High Court
Case Details
Crl.A. 196/2010 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Mr. P.J. Saikia, learned counsel for the appellant and Mr. D. Das, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against judgment and order dated 29.09.2010 pass ed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 17/2009 convict ing the appellant under Section 376 IPC and sentencing him to suffer Rigorous Im prisonment (R.I) for a period of 7 years and to pay fine of Rs. 10,000/-, in def ault, to suffer further R.I for a period of 1(one) year. Facts of the case may be briefly noted. 3. Father of the victim girl Shri Amar Bahadur Newar (PW1) lodged FIR on 10 4. .08.2008. According to the informant, when he noticed physical changes on the pe rson of his daughter, he asked his wife to enquire into the matter. His daughter told her that the accused on promise of marriage had established physical relat ionship with her. Accused was in jail in connection with a murder case and when he was released from jail, his daughter told him about her pregnancy but he refu sed to accept her and denied having any sexual intercourse with her. Informant s tated that his daughter was about 6/7 months pregnant. 5. me, Khowang P.S. Case No. 67/2008 under Section 376 IPC was registered. 6. Police took up investigation of the case. Victim was medically examined and her statement was recorded under Section 164 CrPC. On conclusion of investig ation, police finding a prima facie case, submitted charge sheet against the acc used under Section 376 IPC. The said first information was treated as FIR and on the basis of the sa 7. Aggrieved, the accused as the appellant has preferred the present appeal The offence being exclusively triable by a Court of Sessions, the case w as committed to the Court of Sessions Judge, Dibrugarh. Learned trial Court, the reafter, framed charge against the accused under Section 376 IPC. When the charg e was read over and explained to the accused, he pleaded not guilty and claimed to be trial. 8. Prosecution examined as many as 5 witnesses to prove the charge against the accused. Accused was examined under Section 313 CrPC. The defence plea was t hat of total denial. 9. After considering the evidence adduced, the learned trial Court found th e accused guilty of committing the offence of rape punishable under Section 376 IPC and convicted him accordingly. Following his conviction, accused was sentenc ed for the period as indicated above. 10. . 11. This Court by order dated 10.12.2010 had admitted the appeal and had cal led for the record. By a separate order dated 4.2.2011 passed in Criminal Misc. Case No. 735/2010, this Court suspended the impugned judgment and allowed the ap pellant to go on bail. 12. Learned counsel for the petitioner submits that the victim girl (PW3) wa s a consenting party. From the evidence on record, it is clear that she was a ma jor. The medical evidence which described her age as above 14 years and below 16 years cannot over-ride the specific evidence of the victim girl herself and tha t of her parents. When the victim is a major and a consenting party to the act o f sexual intercourse with the appellant, no offence of rape is made out. Therefo re, he contends, conviction of the appellant under Section 376 IPC is wholly uns ustainable and is liable to be quashed. 13. Mr. D. Das, learned Additional Public Prosecutor, Assam, however, suppor ts the conviction of the appellant and the sentence imposed by the learned trial Court. 14. 15. Submissions made have been considered. Before proceeding further, the evidence of the relevant witnesses may be considered. PW1 is the father of the victim girl and the informant of the case. He d 16. eposed before the trial Court on 17.06.2009. He stated that the present age of h is daughter would be about 21 years. He deposed that when he saw physical change s taking place on the person of his daughter, he asked his wife to enquire as to what was happening. His wife discussed with his daughter and then it came to li ght that the accused had co-habitated with their daughter which led to her pregn ancy. He stated that he and his wife used to go to the garden and both his sons used to go to school. Taking advantage of the absence of any family member at ho me, the accused used to visit his daughter. He stated that his daughter has a ch ild. PW2 is the wife of PW1. She stated that she was the step mother of the v 17. ictim. She deposed that during last Saraswati Puja, her step daughter did not ha ve menstruation twice, but she brushed it aside by saying that it happened somet imes and that she was having menstruation regularly. Later on, as her belly beca me large, it caught the attention of the village people. This time when PW2 aske d her as to what was happening, she told her that she was