Judgment · High Court

The appellant herein stands convicted under Section 377 Indian Penal Code and he has been sentenced to undergo RI for 8 years with fine of Rs.1,000/- vide impug ned judgment and order dated 1-9-2006, passed by Sri I Ali, learned Assistant Se ssions Judge, Nalbari in Sessions Case No.42 of 2005. Being aggrieved with the conviction and sentence, the accused has preferred this appeal. Heard Mr. BM Choudhury, learned counsel for the appellants and Mr. K Munir, lea rned Addl.P.P. for the State. Also perused the impugned Judgment and evidence on records. The prosecution case is that at the relevant time, the victim’s father was engag ed by the accused to cultivate his land. Accordingly, the victim girl went to th e house of the accused in the early morning( 6.30 am) on 9-6-2003 to bring tea f or her father, whereupon she was sexually ravished. The FIR was lodged on 20-6-2 003. From the FIR, it appears that the FIR was not lodged promptly as during thi s period, a village meeting was held. After investigation, charge sheet under Section 376 IPC was filed and, in fact, the appellant was also tried for the offence under Section 376 IPC. However, aft er the trial, the learned Assistant Sessions Judge has convicted the appellant u nder Section 377 IPC. Mr. Choudhury, learned counsel for the appellant submitted that the appellant is highly prejudiced for his conviction due to the abrupt change of the penal law in the Judgment. The learned counsel submitted that not only the police case was registered u/s 376 IPC but the medical examination was also carried out in the same line and despite there being no evidence of sexual intercourse, the learned Assistant Sessions Judge has convicted the appellant for unnatural intercourse. In my considered opinion, though the words (cid:28)sexual intercourse (cid:29) employed in Sect ion 375 IPC may also include anal sexual intercourse. However, since there is a separate provision of law for conviction of an accused for carnal intercourse, t he proceeding should have been conducted for the specific offence. The record reveals that the victim girl gave her deposition on 11-11-2005 and th e medical officer was examined on 19-12-2005. Since the victim girl had alleged that she was subjected to carnal intercourse, the learned Assistant Sessions Jud ge was expected to obtain a clarification from the doctor as to whether the medi cal examination was carried on to ascertain whether the teenaged victim girl was subjected to vaginal intercourse or anal intercourse. However, the deposition o f the doctor was recorded mechanically. Neither the conducting Public Prosecutio n took the pain to get the aforesaid clarification nor the Presiding Officer of the Court took any steps to clarify the aforesaid factual discrepancies at any p oint of time during trial. Section 213 CrPC postulates that all the relevant particulars, which may give su fficient notice of the matter to the accused, shall be incorporated in the charg e. Section 218 CrPC stipulates that for every distinct offence, there should be a separate charge. In the case before me, though there was specific statement in the FIR and the st atements of the witnesses recorded by the I.O.as well as the statement of the vi ctim girl recorded under Section 164 CrPC that the offence was committed in the dwelling house of the accused, the learned Assistant Sessions Judge casually fra med the charge under Section 376 IPC stating that the accused had committed the offence of rape at ’village Batitora’. While framing the charge, the learned Ass istant Sessions Judge omitted to mention the exact place of occurrence. At the s ame time, the format of the charge also does not contain any endorsement of the judicial officer that the charge was read over and explained to the accused. Beside the aforesaid defects in the framing of the charge, the learned trial Jud ge also did not specify in the Judgment as to how he had convicted the appellant under Section 377 IPC and by exercising what powers although the charge was fra med under Section 376 IPC. In view of the aforesaid fundamental defects in the trial and in the impugned ju dgment, the conviction of the appellant under Section 377 IPC is hereby set asid e. Keeping in mind that the appellant is in jail since about 6 years and the offenc e was allegedly committed 9 years ago , I do not recommend denovo trial of the appellant. In the result, the appeal stands allowed. The conviction of the appellant is her eby set aside. He is set at liberty forthwith. The Registry is directed to forward a copy of this Judgment to Sri Imtiaz Ali, t he then Assistant Sessions Judge, Nalbari, wherever he is posted now for informa tion and taking note of the defects in the trial.