High Court
Case Details
Crl.A. 14/2009 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL)
Legal Reasoning
Heard Mr. A.K. Sarma, learned counsel for the accused appellant and also Mr. Z. Kamar, learned Public Prosecutor, Assam. 2. This appeal is directed against the judgment dated 20.9.2008 passed by t he learned Sessions Judge, Jorhat in Sessions Case No.15(JJ)/2006 arising out of G.R. Case No.222/2005 and Jorhat P.S. Case No.62/2005. By the said judgment, co nvicting the accused appellant under Section 376 IPC, he has been sentenced to u ndergo imprisonment for 3 (three) years and also to pay a fine of Rs.2,000/- and in default, to undergo S.I. for further 2 (two) months. Assailing the said judgment of conviction and sentence, Mr. Sarma, lear 3. ned counsel for the accused appellant submits that the judgment is not sustainab le in law inasmuch as the victim was a consenting party. Pointing out the delay in lodging the F.I.R., he submits that the entire story being a concocted one, t he appeal deserves to be allowed. 4. On the other hand, Mr. Z. Kamar, learned Public Prosecutor, Assam submit s that the accused appellant having promised the victim girl to marry her, the c onsent was obtained by misconception and thus, there is nothing to interfere wit h the impugned judgment of conviction. 5. I have very carefully considered the submissions made by the learned cou nsel for the parties and also considered the entire materials on record. Jorhat Police Station Case No.62/2005 was registered under Section 448/376 IPC. As pe r the F.I.R. dated 10.2.2005, the accused appellant had allured the victim lady and committed the offence promising her to marry. As a consequence, the intimac y grew up between them and she became pregnant and gave birth to a male child. I t is only after delivery of the male child, the F.I.R. was lodged alleging the o ffence under Section 376 IPC. On receipt of the F.I.R., the police registered th e aforesaid case and thereafter, investigation was carried out. On conclusion, t he charge sheet was submitted, on the basis of which the charge was framed under Section 376/448 IPC. 6. P.W.3 is the informant, who in his deposition stated about the visiting terms of the accused appellant to their house and how the intimacy grew up betwe en them. 7. P.W.4 also stated in the same line as that of P.W.1. P.W.5 is the docto r, who examined the victim girl. In his opinion, the victim was about 18 years o f age. P..W.6 in her deposition stated that she had seen the accused appellant visiting the house of the victim. P.W.7 was declared hostile, who in her deposit ion stated that she was not aware of any incident. P.W.8 is the Bench Assistant in the Court of the Addl. C.J.M. who had exhibited the statement recorded by th e Judicial Magistrate, 1st Class. P.W.9 is the Investigating Officer, who in hi s deposition stated about the investigation that was carried out and submission of charge sheet. 8. The learned trial Court has convicted the accused appellant primarily on the basis of the testimony of the victim girl. Referring to the provisions of S ection 90 IPC, the learned trial Court has held that the consent that was given by the victim lady was under a misconception and accordingly, the accused appell ant cannot absolve himself from the liability of the offence under Section 376 I PC. 9. P.W.1 is the elder brother of the victim girl. In his deposition, he st ated that at the time of the incident, the victim girl was aged about 18 years. As noted above, in the evidence of the doctor too, her age was stated to be 18 years. Thus, the only question which calls for consideration before this Court is as to whether there was any misconception in the consent given by the victim girl. As has been held by the Apex Court in Deelip Singh v. State of Bihar, rep orted in AIR 2005 SC 203 that the consent given by the victim girl cannot be sa id to be given on misconception under Section 90 IPC. Similar view has been expr essed by the Division Bench in Bipul Medhi & Ors. v. State of Assam, reported in (2006) 3 GLT 585. The victim girl having consented to the intimacy in question and she be 10. ing a major at the time of the alleged offence, it cannot be said to be a miscon ception. However, it cannot also be lost sight of the fact that she had consente d on the promise made out to her that the accused appellant would marry her. Th us, the accused appellant cannot absolve himself from the liability for commissi on of the offence under Section 417 IPC for which the maximum sentence prescribe d is one year or fine. 11.
Decision
In view of the above, this appeal is allowed so far as the conviction of the accused appellant under Section 376 IPC is concerned. To that extent, the j udgment of conviction and sentence stands set aside and quashed. However, the ac cused appellant is held guilty of the offence under Section 417 IPC. The accused appellant was enlarged on bail by order dated 9.12.2009 passed in Misc. Case No .57/2009. Thus, he has already served out 13 months of imprisonment. That being the position, he has already served out the maximum sentence awardable for conv iction under Section 417 IPC. 12. Since the accused appellant stands convicted under Section 417 IPC, I am of the considered opinion that the victim girl is entitled to some compensatio n which is quantified at Rs.20,000/- which the accused appellant shall pay to he r within 31st March, 2013. The amount shall be deposited in the Court of the le arned Chief Judicial Magistrate, Jorhat, who in turn, shall pay the same to the victim girl upon proper identification. 13. pensation within the aforesaid stipulated period of time. The bail bond stands discharged subject to payment of the aforesaid com