ARAJ SK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Criminal Appeal has been filed by the convict, Araj Sk, against the judgment and order dated 5-8-98 passed by Sri A.K. Mukherjee, Additional Sessions Judge, Katwa, convicting the appellant of an offence under Section 376, IPC and sentencing him to rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- in default to simple imprisonment for five months in Sessions Case No. 125 of 1997 (S.T.No. 15 of 1998) of that Court.

(2.) The relevant facts leading to the filing of this appeal may be summarised as follows. Nursubha Khatoon alias Begam, daughter of Nur Mohammad Sk. of village Ratanpur lodged a complaint with the O.C., Ketugram P.S. on 30th June, 1996 alleging that she had developed love affair with the accused, Araj Sk. (present appellant) for the last seven years and on getting assurance from him that he would marry her according to Muslim custo, she closely mixed with him and allowed him to have sexual intercourse with her and as a result she conceived and thereafter when she asked him to keep his promise by marrying her, he went on deferring the proposed marriage. Ultimately on 25-6-96 through the intervention of her lawyer Araj executed an agreement to the effect that he would marry her on that day after returning to the village and give her the status of wife and would look after the child in her womb. ON this plea he took her to his maternal-uncle's house at village Ratanpur and kept her there and on the next day, that is, on 26-6-96 he instead of keeping his promise drove her away from her house after beating her severely refusing to marry her. In the circumstances she was filing this FIR before the police for investigation and punishment of the accused. On the basis of this FIR police started Ketugram P.S. Case NO. 51/96, dated 30-6-96 under Section 376, IPC against the accused Araj Sk. After the investigation was completed, police submitted charge-sheet against the accused Araj Sk. and Tazir Sk. under Sections 376, 419, 493 and 212, IPC. The offence of rape being exclusively triable by Sessions Court the case was committed to the Court of the Additional Sessions Judge, Katwa. That Court framed charges under Sections 376, 419 and 493, IPC against the accused Araj Sk. and also framed charge against the accused Tazir Sk. under Section 212, I.P.C. Both the accused pleaded not guilty when the said charges were read over and explained to them. The said Court then held trial of the accused persons. As many as 15 witnesses were examined by the prosecution. Then the accused were examined by the Court under Section 313, Cr.P.C. Defence did not adduce any evidence. Thereafter the trial Court on hearing the arguments of both sides delivered the impugned judgments whereunder he found the accused Tazir Sk. not guilty of the offence with which he was charged and found the other accused, that is, the present appellant, not guilty of the offences under Sections 419 and 493, IPC but found him guilty of the charge under Section 376, IPC and convicted him thereunder and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000/, in default, to simple imprisonment for five months more.

(3.) Being aggrieved by this judgment and order of the trial Court the convict, Araj Sk. has preferred the present appeal challenging the same as illegal and improper and liable to be set aside. The main contention of the ld. Advocate for the appellant has been that the prosecution has miserably failed to prove the date, place and manner of occurrence as alleged in the charge by cogent evidence. According to him when a girl above sixteen (16) years voluntarily agrees to sexual intercourse on getting assurance of marriage, the offence cannot be classified as rape.