High Court
Case Details
Crl.A. 146/2010 BEFORE THE HON’BLE MR JUSTICE C.R. SARMA Heard Mr. M. Dutta, learned counsel appearing for the appellant. Also he 1. ard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam, appearing for t he State respondent. None appears for the private respondent No. 1. This appeal, under Section 372 of the Code of Criminal Procedure, 1973, 2. is directed against the judgment and order dated 13.7.2010 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 126/2009 under Section 376/417 IPC . 3. By the impugned judgment and order, the learned Sessions Judge acquitted the private respondent No.1 from the charges under sections 376 and 417 IPC and set him at liberty forthwith. 4.
Legal Reasoning
Aggrieved by the said judgment and order of acquittal, the victim women, as appellant has come up with this appeal. The prosecution case, in brief, is that the private respondent No.1, who was the adjacent neighbour of the victim women proposed to marry her and with the said assurance maintained physical relationship with her. Accordingly, on the basis of the said relationship, the private respondent used to have sexual intercourse with her. After about 4 months of such relationship, the victim woman became pr egnant but the private respondent refused to marry her and as such, the matter w as taken to a village meeting, in which the private respondent declined to marry the victim woman. In view of above, the victim woman filed a complaint before the learned CJM, Ba rpeta against the private respondent and members of his family. On receipt of t he said complaint the learned CJM, Barpeta forwarded the complaint to the O.C., Baghbor P.S. Accordingly, the O.C. Baghbor P.S. registered a case under sections 376.109.506/511/34 IPC. At the close of the investigation, the investigating of ficer submitted the charge-sheet against the private respondent for the offence under sections 376/420 IPC. No charge-sheet was filed against the other accused persons. The offence being exclusively triable by the court of Sessions, the le arned CJM, Barpeta committed the case to the Court of Sessions. Accordingly, the learned Sessions Judge framed charges under sections 376/420 IPC, against the p rivate respondent. The accused private respondent pleaded not guilty to the char ge brought against him. The prosecution examined as many as 7 (Seven) witnesses, including the medical o fficer and the investigating police officer. PW-1 is the informant. PW-2 is her neighbour, PW-3 is her brother and PWs-4 and 5 are the persons, who attended the village meeting along with PW Nos. 2 and 3. 5. At the close of the evidence for the prosecution the accused person was examined under section 313 Cr.P.C. He denied the allegations leveled against h im and declined to adduce defence evidence. Considering the evidence, on record, the learned Sessions Judge came to the findings that the prosecution failed to prove the charges, brought against the accused person, and accordingly the learn ed Sessions Judge acquitted the accused person and set him at liberty forthwith. 6. Aggrieved by the said judgment and order of acquittal, the victim woman, as appellant , has come up with this appeal.
Legal Reasoning
Mr. M. Dutta, learned counsel, appearing for the appellant has submitted that despite availability of sufficient evidence, on record, the learned Sessio ns Judge committed error by recording acquittal of the accused person i.e. the p rivate respondent. The learned counsel, appearing for the appellant, has strenuo usly argued that the learned Trial Judge failed to appreciate the evidence, on record, in its proper perspective and committed illegality by holding that the p rosecution failed to prove the charge under sections 376/417 IPC. It has been ar gued by Mr. Dutta that the prosecution could establish beyond, all reasonable d oubt, that the appellant committed the offence under section 417 and as such the order of acquittal so far it relates to section 417 IPC is liable to be reverse d. 7. Refuting the said argument, advanced by the learned counsel appearing fo r the appellant Mr. B.B. Gogoi, learned Addl. P.P., Assam has submitted that the learned Trial Judge, committed no error by passing the impugned judgment and or der. 8. In view of above arguments, advanced by the learned counsel appearing fo r both the parties, I feel it appropriate to scrutinize the evidence, on record. The victim woman has deposed as PW-1. She stated that the private respon 9. dent, who was known to her, being a neighbour, assured that he would marry her a nd, with such assurance, he committed sexual intercourse with her, as a result of which she became pregnant. She further stated that she reported the matter t o the local people and accordingly a village meeting (Bichar) was held. She also stated that, in the said meeting, attended by the private respondent and his gu ardians, she disclosed the matter, but the private respondent i.e. the accused p erson did not accept her statement. She further stated that the elder brother o f the accused person made proposal to her to cause termination of the pregnancy, to which she did not agree. According to this witness the said meeting advised her to lodge complaint before the court and accordingly she lodged the complaint before the learned CJM, Barpeta. She further stated that, subsequently, a male child was born to her through the appellant, for which she initiated a proceedi ng, under Section 125 Cr.P.C. seeking maintenance allowance for her child. In he r said examination in chief, the victim women did not disclose anything indicati ng existence of dishonesty or fraudulent intention, on the part of the private respondent. In her cross-examination she stated that she maintained sexual relat ionship with the petitioner on various occasions and that she, sometimes, used t o meet him for sexual intercourse. In view of her said evidence, on the basis of the said promise to marriage, she willingly participated with the appellant in having sexual intercourse. Now, the question is whether the accused person had made any such promise, and, if so, whether he had done so dishonestly with fraud ulent intention to deceive the complainant. 