pregnant through the a ccused. She told this to her husband PW1, who then lodged the FIR. In her cross examination, she stated that the age of her step daughter would be 21/22 years ( she also deposed on 17.06.2009). PW3 is the victim girl. She stated that she knew the accused as he is th 18. eir neighbour. She further stated that the accused used to come to their house f or the last about 5 years when there was nobody at home. She stated that she had sexual intercourse with him and became pregnant. Though he used to say that he would marry her, later on, he stopped coming. PW3 stated that she was having one female child of 4 months. In her cross examination, PW3 stated that her age wou ld be 21/22 years (her evidence was also recorded on 17.6.2009). She categorical ly stated that she had no complaint against the accused and that she did not int end to lodge any case against him. She further stated that while she was taken b y the police to the Court to record her statement under Section 164 CrPC, her un cle and others had accompanied her. Her uncle Rana Pradhan had gone with her and she gave her statement before the Magistrate as was instructed by him. As referred to above, statement of PW3 was also recorded earlier on 13.8 19. .2008 under Section 164 CrPC. In the said statement, she disclosed her age as 16 years. In her said statement, she stated that the accused used to visit her reg ularly and had sexual relationship with her. A conjoint reading of the evidence would show that there was physical in 20. timacy between the accused and PW3. PW3 was not inclined to make any complain ag ainst the accused. FIR was lodged by father. She was compelled by her parents an d uncle to get her statement recorded under Section 164 CrPC. In her cross exami nation, she clearly stated that she had given her statement before the Magistrat e as was instructed by her uncle. Coupled with the above, she stated that she ha d no complain against the accused and did not want to lodge any case against him . Thus, it would be clear that the physical relationship or intercourse between the two was mutual and consensual. That now brings us to the question of age of PW3. As noticed above, as p 21. er medical evidence, age of PW3 was above 14 years and below 16 years of age. Th e FIR was lodged on 10.08.2008. At that time, PW3 was pregnant by 6/7 months. In other words, the offence would be relatable to a period about 7/8 months earlie r, which would mean sometime in the year 2007. Though PW3 in her 164 statement r ecorded on 13.8.2008, declared her age as 16 years, in her cross examination, sh e had virtually disowned her said statement by saying that she was accompanied b y the police and the family members when her said statement was recorded and tha t she had stated before the Magistrate what was instructed by her uncle. On the other hand, her father deposing on 17.6.2009 stated that age of PW3 would be 21 years. Similar is the stand of PW2, her step mother. PW3 in her evidence recorde d on 17.6.2009 also stated that her age would be about 21/22 years. That would m ake her age at the relevant time to be in between 19/20 years. 22. The Hon’ble Supreme Court in the case of Vishnu Alias Undrya Vs- State o f Maharashtra reported in (2006) 1 SCC 283 held that expert medical evidence is not binding on the ocular evidence. The opinion of the medical officer is to ass ist the Court as he is not a witness of fact. Evidence given by the medical offi cer is really of an advisory character and is not binding on the witness of fact . In the said case, the Apex Court further held that in the case of determinatio n of the date of birth of the child, the best evidence is of the father and moth er. If the statement of facts are pitted against the expert opinion of the docto r with regard to the determination of age based on ossification test, the eviden ce of fact of the former will prevail over the expert opinion based on the ossif ication test. 23. In the case of K.P. Thimmappa Gowda Vs. State of Karnataka reported in A IR 2011 SC 2564, the Apex Court in the contextual facts of that case held that a view is reasonably possible that the victim had sex with the appellant with her consent and hence there was no offence under Section 376 IPC because sex with a woman above 16 years of age with her consent is not rape. 24. From a perusal of the evidence on record, the Court is of the view that at the relevant point of time, PW3 was clearly above 16 years of age and the sex ual relationship between PW3 and appellant was consensual. 25. In such circumstances, conviction of the appellant under Section 376 IPC is not justified and cannot be sustained. 26. 27. 28. Impugned conviction and sentence is hereby set aside and quashed. Appeal is accordingly allowed. Registry to send down the LCR forthwith.