High Court
Case Details
Crl.A. 177/2009 BEFORE HON’BLE MR JUSTICE P K MUSAHARY JUDGMENT AND ORDER(Oral) The appellant being convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for 7(seven) years with fine of Rs.10,000/- with default stipulation, vide judgment and order dated 18.9.09 rendered by the learned Addl. Sessions Judge FTC(3), Kamrup, Guwa
Legal Reasoning
hati in Sessions Case No.287(K)/2006, has approached this court in appeal. 2. The facts of the case, in short, are that the appellant promisin g to marry the prosecutrix, established physical relationship with her and out o f such relationship she got pregnant and later on delivered a child. On the basi s of FIR, lodged by victim’s mother, a crime being Sualkuchi P.S.Case No.1/04 was registered under Section 376/493 IPC corresponding to GR case No.3/04. The IO on completion of the investigation and after collecting the medical report su bmitted the charge-sheet against the present appellant under Section 376/493 IPC . On committal of the case the learned court of sessions framed charge under sec tion 376 IPC against the appellant. The appellant denied the aforesaid charge an d stood the trial. The prosecution examined as many as 7(seven) witnesses includ ing the victim girl and the medical officer. After examination of the appellant under section 313 Cr.P.C., the appellant was offered chance to adduce evidence i n his defence but he declined to adduce evidence. The learned trial court on app reciation of the evidence on record and upon hearing the learned counsel for the parties convicted and sentenced the appellant as indicated above. The appellant having stood convicted and sentenced under Section 376 IPC has preferred this a ppeal. 3. Now, I would like to appreciate first the evidence of victim gir l who was examined as PW-4. It may be noted that at the initial stage, during i nvestigation, the IO recorded the statement of the victim under Section 161 Cr.P .C. She was also produced before a Magistrate and her statement was recorded un der Section 164 Cr.P.C. I have perused both her statements recorded under Sectio n 161 Cr.P.C. as well as under Section 164 Cr.P.C.. I have also perused her dep osition before the learned trial court. In both the statements under Section 161 and 164 Cr.P.C., there is no allegation made by her that the appellant ever pro mised to marry and induced her to indulge in sexual intercourse and thereby sh e got pregnant. During trial, in her evidence also, she has not made any stateme nt that the appellant promised to marry her. 4. I have perused the evidence of the medical officer, PW-6, who e xamined the victim girl. The said medical officer proved the medical report (Ex t.3) and his signature found on the medial report. The operative portion of the said report runs as follows: (cid:28) Genital Examination: Genital organs are healthy. Vulva is healthy and slightly separated. Hymen old tear present at 3,6,9 o’clock position, two fingers easily permitted. Vagina is healthy and roomy. Cervix is healthy. Uterus is healthy, e Epiphysical union of bones around the wrist joint is co Elbow joint: Epiphysial union of bones around the elbow joint is co Wrist Joint: nlarged size 36 weeks of pregnancy. Radiological investigation-Xray report: (1) mpleted. (2) mpleted (3) s completed (4) is completed and a fetal skeleton is noted in abdomen. (5) Pelvic bones : Epiphysial union of pelvic bones around the iliac crest USG lower abdomen: Single intra uterine living fetus. The fetal age 32 w Shoulder joint: Epiphysial union of bones around the shoulder joint i eeks and 3 days. Veginal smears taken for microscopic examination does not show any spermatozo a and gonococci. (cid:29) 5. As per opinion of the medical officer, based on radiological test, the a ge of the victim was 18 years and below 20 years on the date of examination. Th e alleged occurrence took place sometime in the month of March/03 and the medica l examination was conducted on 5.1.04. It can, therefore be said that the victim was above 16 years at the time of occurrence and she attained the age of consen t. In fact there is no dispute on the age of the girl and the prosecution has n ot taken the plea that victim was minor at the time of occurrence. The FIR (Ext. 1) was lodged by none other than victim’s mother. In the said FIR the victim’s a ge has been mentioned as 19 years. The victim had attained the age of majority and this fact is not in dispute and as such the court has to examine whether the victim was a consenting party or not. In the evidence, I have already noted that no promise was held out, nor 6. any allegation or promise from the appellant’s side has been sought to be estab lished by the victim. Even if it is accepted that the appellant indulged in phy sical relationship or sexual intercourse, there being no promise by the appellan t, a girl of above 17 years of age, if indulged in physical relationship, a leg al presumption could be drawn that she was a consenting party. Being a major gir l and having the capacity of giving the consent, she indulged in physical relati onship with the appellant knowing the consequence in asmuch as, she admittedly made no complaint before any authority. If she had no willingness or consent to such sexual intercourse, she could have come with a complaint but she made the complaint only when she became pregnant and was brought to hospital for termina tion of the pregnancy. 7. Considering the entire facts and circumstances of the case and t he evidence on record, it is difficult to accept that the victim was not a cons enting party. 8. Mr. Talukdar, learned counsel for the appellant submitted at th e Bar that victim has already got married to another person and a child has bee n born and with the said child they are now living happily. He also submits tha t the appellant himself has also got married and living happy life with his fa mily and as such the matter should come to an end for the interest of both the families. 9. In any case, I hold that prosecution failed to prove the charge under Section 376 IPC against the appellant and he is entitled to acquittal on b enefit of doubt. The impugned judgment and order convicting and sentencing the a ppellant stand quashed and set aside. The appellant stands acquitted. Appeal sta nds allowed. The appellant has stated at the bar that he is on bail and hence th e bail bond shall stand discharged. 10. Return the LCR.