Form No. J(1) IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present : The Hon’ble Justice Rajasekhar Mantha And The Hon’ble Justice Anuj Singh C.R.A. 256 of 2018 Raj Kumar Sk. @ Sajirul Sk. Versus The State of West Bengal & Anr. For the Appellant :Mr. Kusal Kumar Mukherjee, Mr. Arijit Bose. For the State :Mr. Bankim Pal. Hearing concluded on : 02.07.2026, 21.07.2026, 18.08.2026 and 22.09.2026. Judgment on : September 22, 2026. Rajasekhar Mantha, J.: 1. The subject appeal is directed against judgment and order of conviction dated 15th May, 2018 and 16th May, 2018 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Jangipur, Murshidabad in Sessions Case No. 591/12. The appellant was convicted under Sections under Section 376(1) of the Indian Penal Code for 10 years rigorous imprisonment and fine. THE PROSECUTION CASE: 2. The prosecution case in brief is that the appellant and the victim both residents of Dosturhat Mondalpara, Murshidabad girl were having a 2 love affair. The mother of the victim girl knew about such love affair and warned the appellant not to come in their house. For three months prior to the complaint, i.e., on 2nd December, 2011, the mother of the victim girl was staying with her brothers at a different village. The accused is stated to have entered the house of the victim girl when her father was not present. The victim girl alleges that the appellant, put a cloth on her mouth and had forcible sexual intercourse with her. Their physical relations carried on for some time. 3. At the time when the complaint was lodged, the complainant/mother of the victim alleged that the victim was 15 years old. Based on the complaint, an FIR being No. 549 of 2011 dated 2nd December, 2011 was registered with the Sagardighi Police Station. The said FIR was, however, produced before the Magistrate on 5th December, 2011. There is no explanation for this delay. 4. The appellant was arrested. A village salisi (gathering of village elders for dispute resolution) was held where the parents of the appellant were present. They had initially refused to get the appellant married to the victim. They agreed to do so in the salisi and marriage was registered between the appellant and the victim girl. The victim girl went to live with the appellant in his parental house and came back to her parental home, two days later. The appellant and his family members thereafter refused to accept the victim girl. The victim girl gave birth to a boy. 3 5. After completion of investigation by the Investigating Officer, PW-6 S.I. Narayan Chandr Das, charge sheet was submitted. Charges were framed against the appellant by the Trial Court under Sections 417 and 376 of the IPC on 05.01.2013. The trial commenced thereafter. THE TRIAL AND EVIDENCE ON RECORD: 6. PW-1, was the complainant, the mother of the victim. She deposed that she came to know that her daughter was pregnant after coming back from her brother’s house, three months after the victim was allegedly raped. 7. She deposed that initially the parents of the appellant drove her out upon being confronted. PW-1 asked the parents of the appellant to get him married to her daughter. She deposed that even on 18.01.2023 her daughter was 15 years old. This is impossible when the complaint was lodged on 2nd December, 2011, she had alleged on that her daughter was in fact 15 years old. 8. She admitted that her daughter had a love affair with the appellant and she scolded her daughter after finding out that she was pregnant. She admitted that she had not stated in the complaint that the appellant raped her daughter. She again contradicted herself in cross examination that she came to know about the love affair after her daughter became pregnant. She however admitted in cross examination that her daughter had a love affair with the appellant and the appellant got married her daughter. 4 9. PW-2, was the victim herself. She deposed that the appellant entered her house by opening the ‘Jhap’ and pressed her month with cloth and raped her. She admitted that she had a love affair with the appellant in her statement recorded under Section 164 of the Cr. P. C. She deposed that the bail of the appellant arranged by her parents on being advised by the villagers. She deposed that the appellant and his parents never accepted their marriage and did not allow her to live in the parental house of the appellant. She admitted in cross examination that if there was no marital dispute as regards the appellant accepting her, she would not have filed the case or lodged the complaint against the appellant with the police. She admitted that she got married to the appellant. 10. PW-3 was the father of the victim. He contradicted PW-1 when he deposed that his wife told him one month after she had gone to her brother’s house that the appellant had physical relations with their daughter. The victim was four months pregnant at that relevant point of time. He admitted that on being advised by the local villagers in the Salishi, the parents of the appellant arranged a marriage of the appellant with the victim. The marriage was registered with a local Registrar and the Imam conducted the ceremony of marriage. 