High Court · 2012

Appellant No.3 to undergo RI for 3(three) years and to pay fine of Rs.50 (3) 00/-, in default, to undergo further RI for 1(one) year for the offence committe d under section 313/34 IPC. 2. The prosecution case in brief is that one Smt. Jyotika Doley lod ged first information before the Silapathar Police Station on 28-11-1999. Her ca se was that she used to live with her sister at Silapathar town where she had an affair with Dibyajyoti Pegu (appellant No.1). Gradually, they developed physica l intimacy. As per custom and tradition of the Mishing community, which is a tri bal community, to which both of them belong, appellant No.1 (cid:28)kidnapped (cid:29) her and took her to the house of Dr. Bidyeswar Doley (appellant No.2) at Jonai town. His wife Smt. Sarmavati Doley (appellant No.3) is the sister of appellant No.1. App ellant No.1 took the informant to the residence of appellant Nos. 2 and 3 at Jon ai and stayed there for a few days. When the informant disclosed her pregnancy, appellants asked her to go for abortion. But she refused. Appellants insisted on such abortion on the pretext of solemnizing their marriage in a social way. Acc ording to the informant, she was taken to a hospital at Jonai where her pregnanc y was forcibly terminated. She was kept in the residence of appellant Nos. 2 and 3 for a few days. Thereafter, appellant No.1 took her to Silapathar town and st ayed in a rented house. Appellant No.1 left her there and never came back.

3. The above first information was treated as FIR and on the basis of the same, Silapathar PS Case No.144/99 under section 366/376/313/34 IPC was r egistered. Police investigated the case and after completion of the investigatio n, submitted charge sheet in the Court against the appellants under the aforesai d sections. Being a sessions triable case, it was committed to the Court of the learned Sessions Judge, Dhemaji. Learned trial court, on prima facie satisfactio n, framed charge against all the appellants under section 313/34 IPC and additio nally under section 366/376(1) IPC against appellant No.1. When the charges were read over and explained to the appellants, they pleaded not guilty and claimed to be tried.

4. itnesses - To prove its case, prosecution examined the following 7(seven) w (1) PW1- Smt. Jyotika Doley (victim) (2) PW2- Smt. Minakumari Doley (elder sister of victim) (3) PW3- Smt. Bisonmati Pegu (landlord) (4) PW4- Smt. Renuka Pegu (relative of victim) (5) PW5- Shri Ranjit Pegu (brother-in-law of victim) (6) PW6- Shri Bhola Hazarika (Investigating Officer) (7) PW7- Dr. Ghanakanta Taid (Doctor)

5. (1) DW1- Dr. H.N. Deori (Joint Director of Health Service, The defence also examined 3(three) witnesses, namely- Dhemaji) (2) DW2- Dr. Bidyeswar Doley (appellant No.2) (3) DW3- Shri Kamindra Doley (maternal uncle of appellant No.1) PW1 is the alleged victim and the informant. In her evidence, sh 6. e described appellant No.1 as her husband. She stated that in the year 1999, she had a love affair with the appellant No.1 and developed physical intimacy with him whereafter she became pregnant. According to her, there was marriage between appellant No.1 and herself as per Mishing custom. She was taken to the residenc e of appellants 2 and 3 and stayed there for about 10-12 days. She stated that a ppellants 1 and 3 took her to the hospital where appellant No.2 was working purp ortedly for pregnancy checkup but appellant No.2 terminated her pregnancy. After the abortion, she stayed in the hospital for a couple of days whereafter she wa s brought back to the residence of appellants 2 and 3 and kept there for about 3-4 days. Thereafter, appellant No.1 took her to the house of one Smt. Bisonmat i Pegu at Silapathar. After about 2(two) days of stay at the rented house, appel lant No.1 went back to his house keeping the informant at the rented house and n ever returned back. In her cross-examination, PW1 not only admitted about her lo ve affair with appellant No.1 but also about their physical intimacy, as a resul t of which she became pregnant. She admitted that she had eloped with the appell ant No.1. She further stated that she wanted to terminate her pregnancy but appe llant No.1 did not agree to such abortion saying that the baby in her womb was h is. Therefore, he stated that the pregnancy should not be terminated.

