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Synopsis

The Calcutta High Court recently set aside a conviction order under Section 376 of the IPC against a man, while observing that the physical relationship between the appellant and the victim was consensual and the victim's age was not conclusively established by the prosecution before the Trial Court.

The division judge bench of Justices Debangsu Basak and Md. Shabbar Rashidi was hearing an appeal preferred against the conviction order of sentence dated January 18, 2021, passed by the Trial court Berhampore under Section 376 of the Indian Penal Code, 1860.

The bench while setting aside the conviction order stated that the evidence of the prosecution established that there was a relationship between the appellant and the victim. Further, the relationship between the victim and the appellant was consensual in nature, court highlighted. 

“It is trite law that when two views are possible then the one that favours the accused should be accepted,” the court said.

The victim had submitted a written complaint against the appellant, alleging that he raped her multiple times and she got pregnant. The police filed FIR against the accused based on the allegation under Sections 417 (punishment for cheating) and 376 (punishment for rape) of the IPC. The appellant agreed to marry her. However, the appellant refused to marry her subsequently.

The prosecution's case was that the appellant committed rape on the victim who was a minor girl aged about 13 years, on various days. In her deposition before the trial court, she mentioned a relationship of 10 years that she had with the appellant. She stated that she was 12/13 years at the time of the incident. Later on, she got pregnant, and a male child was born.

The main question in the cross-examination was the victim’s age. She denied that she was 37 years old at the time of the deposition. However, she admitted that she wanted to marry the appellant and thus filed the case with "this story”.

The father, grandfather and cousin sister of the victim stated that they were not eyewitnesses to the incident. The maternal uncle stated about the relationship between the victim and the appellant.

The trial court convicted the appellant for committing rape by order dated January 18, 2021. Thus, an appeal was preferred before the present bench challenging the order.

The present court was dealing with two issues:

1. Was the appellant guilty as charged?
2. Was the victim a minor at the time of the occurrence of this incident?

The court while dealing with the first issue mentioned that an accused can be convicted on the strength of the testimony of a rape victim provided that such testimony inspires confidence and is trustworthy. In this scenario, the victim’s testimony and her subsequent conduct did not inspire confidence in the Court as to her claims.

Thus, the bench set aside the charges levied on the appellant.

Further, the court noted that the DNA test had clearly established that the appellant was the father of the child born. Further, the court observed that the victim claimed rape in her deposition but the claim of rape was not corroborated by any other witnesses examined by the prosecution, also there was no eyewitness to the same.

Court said that the victim’s age was not conclusively established at the trial. Court noted that the prosecution did not produce any birth certificate of the victim at the trial.

“It is plausible to take a view that the physical relationship which developed between the appellant and the victim was consensual in nature. The 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. Hence, the prosecution had failed to establish the age of the victim at the time of the incident,” the court said.

Accordingly, the bench set aside the impugned judgment of conviction and acquitted the appellant.

Case Title: Farmuj Ali @ Farmiz Ali v. The State of West Bengal

Statute: Indian Penal Code, 1860.