High Court
Case Details
Crl.A. 8/2011 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
This appeal is against the judgment of acquittal dated 20.3.2010 in the Sessions Case No.69 (DM-3) of 2008, rendered by the learned Assistant Sessions Judge, Da rrang, Mangaldoi. Through the impugned judgment, the learned trial Court held th at charges under Section 417/376/506 IPC are not proved and accordingly the accu sed were acquitted. 2. I have heard Ms. R B Bora, learned counsel appearing for the appellant/ victim. Mr. P Upadhyay, learned counsel appears for the accused. Mr. Z Kamar, le arned Public Prosecutor represents the State. 3. The prosecution story as revealed by the FIR filed by Smti Anju Das @ An juli Das (hereinafter referred to as ’the victim’) is that the accused Kushal Me dhi by proposing marriage lived with the victim as husband and wife at Mangaldoi and at Guwahati. Thereafter the victim gave birth to a female child on 16.4.200 7 at the Ayurvedic Hospital, Jalukbari. But after the child was born, the accuse d Kushal Medhi did not abide by his promise and instead the friend of the accuse d, Dharmaraj attempted to snatch away the baby girl. After this when the victim telephoned, the accused Kushal Medhi and his sister Chandrama Medhi verbally thr eatened the victim. Thereafter the FIR was filed resulting in the Paneri P.S. Ca se No.99/2007 under Section 376/420/506/34 IPC. After investigation was complete d the case was committed to the Court of Sessions where charges under Section 41 7/376 IPC were framed against accused Kushal Medhi. Against the other 2 accused, charge under Section 506 IPC was framed. The prosecution examined 6 witnesses while no defence evidence was adduc 4. ed by the accused. The statement of the accused persons were recorded under Sect ion 313 CrPC by the trial Court. 5. PW.1 is the victim girl who lodged the FIR before the police. According to her, she and accused Kushal Medhi were in love since the year 2007 and both o f them lived as husband and wife at Mangaldoi for 6 months and after she became pregnant, she was shifted to Boragaon at Guwahati, where also, she and accused K ushal Medhi lived as husband and wife. A female child was born to the witness at the Ayurvedic Hospital, Jalukbari and soon thereafter accused Kushal stopped hi s contact with the victim. Than one day, the victim was called by the accused to Tangla with the assurance of performing Court marriage, but he did not abide by the promise. While the victim stayed at Tangla, the accused Dharmaraj Das came to take the victim to Guwahati but when she refused to go with him, Dharmaraj Da s tried to snatch away the female child of the victim. Then when the victim trie d to contact the accused, Kushal Medhi and his sister Chandrama Medhi threatened the victim over the telephone and thereafter the FIR was lodged. In her cross-examination, the witness stated that earlier in the year 20 04, she got married with one Apurba Nath but she stayed with her husband only fo r one month. A divorce case was filed against Apurba Nath but the victim could n ot produce any papers of that divorce case. The prosecutrix stated further that she sought maintenance from accused Kushal Medhi. PW.2 Smti Arati Das is the mother of the victim. According to her, accus 6. ed Kushal Medhi after assuring various help to the victim, had shifted her away from Guwahati to Mangaldoi. But the mother wasn’t aware where the prosecutrix st ayed at Mangaldoi. She learnt of the birth of a child and the apology sought by the victim from her mother. PW.2 stated that the accused Kushal Medhi promised t o marry and take care of the victim but he did not keep his promise and stopped paying her maintenance. In her cross-examination, the mother stated that the divorce case of the victim with her husband Apurba Nath is pending in the Kamrup Court. 7. PW.3 Smti Dulumoni Deka is the sister of the victim. She stated that the accused Kushal Medhi took away the victim to Mangaldoi by promising to facilita te her learning cutting and embroidery. Later she came to know from the PW.2 tha t a female child was born to the victim. In her cross-examination, the witness stated that she didn’t know whether any ma rriage had taken place between the victim and the accused person. She also could not say how the female child was born to her younger sister. 8. PW.4 is Dr. Durgeswar Sarma who examined the victim on 4.9.2007 at the M angaldoi Civil Hospital. He opined the age of the victim to be 19 years and foun d symptoms of a baby birth at the time of medical examination of the victim. 9. PW.5 is Sri Mukunda Das who knew the victim and the accused. He stated t hat a child was born to the victim through her relationship with accused Kushal Medhi. In his cross-examination, the witness admitted that the victim was earlier marri ed to Apurba and they lived together only for 2/3 months. 10. PW.5 Sri Muhi Kanta Gogoi was the I.O. in the case. He arranged for the medical examination of the victim and also submitted charge sheet, after conclus ion of investigation. Ms. RB Bora, learned counsel submits that only because the accused Kusha 11. l Medhi had promised marriage to the victim, she agreed to the live-in relations hip with the accused and since the promise was dishonoured by the accused after her child was born, the counsel argues that the consent should not be considered to be voluntarily but should be treated as a consent under misconception of fac t. The appellant further contends that but for the promise of marriage, the victim would not have consented to cohabitation with accused and on this basis it is argued that the acquittal judgment was unjustified. 