Calcutta HC Sets Aside Conviction

The Kolkata High Court recently overturned the accused’s order of rape under Section 376 of the Indian Penal Code (IPC), while stating that the physical relationship between the appellant and the victim was consensual and the age of the victim was not conclusively determined by the prosecution by the lower court.

The Divisional Judge panel of two judges Dibangsu Basak and MD Shabar Rashidi was hearing an appeal against the guilty verdict dated 18 January 2021, handed down by the Berhampur Primary Court.

While annulling the guilty order, the court stated that the prosecution’s evidence proves the existence of a relationship between the appellant and the victim. Moreover, the relationship between the victim and the appellant was of a consensual nature.

“It is a vulgar law when two opinions can be accepted, the one which favors the accused should be accepted,” said the court.

The girl filed a written complaint against the appellant, claiming that he raped her several times and she became pregnant. The police filed a First Information Report (FIR) against the accused on the allegation under sections 417 (fraud) and 376 (rape) of the IPC. The appellant agreed to marry her. But the appellant later refused to marry her.

The prosecution’s case was that the appellant had raped the girl, who was a minor of about 13 years of age, on different days. In her court testimony, she mentioned a 10-year relationship with the appellant. She stated that she was 12/13 years old at the time of the accident. Later, she became pregnant and a male child was born.

The main question in the interrogation was the age of the victim. She denied that she was 37 at the time of the filing. However, she admitted that she wanted to marry the appellant and thus filed the case with “this story”.

The girl’s father, grandfather and cousin stated that they were not eyewitnesses to the accident. The uncle mentioned about the girl’s relationship with the appellant.

The appellate court found guilty of statutory rape by order dated January 18, 2021. Thus, an appeal to this court to contest the order was preferred.

The current court considered two cases:

• Is the appellant guilty of the charges against him?
• Was the victim a minor at the time of this incident?

The court, while considering the first case, stated that the accused could be convicted based on the testimony of the rape victim provided that such testimony was suggestive and trustworthy. In this scenario, the victim’s testimony and subsequent behavior do not inspire the court’s confidence regarding her claims.

Thus, the court set aside the fees imposed on the appellant.

Furthermore, the court noted that the DNA test clearly proved that the appellant was the father of the born child. Furthermore, the court noted that she alleged rape in her testimony, but the rape allegation was not corroborated by any other witnesses cross-examined by the prosecution, nor is there an eyewitness to that.

The court said the girl’s age had not been conclusively determined at trial. Although she denied that she was 37 at the time of her testimony making her around 24 at the time of the accident. Also, the prosecution did not present any birth certificate to the victim in the trial.

“It is reasonable to hold the view that the physical relationship established between the appellant and the victim was of a consensual nature. The age of the victim has not been conclusively determined. We are not in a position to say definitively that the appellant entered into a physical relationship with a minor. Hence, the prosecution failed to Determine the age of the victim at the time of the accident.

Accordingly, the court overturned the contested guilty verdict and acquitted the appellant.

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