High Court
Case Details
Crl.A. 186/2006 BEFORE HON’BLE MR JUSTICE P K MUSAHARY JUDGMENT AND ORDER (Oral)
Legal Reasoning
Heard Mr. S K Talukdar, learned counsel for the appellant and also Mr. B B Gogoi, learned Addl. Public Prosecutor, Assam for the State Respondents. 2. The appellant was convicted and sentenced under Section 366A IPC an d sentenced to undergo rigorous imprisonment for 3 years for the offence under S ection 366A IPC and rigorous imprisonment for 8 (eight) years for the offence un der Section 376 IPC with fine of Rs.2000/- in default to suffer rigorous impriso nment for another two months for offence under Section 376 IPC vide judgment an d order dated 28.6.2006 passed by the learned Sessions Judge, Barepta in session s case No.56/05 corresponding to GR case No.239/04. The prosecution case as revealed from the FIR is that on 14.12. 3. 2004 at about 6 pm the informant’s daughter ’A’ who was aged about 15 years, was kidnapped by the appellant and she remained untraced for a couple of days. On t he basis of the written FIR, the Incharge of Sarupeta Out Post made a GD entry d ated 17.12.2004 at 2.30PM and the FIR was forwarded to the O.C.Patacharkuchi on the basis of which Patacharkuchi P.S.Case No.239/04 was registered under Sectio n 366A IPC. While investigation was going on, the Incharge of the said out post received a telephonic message from Pathsala that the appellant and the victim g irl were confined at Pathsala. Both the appellant and the victim girl were appre hended by police and produced before the Magistrate. The statement of the victim girl was recorded under Section 164 Cr.P.C. on 18.12.2004. The victim girl was medically examined and the IO collected the medical report. On completion of t he investigation the IO submitted the charge-sheet on 29.5.2005 under Sectio n 366A IPC against the appellant. The case being committed the aforesaid case wa s registered. The learned trial court framed charge under Section 366A and 376 I PC on 12.9.2005, which was read over and explained to the appellant. The appella nt denied the aforesaid charges and claimed to be tried. 4. In order to establish the charges the prosecution examined as ma ny as seven witnesses while the appellant examined none in his defence. The lear ned trial court on consideration of the materials and evidence on record and up on hearing the parties convicted and sentenced the appellant as stated earlier. 5. I have perused the statement of the victim girl recorded under S ection 164 Cr.P.C. as well as her oral evidence. She was examined as PW-1. In he r evidence, she has basically maintained the statements made by her under Sectio n 164 Cr.P.C. before the Magistrate. As per her evidence on the night of occurre nce at about 6 pm she went to market with her mother and sister for purchasing s ome articles and returned home. Thereafter she alone went to the house of one He men Sarma whose house is located opposite to their house. After 10 minutes of co ming out from the house of Hemen Sarma the accused forcefully took her to the ho use of his uncle. She could not make any hue and cry or raise alarm as her mouth was gagged by the appellant. She was taken by the appellant to the house of his uncle at Sialmari. As per her own statement the distance between the place of occurrence and the house of appellant’s uncle is 3/4 kms. She spent the night in the said house with a woman. Nothing happened on the first night but on the nex t day morning she was taken towards Bhutan by bus but on the way they spent 2 ni ghts in the house of a Nepali family at Kumarikata. During their stay at Kumarik ata the appellant committed sexual intercourse with her against her will. After two days the relatives of the victim girl came to Kumarikata and brought the app ellant and the victim girl. They were handed over to police of Sarupeta Out Post . In cross-examination she stated that she cannot remember the date of her birth . She also stated that her village and the village of the appellant’s uncle at S ialmari are thickly populated. She took shelter in the house of the appellant’s uncle. Further she stated that she boarded a bus with the appellant and got dow n at a place and then proceeded on foot along with the appellant. They met many people on the way but she did not tell anybody that she was forcefully brough t or kidnapped by the appellant. They travelled in the bus along with many pas sengers . They got down from the bus at Rangia and took tea. The appellant made payment for the tea and they met many people in the tea stall but she did not te ll anybody that she was forcefully brought by the appellant. While they arrived at Kumarikata by bus they got down and proceeded to the house of Nepali Family o n foot. They took bath and meal in the house of said Nepali family and they slep t in a room together. In the house of said Nepali family she met many people and talked to them. While she was asked to sleep in the same room on the same bed w ith the appellant she did not raise any objection. In the night, the accused ind ulged in sexual intercourse with her. The same thing happened in the 2nd night a lso while she was sleeping with the accused. She did not raise any objection or alarm before any person about the said sexual intercourse in the house of the Ne pali family. According to her own evidence she sustained no injury on her privat e part. 6. P.W.6, Dr. Deepjyoti Das is the medical officer. He proved the m edical report Ext.3. He testified that he examined the victim girl and found the followings: (cid:28)Points and opinion regarding examination as required per requirements: (1)Whether she is rapped or not and violence mark presented or not. * No external injury seen * vaginal Dwab.examination * No vaginal injury seen * No sperm detected *Hymen not intact * No violence mark seen. 2.Whether she is conceived or not ? No conceived *Weigh for pregnancy test- Negative (ID No. LAB 3685) Date-18.12.04 *U & G of pelvic organs irr IOB- Normal study (Microdiagnostic cluite, Barpeta), 20.12.04. 