High Court
Case Details
Crl.A. 197/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. B.M. Choudhury, learned counsel for the accused appellant as well as M r. B.B. Gogoi, learned A.P.P., Assam. I have also perused the entire materials o n record pertaining to this appeal. 2. The appeal is directed against the judgment of conviction dated 6.9.2007 passed by the learned Sessions Judge, Lakhimpur in Sessions Case No. 96 (NL)/20 5 convicting the appellant under Section 376 (1) IPC and sentencing him to under go RI for 10 (ten) years and to pay a fine of Rs. 5,000/- and in default to unde rgo RI for another six months.
Legal Reasoning
3. The criminal proceeding was set to motion with the lodging of FIR (Ext-4 ) on 22.7.2004 with the Dolohat Police Outpost by the mother of the victim. As p er the said FIR, the accused appellant eloped with the victim girl from the hous e of Sri Nagen Phukan with the promise to marry her. The FIR also alleged that t he accused appellant played with her chastity. According to the FIR, on being as ked, the accused appellant denied any such incident. 4. The FIR was registered as Lakhimpur P.S. Case No. 143/2004 under Section 366/376/34 IPC and after investigation etc. charges having been framed against the accused appellant under Section 366(A)/376/34 IPC, the case was committed to the trial Court i.e. the learned Sessions Judge, Lakhimpur where Sessions Case No. 96(NL)/05 was registered. In the trial, prosecution examined 7 witnesses inc luding the IO. Based on the evidence adduced by the victim girl, including her s tatement under Section 164 Cr.P.C., the Trial Court having convicted the accused appellant, he filed the instant appeal. Although pursuant to the impugned judgm ent of conviction dated 6.9.2007, the appellant was sent to jail, but subsequent ly on the basis of the application for bail being Crl. Misc. case No. 3/2009, he was enlarged on bail vide order dated 6.2.2009. Thus, from the date of convicti on i.e. 6.9.2007, he was in jail for abuoit 1 ‰ year.
Legal Reasoning
5. Mr. Choudhury, learned counsel for the accused appellant has submitted t hat it being not a case of establishing the charges against the accused beyond a ll reasonable doubt, he is entitled to get acquittal. He submits that even if th e statement made by the alleged victim girl is believed, then also it will not b e a case of an offence under Section 376(1) IPC as the victim was a consenting p arty. He further submits that the other two girls with whom the victim had share d the bed from where she was allegedly forcefully taken away to the bed of the a ccused appellant in the same room having not been examined, there was irreparabl e lacuna in the prosecution case and consequently the accused appellant is entit led to get the benefit of doubt. As regards the age of the victim girl, which th e doctor has certified to be between 16 to 18 years, he submits that such assess ment cannot be tested with rigidly, but will have to be viewed with flexibility. Referring to the provision of Section 375 IPC, he submits that with such flexib ility and even otherwise also, it will not be a case of committing the offence u nder Section 376(1) IPC. In this connection, he has referred to the exception un der Clause-6 of Section 375 IPC, in terms of which exception is provided where t he victim is less than 16 years of age. As indicated above, in the instant case, as per the medical report, the age of the victim girl is in between 16 to 18 ye ars. 6. Mr. Gogoi, learned A.P.P., Assam on the other hand submits that when the victim herself has testified the offence committed by the appellant, the same i s sufficient to convict the appellant and accordingly the learned Trial Court ha s rightly passed the impugned judgment of conviction. Referring to the evidence on record, he submits that when the victim girl in her deposition both under Sec tion 164 CrPC and during the trial having pointed out the accused appellant in c lear terms, the minor variation here and there in the investigation cannot absol ve the appellant from conviction under Section 376 (1) IPC. 7. I have very carefully considered the submissions made by the learned cou nsel for the parties. As per the evidence on record, the primary basis for convi ction of the appellant is the evidence adduced by the victim girl. As per the sa id evidence and as seen from the other evidence, the victim had gone to the appe llant’s place at Dolohat along with her sister namely Lipika and her friend name ly Sewali. Her father