High Court

Legal Reasoning

HON’BLE MR. JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER (ORAL) .A. Mazumdar, learned Addl. P.P., Assam for the State-Respondent. Heard Mr. J. Chutia, learned counsel for the appellant and Mr. K 2. This appeal is directed against the judgment and order dated 01. 05.2010 passed by the learned Sessions Judge, Dhemaji, in Sessions Case No.46(JN )/2009 convicting the appellant under Sections 376(2)(f)/450 IPC and sentencing him to undergo R.I. for 10 (ten) years and pay fine of Rs. 500/-, in default to undergo further R.I. for 3(three) months under Section 376(2)(f) IPC and also to undergo R.I. for 3 (three) months and pay fine of Rs. 500/, in default to under go further R.I. for 1 (one) month under Section 450 IPC with a direction that bo th the sentences would run concurrently. 3. The prosecution case, in brief, is that on 11.04.2008 while the victim girl aged about 15‰ years, was staying in the house of her grand mother, the appellant trespassed into her room in the night and committed rape on her. H is deaf and dumb grand father who was sleeping in the adjacent room heard the no ise and came to her room to know what had happened. At that time the accused fle d away. In the next morning the victim’s uncle lodged an FIR which was received and registered as Jonai P.S. Case No. 41/2008 under Sections 437/376 IPC. The I .O. visited the place of occurrence, recorded the statements of witnesses, sent the victim to Medical Officer and got her medically examined. The I.O. also arre sted the accused and produced the victim girl before a Magistrate and got her s tatement recorded under Section 164 CrPC. On completion of the investigation, th e I.O. submitted the charge-sheet against the appellant under Sections 457/376 I PC. The case was committed to the Court of Sessions and the learned trial court framed charge against the appellant under Sections 457/376 IPC. The charges wer e read over and explained to the accused, who pleaded not guilty and demanded tr ial and accordingly stood the trial. The prosecution examined 7 (seven) witnesse s including the victim girl and the Medical Officer. After recording the stateme nts of the appellant under Section 313 CrPC, he was given chance to adduce evide nce and accordingly, he examined one Shri Madan Maji as DW 1. The learned trial court on consideration of the materials and evidence on record and upon hearing the parties, passed the impugned judgment and order convicting and sentencing th e appellant as mentioned earlier. 4. Mr. J. Chutia, learned counsel for the appellant submits that th e prosecution case is totally improbable in view of the fact that an old man who was sleeping in the adjacent room of the victim girl was a deaf and dumb person and he was not capable of hearing. There was no chance for such an old man to h ear any noise or commotion and he would come to the victim’s room to wake her up and enquire what had happened. Moreover, the alleged occurrence took place in t he mid night of 11.04.2008 at about 12.30 AM and at that time the grand mother o f the victim was in the paddy field which is not at all believable. The alleged commission of rape continued for a period of 20 to 25 minutes which is also not at all probable and believable inasmuch as the victim girl, as claimed by the de fence was not a consenting party and there was every possibility of making noise by her. According to him, the sexual act could not be continued for 20 to 25 mi nutes unless the girl is a consenting party. in any case, she was aged above 18 years as per the medical evidence and she was in a capacity of giving consent fo r such sexual act. In such facts and circumstances, according to Mr. Chutia, lea rned counsel, no charge under Section 376 IPC would be attracted and stood estab lished. 5. Mr. K.A. Mazumdar, learned Addl. P.P. countered the aforesaid ar guments and submits that the presence of the appellant in the room where the vic tim was sleeping in the night has been proved and as per the evidence of the vic tim girl, the appellant forcibly gagged the mouth of the victim girl by a piece of cloth and indulged in sexual intercourse for about 20 to 25 minutes. She coul d not effectively resist because the appellant is a hefty person. 6. I have carefully gone through the evidence on record particularl y the evidence of the victim girl who was examined as PW 5 and also the evidence of medical officer, PW 6. The medical evidence is that there is no injury on th e person of the victim girl and her hymen was intact. According to the medical officer, there was no symptom of recent sexual intercourse. As per the medical r eport based on the clinical examination, the age of the victim girl was determin ed as below 21 years and above 18 years. From his evidence there is no doubt tha t the victim girl was major at the time of occurrence. Now the court is to find out whether there was consent on the part of the victim girl in the sexual act a nd whether it is a case of rape. From the evidence of the victim girl it is foun d that she was sleeping alone in the room and the appellant sneaked into the roo m without being objected by her. No hue and cry was made by her while the appel lant entered the room. She has no doubt stated that the appellant gagged her mou th by a piece of cloth and committed the sexual act and she could not resist bec ause the appellant was a hefty person. It appears that the appellant did not com e with any arm or he gave any threat by showing any weapon. There is nothing on record that the appellant ever threatened her with dire consequences in case she discloses the incident to anyone. It appears that she made some attempt to resi st but she submitted herself inasmuch as, she did not try to make any hue and cr y. In her evidence she has not even stated that while resisting the appellant sh e made any hue and cry to attract the attention of the neighbours. Moreover, it is unbelievable that the grand mother of the victim in whose house she was sleep ing on that particular night would have gone out in the mid night for some work in the field leaving her daughter-in-law at home with her own brother who was a handicapped person being deaf and dumb and who was not in a position to hear any thing if something had happened in the room where the victim was sleeping. In th e facts and circumstances of the case, I am of the considered view that the comm ission of rape by the appellant was not at all possible unless there was a conse nt on the part of the victim girl. It is, therefore, held that the sexual act be tween the appellant and the victim girl took place on mutual consent and the sam e does not attract the ingredients of Section 376 (2) (f) IPC. Similarly, the of fence of house trespass under Section 450 IPC also would not attract inasmuch as the appellant came to the house of the victim girl on her consent. 7. In view of the above, I am not in a position to agree with the f indings and conclusion arrived at by the learned trial court and I have no hesit ation to reverse the conviction and sentence as awarded by the learned trial cou rt. Accordingly, the impugned judgment and order convicting and sentencing the a ppellant by judgment and order dated 10.05.2010 is liable to be quashed and set aside. It is ordered accordingly. The appellant is acquitted of the charge under Sections 376 (2) (f)/450 IPC. 8. he LCR forthwith. Appeal stands allowed. The bail bond stands discharged. Return t