High Court
Case Details
Crl.A. 95/2009 BEFORE HON’BLE MR JUSTICE P K MUSAHARY JUDGEMENT & ORDER(ORAL) This appeal is preferred against the judgment and order dated 5.5.2009 passed by the learned Sessions Judge, Dhemaji in Sessions Case No.43 (D H)/2008 convicting the appellant under Section 376 IPC and sentencing him to und ergo rigorous imprisonment for seven years with fine of Rs.1000/-and in default to undergo rigorous imprisonment for another three months.
Legal Reasoning
2. Briefly stated, the prosecution case is that the appellant who u sed to visit the house of the prosecutrix co-habited with her on several occasio ns giving assurance of marriage and she became pregnant of five months. The vil lage defence party, on 2.2.08, took the prosecutrix to appellant’s house but he refused to accept her. She then filed written FIR on 19.3.2008, which was receiv ed and registered as Dhemji P.S.Case No.126/08 under Section 493/376 IPC. The po lice, during investigation examined several witnesses and recorded the statement of the prosecutrix and got her medically examined by Medical and Health Officer , of Dhemaji Civil Hospital on 19.3.2008. On completion of the investigation, an d after collecting the medical report, submitted the charge-sheet against the ap pellant under Section 376/493 IPC. The case was committed to the court of Sessio ns at Dhemaji and the learned trial Court framed the charge against the appellan t under the aforesaid sections of law, who on being read over and explained, ple aded not guilty and claimed to be tried. The prosecution examined as many as 10 witnesses including the prosecutrix and the medical officer. The appellant in hi s examination under Section 313 Cr.P.C pleaded complete denial stating that he w as falsely implicated by the prosecutrix and false evidence was led against him. However, the appellant declined to examine any witness in his defence. The lear ned trial Court rendered the impugned judgment and order convicting and sentenci ng him as mentioned above. 3.
Legal Reasoning
I have heard Mr. P. Sarma, learned counsel for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam for the State Respondent. 4. Age is the important factor in the case involving offence of rap e under Section 376 IPC. As per medical evidence led by PW-7 the prosecutrix was medically examined by him on 19.3.2008 in the Dhemaji Civil Hospital. As per X- ray report her age was about 18 years and below 20 years. The occurrence, as per FIR filed by the prosecutrix herself, took place some time in the last part of 2007 and she was above 16 years of age at the time of occurrence. The medical of ficer prepared the medical report Ext.2 recording, amongst other, the age of the prosecutrix and also stating that she was pregnant of 16 weeks with live active foetus. In view of the above medical report, it is established that the victim girl was not minor at the time of occurrence. As she was above 16 years of age s he attained the age of consent. The prosecutrix was examined as PW-1. As per her evidence the ac 5. cused used to visit there house since the month of Aghano and both of them fell in love. The appellant once cut his figure and put vindi on her forehead with hi s blood assuring to marry her and she, being induced by such assurance, allowe d him to co-habit with her and as a result she became pregnant. When the pregnan cy was disclosed, the appellant assured her to discuss the matter with his famil y members but he stopped visiting her house. The villagers took her to appellant ’s house but he refused to accept her and that compelled her to file the FIR (E xt.1). 6. The above evidence of the prosecutrix proves that she was indulg ing in sexual intercourse with appellant voluntarily on several occasions. There was no occasion of using force by the appellant for co-habitation inasmuch as t he prosecutrix was a consenting party. In my considered view, the ingredients of offence within the meaning of Section 375 IPC are absent and the appellant is n ot liable to be convicted and sentenced under Section 376 IPC. The learned trial Court mis-read the provision of Section 376 IPC and mis-appreciated the evidenc e of the prosecutrix and the evidence of other witnesses supporting her evidence . The age of the prosecutrix having been proved above 16 years at the time of oc currence and she having enjoyed sex on several occasions voluntarily with the ap pellant, no order of conviction and sentence could be passed by the trial Court against the appellant under Section 376 IPC. In view of the above, the impugned order of conviction and sentence are hereby set aside and quashed. The appellant stands acquitted of charge under Section 376 IPC. 7. As regards the charge under Section 493 IPC, I am in agreement w ith the finding and conclusion arrived at by the learned trial Court and therefo re the appellant is acquitted of the charge under Section 493 IPC. 8. On careful perusal of the contents of the FIR and also the evide nce of the prosecutrix, it is clearly discernible that she brought allegation of cheating against the appellant attracting the ingredients of Section 415 of the IPC inasmuch as allegations were made against him to the effect that the prosec utrix was made to believe her by holding false promise that he would marry her a nd thereby induced her to indulge in sexual intercourse on several occasions but the appellant refused to marry/ accept her on being approached by the villagers when she was at the stage of five months pregnancy. Inspite of clear allegation as mentioned above, the learned trial court did not frame charge under Sections 415/417 of the IPC. 9. Mr. Sarma, learned counsel for the appellant submits that the ap pellant is not liable to be convicted under Sections 415/417 of the IPC inasmuch as the appellant, at the initial stage, had no intention or ill motive to decei t the prosecutrix by giving false promise to marry her. According to him, the pr osecution failed to prove ill intention or ill motive of the appellant to hold h im liable inasmuch as the appellant and the prosecutrix were in love and they in tended to get married. But it came to appellant’s knowledge that the prosecutrix developed physical relation with one Biswa Milli of Majuli. The prosecutrix, i n cross examination , denied that she knew the said Biswa Milli although, in fac t, she knew him. The defence took the stand that the appellant is not responsibl e for the pregnancy of the prosecutrix. As stated earlier, the appellant examine d no witness to prove his innocence. There is no evidence led by the appellant t hat the prosecutrix had relation with the aforesaid Biswa Milli and he was respo nsible for the pregnancy of the prosecutrix. The Court can not believe the story projected by the appellant inasmuch as there is no basis or evidence for the af oresaid allegation against the prosecutrix. It is rather noticed that the appell ant demonstrated irresponsible conduct and behavior when the villagers took the appellant to his house and he refused to accept her. The appellant tried to esca pe from his responsibility by way of refusing to accept the prosecutrix as his wife and making wild allegation against her without adducing any evidence to tha t effect. The conduct of the appellant clearly shows that he was not honest to t he prosecutrix. 10. It is a near impossibility to prove intention of a person by add ucing direct evidence. It is more difficult to prove whether a person cohabited with a girl without any intention to deceive her at the initial stage or he chan ged his mind or intention at the subsequent stage. The intention, either bad or good, could be inferred or understood only from the conduct of the accused perso n. I am of the considered view that the appellant, in this case, by his conduct as mentioned above, had shown his intention of deceiving the prosecutrix from th e beginning by holding promise to marry her and refusing to keep his words after
Decision
she got pregnant. The appellant is liable to be convicted under Section 417 of the IPC, although no charge has been framed against him under the aforesaid sect ion of law. The offence under Section 417 IPC, as compared to the charge under S ection 376 IPC, is minor and in such case as per the established law the court c an convict and sentence the accused even though no charge is framed. There is, t herefore, no legal bar in convicting and sentencing the appellant under Section 417 IPC. In view of the above the appellant is convicted under Section 417 IPC. The ends of justice would be made if the appellant is sentenced to pay fine of R s.10,000/- only and in default rigorous imprisonment for 2(two) months. The fine amount of Rs.10,000/- shall be deposited by the appellant with the Court of Se ssions, Dhemaji, within a period of 2(two) months from today. With the aforesai d alteration/modification in the conviction and sentence, this appeal stands dis posed of. Bail bond shall stand discharged subject to deposit of the aforesaid fin 11. e amount. Return the LCR forthwith.