also accompanied her. At the request of the accused, she a nd her friend Sewali remained in his house while her father along with Lipika ca me back on the same day. As stated by the victim girl herself she had shared the bed at night along with her friend Sewali and another girl namely Omi, who was the maidservant of the accused appellant. The accused appellant slept in another bed in the same room. As per the evidence on record, the victim girl slept in t he other bed along with and in between two other girls. It is alleged that the v ictim girl was forcibly taken away from that position to the bed of the accused appellant and thereafter the offence was committed. According to the deposition of the victim, when the appellant tried to commit the offence on her, she rebuke d and also resisted him by fists and blows, but upon threat had to yield to his pressure. Referring to the above evidence, Mr. Choudhury, learned counsel for the 8. appellant submits that this version of the victim girl is not trustworthy inasmu ch as had it been a case of her forceful eviction from the bed that she had shar ed with other two girls and also rebuking and resisting the appellant with fists and blows, the other two girls who had slept along with her would have certainl y came to know about the incident, more particularly when all of them i.e. the t hree girls including the victim girl and the accused appellant were in the same room. He further submits that even after the alleged incident, the victim girl c ontinued to stay with the accused appellant for another three days and during th at period, she did not tell any one about the alleged incident. He also submits that non-examination of the other two girls, who had shared the bed with the vic tim girl is fatal to the case of the prosecution. 9. If we go by the FIR, an altogether different story is depicted. As per t he FIR lodged by the mother of the victim girl (PW-3), the accused appellant elo ped with the victim girl from the residents of Sri Nagen Phukan and that she had promised to marry her. However, as revealed during the investigation, no such i ncident took place. Rather the victim girl along with her friend Sewali and her father out of their own volition had gone to the residence of the appellant. Whi le the victim girl and Sewali stayed back, her father and sister came back on th e same day and at night while one bed was shared by the victim girl along with S ewali and Omi, the other bed was occupied by the appellant in the same room. 10. From the above evidence, what is transpired is that even if the incident had taken place, the victim girl was a consenting party and if that be so havin g regard to the 6th exception under Section 375 IPC , in my considered opinion, it cannot be a case of offence under Section 376 (1) IPC. PW-3 and 4 i.e. the pa rents of the victim in their deposition had stated about friendly terms with the accused appellant. When he was transferred to another place namely Dolohat, PW- 4 along with his daughter i.e. the victim girl and her friend Sewali had gone to the appellant’s place at Dolohat. He was also accompanied by his sister. Thus, the evidence adduced by both PW-3 and 4 are quite distinct and different than th e story narrated in the FIR. On the other hand, PW-5 Smt Dipti Phukan and her fa ther PW-6 Sri Nagen Phukan stated in their deposition that the victim girl had c ome to their house and stayed there. After remaining there for 2/3 days, althoug h she had come out to go to her parental house, but instead she went to the hous e of the accused appellant. Thus it cannot be said to be a case of force being a pplied for the purpose of committing the offence under Section 376 (1) IPC. Unde r somewhat similar circumstances, the Apex Court in Deelip Singh Vs. State of Bi har, reported in AIR 2005 SC 203 having noticed the consent of the alleged victi m girl, held that such consent cannot be said to be given on misconception under Section 90 IPC. 11. Considering all the above, I am of the considered opinion that the accus ed appellant who has been convicted for committing the offence under Section 376 IPC is entitled to benefit of doubt. Accordingly, this appeal is allowed by set ting aside the judgment of conviction dated 6.9.2007 passed by the learned Sessi ons Judge, Lakhimpur in Sessions Case No. 96 (NL)/05.
Decision
The appeal is allowed. Bail bond stands discharged. Registry shall send 12. back the case records to the learned Court below along with a copy of this judgm ent and order.