3.Age determination:Brest -well developed Axillay ard pubic hair-well growth. X-ray writ joint - approximate age arrested RX A 1350 (18.12.04) 18 years. 4.Mentioreal with no.(1) Opinion: She is not rapped as there is No significant points in favour of rape during examination. Date-11.01.05 Sd/ Illegible (DR D.J.Das) (cid:29) In cross-examination the medical officer stated that he did not 7. mention about the police requisition. He also stated that report of radiologist was not available and his report is not a complete one. It appears that the opin ion as regards the age of the victim girl was given on the basis of X-ray report . The father of the victim girl is the informant in this case. He was examined a s PW-2. Besides, the victim’s younger sister was also examined as PW-3. One Lakh ikanta Das was examined as PW-4, he was an independent witness. PW-5 is a member of the joint family. All of them made deposition regarding absence and elopeme nt of the girl. The fact that the victim girl was missing or disappearing from t he house is an admitted factual position. The fact that the victim as well as th e appellant were apprehended by police is also an admitted position. The evidenc e on record also proved the fact that the victim was with the appellant for some days and they stayed together first in the house of appellant’s uncle and then in the house of a Nepali family. 8. From the evidence of victim girl it is more than clear that alth ough she stated that her mouth was gagged at the initial stage, the appellant di d not gag her mouth inasmuch as they stayed in the house of appellant’s uncle a nd then they stayed in the house of a Nepali family at Kumarikata. She was left absolutely free at Kumarikata and she could have made a complaint before the ‘i nmates of the said place about forcible elopement or sexual abuse committed on h er by the appellant. She was maintaining calm and behaving herself in a normal way. She started complaining only when she was located by some people and handed over to police. The conduct of the victim clearly shows that she was a consenti ng party inasmuch as she accompanied the appellant willingly, proceeded to the h ouse of the appellant’s uncle and then to Kumarikata staying at least 3 days to gether in the same room and sharing the same bed. 9. The only consideration this court has to make is as to whether the victim girl was below the age of 18 years at the time of alleged occurrence for the purpose of establishing offence under Section 366A and below 16 years f or the purpose of offence under Section 376 IPC at the time of occurrence. There is no positive evidence on the age of the victim girl. The medical officer PW- 6 has given his opinion on the age of the victim girl only on the basis of X-ra y report. According to the medical officer, approximate age of the victim girl w as around 18 years. While deciding the age of the victim, the court may add two years in the upper side and may also minus two years in the lower side. If th e age of the girl is 18 years, her age may be taken as around 20 years in the u pper side and 16 years in the lower side. In any case her age was between 16 and 18 years. 10. From the statement of PW 7(I.O) in cross examination, it appears that the school certificate of the victim girl was collected but it was not pro ved and exhibited during trial. If such certificate was collected it was incumbe nt upon the prosecution to summon the school headmaster and get the said certifi cate proved. If it was done so, the actual date of birth of the victim girl coul d have been found and proved. A serious lapse has been committed by the prosecut ion in not summoning the school headmaster and proving the school certificate. H owever, this court is left with no other alternative but to presume the age of t he victim girl between 16-18 years under the provisions of Section 114(g) of the Indian Evidence Act, 1872. Once it is accepted that the girl was above 16 years of age, in my considered view the offence under Section 375 IPC would not be at tracted inasmuch as she was at the age of consent and she was a consenting part y as found in the discussion made earlier. Similarly, age of the victim girl as per doctor’s evidence was around 18 years at the time of alleged occurrence and as such the offence under Section 366A IPC would not be attracted.
Decision
11. In view of the above discussion and findings I come to conclusi on that the charge under Section 366A and 375 IPC could not be established by th e prosecution. The impugned judgment convicting and sentencing the appellant, in my considered view, is not sustainable and the same are liable to be quashed an d set aside. Accordingly, the impugned judgment convicting and sentencing the ap pellant stand quashed and set aside. The appellant stands acquitted. He be set a t liberty forthwith if his further detention is not required in connection with any other case. 12. The Registry is directed to return the LCR forthwith.