High Court
Legal Reasoning
HON’BLE MR JUSTICE PK MUSAHARY Heard Mr.M.Choudhury learned counsel for the appellant . Also heard Mrs.B.Saikia , learned Addl.P.P.Assam appearing for the State respondent. This appeal is directed against the judgment and order dated 2.7.2008 pa 2. ssed by the learned Addl. Sessions Judge, FTC, Bongaigaon, Assam convicting the accused appellant u/s 366 A/376 IPC sentencing him to undergo rigorous impris onment for 7 years and to pay a fine of Rs.3,000/- for each offence, in default of payment of fine further rigorous imprisonment for 2 months in Sessions Cas e No. 82(J) of 2000 corresponding to NGR Case No. 131/1997. 3. The prosecution case ,in nutshell, is that the appellant raped the vic tim girl aged about 12 years and indulged in sexual intercourse against her will by force. An FIR was lodged by the Secretary of the local Mahila Samity , when the appellant returned to the village of the victim girl on 11.6.2007. On t he basis of the FIR lodged on 12.6.2007, the police registered a crime being Jog ighopa P.S. case No. 37/97 u/s 366 (A) / 376 IPC. The I.O. recorded the statemen t of the victim girl and other witnesses and got her medical examined on 12.6.20 07. On completion of the investigation, the I.O. submitted charge sheet against the appellant under the aforesaid Section of law. On committal of the case, the learned trial Court framed charge against the appellant u/s 366 A/376 IPC which was read over and explained to him. The appellant pleaded not guilty and claimed to be tried. He accordingly faced the trial. The prosecution examined as many a s 8 witnesses in all against which the appellant examined none. He maintained th e plea of total denial . 4. I have gone through medical report prepared by medical officer, PW 8. He has proved the said medical report and his signature thereon. The extract of the relevant portion of the medical report is quoted hereunder: (cid:28) 1.Approximate age- 12 years 2. Teeth 7/7 7/7 3. Breast developed and immoderate 4. Auxillary hair- absent 5. Pubic hair - present 6. No injury mark seen on private parts Per vagina examination- Hymen freshly ruptured. White discharge seen. No any ma rks of violence seen. Menstruation bleeding 4 days back. Sign of recent interco urse may be due to ruptured hymen. For age estimation - (Advise X-ray) epiphysis lateral view of right wrist, elbow and iliac-crest done at Bongaigaon rural hospital. X-ray plate no. R-100 showin g right elbow, upper and epiphysis of right radius appeared but not Completely united. Epiphysis of medial epicondila appeared but not completely united. Right wrist- Lower end epiphysis of both radius and ulna appeared but not united . Epiphysis of right iliac - crest appeared but not united. X-ray report given by Radiologist Dr. H. Adhikary. Impression : Age is below 18 years Opinion : From the above findings it can be ascertained that recent intercour se may be due to freshly ruptured hymen. Age is below 18 years . (cid:28) 5. From the above medical report it is found that the victim was below 18 y ears of age. It means she was above 16 years. A girl of above 16 years is consid ered to be a girl of age of consent for the purpose of Section 376 IPC. At t he time of commission of alleged offence, the girl was at the age of consent, me ans she was at the age of giving her consent or refusing to give consent to any proposal of sexual act from the side of the male partner. However, same consider ation cannot be given in the case of offence u/s 366-A IPC unless the girl is fo und above 18 years of age. In the present case as per the medical evidence the g irl was below 18 years. Her age was below or little above 18 years approximately . It may be below or more than 18 years. The court is not bound to accept the ag e calculated by the medical officer. The Court can make its estimation on the ba sis of other factors and raise the age little above or put little below the age calculated by the medical officer. Normally the court can presume at least two y ears in the upper side 2 years minus in the lower side. If the girl is below 18 years she may be treated as above 18 years and below 17 years in the lower side. In any case the girl was not minor at the time of alleged occurrence. What is more important to be noted in this case is that the victim girl 6. in her evidence stated that the appellant used to visit her house on earlier occ asions and he is quite well known to her family. She stated that before the alle ged incident the appellant stayed two nights in her house and once she accompani ed him to a local market. PW 5 found the accused alongwith the victim girl walki ng towards a local bazaar. Thereafter they proceeded to Abhayapuri in a bus and thereafter they proceeded to Bongaigaon by another bus. They spent one night in the railway platform. Thereafter they proceeded further to Galengphu inside Bhu tan. At Galengphu, the appellant took her to a nearby jungle to show a river st ream where he committed rape on her . Thereafter, they returned and stayed in th e house of a Bengali gentleman for two days. In the said Bengali house they ag ain indulged in sexual acts. After two days they returned to the house of her pa rents. On their arrival the members of the Mahila Samity apprehended and handed over them to the police and lodged FIR.
Decision
7. The evidence of victim girl clearly demonstrates that she had been movin g from place to place and spent with the appellant for about 4/5 days. Admittedl y she was moving with the appellant in the public bus freely without any force u sed by the appellant. When the appellant came across PW 5 in the local market sh e did not tell him that she was eloped by force by the appellant against her wil l. The manner in which the victim girl moved around alongwith the appellant for few days proves that she voluntarily accompanied him and she had enjoyed the con sensual sexual intercourse on various occasions without use of force. The eviden ce on record and appreciation of the same leads this Court to a conclusion that no offence u/s 366 A IPC has been established inasmuch as the appellant did not elope the girl by force and he did not intend to hand over the girl to any third person for some illicit intercourse with any person. No such intention or actio n has been disclosed or proved against the appellant. In view of the above, Sect ion 366-A is not established in this case. Similarly the offence u/s 376 IPC is also not established inasmuch as she was all along a willing partner of the appe llant as she was at the age of consent and enjoyed consensual sex with the appel lant. 8. In view of the above, I hold that the prosecution miserably failed to es tablish the charge u/s 376/366(A) IPC and the appellant is entitled to acquittal . Accordingly the impugned order of conviction and sentence is set aside and qua shed. Appellant stands acquitted. The appellant who is serving sentence in jail shall be set at liberty forthwith unless he is required in connection with any o ther case. 9. 10. Appeal is allowed and disposed of. Send down the LCRs forthwith.