High Court
Case Details
Crl.A. 163/2007 BEFORE THE HON’BLE MR. JUSTICE S C DAS JUDGMENT & ORDER(ORAL) This Criminal Appeal under Section 374 of Cr.P.C. is directed ag ainst the judgment and order of conviction and sentence, dated 15.06.2007, passe d by learned Sessions Judge, Cachar, Silchar in Sessions Case No. 52 of 2005. Th e accused appellant named above, was charged for commission of offence punishabl e under Section 376(1) and 417 of IPC and he was found guilty of committing offe nce under both the Sections and accordingly, under Section 376 of IPC he was sen tenced to suffer R.I. for 7 years and to pay a fine of Rs.1000/- in default of p ayment to suffer further R.I. for one month and again under Section 417 of IPC, he was sentenced to suffer R.I. for 6(six) months. 2. and sentence, the present appeal is filed by the accused-appellant. 3. Having felt aggrieved with the judgment and order of conviction
Legal Reasoning
Heard learned counsel, Mr. Z.Alam, for the appellant and learned Additional P.P. Mr. D.Das, for the State respondent. 4. Facts of the case, in short, is that the accused appellant and t he victim prosecutrix (cid:28)Salma (cid:29) (actual name kept concealed), having neighbours of each other fell in love and the accused with the assurance of marriage, undergo ne intercourse with her frequently and as a result, she got pregnant. The first pregnancy was terminated. Again the accused started mixing with her having given some assurance of marrying her and she again got pregnant, but when she asked t he accused to marry her, the accused was delaying the matter and ultimately she delivered a female baby but the accused did not marry her. She went to the house of the accused to narrate her condition to the father of the accused but they a bused her and drove her out. Her father also went to the house of the accused an d requested them to arrange their marriage but her father had declined. Having f elt helpless, father of the victim girl namely Intaz Ali, lodged the FIR with th e O.C., Sonai Police Station on 06.05.2003 narrating the fact. 5. he presecution case. 6. Learned Sessions Judge in course of trial, framed charges under Sections 376(1) and 417 of IPC on 13.07.2005 and the charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. Prosecution examined 7 witnesses and after closure of the prosec 7. ution evidence, accused was examined under Section 313, Cr.P.C. and in his turn accused declined to adduce defence evidence. 8. Learned Sessions Judge considering the evidence on record held t he accused guilty of the charges framed and convicted and sentenced him as afore said. Defence case is nothing but a bare denial of the allegation of t 9. It is submitted by learned counsel, Mr. Alam, appearing for the appellant that the victim prosecutrix was absolutely a consenting party to the a lleged sexual intercourse and therefore, it does not come under the purview of d efinition of rape as defined in section 375 of IPC. Learned counsel further cont ended that the victim prosecutrix (cid:28)Salma (cid:29) and her father (P.W.2) simply made an oral statement that the prosecutrix was aged 15 years at that relevant point of time. It was the duty of the prosecution to prove that the prosecutrix was below 16 years at the relevant point of time and so her consent was of no consequence . In a criminal case, submits learned counsel, Mr. Alam, burden lies on the pros ecution to prove its case beyond reasonable doubt. While the victim was a consen ting party to the alleged sexual intercourse, it was the duty of the prosecution to prove the age of the prosecutrix adducing documentary or cogent scientific e vidence otherwise, a reasonable doubt always remains for which benefit must got to the accused. It is also submitted by learned counsel, Mr. Alam that after the judgment and order of conviction and sentence was passed, the accused appellant obtained a School Certificate from East Kazi Dahar High School, Kazi Dahar, P.O .,Kazi Dahar, District Cachar, where the alleged victim prosecutrix, prosecuted her studies upto Class VIII and that certificate shows that her date of birth wa s 01.01.85 and if it was so, she was more than 16 years at the relevant point of time of the occurrence and in that event, finding of the learned Sessions Judge holding the accused guilty of the charges was unjustified. 