High Court
Case Details
Crl.A. 10/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
This appeal is directed against the judgement of conviction dated 20.12.2006 pas sed by the learned Additional Sessions Judge (FTC), Darrang, Mangaldoi in Sessio ns Case NO. 43 (DMFT) 2005. By the said judgement, the learned trial court while convicting the accused appellant under Section 376 IPC has sentenced him to und ergo RI for 10 years and to pay a fine of Rs. 5,000/- and in default, further RI for another 6(six) months. 2. The FIR was lodged with Khoirabari Police Station on 19.5.2004 by the al leged victim stating that she had relationship with the accused appellant since 1996 and that promising to marry her he had also sexual relationship with her. A s per the FIR, she was pregnant through him for 8(eight) months. It was alleged in the FIR that on being contacted, the accused appellant declined to marry her and kept himself hiding. It was stated in the FIR that the accused appellant was found present in a particular place but all persuasions to marry the victim gir l, resulted in failure. 3. On the basis of the said FIR lodged on 19.5.2004, Khoirabari PS case Noo .24/2004 was registered under Section 417/376 IPC. In due course, police carried out investigation and submitted charge sheet. The case being exclusively triabl e by the Sessions Court, Sessions Case No. 43(DMFT)2005 was registered and the a ccused appellant was charged under Section 376 IPC. During trial, the prosecution examined 8 witnesses and the defence exami 4. ned one witness i.e. DW-1. It will be pertinent to mention here that since in th e FIR, allegation was also made against some others, namely, Bhanu Saharia, Lamb udhar Deka and Jyotish Deka of assaulting the informant’s father when he had vis ited the place of hiding of the accused appellant and tried to persuade him to c ome back and marry the victim. The charge sheet was submitted against all the ac cused persons including the present appellant under Section 417/376 IPC. 5. While charge was framed against the accused appellant under Section 376 IPC, the other accused persons were discharged having not found any material for framing charges under Section 417/376 IPC. 6. As discussed in the impugned judgement of conviction and also discernibl e on perusal of the evidence adduced by the prosecution witnesses, all the witne sses stated in their depositions that there was love affair between the accused appellant and the victim girl since the year 1997. PW-1 in her deposition stated that during the period from 1997 to 2004, they had sexual intercourse on severa l occasions. It is in this context, Ms. A. Das, learned Amicus Curiae, appointed as the legal aid counsel, submits that consent by and between the parties is ea sily discernible, inasmuch as, the affair continued for long 7(seven) years from 1997. She has submitted that such an affair with resultant sexual intercourse o ff and on cannot be said to be against the will of the victim. 7. In her cross examination, the alleged victim girl stated that the accuse d appellant is their adjacent neighbour and she used to visit places like Tangla and Mangaldoi with him riding on his scooter and with the full knowledge of her parents. In her cross examination, she also stated that she had sexual intercou rse with the appellant for the first time in the month of February, 1997 in thei r house. She also stated that he used to stay in her house regularly from 9 pm t o 11 pm and her mother was aware about the said affairs between them. It was als o revealed in her cross examination that on 5 (five) earlier occasions she devel oped pregnancy but the same were terminated. 8. As stated above, the other witnesses also stated in their depositions th at the accused and the victim had developed intimacy since 1997, as a result of which the victim became pregnant number of times but the same were terminated. T hey also deposed that the accused appellant had promised the victim of marriage but eventually did not marry her. 9. Out of the aforesaid PWs, PW-6 is the Medical Officer who in his deposit ion confirmed the pregnancy of the victim girl. PW-7 is the IO who in his deposi tion stated about the investigation carried out and submission of the charge she et. PW-8 is also another IO, who in his deposition stated about recording of the statement of the witnesses, sending the victim for medical examination, arrest of the accused, etc. 10. The accused appellant examined his elder brother as DW-1. He in his depo sition stated that on 15.5.2004 he visited the house of the prosecutrix with the proposal for her marriage with the accused appellant but the mother of the pros ecutrix disagreed with the proposal. He further stated in his deposition that th e accused appellant could not perform marriage with the prosecutrix as he was wi thout any job. 11. The accused appellant was examined under section 313 Cr.P.C. and he plea ded not guilty of the charge against him. The learned Trial Court has held that in view of the aforesaid evidence, the offence under Section 376 stood establish ed as there was sexual intercourse against her will. In this connection, he has referred to Section 375 IPC with reference to first description i.e. (cid:28)against he r will (cid:29). While holding so, the learned Trial Court has presumed that the victim girl was 16 years of age in 1997 when there was first sexual intercourse. In arr iving at such a conclusion, the learned Trial Court has referred to the age of t he victim girl at the time of lodging the FIR in 2004. She was said to be of 24 years of age. However, in absence of any evidence and or argument relating to th e age of the victim girl (as it was accepted that she was major and 24 years of age), such a presumption could not have been drawn. Mr. N.J. Dutta, learned APP, Assam has pointed out that as per the 164 Cr.P.C. statement of victim girl, she was 25 years of age as on 20.5.2004. If that be so, she was 18 years of age in 1997. On a total reading of the entire evidence on record it is found that the 12. re was consent on the part of the victim girl. It is true that as per the eviden ce on record she was under the belief that the accused appellant would marry her . At the time of lodging the FIR she was 8 (eight) month’s pregnant. On earlier occasions also, she had to terminate pregnancy upon failure of the accused appel lant to marry her. It is in this context, the police had submitted charge sheet under Section 417 also. However, the charge was framed only under 376 IPC. One o f the grounds of this appeal is that at best it could be a case falling under 42 0 IPC. 13. If the victim girl had close intimacy with the accused appellant and res ultantly they had also co-habitation over the years from 1997 to 2004 and in the process, there was also termination of pregnancy, the same cannot be said to be case falling under Section 376 IPC. However, evidence on record would go to sho w that the accused appellant had made the victim girl to believe that he would m arry her. It is also in evidence that there was proposal from the side of the ac cused appellant to marry her. However, that was only after the lodging of the FI R. In that view of the matter, I am of the considered opinion that the charge ag ainst the accused appellant under Section 417 IPC stood established on the basis of the evidence on record.
Decision
14. In view of the above, the conviction of the accused appellant under Sect ion 376 IPC stands interfered with and instead he stands convicted under Section 417 IPC. The maximum penalty for the offence under Section 417 IPC, is imprison ment of either description for a term which may extend to one year or with fine or with both. The accused appellant is presently on bail as per order dated 9.3. 2007 passed in MC No. 127/2007. Considering the nature of the allegation and the evidence on record and the fact that the accused appellant stands convicted und er Section 417 IPC, I am of the considered view that the penalty of imprisonment already undergone will meet the ends of justice. The appeal is allowed to the extent indicated above. The Registry shall 15. transmit the case records to the Court below along with the copy of the judgemen t and order. While appreciating the assistance rendered by the Ms. A.Das, learned Ami 16. cus Curiae, a legal aid counsel, she will be entitled to a fee of Rs. 5000/- (Ru pees five thousand) only as hearing fee to be borne by the Legal Aid Committee. She shall be provided with a certified copy of this judgement and order free of cost.