High Court
Case Details
Crl.A. 119/2009 BEFORE THE HON’BLE MR JUSTICE C.R. SARMA Heard Mr. Y.S. Mannan, learned Counsel, appearing for the appellant. Also heard Mr. B. B. Gogoi, learned Additional Public Prosecutor, Assam. 1. This appeal has been preferred by Mr. Sukhil Mallick, against the judgme nt and order, dated 19/12/2006, passed by the learned Additional Sessions Judge (FTC No. 2), Kamrup, Guwahati in Sessions Case No. 365(K)/2005. 2. By the impugned judgment and order, the learned Sessions convicted the a ppellant, under Section 376 I.P.C, and sentenced him to suffer R.I. for 10(ten) years and pay fine of Rs.2,000/-, in default, R.I. for 4 (four) months.
Legal Reasoning
3. The prosecution case, in brief, is that on 02/12/2004, at about 8.30 P.M ., the victim girl along with Sri Pradip Barman and Sri Sajal Sutradhar, went fr om her house in the motor cycle of Sri Pradip Barman for enjoying Rashpuja at Lakhitari. After enjoying Rashpuja at Lakhitari, she along with Sri Sajal Sutrad har and Sri Sukhil Mallick, i.e. the appellant, in a motor cycle, went to Teteli a to enjoy Rashpuja . From Tetelia, she was taken to Jalisora concrete bridge, b y Sajal Sutradhar and Sukhil Mallick and Sajal Sutradhar was waiting with the mo torcycle near the bridge aforesaid, the appellant, i.e. Sukhil Mallick, committe d rape on her. After said incident, the victim girl along with the appellant and Sajal Sutradhar returned to Lakhitari and from there, she along with Pradip Ba rman and others went to her house. On the next day, she informed the incident to the members of the family. 4. On receipt of the information about the said incident, Sri Soni Barman ( PW-6), who was brother of the victim girl, lodged an FIR with the Police, on 14/ 12/2004, i.e. after 12 (twelve) days of the occurrence. 5. On receipt of the said FIR, Police registered a case under Section 376/3 4 IPC, examined witnesses, got the victim girl examined by the Medical Officer a nd at the close of the investigation, submitted charge-sheet, under Section 376/ 34 IPC, against the appellant and others. The offence being exclusively triable by the Court of Sessions, the lear 6. ned Additional Chief Judicial Magistrate, Kamrup, Guwahati, committed the case t o the Court of Sessions and accordingly, the learned Sessions Judge framed charg es under Sections 376/34 IPC, against Pradip Barman and Sajal Sutradhar. 7. The prosecution examined as many as 12 (twelve) witnesses, including the Medical Officer, who examined the victim girl and the Investigating Officer. 8. At the close of the evidence for the prosecution, the accused persons we re examined under Section 313 Cr.P.C. They denied the allegations, brought again st them and declined to adduce defence evidence. 9. Considering the evidence on record, the learned Sessions Judge, convicte d the appellant, under Section 376 I.P.C, and sentenced him to suffer R.I. for 1 0(ten) years and pay fine of Rs.2,000/-, in default, R.I. for 4 (four) months. T he other two accused persons aforesaid were convicted under Section 376/109 IPC and accordingly, sentenced to suffer R.I. for 7 (seven) years each and pay fine of Rs.2,000/-, in default, suffer R.I. for another 4 (four) months. Aggrieved by the said conviction and sentence, the appellant has come with this appeal. 11.Mr. Y.S. Mannan, learned Counsel, appearing for the appellant, referring to t he evidence, on record, more particularly, the evidence of the victim girl and t he Medical Officer, has submitted that as revealed from the evidence, on record, the victim girl, at no point of time, put up any resistance against the alleged act, committed by the appellant and as per the medical evidence, her age was ab ove 16 (sixteen) years and below 18 (eighteen) years. Therefore, it is submitte d that she was a consenting party and she being above 16 (sixteen) years, the co nviction of the appellant under Section 376 IPC is not maintainable in the eye o f law. Therefore, it is submitted that the impugned conviction and sentenced, recorded against the appellant, under Section 376 IPC, is bad in law and as such the same is liable to be set aside and quashed, resulting acquitted of the appellant. 12. The learned Additional Public Prosecutor, Assam, by supporting the impugned conviction and sentence, has submitted that there is specific evidence to show t hat the appellant had committed rape on the victim girl and as such the impugne d judgment and order suffers from no illegality requiring interference. learned Sessions Judge committed no error by convicting and sentencing the appellant , a s indicated above. 13. Having heard the learned Counsel, appearing for both the parties and conside ring the evidence, on record, it is clearly found that, on the fateful evening, the victim girl went to enjoy ’Rashpuja’ at Lakhitari along with Sri Pradip Bar man and Sri Sukhil Mallick in a motor cycle and from there, she went, to another place, namely, Tetelia, for enjoying Rashpuja. This time, she went in a motor c ycle with Sri Sajal Sutradhar and the appellant. There is nothing on record to show that she was forcefully taken by the appellant and others. 