10. Learned Addl. P.P., Mr. Das, on the other hand, submitted that t he prosecutrix and her father consistently made the statement that she was aged 15 years at the relevant point of time and such oral statements of the witnesses have not been controverted in any manner. In the medical examination report als o the age of the prosecutrix according to her statement, was recorded as 15 year s and under such circumstances, her consent to have the sexual intercourse was n o consequence at all to determine a case of rape and learned Sessions Judge righ tly convicted the accused under Section 376 as well as under Section 417 of IPC. The FIR lodged by P.W.2, is proved as Exbt.2 and in the FIR, the 11. informant stated that his daughter (cid:28)Salma (cid:29) was aged about 15 years and that the accused assuring to marry her, enticed her to have sexual relation with him and consequent thereto, they had frequent cohabitation and as a result his daughter got pregnant and delivered a female child on 23.04.2003. The accused did not ke ep his word and ultimately did not marry the prosecutrix. It has also been alleg ed in the FIR that the prosecutrix as well as the informant went to the house of the accused and proposed for the marriage but they were abused with filthy lang uages. 12. The evidence of the prosecutrix, the victim(Salma), is of immens e importance for decision of this case. In her deposition, she stated that her a ge 17 years (on the date of giving deposition). She stated that the accused was her adjacent neighbour and they had love affairs for about one and half years pr ior to the occurrence. She had no mother. Her father used to work outside the ho use. Taking this advantage, the accused used to come to her and promised a socia l marriage with her. It was in the year 2001. She got misled at the promise of t he accused. He wanted to have sexual intercourse with her. As there was promise of marriage, she agreed and by this way the accused had sexual intercourse with her for several days. She then became pregnant. She informed the matter to the a ccused to which he asked her to go for abortion. The pregnancy was terminated th rough one Dr. Barman at Natunbazar. Again the accused came to her and she asked him to solemnize the marriage but the accused told her to wait as he was expecti ng a job. Again they had sexual intercourse and again she got pregnant. The accu sed was informed by this time also about the pregnancy and asked him to solemins e the marriage. The accused told her to wait stating that he was going to be abs orbed in a job. Thereafter, at the last stage of her pregnancy, the accused took her to his house but his parents drove away her from their house assaulting her . On the date of delivery, the accused assured her to bring a doctor but he was untraceable. She gave birth of a female child but the child expired after 5 mont hs. The accused thereafter married another girl and did not marry her. Her fathe r called village meeting but that meeting had failed. So her father filed the ca se. Doctor examined her after the case was instituted. Magistrate also recorded her statement. In her cross examination, except denial there is no material. Sh e denied the suggestion that she was aged 18 years at the time of occurrence. 13. I find corroborating evidence in the statement of other witnesse s who found the accused in visiting terms with the prosecutrix and mixing with h er. There is also evidence on record that the prosecutrix got pregnant and she a lleged that the pregnancy was because of her premarital sexual relation with the accused. P.W.4 is the Medical Officer who has proved the medical examinat ion report of the victim girl which is marked as Exbt.1 and that medical examina tion was done by Dr. G. Das, a Demonstrator of the Forensic Department of Silcha r Medical College. Exbt.1 clearly reflects that the prosecutrix was pregnant and she delivered a child before the date of examination. The evidence on record cl early makes out a case that the prosecutrix, a young unmarried girl was pregnant and she delivered a full grown baby in due course and definitely it was because of her premarital sexual nexus with a person for which she unhesitatingly and c onfidently pointing to the accused as the person responsible for her pregnancy. Her statement clearly makes out that she was a consenting party to the sexual in tercourse. If it was so, the ingredients of rape will cease to operate. But if s he was minor, i.e. below 16 years, her consent of having sexual intercourse is t o be legally accepted as no consent and in that case, it will be amounting to ra pe. 14. Admittedly, except the oral statements of P.Ws. 1 and 2, i.e. th e prosecutrix and her father, the