Sohel Rana vs State 57 DLR (2005)

Fact:

Prosecution case started when the complainant Mollica Begun lodged a complaint petition against Jail appellant Sohel Rana before the magistrate of the first class which was further forwarded to the Mitapukur police station. She alleged that they were neighbours and Sohel Rana frequent her house and proposed to love her which she always rejected. On 20-04-2000, when her parents were away, he entered her home and committed rape upon her by pressing her mouth. After the rape, Sohel Rana tempted her by saying that he would marry her. By showing such allurements, he further started physical contact with her. As a result she became pregnant and later gave birth to a child. It was further held that the victim was senior than the jail appellant by age and there was no mention either in FIR or in examination that she ever resisted or attempted to resist the act of intercourse. There was no allegation that he obtained her consent under threat or by practicing fraud upon her before such intercourse.

 

Issue:

1) Whether the first intercourse will be considered as rape? If not, whether the further intercourses will be rape?

2) If any of the intercourses is not rape, what will be the consequence of the jail appellant?

 

Judgment:

The judgement was passed by the learned Nari-o-Shishu Nirjatan Daman Tribunal (in short, Tribunal) Rangpur in Nari-O-Shishu Nirjatan Mamla No. 13 of 2001 convicting the jail appellant Md Sohel Rana under section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (in short, Ain, 2000) and sentencing him thereunder to rigorous imprisonment for life and to a fine of Taka 50,000 in default of payment of fine to rigorous imprisonment for further one year. It was further ordered for payment of a sum of Taka 40,000 out of the fine amount of Taka 50,000 to the victim informant by sale of movable and immovable property of the jail appellant by the Collector, Rangpur.

 

Further the jail appellant was succeeded and the decision and impugned judgement was set aside. Jail appellant Md Sohel Rana be and was acquitted of the charge levelled against him under section 9(1) of the said Ain, 2000. He was set at liberty at once, and was ordered of acquittal from jail.

 

Justification:

 

Issue 1: It was held that the first intercourse was not rape and as it was not rape, the further intercourses will not be considered as rape. The court did not find any evidence that the jail appellant was of equal or above the age of the victim. On the contrary, materials on record tend to show that the victim was senior to the jail appellant by age. Then it was not possible on the part of a boy who was junior to her by age and also a minor to commit rape upon her. She did not try to resist him by physical obstruction or at least by raising outcry. She shouldn’t have fall easy prey to his lust without any least resistance to save her virtue which was more precious to a maiden than her life itself. But no such assertion was made that she at all resisted him. It was admitted that both the victim and the jail appellant were neighbours. He had also visiting terms with her. They were known to each other. There was no evidence oral or circumstantial that the jail appellant applied any force upon her or at all she resisted him which implicitly showed that she was willing to such physical contact with him. She also stated that after the so-called rape he had sexual intercourse with her for 15/16 times in a month without any resistance from her side; because he consoled her by stating that he would marry her.

But the court found that the first occurrence of sexual intercourse was not one of rape. It did not attract ingredients of the offence of rape which has been explained in section 9(1) of the Ain, 2000. He did neither apply force nor obtain her consent under threat or by practicing fraud upon her before such intercourse nor she was below 14 years of age, rather she was above 14. She was his willing partner in the immoral act.

 

An offence of rape is not a continuing offence. When the first occurrence of sexual intercourse was not one of rape his subsequent acts of intercourse with her without resistance could not be treated as rape. She kept the matter of sexual intercourse secret to her parents. She did not disclose the fact of her becoming pregnant till before 3 months when the jail appellant allegedly refused to marry her. Such a conduct on the part of the victim does not appear to be one of a virtuous girl, eager and anxious to protect her virtue. We have found from our discussion above that the prosecution failed to prove the ingredients of the offence of rape in terms of section 9(1) of the Ain, 2000. The birth of a child was the result of an immoral act for which the victim was equally responsible. It was not any result of rape within the meaning of section 9(1) of the Ain, 2000.

 

Issue 2:

It was not a case of rape which tribunal below failed to appreciate - Impugned judgment and order of conviction and sentence was not sustainable in law and was liable to be set aside - In result, jail appeal succeeds and was allowed accordingly - Impugned judgment and order convicting jail appellant was hereby set aside - Jail appellant was acquitted of charge levelled against him and he be set at liberty at once, if not wanted in any other case.