at her masi’s house. She does not know
her actual date of birth.
PW2 is the mother of the victim. She deposed that the victim used to reside in the
house of the appellant on the request of her sister, Jahara. She had sent the victim to their
house for work. She came to know of the pregnancy of the victim from the appellant when
the victim was sent to Chakulia P.H.C. for abortion. She could not say when the victim
was released from Chakulia P.H.C.
In cross-examination, she could not state when the victim’s name was listed in the
voter’s list. She, however, admitted that the victim used to cast vote during her stay in the
PW3, Jamiruddin is the neighbour of PW2. He came to know of the pregnancy of
the victim after she came to her mother’s house. The victim told that she was made
pregnant by the appellant. He heard that the abortion was done in Chakulia.
PW4 is the brother-in-law of the victim. He deposed that she used to stay in the
house of her aunt. Subsequently, she became pregnant due to cohabitation with the
PW5 is the Medical Officer who was posted at Chakulia P.H.C. on 24th September,
1992. He proved the certificate issued by him (Exhibit-2).
In cross-examination, he stated that abortion was done in order to save the life of
the victim as she was in severe pain.
PW6 is the lawyer who drafted the complaint on the dictation of the victim. He
proved the complaint (Exhibit-1/1).
From the evidence-on-record it appears that the victim was residing in the house of
her maternal aunt since she was a child. It is alleged that on the date of occurrence, on
the promise of marriage, the appellant had sexual intercourse with the victim. The victim,
however, kept quiet till she discovered that she was pregnant. Even after coming to know
of such pregnancy, the victim narrated the incident only to the appellant and not to her
mother or other relations, although there is evidence on record that the mother and other
relations of the victim including her brother-in-law (PW4) used to meet her at the
residence of the appellant. Subsequently, the victim was taken to Chakulia P.H.C. and
aborted by PW5. PW5 does not depose that such abortion was against the will of the
victim. On the other hand, it appears that the victim was aborted in order to save her life.
Although the victim claimed that after the abortion she narrated the incident to her mother
(PW2), the latter, however, states that she came to know of the incident from the
appellant. The aforesaid state of affairs gives an impression that the victim and the
appellant had become intimate with each other and had developed physical intimacy.
Upon realising that the victim had become pregnant, they together went to Chakulia
P.H.C. and the victim was aborted. Thereafter, the appellant narrated the incident to the
mother of the victim.
In this backdrop, I am unable to accept the prosecution case of alleged forcible
sexual assault on the victim. Mere failure to live up to the promise of marriage does not
show that the appellant did not intend to marry the victim at the time when they had
cohabited with each other. No incriminating circumstance has transpired in evidence to
show that the appellant had refused to marry the victim subsequently. Hence, it cannot
also be said that the consent of the victim had been procured due to misrepresentation or
Coming to the issue as to whether the victim had attained the age of consent, I find
that no ossification test was done on the victim to determine her age. No
contemporaneous document was also placed on record to establish the age of the victim.
PW2, the mother of the victim was silent as to her age. On the other hand, in cross-
examination, she deposed that the victim was casting her vote from the time she was
residing with her i.e. immediately after the occurrence. Version of PW1, the victim, as to
her own age is inadmissible in the absence of corroboration of such fact from her mother
(PW2). Hence, the prosecution has not been able to prove beyond reasonable doubt that
the victim was below the age of consent i.e. sixteen years at the time of commission of the
In view of the aforesaid discussion, I am of the opinion that the conviction and
sentence imposed upon the appellant is liable to be set aside.
Accordingly, the appeal is allowed. The conviction and sentence imposed upon the
appellant is set aside.
The appellant shall be discharged from his bail bond after six months from date in
terms of Section 437A of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement be sent down at once
to the learned trial court for necessary action.
I record my appreciation for the able assistance rendered by Ms. Faria Hossain,
learned advocate, as Amicus Curiae in disposing of the appeal.
Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
(Joymalya Bagchi, J.)