7. PW2, who is the elder sister of the informant, stated that her s ister, the informant, used to live with her at her residence at Silapathar. She found appellant No.1 visiting her house and meeting PW1. Her sister disappeared one day and she could be traced out after about a month from the house of one Sh ri Dhirendra Pegu of Silapathar. PW2 also stated that PW1 had eloped with appell ant No.1.

8. PW3 in her evidence stated that appellant No.1 took her house on rent and kept PW1 there. She also stated that appellant No.1 left PW1 in her ho use and never returned back. According to her, PW1 told her that appellant No.2 had carried out abortion on her. She found PW1 in a very weak condition. She inf ormed PW2 about the above fact whereafter PW2 came to take PW1 away. 9. PW4 also admitted in her deposition that PW1 had eloped with app ellant No.1 and after a few days she was found at a rented house at Silapathar. PW1 told her that her pregnancy was terminated at Jonai. In her cross-examinatio n, she stated that according to PW1 when she had eloped with appellant No.1, she was pregnant by 4(four) months.

10. PW5 is the husband of PW2 and the brother-in-law of PW1. He also stated that PW1 had eloped with appellant No.1. He further stated that PW1 was undergoing treatment at Dibrugarh and was yet to recover fully. In his cross-exa mination, PW5 stated that as per the custom of the Mishing community, if a boy w anted to marry a girl, he should (cid:28)kidnap (cid:29) the girl first.

11. or of Police in the Silapathar Police Station. Case was investigated by PW6 who was then serving as Sub-Inspect

12. PW7 is the Doctor who had examined PW1 twice, once on 10-07-1999 during her pregnancy and again on 28-11-1999 after the pregnancy was terminated . According to his evidence, when he had examined PW1 on 10-07-1999, she was abo ut 12(twelve) weeks pregnant. Pregnancy related medicines were given to her. He again examined her on 28-11-1999 on police requisition. As per his medical repor t (exhibit-5), there was no sign of pregnancy. There was also no recent sign of rape. The hymen was found not intact. Vaginal examination indicated previous sex ual intercourse. No other external injury mark was found on her private part. 13. In his statement recorded under section 313 Cr.P.C., appellant N o.1 stated that he had eloped with PW1 and had sexual intercourse with her, but with her full consent. Appellants denied causing miscarriage or termination of p regnancy of PW1. The defence side produced 3(three) witnesses. DW1 is Dr. H.N.Deo 14. ri who was the Joint Director of Health Services, Dhemaji. He stated that he did not see the attendance register of the hospital. Appellant No.2 examined himsel f as DW2. He stated that when appellant No.1 and PW1 came to his house, he had s ent them back. He denied carrying out abortion on PW1. PW3 Shri Kamindra Doley, who is the maternal uncle of appellant No.1, stated that he had heard that appel lant had married one girl from Silapathar. On 09-09-2004, appellants had filed 2(two) petitions before the 15. Court below, one under section 138 of the Evidence Act and the other under secti on 311 Cr.P.C. By the first petition, they sought for permission of the Court fo r further cross-examination of the IO and other prosecution witnesses. By the se cond petition, they sought for leave for examination of one Dr. Tileshwar Kaman, who was the doctor-cum-incharge of Jonai Public Health Centre at the relevant t ime and Dr. Purnakanta Padum, doctor-cum-incharge of Jonai Community Health Cent re alongwith admission registers of the two Health Centres for the month of Octo ber, 1999.

