High Court
Case Details
Crl.A. 33/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Sharma, J
Legal Reasoning
Heard Mr. T.J. Mahanta, leaned counsel for the appellant. Also heard Mr. B.B. Gogoi, learned APP, Assam. This appeal is directed against the judgement o f conviction dated 8.2.2006 passed by the learned Sessions judge, Golaghat in Se ssions Case No. 162/2003 convicting the appellant under Section 376 and 417 IPC with the sentence of RI for 5 years and 1 year respectively with the further pen alty of fine of Rs. 5,000/- and in default RI for further 1(one) year. In the im pugned judgement and conviction, no separate sentence under Section 417 IPC has been passed. 2. According to the prosecution story, the appellant committed the offence under Section 376(1) IPC on the victim girl in the first part of the year 2002. She gave birth to a male child on 10.8.2003. According to the prosecution, the a ppellant had promised to marry the victim but having not done so, he cheated her . Thus, the prosecution launched the proceeding against the appellant, both unde r Section 376(1) and 417 IPC. On receipt of the charge sheet by the SDJM(M), Dhansiri, Sarupathar on 2 3. 2.9.2003, the case was committed to the Court of Sessions for trial vide order d ated 22.9.2003. The learned Sessions Judge framed charge under Section 376 and 4 17 IPC. The appellant having pleaded not guilty of the charges framed against hi m, the criminal proceeding started, in which the prosecution examined 7 (seven) witnesses including the IO. 4. PW-1 i.e. the victim girl in her deposition has stated that the appellan t, who was an employee of the Police Department, used to visit her house and wit h the promise to marry her, co-habitat with her, as a result of which she gave b irth to a male child. She in her statement stated about the offence being commit ted by the accused appellant on her for about 20/25 nights. On being informed th at she was pregnant, he refused to marry her. However, further approach being ma de, an agreement was signed by and between the parties (Ext.1) before the learne d SDPO, Sarupathar. As per the said agreement, the appellant undertook to pay a sum of Rs. 1,000/- per month to the victim as maintenance allowance. Alleging failure on the part of the accused appellant to abide by the te 5. rms and conditions of the agreement including failure to pay the maintenance all owance, she filed the FIR (Ext.2), on the basis of which the criminal proceeding started with ultimate conviction of the appellant by the impugned judgement. 6. PW-2 is the sister of the victim, who in her deposition stated about vis its of the appellant to the house of the victim and as to how a friendship grew up between them. PW-6, a neighbour of the victim also stated in her deposition a bout the frequent visit of the appellant to the victim’s house and their intimac y and also as to how she became pregnant in due course. 7. On perusal of the entire evidence on record and the impugned judgement o f conviction, what is found is that the learned trial Court has primarily based on the aforesaid exhibit-1 agreement in convicting the accused-appellant. Accord ing to the accused-appellant, his signature was obtained forcefully, meaning the reby that the signature endorsed in the agreement by him was not voluntary. Anot her important factor is that as per the said agreement, the accused appellant un dertook to pay monthly maintenance allowance to the victim till such time it was established through DNA test that the male child of the victim girl was through the accused -appellant. 8. The moot question before the trial Court was as to whether there was evi dence against the appellant to establish the ingredients of Section 376(1) and 4 17 IPC beyond all reasonable doubt. Merely because there was an agreement by and between the parties (Ext.1) with the aforesaid condition of DNA test, the learn ed trial Court ought not to have held the appellant guilty of the offence under Section 376 and 317 IPC. It was only on the alleged failure of the accused appel lant to pay the maintenance allowance, the victim lodged the FIR. Thus, if the m aintenance allowance would have been paid, there would not have been any grievan ce on the part of the alleged victim. Mr. T.J. Mahanta, learned counsel for the appellant submits that it bei 9. ng not a case of offence under Section 376(1) IPC and also there being no eviden ce to establish the charge under Section 417 IPC, the learned trial Court ought not to have held the appellant guilty of the charges. On the other hand, Mr. Gog oi, learned APP, Assam submits that considering the age of the victim girl, the consent even if it was there, same was immaterial. 10. The victim girl in her deposition stated that she was 16 years of age. O n the other hand, in the Doctor’s report, there is no mention of the age of the victim girl. Under 6th Exception of Section 375 IPC, the consent is material if the victim is below 16 years of age. It is on this count, Mr. Mahanta, learned counsel for the petitioner submits that it being a case of consent by and betwe en the parties, it cannot be said to be a case falling under Section 376(1) IPC. As regards the offence under Section 417 IPC, he submits that there being no ev idence to show that the appellant had promised to marry the victim girl and has cheated her, it cannot be said to be a case falling under Section 417 IPC. Alter natively, he also submits that the accused-appellant having already undergone im prisonment for more than 4(four) months during trial and after the impugned judg ement of conviction, the same will meet the ends of justice even if the petition er is held to be guilty under Section 417 IPC. Considering the matter in its entirety, I am of the considered opinion t 11. hat the instant appeal deserves to be allowed which I accordingly do by setting aside the impugned judgement of conviction dated 8.2.2006 passed by the learned Sessions judge, Golaghat in Sessions Case No. 162/2003.
Decision
12. The appeal is allowed. Bail bond stands discharged. The Registry shall s end down the case records along with copies of the judgement and order to the le arned Court below.