High Court
Case Details
Crl.A. 113/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. P.C. Dey, leaned counsel for the appellant. Also heard Mr. D. Das, lea rned APP, Assam. I have also perused the entire materials on record. 2. This appeal is directed against the judgement of conviction dated 21.2.2 006 passed by the learned Additional Sessions Judge (Adhoc), Jorhat in Sessions Case No. 56(J-J)/2005, convicting the accused appellant under Section 417 IPC an d sentencing him to pay a fine of Rs. 10,000/- and in default, RI for 6(six) mon ths. The fine was to be paid to the victim girl.
Legal Reasoning
2. The prosecution case started with the lodging of the FIR dated 8.3.2001 with the Pulibor Police Station. The FIR was lodged by the victim girl. As per t he FIR, the accused appellant developed an illicit relationship with the victim and as a consequence, she became pregnant. At that point of time, she was 17 yea rs of age. The village ’mel’ that was called, failed to yield any result. On rec eipt of the FIR, Polibor PS case No. 13/2001 was registered under Section 493/37 6/420/506 IPC. In due course, on conclusion of the investigation, the Police sub mitted the charge sheet and the trial Court charged the accused appellant under Section 376 IPC. The prosecution examined 7(seven) witnesses and the defence exa mined none. However, his statement was recorded under Section 313 Cr.P.C. His de fence was denial of the charge. PW-7 is the Doctor who had examined the victim who in her deposition sta 3. ted about the pregnancy of the victim. She was not cross examined by the defence . During trial also, the defence did not dispute that the victim was pregnant at the relevant point of time. The victim (PW-1) in her deposition, while stating about the incident disclosed that the accused appellant used to visit her house. He took the opportunity to visit her house in absence of her mother and brother and also promised to marry her. With such promise he enticed the victim and eve ntually committed the offence under Section 376 IPC. 4. PW-2 is the mother of the victim who in her deposition, stated that her daughter was about 16-17 years of age. Corroborating the evidence of PW-1, she a lso stated that the accused appellant was in visiting term in her house and taki ng advantage of their absence, he committed the offence on the victim. In her cr oss examination, she admitted that she did not lodge the FIR when the fact of pr egnancy became known to her. However, she denied the suggestion made by the defe nce that the accused did not promise to marry her. PW-3, 4 and 5 are all local p eople, who in their deposition proved that the victim was pregnant from the accu sed appellant. They also stated about the failure of the ’mel’ that was held for reconciliation. 5. The learned trial Court while acquitting the accused appellant under Sec tion 376 IPC has held that the victim being a consenting party, there was no of fence under Section 376 IPC. As regards her age which is stated to be 17 years o n the date of occurrence, it has been held that the variation of two years on ei ther side is possible. It is in such circumstances, the learned Trial Court has held that the offence under Section 376 has not been established. However, havin g regard to the overwhelming evidence that the accused appellant had promised to marry the victim girl, the trial Court has convicted him under Section 417 IPC. It has been held that since there was promise on the part of the accused appell ant to marry the victim girl and on such promise, there was consent on her part, the offence under Section 417 IPC stood established against the accused appella nt. It is in such circumstances, the learned trial Court has convicted the accus ed appellant under Section 417 IPC but having regard to the fact that the accuse d appellant was a Govt. servant and at the verge of retirement, imposed a fine o f Rs. 10,000/- and in default RI for six months. 6.
Legal Reasoning
Mr. P.C. Dey, learned counsel for the accused appellant submits that the offence under Section 417 having not been established, the impugned judgement i s not sustainable in law. Referring to the evidence on record, he submits that t he trial Court has committed a manifest error of law in convicting the accused a ppellant under Section 417 IPC. On the other hand, Mr. Das, learned APP, Assam, has submitted that the accused appellant was a frequent visitor to the victim’s residence and took advantage of her poor condition with the promise to marry her and committed the offence. Thus, according to him, in fact, it is a fit case to impose harsher penalty other than the one that has been imposed by the learned Trial Court. According to him, the accused appellant is lucky enough to get away with the sentence of fine of Rs. 10,000/- only. 7. Considering the matter in its entirety and in view of my discussions of evidence above, I am of the considered opinion that, in fact, it was a case for sentencing the accused appellant for imprisonment with fine. However, having reg ard to the fact that about 7(seven) years have gone by since the date of the imp ugned judgement and also in view of the fact that the accused appellant has alre ady retired from service and has been leading a retired life, I am not inclined to follow the procedure of enhancement of penalty at this distant date. Accordin gly, the impugned judgement of conviction stands confirmed. However, in the fact s and circumstances, I am also inclined to provide that the accused appellant sh all pay a compensation of Rs. 50,000/- (Rupees fifty thousand) only as compensat ion to the victim girl. He shall deposit the amount before this Registry on or b efore 15.3.2013. Upon such deposit, the Registry shall allow the victim girl or her representative to withdraw the same upon proper identification. This measure I have adopted following the Apex Court decision in the case of (Deelip Singh V s. State of Bihar) reported in AIR 2005 SC 203, in which under similar circumsta nces, compensation of Rs. 50,000/- to the victim was awarded. 8. It is clarified that the aforesaid amount of Rs. 50,000/- will be in add ition to the fine that has been awarded as sentence upon conviction of the accus ed appellant. If the accused appellant has not paid the said amount of Rs. 10,00 0/- to the victim girl, he shall deposit the same with the Registry along with t he aforesaid compensation of Rs. 50,000/-, totaling Rs. 60,000/- (Rupees sixty t housand) only for withdrawal by the victim girl as provided for above. At this stage, Mr. P.C. Dey, learned counsel for the appellant submits t 9. hat the fine of Rs. 10,000/- has already been paid to the victim girl as was dir ected by the learned trial Court. 10. With the above stipulation, the Criminal Appeal is dismissed. The Regist ry is directed to send down the case record to the learned Court below along wit h the copy of this judgement and order. Registry shall realize the amount of com pensation from the accused/appellant in accordance with the High Court Rules.