High Court
Case Details
Crl.A. 152/2007 BEFORE HON’BLE MR JUSTICE B.K. SHARMA 1. This appeal is directed against the judgment and conviction date d 14.06.2007 passed by learned Sessions Judge, Lakhimpur, North Lakhimpur in Ses sion Case No. 87(NL)/2006 convicting the appellant under Section 376 (1) of the IPC. 2.
Legal Reasoning
I have heard Mr. M. Bhuyan, learned counsel for the appellant as well as Mr. B.B. Gogoi, learned Addl. P.P. I have also gone through the entire material on record. 3. gainst the accused/appellant was set to motion reads as follows: The FIR dated 24.10.2003 on the basis of which the criminal proceeding a (cid:29)GR Case No. 1299/2003, u/s. 376/323/34 Dated 24.10.2003 To, The Officer-in-Charge, North Lakhimpur Police Station, Informant: Smt. Junti Das, D/o. Shri Bubul Das, Resident of Ramani Chuk, Mouza - Lakhimpur Dist. Lakhimpur Accused persons: 1) Shri Niron Baruah, S/o. Shri Suren Baruah Resident of Khat Gaon, Mouza Lakhimpur, Dist. Lakhimpur Smt. Moon Baruah, Shri Suren Baruah, 2) D/o. Shri Suren Baruah 3) S/o. of unknown (resident of all are same) Sir, The humble information of the informant is that on 23.10.2003, at about 6:30 PM when the informant went to the house of the accused person, who for last one yea r by inducing the informant to marry her made her 3 months pregnant, they threat ened her to kill and by assaulting her dragged her out of their house. The said incident has caused pain and sufferings to the informant. The neighbours are awa re of the said fact. The informant does not know the problems waiting for her to confront in future. Therefore, Your Honour may cause the matter investigated by the police and there by take appropriate action against the accused person. Sd/- illegible (cid:29) 4. 4 of the Cr.P.C. which is reproduced below: Anenxure-3 is the statement of the victim girl recorded under Section 16 (cid:28)STATEMENT OF SMT. JUNTI DAS, D/O. SRI BUBUL DAS, U/S. 164 Cr.P.C. IN CONNECTION WITH NLPS CASE NO. 853/2003,U/S 376/323/34 IPC GR NO. 1299/03 My name is Smt. Junti Das. My father’s name is Shri Bubul Das. I am resident of Ramani Chuk. I am aged about 19 years. I have been in love with one Shri Niron B aruah of Khat Gaon for last one year. Niron by promising me to marry developed p hysical relationship with me. Niron developed the said relationship with me agai nst my will. Niron has committed the said act in my house. Niron often used to c ome to my house in absence of other family members and indulge in physical relat ionships with me. I asked him not to do the same. But he said that he would marr y me and therefore, I allowed him to have physical relationship with me. Now I a m three months pregnant through Niron. I informed Niron when I was two months pr egnant. He said that one Sunday he would take me with him from our house, but he did not. Last Wednesday also when Niron did not take me with him, I went to the ir house. Then Niron’s mother, sister and father dragged me out of their house a fter assaulting me. I went to their house at about 6:30 PM. I do not know whethe r Niron was present at house at that point of time. After being assaulted, I ret uned back home and on the next day I informed the Lakhimpur Police Station. Poli ce had subjected me to medical examination. This is all what I want to say. Sd/- R. Baruah, JM 1st Class (cid:29) R.O. & A.C. 5. The conviction of the accused/appellant is primarily based on the evide nce on PW1, i.e. the victim girl, and PW2, i.e. her father. On perusal of the sa id evidence coupled with the FIR and the statement of the victim girl recorded u nder Section 164 Cr.P.C., there is absolutely no manner of doubt that the allege d victim girl was a consenting party. It is not the case of the prosecution that she was a minor at that point of time. She being a major and also being a conse nting party, it is the submission of the learned counsel for the appellant that at best it is a case under Section 417 and not under Section 376 IPC. 6. Pursuant to the impugned judgment of conviction, the accused/appellant w as sentenced to 7 years R.I. and also a fine of Rs. 2000/- and in default R.I. f or another three months. When the appeal was admitted, the impugned judgment was stayed by order dated 08.08.2007. Prior to that the accused/appellant had under gone imprisonment of about two weeks and thereafter pursuant to the impugned jud gment of conviction, he had undergone imprisonment for two months. 7. Learned Trial Court while admitting that the victim girl was a consentin g party, held that the ingredients of Section 376 IPC might not be present, but passed the impugned judgment of conviction falling back on the provision of Sect ion 90 IPC. Section 90 of the IPC reads as follow: (cid:28)90. Consent known to be given under fear or misconception: A consent is not suc h a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the p erson doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. (cid:29) 8. Mr. Bhuyan, learned counsel for the appellant submits that the learned T rial Court committed manifest error of law in convicting the accused/appellant i n reference to Section 90 IPC inasmuch as it is not a case of giving consent by the victim girl in consequence of any misconception of fact. Mr. Gogoi, Addl. P.P. submits that the victim girl having been allured b 9. y the accused/appellant with the promise to marry her and under such misconcepti on the victim girl having consented to cohabit, learned Trial Court has rightly followed Section 90 IPC towards convicting the accused/appellant. 10. I have considered the submissions made by the learned counsel for the pa rties. As noted above, independent of Section 90 IPC, there is no ingredient for convicting the appellant under Section 376 IPC as has been done by the Trial C ourt. Learned Trial Court has convicted the accused/appellant solely on the basi s of the circumstances indicated in Section 90 IPC, without, however, returning any finding that those circumstances are applicable to the present case. Misconc eption as indicated in Section 90 IPC will have to be understood in the context of giving consent under threat of injury. The purported promise of marrying the victim girl by the accused/appellant and on that count she being a consenting pa rty, it cannot be said to be a case of misconception. 11. The Apex Court in somewhat similar circumstances, in Deelip Singh Vs. St ate of Bihar reported in AIR 2005 SC 203 has held that, consent given by the vic tim girl cannot be said to be given on misconception under Section 90 IPC.
Decision
12. In view of the above, this appeal stands allowed by setting aside and ju dgement of conviction dated 14.06.2007 passed by learned Sessions Judge, Lakhimp ur, North Lakhimpur in Session Case No. 87(NL)/2006. The accused/appellant shall be set at liberty forthwith, if not wanted in connection with other case. 13. udgment and order. Send down the case records to the Trial Court alongwith a copy of this j