(From previous issue) :
17. The remaining witnesses were Nasima's sister PW 2, another relation PW 3 and no such local Union Parishad Chairman, Member or leading villager was examined. While PW 3, 4, 5 briefly stated that as the matter came to light three months after, there was sitting of close relations of the parties those include only 2, 3 persons.
18. All these facts suggest that Nasima's testimony is not credible and her conduct was further unreliable. Evidence on record shows that she was adult and an ordinary prudent woman having some schooling. She was quite aware of the necessity and features of a formal muslim marriage. She also knew that sex before marriage was not only undesirable from the social point of view but also from religious point, which is evident from her statement about the alleged touching of the Holy Quran by the Appellant for obtaining Nasima's consent before the first time sex. But before being actually married she on her own volition continued to maintain a physical relationship with a young man and travelled with him here and there. This situation continued for months. These circumstances suggest that her verbal testimony with regard to alleged deceitful assurance of marriage is contrary to her conduct and thus her lone testimony cannot be the basis of conviction.
19. It is noted that all the remaining five witnesses including Nasima's brother, (PW6), sister (PW2) and a relation (PW4) only claimed to have heard about the happenings between Nasima and the appellant from the mouth of Nasima alone and that too few months after and next, there was a sitting between the parties respecting their marriage. But excepting Nasima's sister (PW2) none of the other witnesses mentioned the fact of fraudulent obtaining of her consent by the appellant by touching the by Holy Quran. Now if the alleged victim's verbal testimony cou1d not be relied on, there remains nothing in the eye of law to rope the appellant with the charge.
20. Nasima PW1 was adult enough to understand what is marriage, what is premarital sex and what a man can say or how he can behave with an intent to win a girl's consent to premarital sex.
21. In the case of Jayanll Rani Panda vs State of West Bengal, reported in 1984 Cri LJ, page 1535, it happened that Jayanti Rani Panda used to be a school teacher. She developed a romantic relationship with her colleague-accused. The accused friend promised to marry Jayanti Rani in some indefinite future time and Jayanti continued to maintain a regular physical relationship with her friend-accused. But, as may very often happen, her colleague did not or could not keep his promise. Thus, Jayanti Rani brought a criminal case of rape with a plea that she would not have given consent to sexual intercourses, had her colleague not promised of marriage. Indian Supreme Court acquitted the accused and held that:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact of the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from misconception of fact. But here the fact alleged is a promise to marry, we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability of the other, unless the court can be assured that from the very inception the accused never really intended to marry her, "(Para: 16).
22. In the case referred to above in the matter English view was also discussed, in para 10, as had been observed in the case of R vs Clarence, (1886-90) AER: 133.
"That consent obtained by fraud is no consent at all, is not true as a general proposition either in fact or in law. If a man meets a woman in the street arid knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent."
23. In the instant case, the test is that, nothing happened by which Nasima (PW 1) would have had a reason to believe that, because of touching the Holy Quran by the appellant and giving promise of marriage, she became married to the appellant. There was, according to the statement of Nasima alone, that the appellant promised to marry her in some indefinite future time. If we accept Nasima's sole testimony to be reliable, in that event also it cannot be said that Nasima's consent to regular sexual intercourse was obtained by deceitful means. Nasima consented to repeated sexual intercourses with the appellant as an outcome of her own mental change, infatuation, attraction towards the appellant and a hope for future marriage. The Tribunal failed to notice these facts. The scenario needs to be judged in the light of in section 9(1) of the Ain, 2000 and also section 375 of the Penal Code. These are quoted below:
“৯। ধর্ষণ, ধর্ষণজনিত কারণে ম"ত্যু, ইত্যাদির শাস্তি। --(১) যদি কোন পুরুষ কোন নারী বা শিশুকে ধর্ষণ করেন, তাহা হইলে তিনি যাবজ্জীবন সশ্রম কারাদ-ে দ-নীয় হইবেনা এবং ইহার অতিরিক্ত অর্থদ-েও দ-নীয় হইবেন।
ব্যাখ্যা Ñ যদি কোন পুরুষ হিবাহ বন্ধন ব্যতীত [ষোল বৎসরের] অধিক বয়সের কোন নারীর সহিত তাহার সম্মতি ব্যতিরেকে বা ভীতি প্রদর্শন বা প্রতারণামূলকভাবে তাহার সম্মতি আদায় করিয়া, অথবা [ষোল বৎসরের] কম বয়সের কোন নারীর সহিত তাহার সম্মতিসহ বা সম্মতি ব্যতিরেকে যৌন সঙ্গম করেন, তাহা হইলে তিনি উক্ত নানীকে ধর্ষণ করিয়াছে বলিয়া গণ্য হইবেন।
"Section 375--Rape-A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following description.
