High Court
Case Details
Crl.A. 142/2007 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY This Appeal is presented against the judgment dated 02.06.2007 in Sessions Case No. 176/2006 whereby the learned Sessions Judge, Barpeta has convicted the accus ed/appellant under Section 376 of IPC and sentenced him to rigorous imprisonment of 10 years with fine of Rs.20,000/- and in default of fine, further R.I. for 2 years.
Legal Reasoning
Heard Mr. B.N. Sarma, the learned Counsel for the appellant and 2. Mr. B. Sinha, the learned Addl. Public Prosecutor. 3. The prosecution case as revealed from the F.I.R. shows that on 1 6.5.2006 while the prosecutrix was at Barpeta for marketing purpose, the accused being married to the victim’s cousin sister, informed her that her sister is ai ling and with this information enticed the victim to Guwahati. The victim was to ld that her sister was in a hotel at Paltanbazar and where the accused took the victim and threatening her, he sexually assaulted the victim in the hotel on 16. 5.2006. Next day on 17.5.2006 with assurance of marriage, the victim was taken t o the accused’s home at Howli, but family members of the accused did not allow t he victim to stay in the house and accordingly the victim was taken by the accus ed to Muku hotel at Barpeta. In this hotel also, the victim was subjected to sex ual assault. The next day, the accused took the victim again to his house but on refusal by his family members to accommodate the victim, the victim was threate ned and thrown out of the accused’s house. Thereafter the FIR was lodged and the Barpeta P.S. Case No.340/2006 was registered under Section 376 IPC. During the investigation, the victim was medically examined and 4. her statement was recorded under Section 164 Cr.P.C. After the investigation was completed, the accused was charge sheeted under Section 376 of IPC and the case was committed to the Sessions Court for trial. The accused claimed to be innoce nt and accordingly the trial commenced where 5 witnesses were presented by the p rosecution while the defence did not adduce any evidence. 5. P.W.1 is the victim and the informant in the case. She stated th at she was induced to go with the accused to Guwahati as the accused informed he r that his wife (victim’s cousin sister) was ailing and was in a hotel at Guwaha ti. But there the accused’s wife wasn’t present and the victim was subjected to sexual intercourse in that hotel at Guwahati. The accused then promised to marry the victim but the next day, the victim wasn’t allowed to stay in the accused’s house was tortured and was taken to a hotel at Barpeta. In her cross-examination, the victim stated that the accused did not hav e any children and she denied that she lodged a false case only because, the acc used retracted from his promise to marry her. 6. P.W.2 Dr. Sanjib Kr. Sarkar was the medical and Health Officer-I at the Barpeta Civil Hospital. He examined the victim on 20.5.2006 and opined t he victim to be aged between 18-20 years. The Doctor did not find any evidence o f recent sexual intercourse and to the Court’s enquiry, P.W.2 explained that (cid:28)re cent (cid:29) in his report means 24 hours. P.W.3 is the Manager of the Muku Hotel, Barpeta and proved the h 7. otel register (Exbt.3), where the accused and the victim was shown to be husband and wife and stayed in Room No.103 on 17.5.2006. P.W.4 is the owner of the same hotel and was a seizure witness to the hotel’s guest register. 8. P.W.5 Gorgeswar Das was the I.O. of the case who at the relevant time was posted in the Barpeta police station. After the F.I.R. was received, t he I.O. arranged for medical examination of the victim and collected other mater ial evidence. The statement of the victim was arranged to be recorded by the I.O . under Section 164 of Cr.P.C. In his cross-examination, the I.O. indicated that none of the ne ar relatives of the victim came forward to and that is why he did not examine an y of them. 9. Mr. B.N. Sarma, the learned Counsel argues that the victim was a major and since no sign of forced assault was noticed on the victim and accordi ngly he submits that she must be understood to be a consenting party and accordi ngly the conviction under Section 376 of IPC, is unjustified. The Counsel refers to the testimony of the victim to show that she did not raise any hue and cry w hile traveling with the accused to Guwahati or to Barpeta and accordingly it is contended that presumption of consent must be drawn against the victim. 10. Mr. B. Sinha, the learned Addl. Public Prosecutor however submit s that mere absence of injuries on the victim or absence of any sign of recent s exual intercourse can’t be fatal in as much as the medical examination was condu cted on 20.5.2006 nearly 60 hours after the previous sexual encounter of the vic tim and the accused which occurred on 17.5.2006 as per the prosecution story. Th e State argues that when a victim because of allurement/assurance of marriage ev en if gives consent, the sexual encounter can’t be said to be consentual. 11. Although 5 witnesses were presented by the prosecution, the most relevant evidence in the present case is that of prosecutrix herself. Question is whether conviction can be based on her solitary testimony and this will large ly depend on whether her evidence is trustworthy and reliable. 12. From the evidence of the victim it is clear that the accused is her cousin’s husband and accordingly she treated him to be a trusted relation. S he agreed to visit Guwahati with the accused only because, the accused told her that the victim’s sister is lying ill in a hotel at Paltanbazar. But when the vi ctim visited the Paltanbazar hotel her cousin sister wasn’t there and the accuse d made her spend the night in the hotel and subjected her to sexual intercourse by promising to marry her. The victim knew that her sister and the accused were childless and this may have prompted her to believe the offer of marriage by the accused. Therefore the sexual assault of the accused in the hotel at Guwahati can’t be said to be voluntarily consented by the victim, as she was induced by t he promise of marriage, given by the accused. 13. The sexual assault on the next day in the hotel at Barpeta can’t also be based on voluntary consent as by that time, the victim was already subj ected to sexual assault in the previous night and she was violently turned away from the house of the accused, although she was taken there with promise of marr iage. She was subjected to physical abuse in the accused house and must have be en in a state of trauma on the night of 17.5.2006, when she was kept at Muku hot el in Barpeta. 14. The hotel manager has proved the Exbt.-3 to prove that the accus ed and the victim spent the night in the hotel as husband and wife and therefore the testimony of the victim about spending a night together in the hotel room s tands corroborated by P.W.3 and P.W.4. 15. The accused being a trusted relative (cousin’s husband) is a fac tor which made the victim trustingly accompany the accused to Guwahati to visit the purportedly ailing sister of the victim. But this was a false ruse used by t he accused to deceitfully induce the victim to accompany the accused to the hote l at Guwahati where the victim was subjected to sexual assault. Although the vic tim had visiting terms with the family of the accused, those visits were social visits in presence of all other family members and those can’t be compared with the induced visit to purportedly meet the ailing sister at Guwahati. Having weighed the evidence of the prosecutrix, I find the same 16. to be cogent and trustworthy. Her evidence is supported on material particulars on the logistical aspects by P.W.3 and P.W.4.Accordingly I see no scope to take a different view than the one taken by the trial court, on the conviction under Section 376 of IPC. 17. However I find that the trial court has considered the act of th e accused as one deserving exemplary punishment and on this basis he was sentenc ed to 10 years R.I. with fine of Rs.20,000/- for his conviction under Section 37 6 of IPC. But considering the nature of the case, I see no justification for aw arding exemplary punishment. Accordingly while upholding the conviction, the sen tence is reduced to 7 years from the 10 years R.I awarded by the trial court. Su bject to this reduction of sentence, inference is not found justified with the j udgment under Appeal. As the accused is on bail, he will surrender before the tr ial court to serve out the remainder of the sentence. 18.
Decision
The Appeal is disposed of accordingly. Send down the L.C.R.