11. The victim went to the house of the accused and live there for two days. The appellant and his family members did not accept the victim, thereafter she returned to the house of the PW-3. He claimed to have 5 heard from his wife that the appellant had committed forcibly sexual intercourse on the victim but did not tell anyone else. 12. PW-4 was a neighbor and was present at the time of marriage between the appellant and the respondent. He admitted that the appellant took the victim girl to his house and after coming to know of the pregnancy of the victim, the appellant’s parents refused to accept her in the family. 13. PW-5 was another villager, who confirmed the marriage between the appellant and the victim girl. 14. PW-6, Ex. S.I. Narayan Ch. Das, was the I.O., who sent the victim for medical examination and recorded her statement under Section 164 of the Cr. P.C. he narrated the steps taken in the investigation. 15. PW-7 was the brother of PW-1 and maternal uncle of the victim. He deposed on the line of the prosecution case. 16. PW-8 was the alleged scribe of the complaint as described by PW- 1. He denied having written any complaint and denied his handwriting thereon. 17. Based on the evidence as above, the Trial Court convicted the appellant under Section 376(1) of the IPC. ANALYSIS OF THE COURT: 6 18. This Court has carefully analyzed the evidence on record and heard arguments advanced by the learned counsel for the appellant and the counsel for the State. 19. This Court notices the evidence of PW-1, the mother of the victim and PW-3, the father are riddled with contradiction. While PW-1 stated in her evidence that she came to know of pregnancy of her daughter three months after returning from her brother’s house, PW-3 deposed that he was informed of such pregnancy and alleged rape by the appellant on the victim within a month of his wife staying with her brother. 20. It further transpires from the evidence on record that the victim definitely had a love affair with the appellant. The same is confirmed by the evidence of the victim herself and PW-1 and PW-3. 21. There is no evidence on record to indicate that the victim was 15 years of age at the time of first physical relation with the appellant or even thereafter. The prosecution has not brought any birth certificate or other evidence to prove the age of the victim. 22. Things turned sour between the appellant and the victim after he refused to marry her. The parents of the appellant also refused to accept the victim girl as the daughter in law. 23. Be that as it may, it is an admitted position that the appellant and the victim were married in law, both before a registrar as per Muslim Rites conducted by an Imam. The parents of the victim girl were present along with the parents of the accused. PW-5 and PW-7 were also present 7 in such marriage. The physical relations and the pregnancy of the victim were therefore brought under the institution of a marriage. One cannot ignore the fact that the victim girl herself deposed that she was married to the appellant even before the formal registered marriage occurred between them. 24. The proceedings against the appellant commenced only after he refused to live with the victim. The victim herself admitted that she would not have filed the complaint as the appellant refused to cohabit with her and due to marital disharmony. This also throws up the question as to whether the physical relation between the parties was consensual or otherwise. 25. It is now well-settled that physical relations on the promise of marriage which is what most likely happened in the instant case, cannot amount to an offence under Section 376 of the IPC. In the instant case, the victim was, in fact, formally married to the appellant. The appellant, therefore, could not have been convicted under Section 376 of the IPC. The abandonment of the victim and her minor son by the appellant are required to be dealt with under other provisions of the penal code or the civil laws concerned. CONCLUSION: 26. In the light of the above, the conviction of the appellant under Section 376 of the IPC is set aside. 8 27. The appellant is on bail. He shall be discharged of his bail bonds and set at liberty forthwith, if not wanted in any other case, upon execution of a bond to the satisfaction of the Learned Trial Court, which shall remain in force for a period of six months under Section 437A of the Code of Criminal Procedure corresponding to Section 481 of the BNSS, 2023. 28. Accordingly, CRA 256 of 2018 is hereby allowed and disposed of. 29. Let a copy of this judgment along with the Trial Court Records be forthwith sent down to the trial Court for necessary compliance. 30. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible. (Rajasekhar Mantha, J.) I agree. (Anuj Singh, J.)