10. Mr. Hasen Ali, who was also a neighbour of the victim women (PW-1), stat ed that he also attended the village meeting, held at the instance of PW-1 and t hat PW-1 had disclosed that the private respondent used to have sexual intercour se with her with promise to marry her. He further stated that a meeting was held with regard to the allegations, brought against the accused and that no decisio n could be taken in the said meeting. Md. Moslem Uddin i.e. the brother of the P W-1, deposing as PW-3, stated that, due to stomach pain, his sister i.e. PW-1 wa s taken to the public health centre wherein it was detected that she was pregnan t. He further stated that he came to know that his sister became pregnant throug h the accused person i.e. the private respondent. According to this witness a v illage meeting was held, wherein his sister stated that, due to sexual intercour se caused by the private respondent, she became pregnant. He further stated that , in the said meeting, proposal was given to terminate her pregnancy. The said b rother of the victim women, who was present in the village meeting, did not whis per anything regarding promise of marriage, made by the accused person to the vi ctim. If his sister i.e. PW-1 had made any disclosure, regarding promise of mar riage, there was no reason for PW-3 not to disclose such fact, if any, at the ti me of giving evidence in the Court. His silence regarding such promise raises do ubt about the allegation that the accused had made such promise. 11. Mr. Jamal Uddin, who presided over the said village meeting, deposed as PW-4. He stated that PW-3 i.e. the brother of the victim women informed him that his sister was pregnant through the private respondent. He further stated that, in the village meeting, the informant i.e. the victim women stated that the acc used person i.e. the private respondent had sexual intercourse with her, as a re sult of which she become pregnant. According to this witness, the said allegati ons were denied by the private respondent. This witness also did not say anythin g regarding the promise with regard to marriage, as stated by PW-1 and 2. 12. Mr. Noor Mohammad, who was the Gaon burah of the village, deposed as PW- 5. He was also present in the said village meeting. This witness stated that the informant i.e the victim women disclosed that she became pregnant through the private respondent. This witness was also silent regarding any promise or assur ance with regard to marriage. 13. Carefully perusing the evidence of PW-3, PW-4 and PW-5, it appears that they were present in the village meeting. None of the said witnesses stated anyt hing regarding promise with regard to marriage. But PW-1 stated that she disclos ed, in the meeting, that the private respondent had made promise to marry her. H er said statement has been supported by PW-2. If the PW-1 had made such a statem ent, in the meeting, regarding promise of marriage, there was no reason, on the part of PW-3, PW-4 and PW-5, who also attended the meeting, not to support PW-1 and PW-2 in this regard. Either PW-1 and PW-2 have exaggerated the fact or PW-3 , PW-4 and PW-5 have suppressed the fact regarding promise of marriage. But, PW -3 being the own brother of the PW-1 and PW-4 and PW-5, being the responsible a nd independent persons of the village, I find it difficult to believe that they had any adverse interest to suppress any such statement, if made by the PW-1. If PW-1 had made any disclosure in the meeting regarding promise to marriage, th e said PW-3, PW-4 and PW-5 would have certainly heard the same and in that case they would have corroborated the evidence of PW 1 and PW-2 on such vital point. Their silence in this regard also raises doubt about the prosecution version. T herefore, I find no corroboration in the evidence of PW-1 that the accused perso n had obtained her consent by dishonestly inducing her that he would marry her. The silence of PW-3, PW-4 and PW-5 on this point lead to believe that the PW-1 did not disclose, in the village meeting, that the accused had promised to marry her. 14. In view of above discussion, I have no hesitation in holding that the pr osecution has failed to establish, beyond all reasonable doubt, that the private respondent used to have sexual intercourse with the victim woman dishonestly pr omising to marry her. That apart, there is no material, on record, to show that the private respondent had any fraudulent or dis-honest intention, at the time of making the promise, if any. 15. In view of what has been discussed above, I am inclined to hold that th ere is no sufficient merit in this appeal requiring interference with the impugn ed judgment and order. Therefore, I find no merit in this appeal. Consequently,