High Court
Case Details
Crl.A. 20/2012 BEFORE HON’BLE MR. JUSTICE P.K.MUSAHARY Heard Mr. K.D. Chetri, learned counsel for the appellant, Smti. Ahmeda Begum, le arned Addl. P.P., Assam for the Respondent No.1 and Mr. S.K. Thakur, learned cou nsel, appearing for the Respondent No. 2. 2. This appeal is directed against the judgment and order dated 23. 08.2011 passed by the learned Sessions Judge, Dhemaji, in Sessions Case No. 48(D H)/2010 convicting the appellant under Sections 366/376(1) of the Indian Penal C ode and sentencing him to undergo R.I. for 7 (seven) years and pay fine of Rs. 5 ,000/-, in default to undergo R.I. for another 6 (six) months for each count.
Legal Reasoning
3. The facts, in brief, are that on 13.4.2010, one Smt. Prativa Bas umatary of Mission area, Baligaon informed the police through a written Ejahar t hat on 10.4.2010, while her daughter (Ms. M) was on the way to Gogamukh Chariali , was kidnapped by the appellant. On the basis of the aforesaid FIR a case being Gogamukh PS No. 65/2010 was registered under Section 366A IPC. The I.O. during investigation got the victim girl examined by a doctor and obtained a report. Sh e was also produced before a Magistrate and got her statement recorded under Sec tion 164 CrPC. The I.O. also examined witnesses while he visited the place of oc currence and arrested the accused person (present appellant). On completion of t he investigation the I.O. submitted charge-sheet under Section 366A IPC against the appellant. On receipt of case record on committal, the learned trial court f ramed charges against the appellant under Section 366/376 (1) IPC, who on being read over and explained, pleaded not guilty and claimed to be tried. The prosecu tion examined 6 witnesses in all including the victim girl. The defence simply d enied the charges and examined no witness. The learned trial court, on considera tion of the evidence on record and also upon hearing the parties passed the imp ugned judgment and order convicting and sentencing the appellant as stated earli er.
Legal Reasoning
4. At the time of hearing Mr. K.D. Chetri, learned counsel, has tak en me through the FIR (Ext. 1), statement of the victim girl recorded under Sect ion 164 CrPC (Ext. 2) and also the evidence of the victim girl. 5. In the FIR the age of the victim girl has been mentioned as abou t 12 years and she was a student of Class -VII at the time of occurrence. In her statement under Section 164 CrPC also she has stated that her age to be about 1 2 years as on 26.4.2010. Similarly in her deposition also she has mentioned her age to be about 12 years. 6. The Medical Officer, Dr Pranab Hazarika was examined as PW 5. He testified that while he was posted at Gogamukh PHE, as Medical and Health Offic er - I, examined the victim girl on police requisition. He prepared a medical re port, Ext. 3 and proved the same. On examination he found as follows - (cid:28)(i) There is no mark of violence and injury over the body and private parts (ii) There is no any recent sign of sexual intercourse. (iii) for determination of age, X-ray advice and report is found from Mili Hos pital and Research Centre, Dhemaji. Age is above 12 years but below 14 years. (iv)There is no sign of injury and recent sign of sexual intercourse. (iv) Age is between 12 years to 14 years. (cid:29) 7. The defence declined to cross-examine the Medical Officer, PW5. 8. From the statement of the victim girl under Section 164 CrPC as well as her evidence on record, it is found that the victim girl spent some days with the appellant and she had sexual intercourse, at least once, with the appe llant. 9. According to her statement, the appellant did not use force whil e indulging in sexual act with her. She has not complained that she was forceful ly raped by the appellant. As per the evidence she was a consenting party. So fa r so good. But on consideration of the statement of the informant (mother o 10. f the victim girl) who was examined as PW 1, the victim girl was aged about 12 y ears only at the time of occurrence. As stated earlier, the victim girl also men tioned that her age was about 12 years only at the time of occurrence. The Medic al Officer, PW 5, who examined the victim girl, stated in his report as well as in his oral evidence that the age of the victim girl was about 12 to 14 years. T he defence did not try to prove that the finding of the medical officer is not c orrect inasmuch as it declined to cross examine him. The defence counsel did not dispute the age of the victim girl as recorded by the medical officer in his me dical report. The defence did not put any suggestion to the informant, mother of the victim, that she deposed falsely and the age mentioned by her was not corre ct. So also no suggestion was put to the victim girl that she was not minor at t he time of occurrence. It stands as an admitted position that the victim was min or at the time of occurrence. Yet, it has been submitted by the learned counsel for the appellant that since the girl voluntarily accompanied the appellant and moved here and there with him for days together and she had sexual intercourse with him willfully, no offence under Section 376 IPC has been committed by him a nd he should be acquitted. 11. There is no dispute or at least it has not been disputed that th e girl was not minor. The learned trial court has arrived at the correct conclus ion in regard to age of the victim girl and passed the impugned judgment and ord er rightly in accordance with law convicting the appellant under Section 376 IPC . Consent is not material in establishing the charge of Section 376 IPC if the v ictim girl is found to be below 16 years of age. This is what exactly happened i n this case. Since the victim girl was a minor at the time of occurrence, she wa s not in the age of consent. The law presumes that a girl below 16 years of age can not give consent and even if consent is given by her to sexual intercourse t hat is not material. The offender in such case can not escape from being held gu ilty and punished under Section 376 IPC. 12. In view of the above, I have no other alternative but to uphold the order of conviction as awarded by the learned trial court vide judgment and order dated 23.08.2011 which are under challenge in this appeal. 13. This appeal stands dismissed. Return the LCR forthwith.