12. Mr. Z Kamar, the learned Public Prosecutor refers to the long live-in re lationship of the victim and accused Kushal Medhi and he submits that appropriat e presumption in law should be drawn under Section 114A of the Evidence Act to r each the conclusion that the victim would not have consented to sexual intercour se but for the promise of marriage, made by the accused Kushal Medhi. 13. Representing the accused, Mr. P Upadhyay, learned counsel submits that t he prosecutrix was earlier married to one Apurba Nath in the year 2004 and accor dingly their 2nd marriage without dissolution of the 1st one can’t reasonably be expected by the victim. The counsel refers to the evidence of the victim and her mother and sist er to project that cohabitation was not preceded by promise of accused and in su ch circumstances, the consent to cohabitation can’t be said to be under misconce ption of fact. 14. As the evidence of the prosecutrix herself is the most crucial in cases of this nature, it is important to examine the victim’s evidence with due care. She was earlier married to one Apurba Nath in the year 2004 and a divorce case w as pending against her husband. During this period she met accused Kushal Medhi. In the FIR, the victim stated that the accused promised her marriage and with t his expectation she decided to leave Guwahati and shift to Mangaldoi. It was fur ther mentioned that the first sexual encounter of the victim and the accused Kus hal Medhi took place in a hotel and when the victim protested, the accused gave her his own ring and put vermilion on her forehead to assure that he accepts the victim as his wife from then onwards. Thereafter the accused shifted the victim to Mangaldoi where he sponsored her stay and arranged for her training in cutti ng and embroidary. At Mangaldoi, the victim became pregnant and then the accused assured that he will marry the victim in the Guwahati Court. 15. But in her testimony in the Court, the victim did not state about the fi rst sexual encounter at the Guwahati hotel. Moreover she did not testify about t he marriage promise made by the accused, which prompted her to relocate to Manga ldoi, by leaving her rented premise at Maligaon, Guwahati. No doubt the victim s tated at some stage that accused Kushal Medhi promised to marry her but it is no t however testified that the victim agreed to the live-in relationship at Mangal doi only because, she was enticed by the promise of marriage. It is also relevan t to note that the victim was already married with one Aburba Nath when she met the accused Kushal Medhi and her first marriage was not yet annulled. 16. The mother of the victim in her testimony stated about the earlier marri age of the victim with one Aburba Nath. But significantly the victim’s mother te stified that with a promise to help her, the accused Kushal Medhi took away the victim to Mangaldoi from Guwahati. But there was no evidence from the mother tha t the victim shifted to Mangaldoi only because marriage was promised by accused Kushal Medhi. The witness later on stated that accused Kushal Medhi assured to k eep the victim by marrying her but from this part of the evidence, it can’t be c onclusively established that the victim consented to sexual intercourse only bec ause, marriage was promised to her. 17. The victim’s sister had however categorically stated that accused Kushal Medhi took the victim to Mangaldoi to teach her cutting and embroidery and she nowhere stated about any promise of marriage by the accused to the victim. Sri M ukunda Das, who was an independent witness did mention that a child was born out of the relationship between the victim and accused Kushal Medhi, but he did not say that the victim’s consent was obtained through promise of marriage. 18. In the backdrop of the above evidence, the issue before the Court is whe ther any marriage promise made by accused led to consent being given by the vict im. What is relevant here is that the victim was a major and was already married when she met the accused. The live-in relationship of the victim and the accuse d and a child being born out of this relationship is testified by the victim her self. But there is no cogent evidence to show that the victim was made to give c onsent under the misconception of fact that, accused Kushal Medhi will marry her . From the evidence of the sister and the mother of the victim it can’t be ruled out that the victim gave consent on account of the financial and other help ass ured by the accused. That apart, since the victim’s first marriage still subsist ed, it can’t be reasonably expected by her when she agreed to live together as h usband and wife with the accused, that he will marry her. 19. I feel that the initial assent of the victim may not be prompted by the promise of marriage made by accused Kushal Medhi. Cogent material is not availab le in the case to conclude that before the first sexual encounter, the accused h ad dishonestly promised marriage to the victim to induce her consent. Having con cluded thus, I see no reason to interfere with the judgment of acquittal and the appeal is consequently dismissed. 20. The L.C.R. be returned immediately.