IMPORTANT POINT
The main legal point established in the judgment is that a false promise of marriage leading to sexual intercourse constitutes rape under Section 376 of the Indian Penal Code, and the validity of consent in such cases is determined by the provisions of the Indian Evidence Act, particularly Section 114-A and 90.

JUDGMENT :

Shampa Dutt (Paul), J.

The Appeal:-

1. The appeal is against a Judgment and Order of conviction and sentence dated 15.11.2016 and 17.11.2016 respectively passed by the Learned Additional Sessions Judge, 7th Court, Barasat, North 24 Parganas in connection with Session Trial Case no. 05(01)2012 arising out Session case no. 02(06)2011 whereby the Learned Judge was pleased to convict the appellant herein for the offences punishable under Section 376 of the Indian Penal Code and further pleased to sentence the appellant to suffer rigorous imprisonment for 7 years and pay fine of a sum of Rs.10000/- in default to suffer rigorous imprisonment for six months.

The Prosecution:-

2. The appellant states that the genesis of the prosecution case relates back to a written complaint made by Rahima Khatun before the officer-in-Charge, Deganga Police Station stating that:-

“There was love relationship between the complainant and the appellant herein since last one year. Thereafter they started to mix up physically and the appellant promised to marry her. The said accused person used to come to her bed room and used to make physical relation with her. On 17.06.2009 at about 1 a.m. the accused entered into her bed room and started physical relation and he was caught red handed.”

3. In course of trial 12 witnesses were examined on behalf of the prosecution and certain documents were exhibited.

4. On completion of trial, the Appellant was convicted as above.

5. Hence the appeal.

The Evidence :-

6. 12 witnesses including the victim were examined.

7. The written complaint (Exhibit 1), statement under Section 164 of Cr.P.C., (Exhibit 3), medical report (Exhibit 2, 8, & 9) along with other documents have been proved and marked Exhibits.

Analysis of Evidence:-

8. The written complaint was filed on 22.06.2009 at 9.15 p.m., though the alleged incident occurred on 17.06.2009. The delay has been explained, as the police refused to accept the initial complaint and the threat of the appellant/accused/convict.

9. The ossification test has shown that the victim was aged more than 17 years but less than 20 years. The trial Court held that the victim was thus aged about 18 years from the ossification report and statement of the victim. The medical reports of the victim has not shown any injury but the hymen has been found ruptured.

10. The contents (relevant) in the written complaint are as follows:-

“I am Mst. Rahima Khatun, aged about 18 years, D/o Amirali Molla, village – Bhaslia, P.S. Deganga, District – North 24 Parganas. I beg to inform you that a love affair had been developed between Sahidul Islam, aged 23 years, son of Hasha Sardar. Village – Bhaslia (Padmapukur), P.S. Deganga, District – North 24 Parganas for about one year and having sworn by touching the mosque that he would marry me, frequently coming to our house and entering my bed room, he used to have sexual intercourse with me and he used condoms for preventing a child and on 17.06.2009 at about 1 a.m. the said person entered into my room and like other days, he made sexual intercourse with me and having understood, the members of my family caught him red-handed and when they proposed to marry me, he refused and fled away therefrom.”

11. The appellant/convict has been found capable of sexual inter course.

12. It thus appears from the written complaint that there was admittedly a love affair between the parties for about one year prior to the incident in this case. The accused having allegedly sworn by touching the mosque that he would marry the victim, started to frequently visit her house and have intercourse with her, a young girl of about 17/18 years of age.

13. The medical report shows that she is capable of intercourse. Her hymen has been found ‘Ruptured”.

14. The Appellant/Convict at the relevant time was aged about 23 years and unmarried. He had promised the victim by touching the mosque that he would marry her and the victim believing the same cohabited with the Appellant.

15. The Supreme Court