FEROZA KHATOON Vs. HARUN SK

JUDGEMENT

(1.) This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure assailing the judgment and order passed by learned Additional Sessions Judge, Fast Track Court, Bolpur in Sessions Trial No. 9 of 2003 corresponding to Sessions Case No. 128 of 2002 arising out of Nanoor P.S. case No. 31 of 2001 dated 13.3.2001 under Section 376/493 of the Indian Penal Code.

(2.) The victim lodged a complaint with the O.C., Nanoor P.S. on 13.3.2001 alleging that for more than a year she developed love affairs with Harun Sk. who promised to many her. 10/11 months prior to the date of lodging the FIR the accused came to the house of the victim at about 10/ 11 P.M. and knocked at her door The victim opened the door. Her sister Khalida was sleeping with her. Harun committed rape upon her and proposed to marry her within 10/15 days. After that incident Harun came to her room 5/6 times at night and committed rape upon her. Due to such cohabitation the victim girl became pregnant. After 4/5 months, the victim informed her grandmother Toioba Bibi and she in turn informed the parents of the victim. Victim's father went to the father of the accused and told that the victim conceived for 4/5 months, but, as the father of the accused did not take any action. The victim informed the Panchayat, but to no effect. On 24th Magh, 1407 B.S. the victim gave birth to a female child. After the receipt of the complaint, the Nanoor P.S. case No. 31 dated 13.3.2001 was started. The charges were framed under Section 376/493 of the IPC to which the accused pleaded not guilty and claimed to be tried.

(3.) The learned Judge upon consideration of the materials on record acquitted the accused person. The learned Judge while recording the order acquittal observed that there was no explanation either in the FIR or in the evidence of PW 1 regarding the cause to remain silent for five months and in lodging the complaint after the birth of the child. The learned Judge further observed that the PW 1 has admitted that after the first incident of alleged rape, she allowed the accused to have sexual intercourse 5/6 times on different dates at her house at night which clearly suggested that rape was never committed on PW 1. The learned Judge observed that Ext. A was the certified copy of the petition under Section 125 Cr PC being Misc. Case No. 16 of 2002 filed by PW 1 against the accused Harun Sk. which showed that the date of first incident of alleged rape by the accused Harun was in the month of November, 2000. The learned Judge observed if the alleged rape was committed in November, 2000, how could she give birth to her child on 7.2.2001 as stated by PW 1 in her deposition.