High Court
Legal Reasoning
HON’BLE MR. JUSTICE P.K.MUSAHARY Baharun Saikia, learned Addl. P.P. for the respondent State. Heard Mr. J. Chutia, learned counsel for the appellant and Mrs. This appeal is directed against the judgment dated 9.4.2010 pass 2. ed by the learned Additional Sessions Judge(FTC), in Sessions Case No. 287(N)/20 04 u/s 376/312 IPC sentencing him to undergo S.I. for 4 years and to pay fine of Rs. 500/-, in default to undergo further simple imprisonment for 15 days and al so to undergo simple imprisonment for one year u/s 312 IPC and to pay fine of Rs . 500/- and, in default, to undergo S.I. for 15 days, directing the sentences to run concurrently. 3. The prosecution case, in short, is that the appellant had love a ffairs and had sexual intercourse with her promising to marry her. Out of physi cal relationship she got pregnant and at the stage of four months of pregnancy, when she informed the appellant about the same and asked him to marry, he told h er that marriage could not be performed as per Hindu rites at such stage and bro ught her to a doctor and got the pregnancy terminated. After the termination of pregnancy, she requested the appellant to marry her but he denied to marry and u sed to abuse in filthy language and also threatened her with dire consequences. The prosecutrix then filed the FIR on the basis of which police registered the U luoni PS Case No. 34/2004 under Sections 376/312 IPC. The police submitted charg e-sheet and the learned SDJM, Nagaon, committed the case to the Court of Session s, Nagaon. The aforesaid sessions case was registered and the same was made over to the Court of the learned Additional Sessions Judge, FTC, Nagaon. On consider ation of the materials found on record, the learned trial court framed the charg e under Sections 376/312 IPC against the present appellant who pleaded not guilt y and demanded trial. In order to prove the aforesaid charges, the prosecution examine 4. d 9 witnesses including the prosecutrix. The appellant was examined under Sectio n 313 CrPC and offered the opportunity to adduce evidence in his defence but he declined to examine any witness. At the conclusion of trial, the learned trial c ourt passed the impugned judgment and order convicting and sentencing the appell ant as already mentioned above. 5. The FIR, Ext. 2, was lodged by the victim woman. As per the said FIR, the appellant has been enjoying sex for about a year promising her to marr y and she became pregnant of 4 months due to sexual relation with him. On her in sistence, the appellant told that as per the Hindu law, no marriage could be per formed while the woman is pregnant and thereafter, the appellant took her to a d octor named Ashu Dutta on 11.04.2004 and got her pregnancy terminated. In her s tatement under Section 164 CrPC made before the Magistrate, she made the same av erments. She stated that she was aged about 18 years and reiterated the existenc e of love affairs with the appellant for last about 1‰ years and the facts of te rmination of pregnancy and refusal to marry her by the appellant. In her evidenc e as PW 1, she maintained the statement about the love, physical/sexual relation ship, pregnancy, termination and refusal of the appellant to marry her. 7. On reading the FIR, statements under Section 164 CrPC and eviden ce of the prosecutrix, it is found proved that there was a love affair between t he appellant and the prosecutrix and they had sexual relation for more than one year. She was major at the time of maintaining the above relationship. She was, therefore, at the age of consent at the time of occurrence and she indulged in c onsensual sexual intercourse/relationship with the appellant. Such sexual relati onship, as found from the evidence of the prosecutrix continued for a long time, for which the appellant alone is not to blame. In my considered view, the ingre dients of offence under Section 376 IPC are not found and the appellant can not be made liable to be convicted under Section 376 IPC. Situated at such factual p osition, no case of rape against the appellant is found to be established and as such the appellant is liable to be acquitted of the charge under Section 376 IP C. The appellant is, accordingly, acquitted of charge u/s 376 IPC. 8. Although the prosecutrix had alleged that the appellant enjoyed sex with her promising marriage and subsequently refused to marry her after term inating the pregnancy, there is no semblance of evidence proving that the appell ant held out false promise before or at the time of indulging sexual intercourse with the prosecutrix. No charge has been framed under Section 417 or 420 IPC ag ainst the appellant and the prosecution made no attempt to prove a case of cheat ing under the aforesaid Sections of law. 9. As regards the charge under Section 312 IPC it is found in the e vidence that the prosecutrix got her pregnancy terminated by one doctor Ashu Dut ta on 11.4.2004. There is nothing on record that she filed any complaint or FIR against the appellant for illegally terminating the pregnancy. The prosecution d id not examine the said doctor to prove that any termination of pregnancy was ca used through the said doctor. There is no details as to when, where and in prese nce of whom abortion or termination of pregnancy took place. The prosecution exa mined no witness like the staff nurse or any medical staff or assistant in whose presence the aforesaid doctor terminated the pregnancy. In my considered view, the alleged fact of termination of pregnancy has not been proved as required und er the law. 10. It is to be noted that although the I.O., on the basis of the av erments made in the FIR and the statements under Section 164 CrPC, cited the sai d doctor Ashu Dutta as a witness in the charge-sheet, he was not examined as a p rosecution witness during trial. The said doctor was an important witness to pro ve the charge under Section 312 IPC. There is no explanation from the prosecutio n why this important witness was not examined. It can, therefore, be presumed th at the prosecution withheld this important witness because if its apprehension t hat if he is produced before the court he would speak the truth and his evidence would go against the interest of the prosecution. The prosecution has, therefor e, withheld the said witness and withholding of such an important witness can no t be taken lightly inasmuch as it goes against the interest of justice. This is exactly what happened in the present case in respect of charge under Section 312 IPC.
Decision
11. In view of the above, I hold that no charge under Section 312 IP C could be proved by the prosecution and the appellant is entitled to acquittal of this charge also. 12. The end result is that the prosecution miserably failed to estab lish the charge under Sections 376/312 IPC against the appellant. The impugned j udgment is liable to be quashed and set aside and accordingly, the same is quash ed and set aside. The appellant stands acquitted of the charges u/s 376/312 IPC. 13. it is stated at the bar that the appellant is on bail and hence, his bail bond stands discharged. 14. The appeal stands allowed. Return the LCR forthwith.