16. However, learned trial Court rejected both the petitions on the ground that the attempt by the defence was to cover up the lacuna and that secti on 311 Cr.P.C. was not made for such purpose. From that stage onwards, the defen ce counsel did not appear and defend the appellants and they were without any co unsel. Learned trial Court proceeded to dispose of the trial after hearing the l earned Assistant Public Prosecutor only. Heard Mr. S.Bharali, learned counsel for the appellant and Mr. B 17. .B. Gogoi, learned Additional Public Prosecutor, Assam for the respondent state.

18. To ensure that the accused gets a fair trial, the Court must ens ure that the accused is properly defended. Right of an accused to be defended by counsel is not only statutorily recognized by sections 303 and 304 Cr.P.C. but is also an inseparable part of a fair trial, which is a constitutional mandate u nder Article 21 of the Constitution of India. It appears that learned trial Cour t was quite unmindful of this aspect and proceeded to decide the trial without a ny defence counsel to defend the appellants at the most crucial stage of the tri al. This has cast a looming shadow over the validity of the proceedings itself. Section 311 Cr.P.C. enables the Court to summon any person as a 19. witness or examine any person for attendance though not summoned as a witness or recall and re-examine any person already examined, if his evidence appears to t he Court to be essential to the just decision of the case. Therefore, the ultima te objective of section 311 Cr.P.C. is to ensure that a just decision is arrived at and if for that purpose, re-examination of a witness is considered necessary , the same can be done at any stage. The Hon’ble Supreme Court in the case of Za hira Habibullah Sheikh -vs- State of Gujarat reported in (2006) 3 SCC 374 held t hat the object underlying section 311 Cr.P.C. is that there may not be failure o f justice on account of mistake of either party in bringing the valuable evidenc e on record or leaving ambiguity in the statements of the witnesses examined fro m either side. The determinative factor is whether it is essential to the just d ecision of the case. Therefore, the approach of the trial Court in rejecting the petitions filed by the appellants does not appear to be in conformity with the mandate of section 311 Cr.P.C.

20. Now coming to the merit of the case, what emerges from a cumulat ive assessment of the evidence on record is that appellant No.1 and PW1 belonged to the same Mishing community. They had a love affair which developed into phys ical intimacy. Consequently, PW1 became pregnant. In the early stage of pregnanc y, the two of them eloped, as is said to be the custom in the community. This fa ct would stand fortified by the fact that no effort was made by the family membe rs of PW1 to find her out when she had gone missing. Further, the fact that PW1 consulted the doctor PW7 during her pregnancy prior to her elopement and did not say anything about rape being committed on her, would also indicate that she wa s a consenting party all throughout. No FIR was lodged all this while. Thus, fro m a close scrutiny of the evidence, it becomes evident that neither the ingredie nts of section 366 IPC nor section 376 IPC would be attracted in the present cas e against appellant No.1. Therefore, conviction of appellant No.1 under sections 366/376 IPC cannot stand.

21. Coming to section 313 IPC, evidence of PW1 would go to show that it was she who was insisting on getting abortion done and not appellant No.1. A ccording to her own version, appellant No.1 did not agree for abortion as he cla imed the baby in her womb to be his. There is also no evidence regarding the hos pital where the abortion of PW1 was allegedly carried out. Appellants had catego rically denied their involvement in the termination of pregnancy of PW1. The evi dence on record is wholly insufficient to throw light as to where, how and who c arried out abortion on PW1. Though PW1 has blamed the appellants, her consensual conduct prior to lodging of FIR, which was also lodged very belatedly, has only heightened the mystery.

22. In the face of such insufficient evidence, it will be very unsaf e to convict the appellants under section 313 IPC, more particularly when the ev idence on record does not substantiate the charge under sections 366 and 376 IPC against appellant No.1. Therefore, the logical conclusion of the above discussi on would be to grant the benefit of doubt to the appellants in respect of the ch arge under section 313/34 IPC.

23. In view of above, the appeal succeeds. Impugned conviction and s entence is set aside. Bail granted to the appellants by this Court on 21-09-2004 is made absolute. Appellants are set at liberty.