prosecution did neither adduce any expert evid ence nor any documentary evidence about the age of the prosecutrix which the pro secution could easily produce. The prosecutrix was examined by the Magistrate un der Section 164 of Cr.P.C. during the course of investigation and in her that st atement, she stated that she was a student of Class-VIII of Palangshar High Scho ol and she was aged 15 years at that time. Defence has produced a school certifi cate now issued by the Headmaster of East Kazi Dahar High School, Kazi Dahar, Ca char, showing that she was reading in Class-VIII in that School and her date of birth was 01.01.85. This Court at this stage simply on production of such a cert ificate, cannot entertain it as a cogent document of age proof. The statement of the prosecutrix and the document what has been submitted by the defence now see ms to be contradictory. I am absolutely convinced that the prosecution would produce eit her scientific evidence i.e. ossification test report of the victim girl or Scho ol certificate etc. since the prosecutrix was a student to prove her age, while the oral statement in respect of age are only tentative. 15. - Learned Sessions Judge in his judgment in Para 12 observed thus: (cid:28)The evidence of P.W.2- Najima Begum shows that she was 17 years old at the time of giving her evidence, i.e. on 02-02-2006. The case was regist ered on 06-05-03 on written information lodged by the father of Najima Begam. So , Najima Begam was below 16 years at the time of occurrence. The medical examina tion of Najima Begum was made on 19-06-2003. As her age was not medically ascert ained and as no documentary proof is made as to the age of victim girl, the evid ence of P.W.1 and 2 as to the age of victim girl could be trusted as the age of the victim girl at the time of committing offence by the accused person. As the age of victim girl was found below 16 years at the time of having sexual interco urse by the accused, the act of constitutes rape U/S 375 of sixth condition. The consent being immaterial of the victim girl, sexual intercourse by the accused person with the victim girl would constitute offence of rape. Further, the accus ed person dishonestly induced the victim girl to surrender to him and by deceivi ng the victim girl he had sexual intercourse and caused pregnancy to the victim girl. (cid:29) 16. The above observation of the learned Sessions Judge also shows t hat simply taking into consideration the age of the victim, prosecutrix as state d in the oral statements of P.Ws 1 and 2, learned Sessions Judge arrived at a co nclusion that the prosecutrix was aged below 16 years at the time of alleged occ urrence and hence, found the accused guilty of committing rape and sentenced him accordingly. As I find, learned Sessions Judge sentenced the accused both under Sections 374 and 417 of IPC for a single bundle of fact, which was not justifie d. Under such circumstances, I think the case should be remanded to the Sessions Judge to afford opportunity to both sides in adducing evidence only in respect of age of the victim prosecutrix at the relevant point of time and not otherwise . Therefore, the judgment and order dated 15.06.2007 passed by learned Sessions Judge, in Sessions Case No.52 of 2005, should be interfered and set aside. 17. assed in the Sessions Case as aforesaid, is interfered and set aside. 18. The case is remanded back to the Court of learned Sessions Judge for taking evidence in respect of age of the victim prosecutrix at the relevant time of occurrence, giving opportunity to both sides so as to examine and cross examine the witnesses in that respect strictly. Evidence on other aspects shoul d not be allowed. The evidence already on record, should be read at the time of disposal of the case by the learned Sessions Judge. Accordingly, the judgment and order of conviction and sentence p 19. The entire process should be completed within 60(sixty) days fro m the date of receipt of the case record and thereafter a judgment afresh, will be passed by the learned Sessions Judge taking into consideration the evidence a lready on record and the evidence in respect of the age of the victim which the parties may adduce before that Court. 20. The accused-appellant is directed to co-operate and keep himself available before the Court of learned Sessions Judge so that the case may be di sposed of within the stipulated time. 21. 22.
Decision
The Criminal Appeal accordingly stands disposed of. Send back the L.C. records along with the copy of this judgment.