Calcutta High Court Acquits Man In Rape Case, Says Physical Relationship Was Consensual

While setting aside the conviction of the appellant-accused, the division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed:

“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.”

A written complaint was filed by the victim against the appellant claiming that she was raped several times by him and she became pregnant. On the basis of the complaint, an FIR was registered by the police against the accused under Section 417 (Punishment for cheating) and Section 376 (Punishment for rape) of IPC.

The trial court convicted the appellant vide impugned judgment and order of sentence dated January 18, 2021. He filed an appeal before the High Court assailing the impugned judgment of conviction and order of sentence.

The case of the prosecution 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, she became pregnant.

The victim in her deposition before the trial court submitted that there was a relationship between her and the appellant for 10 years. She further claimed that she was about 12-13 years old at the time of the incident of rape. In her cross-examination, the victim denied that she was 37 years old at the time of her deposition. She further acknowledged that she wished to marry the appellant and as such, she filed the case with ‘this story’.

The father, grandfather and cousin sister of the victim stated that they were not eyewitness to the incident.

The court noted that the DNA test report establishes that the appellant is the father of the child born to the victim. However, the court said 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," said the court.

It further said that prosecution witnesses including relatives of the victim in unison stated that there was a relationship between the victim and the appellant.

The bench observed that the testimony of the victim and her subsequent conduct does not inspire the confidence of the court.

“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. 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,” the court said.

The court noted that the age of the victim was not conclusively established by the prosecution as it did not produce any birth certificate at the trial.

“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,” the court said.

The court held that the charge as against the appellant was not proved beyond reasonable doubt.

"We, therefore, set aside the impugned judgment of conviction and the order of sentence and acquit the appellant of the charge framed," it said.

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

Click Here to Read/Download Judgment