14. From the evidence of the victim girl, who deposed as PW-9, it is found that she went with the appellant and Sri Sajal Sutradhar to the Jalisora concrete bri dge and in the said bridge, the appellant had committed rape on her. She nowhere stated that any force was applied to her or that she had raised any objection o r put up any resistance. From her evidence, it also appears that she did not sus tain any injury on her person. Hence, there was no violence against her body. Th ere is no evidence to show that her garments were forcefully removed by the appe llant. 15. From her said evidence, it is found that, after the alleged incident, she ag ain, along with Sajal Sutradhar and the appellant went back to Lakhitari in the same motor cycle and from there, she went to her house along with Sri Pradip Bar man. She did not disclose about the incident to any person including Pradip Barm an and the members of her family either immediately after the incident or after arriving at her residence. 16. From her evidence aforesaid, it is found that, she, on the next day, had revealed about the said incident to her maternal aunt, who informed the matter t o other members of the family. She clearly stated that she did not disclose abou t the incident to her parents and other members of the family in her residence a fter her arrival in the house. It is quite surprising as to why she did not info rm about such a serious incident either to Pradip Barman, with whom she went to enjoy Rashpuja, or to her parents and other family members. She awaited till the next day, for the reason best known to her, for disclosing about the incident to her maternal aunt. This conduct, on her part, raises doubt about the veracity of the case. The said doubt is fortified by the absence of any mark of injury o r violence, on absence of any sign of using force in respects of her wearing ap parels. She did not state that she was put to any threat by the appellant. 17. Considering the entire aspect of the matter and facts and circumstances o f the case, it appears that she was a consenting party. Admittedly, as held by t he learned trial Judge, minor’s consent is no a consent. Section 375 of IPC, whi ch defines rap, reads as follows: (cid:28)375. Rape- A man is said to commit (cid:28)rape (cid:29) who, except in the ca se hereinafter excepted, has sexual intercourse with a woman under circumstances failing under any of the six following descriptions: First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained b y putting her or any person in whom she is interested in fear of death or of hur t. Fourthly.- With her consent, when the man knows that he is not h er husband, and that her consent is given because she believes that he is anothe r man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such con sent , by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, s he is unable to understand the nature and consequences of that to which she give s consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. ife not being under fifteen years of age, is not rape. (cid:29) Exception.- Sexual intercourse by a man with his own wife, the w The provision (cid:28)Sixthly (cid:29) of the said Section indicates that the consent of a victim, who is under 16 (sixteen) years of age, is immaterial. In v iew of the Criminal Law (Amendment) Ordinance, 2013, which came into effect w.e. f. 03.02.2013, the consenting age under Section 375 IPC has been fixed as18 year s. The alleged occurrence, in the case in hand, took place on 02.12.2004, i.e. p rior to the coming into effect of the said Ordinance. Therefore, as per the ear lier law (Section 375, Sixthly) if the victim is above 16 (sixteen) years and th e alleged offence is committed with her consent, then the act will not constitut e rape, in the eye of law. 18. The Medical Officer (PW-10), who examined the victim girl, opined, after physical and radiological examination, that the age of the victim girl was abov e 16 (sixteen) years and below 18(eighteen) years. The Medical Officer further o pined that as per the medical jurisprudence, the age of a person may be varied by 2 (two) years or either side. The opinion, given by the Medical Officer, rega rding age of a person can not be rigid. Therefore, if 2 (two) yeas are added on either side, the victim will be 18 (eighteen) years. That apart, the victim girl , in her cross-examination, stated that her age was 16 (sixteen) years. In view of the above, the victim was found to be above 16(sixteen) years by the Medical Officer.
Decision
In view of the above discussion and the definition provided in Section 375 (sixt hly), the alleged offence being committed with consent, can not be termed as rap e. 17. In view of the above, considering entire aspect of the matter and the ev idence, produced by the prosecution, I am of the considered opinion that the pro secution failed to establish that the appellant committed rape on the victim gir l. Therefore, the impugned conviction and sentence can not be maintained. Accordingly, I find sufficient merit in this appeal. The impugned convic 18. tion and sentenced, so far it relates to the present appellant, is set aside and the appellant is acquitted and set at liberty forthwith, if not required in any other case. 19. Return the LCR.