Rafique Uddin vs State Of Tripura

S. Talapatra, J

[1] Heard Mr. R. G. Chakraborty and Ms. S. Chakraborty, learned counsel appearing for the appellant and Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent.

[2] The appellant was charged under Sections-366, 376(1) of the IPC and under Section-4 of Protection of Children from Sexual Offences (POCSO for short) Act, 2012, for committing offence of penetrative sexual assault, rape and kidnapping and on trial the appellant has been convicted under Sections-366 and 376(1) of IPC, inasmuch as, the prosecution according to the trial court has failed to prove that the victim comes within the definition of children meaning that the victim was below 18 years of age. Consequent upon the said conviction, the appellant has been sentenced to suffer Rigorous Imprisonment for 10 years and to pay fine of Rs.10,000/- with default stipulation for committing offence punishable under Section-366 of the IPC and Rigorous Imprisonment for life and to pay fine of Rs.10,000/- with default stipulation for the offence punishable under Section-376(1) of the IPC. The father of the victim has been provided with the compensation of Rs.50,000/- under the Victim Compensations Scheme. The said provision of compensation has not been challenged by the State.

[3] The prosecution case in brief is that, on the basis of the complaint (Exbt.1 & Exbt.6) filed by one Turab Ali (PW-1) who is also known as Turab Uddin on 14.05.2013 the Kadamtala P.S. Case No. 38 of 2013 under Section-366 was registered and taken up for investigation. In the complain, Tarub Ali, the father of the victim has stated that he had informed the Officer-in-charge of the Kadamtala police station that from 10.05.2013, his minor daughter [name withheld for purpose of protecting her identity] aged about 17 years was missing. Even after expansive search, the victim girl could not be recovered. After sometimes, it came to the knowledge that one Md. Rafique Uddin, the appellant herein, had kidnapped his minor daughter with an intention to marry her. According to the complainant, the appellant is married having his wife and two children.

[4] On completion of the investigation the final police report charge sheeting the appellant under Section-366/376(1) of the IPC and under Section-4 of the Protection of Children from Sexual Offences Act (POCSO for short) was filed in the Court of the magistrate who committed those police papers to the Court of the Sessions Judge, North Tripura, Dharmanagar for conducting the trial in accordance with the law.

[5] The Sessions Judge, after taking cognizance framed the charge as stated above and to which the appellant pleaded not guilty. In order to substantiate the charge, the prosecution adduced as many as 6(six) witnesses and introduced 9(nine) documentary evidence including the birth certificate (Exbt.2). In order to defend, the appellant examined himself on complying the process as laid down under Section 315 of Cr. P.C. and also adduced one additional witness, namely Abu Bakkar (DW-2). After the prosecution evidence was recorded, the appellant was examined under Section-313 of the Cr. P.C. when the appellant reiterated his plea of innocence and claimed that he has been implicated falsely.

[6] Having appreciated the evidence, as led by the prosecution and the defence, the trial court convicted the appellant under Section-366/376(1) of the IPC. In respect of the age of the victim, it has been observed in para-9 of the impugned judgment dated 08.02.2017 delivered in ST. 41 (NT/D) of 2013 which is under challenged in this appeal as follows:

"9. Relying on the decision of the Hon'ble High Court in Nakul Sharma's case (cited supra), I am of the view that prosecution could not prove the contents of exhibit-2 regarding the age of the victim. So, in this case there is no other evidence to prove the age of the victim. In view of the evidence on record and the judgment of the Hon'ble High Court of Tripura as discussed above it is clear that birth certificate cannot be considered as a sole proof of the age of the victim unless and until documents basing on which that birth certificate was issued are proved before the court. So, I may conclude that prosecution in this case has failed to prove that the victim was a minor i.e. below 18 years of age at the time of the alleged offence." [Emphasis added]

[7] Therefore, the charge as framed under Section-4 of the POCSO Act, fell through. But, according to the trial judge, the commission of rape and abduction has been successfully established by the prosecution. The trial judge has observed that "she further told that her daughter was taken to Sanicherra from there and her daughter told her at police station that during her stay with the accused at Sanicherra they slept together at the same bed and they had physical relationships. So, I find no ground to disbelieve the evidence of the victim as the evidence given by the victim is also duly corroborated by his mother PW-2."

[8] Admittedly, the evidence as led by the defence, shows that the marriage was contracted between the victim and the appellant but such evidence has been discarded as the kabin nama has not been proved in the trial.

[9] There is no dispute that there is no eye witness even in respect of the kidnapping or abduction and what PW-2 has stated is what she had heard from the victim (PW-2) the fact relating to taking her out by the appellant. The other factual elements which are material, are relating to the submission of the complaint, search by the police, recovery of the victim and her production in the court and also about her statement as recorded under Section-164(5) of the Cr. P.C. before the Judicial Magistrate.

[10] This Court can safely observe that, the entire prosecution case was structured on the version of the victim. As it has been disbelieved by the court that the victim is not a child and she was more than 18 years of age at the time of commission of the offence, to prove the rape, the prosecution has the huge burden that there was no consent from the adult victim. If it is proved that the intercourse was consensual, the charge of rape could not survive. Similarly, if it is proved that the victim voluntarily eloped with the appellant, the charge under Section-366 of the IPC as well, will not survive.

[11] For that purpose, as agreed by the learned counsel appearing for the parties, let us examine the statement of the victim in the court. True it is that when the victim was recovered by the police she made a voluntary statement before the Magistrate on 15.05.2013 (Exbt.3) by stating as follows: "that we were engaged in a love affair in the course of one month. I love Rafiq Uddin. On 10.05.2013 about 7 o'clock at night I eloped with Rafiq voluntarily and according to my own volition. Rafiq Uddin did not compel or force me. I want to marry Rafiq Uddin."

[12] This statement was shown to the victim at the trial and the victim has made the following statement in the trial "in the court Magistrate recorded my statement. I stated to Magistrate that I had love affairs with the accused and I voluntarily eloped with him because we wanted to merry. I made such statement to Magistrate because on the way to court from police station accused wanted to make such statement and he promised me that he would marry me." He identified her statement as Exbt.3.

[13] But later on, she came to know, as the victim has stated that the appellant was married and he had wife and children from the said marriage. Now the question that falls for consideration is that whether the consent was given on the misconception of fact or not. But, the statement which has been made and as it appears that after two years, she came to know about subsistence of the first marriage of the appellant cannot relied on the wholesome appreciation of evidence. It clearly transpires this Court that the victim had eloped with the appellant and continuously stayed with him and had the sexual intercourse. As the Court has already determined that the victim was above the age of 18 years, this Court is of the considered view that the conviction under Section-376(1) and Section-366 of IPC cannot be sustained and accordingly, the impugned judgment of conviction and order of sentence dated 08.02.2017 delivered in ST. 41(NT/D) of 2013, stands set aside on benefit of doubt. Therefore, the appellant shall be released forthwith, if he is not wanted in any other case.

In the result, the appeal stands allowed. Send down the LCRs forthwith.