The division bench consisting of Justice Debangsu Basak and Justice MD Shabbar Rashidi of the Calcutta High Court on Wednesday, 3/05/2023, in the case of Farmuj Ali v. The State of West Bengal (C.R.A.129 of 2021), set aside the conviction under Section 376 of IPC of a rape accused, on the ground that physical relationship between the appellant and the victim was consensual and the age of the victim was not conclusively established by the prosecution before the Trial Court.
Facts of the Case:
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’.
Judgment Review:
The Court observed that although the DNA Test Report proves that the appellant is the father of the victim’s child, the claim of rape cannot be corroborated by any other witness examined by the Prosecution. 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. 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. “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 opined that it is trite in law that when two views are possible then the one favoring the accused should be accepted. 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.
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JUDGMENT REVIEWED BY DIVYA SHREE GN
