Kanchan Chakraborty, J. - (1.) SK. Saheb Ali and SK. Kutubuddin the opposite party no. 1 and 2, respectively, were found not guilty to the charge under Section 376 IPC by the learned Additional District and Sessions Judge, Fast Track Court no. 1, Howrah in Sessions Trial No. 305 of 2006 and were acquitted therefrom. SK. Jalal, father of the victim girl Jahanara Khatoon has challenged the legality, validity and correctness of the order of acquittal of the opposite party no. 1 and 2 in this revision application.
(2.) THE factual aspect is stated below in short : On 13.12.2004, Jahanara Khatoon daughter of Sk. Jalal was found missing since 7 P.M. A missing diary being no. GDE no. 1431 darted 14.12.2004, was noted by the Panchla Police station to that effect. Sk. Jalal and others made thorough searching for Jahanara and on 14.12.2004 one Sk. Hara and Sk. Liakat of village Nabghara brought Jahanara and opposite party no. 2 Sk. Saheb Ali back to their village and disclosed that they were caught when moving in the village together. Over the issue, local people together had taken a decision that marriage between Jahanara and Sk. Saheb Ali would be performed. Sk. Kutubuddin elder brother of Sk. Saheb Ali also agreed to the said decision. It was decided by the local Gram Pabchayat that the marriage between them would be performed on 6.2.2005. On that date, opposite party no. 1 Sk. Saheb Ali left his house. Thereafter, Sk. Jalal learnt from Jahanara that she had love affairs with Sk. Saheb Ali who on assurance to marry her, had sexual intercourse with her on 13.12.2004 in a hotel at Digha. Sk. Jalal also learnt that Sk. Kutubuddin Ali was trying to give marriage of SK. Saheb Ali with another girl. So, on 16.3.2005 Sk. Jalal lodged a written FIR with Panchla Police Station on the basis of which Panchla police station case no. 46 of 2005 dated 16.3.2005, was registered against Sk. Kutubuddin and Sk. Saheb Ali under Sections 493/376/120B IPC. The case was investigated into and ended in charge-sheet against both the accused persons under Section 376 IPC. The opposite party no. 2 and 3 were arrayed to face the charge under Section 376 IPC in the Trial Court as they pleaded not guilty to the charge. Accordingly the Trial commenced and they were found not guilty to the charge leveled against them and acquitted therefrom by the order which has been impugned in this revision application. Mr. Kallol Mondal, the learned Counsel appearing for the petitioner made manifold contention. The main thrust of his contention is that the learned Trial Court completely erred and was misconceived in coming to a conclusion that the prosecutrix was a consenting party to the alleged sexual intercourse. He has taken me to the paragraph 2 at page 8 of the impugned judgement and contended that the learned Trial Court put unnecessary stress on the fact that the opposite party no. 1 had taken the prosecutrix to one Kazi for the purpose of marriage immediately after having sexual intercourse on 13.12.2004 at Digha. Mr. Mondal further contended that the fact alone does not necessarily imply that the prosecutrix had free consent to the sexual intercourse with the opposite party no. 1 and this will not come within the mischief of Section 90 of the Indian Penal Code.
(3.) MR. Mondal submitted that the prosecutrix i.e. Jaharana Khatoon who has examined as P.W. 3 in the Trial has stated that Sk. Saheb the respondent no. 2 forced her to go inside the taxi on 13.12.2004 about 7 P.M. According to the P.W. 3, Sk. Saheb came to her house and promised to marry her and after giving assurance to marry forced her to go inside the taxi. They came to Digha at night by the same taxi and checked in a hotel. They resided there as husband and wife and co-habited. When Sk. Saheb co-habiting with her she raised resistance on the plea that their marriage was not solemnized. She further stated that on her protest, Sk. Saheb told her that he would marry her and after his assurance to marry he cohabited with her. MR. Mondal contended that since Sk. Saheb assured her that had would marry her, the prosecutrix (P.W. 3) allowed him to co-habit with her. MR. Mondal submitted that have not there been any such assurance, the prosecutrix (P.W. 3) would not have allowed Sk. Saheb to co-habit with her. Therefore, he submits, there was misconception on the part of the prosecutrix upon misrepresentation by Sk. Saheb. Therefore, it can not be said that the prosecutrix was a consenting party. Learned Trial Court adjudged the matter from an erroneous angle and has come to a wrong findings that the prosecutrix was a consenting party. In support of his contention Mr. Mallick referred to the following decisions : a) Pradeep Kumar Verma Vs. State of Bihar and Anr., reported in (2008) 1 C Cr LR (SC) 173 , b) Bhupinder Singh Vs. Union Territory of Chandigarh, reported in (2008) 3 Supreme Court Cases (Cri) 553. c) Yedla Srinivasa Rao Vs. State of A.P., reported in (2007) 1 SCC (Cri) 557 and d) Deelip Singh Vs. State of Bihar, reported in AIR 2005 SC 203. ;