First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her in fear of death, or of hurt,
Fourthly : With her consent, when the man knows that he is not husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly: With or without her consent, when she is under [fourteen] years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual iutercourse by a man with his own wife, the wife not being under [thirteen] years of age, is not rape."
24. Section 9(1) of the Ain, 2000 does not define rape, but speaks of in general. The Explanation (e¨vL¨v) to the sub-section speaks of among other factors, Òm¤§wZ e¨wZ‡i‡K ev fxwZ cÖ`k©b ev cÖZviYvg~jK fv‡e Zvnvi m¤§wZ Av`vq Kwiqv|Ó
25. In the instant case, Nasima, according to the complaint itself was above 18. She claims that she consented to the physical relationship as a result of the deceitful means. But evidence on record as discussed earlier indicate that it was her voluntary act. So the mischief of Section 9(1) is not attracted.
26. It is noted that Section 375 of the Penal Code does not directly refer to the situation of obtaining consent by deceitful means, but speaks of consent only. In our view the expression "consent" means voluntary consent of an adult. So the circumstances of this case does not attract Section 375 of the Penal Code.
27. The case of Nasima seems to be similar to that of Jayanti Rani hinted above. In the said case of Jayanti two adult man and woman, indulged in repeated sexual intercourses, where there was no evidence of use of force or of a . promise of marriage amounting to deception. Two adults, through a complex chemistry of acquaintance developed a close proximity, leading to physical relationship.
28. It appears from the materials on record that, with the passage of time, short or long, the relationship between the two, developed and Nasima might have a hidden desire, physiomental. Slowly these two adults, consciously or not started reaching the body of each other and it went on and reached its peak but finally hindered by reasons fountained from a hard reality.
29. In the circumstances of the case as revealed from evidence on record, only one party of the two contributing to the amicable act can not be stamped to have committed an offence of rape. In our view, the act of the male partner does not attract the mischief of Section 9(1) of the Ain, 2000.
30. We further hold that liberal interpretation of Section 9(1) of the Ain, 2000 tilting towards the adult female partner in one hand, in such cases, may open a 'flood gate of such embroided and frivolous litigations and. on the other hand, it may send an improper signal to the society in general and to the female partners in particular that in its turn help shun their tradition bound values. Here we feel tempted to recall a comment of the aforesaid case of Jayanti Rani that:
"If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part."
31. The Tribunal failed to appreciate as to what a legal evidence is and what not. With these findings we arrive at the conclusion that the charge under Section 9(1) of the Nari-o-shishu Nirjatan Ain of 2000 (amended 2003) failed and accordingly the appeal is allowed. The Judgment of conviction and sentence dated 25-11-2013 passed by the Nari-o-shishu Nirjatan Daman Tribunal No.1. Chittagong in Nari-o-Shishu Nirjatan Daman Case No. 89 of 2009 is hereby set aside and the appellant Mohammad Najim Uddin is hereby acquitted of the charge framed against him in that case and he be accordingly set at liberty.
Office is instructed to communicate this Judgment and order and send down the LCR at once.