High Court
Case Details
Crl.A. 71/2011 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY This appeal is directed against the judgment and order dated 21.02.2011 passed by learned Sessions Judge, Nalbari, in Sessions Case No.61/2007, whereby the appellant was convicted under Section 376,493 of IPC and 315/511 IPC and sen tenced to undergo R.I. for 7 years and to pay a fine of Rs.500/-,with default st ipulation, for the commission of offence under Section 376 of IPC, and to under go R.I. for 2 years and to pay fine of Rs. 500/-, with default stipulation, for the commission of offence under Section 493 of IPC. Further, the appellant was sentenced to pay fine of Rs.10,000/- for committing the offence under Section 31 5/511 of IPC, with default stipulation of six months imprisonment. 2) Facts leading to filing this appeal may be stated, in brief, as follows:
Facts
The victim lodged an FIR against the accused appellant alleging that the accused had promised to marry her by coming to her residence on 28.7. 06. There after, the accused indulged in having sexual intercourse with the victim. It has been further stated in the FIR that the victim believing the proposal of the ac cused to be genuine and on assurance of getting married given by the accused, st arted having sexual intercourse. The informant on believing the accused as her h usband allowed him to have sexual intercourse with her. The victim became pregna nt as a result of the physical intimacy with the accused. The accused took her t o her parents’ house. However, family members of the accused started assaulting the victim. Finally, the family members of the accused chased her and tortured her mercilessly. Thereafter, she returned to her parents’ house. Thereafter also , the accused maintained good relationship with the victim as husband and wife. Accordingly, the accused and the victim again resumed their marital activities a t the residence of the victim. The victim got pregnant in the process and when s he became pregnant, the accused gave her some tablets for abortion. However, the informant refused to accept the abortion proposal. The informant once again vis ited the residence of the accused to stay with him. However, this time accused r efused to stay with her and chased her and tortured her. Finally, she returned b ack to the residence of her parents. 3) On the basis of the information so received from the victim a case being Barama PS Case No. 44/06, was registered under Section 376/493/315/511 of IPC a nd investigation was launched. On completion of the investigation, I.O. submitte d charge-sheet against the accused-appellant, alleging the commission of offence under Section 376/493/315/511 of IPC. 4) On committal of the case to the Court of Sessions, a formal charge under Section 376/493/315/511 of IPC was framed against the accused-appellant by the learned Sessions Judge, Nalbari. On reading over and explaining the charge, the accused pleaded not guilty and claimed to be tried. The prosecution examined as many as 10 witnesses to establish the offenc 5) e alleged against the accused-appellant. On completion of the recording of evide nce of prosecution witnesses, defence statement of the accused under Section 313 of CrPC was recorded. Defence plea of the accused was of total denial. On concl usion of the hearing, the learned Sessions Judge convicted and sentenced the acc used-appellant as aforesaid, giving rise to this appeal.
Legal Reasoning
18) In order to establish the aforesaid charge, prosecution adduced the evid ence to the effect that the accused had given some tablets to the victim to abor t the baby in her womb. However, very interestingly, such tablets were not exami ned by any experts or no opinion of experts was ever obtained to prima facie pro ve that the tablet so given to the victim for abortion of the baby by the accuse d were in fact potent to cause the abortion of the pregnancy. 19) In order to establish a charge under Section 315 read with Section 11 IP C, the prosecution is required to allege and establish some overt act on the par t of the accused, which if not prevented would have caused the baby in the womb to die. Apparently, the ingredients of offence under Section 315 and 511 of IPC are not satisfied, in the facts and circumstances of the case. Therefore, the co nviction of the accused-appellant under section 315 and 511 of IPC, cannot be su stained. 20) Consequently, on over all consideration of the entire gamut of facts and circumstances discussed above, this Court of the opinion that the conviction an d sentence recorded by the learned trial court is liable to be set aside. It is ordered accordingly. 21) The appellant stands acquitted of the charges under Section 376/493/315/ 511 of IPC. Since the appellant is on bail, the bail bonds so furnished on beha lf of the appellant stand discharged. 22) Send down the LCR forthwith.
Arguments
6) Mr. JH Khan, learned counsel for the appellant by drawing attention of t he Court to the evidence of the witnesses submitted that the prosecution side mi serably failed to prove any of the charge levelled against the accused in this c ase and hence the accused-appellant is liable to be acquitted from the charges. 7) On the other hand, Mr. BS Sinha, learned Addl. Public Prosecutor submitt ed that evidence on record established the charge cogently and there is no reaso n to interfere with the findings arrived at by the learned trial Court. 8) In order to appreciate the arguments advanced by the learned counsels fo r the appellant as well as learned Public Prosecutor, I would like to examine th e core of the prosecution evidence. 9) From the evidence of PW.1, the informant, it clearly transpires that she had love affair with the accused and after having fallen in love with the accus ed-appellant, having being promised by the accused to marry her, she started hav ing sexual intercourse with the accused. Both of them indulged in sexual interco urse on their own consent. Subsequently, she became pregnant and was taken to t he residence of the accused to live as husband and wife. But the family member o f the accused did not allow her to live with the accused, as husband and wife. P W.1 in her cross examination made it clear that the accused resided with her in their house in a separate room, like husband and wife. Her parents, brothers and sisters accepted the relationship of the accused and the victim but the family members of the accused did not accept the relationship. 10) Learned counsel for the appellant submitted that due to some misundersta nding between the accused and the informant, formalities of marriage between the m could not be performed, but the accused is still intending to take the victim back as his wife and he never deserted her. In order to constitute an offence of rape under Section 376 of IPC, foll 11) owing ingredients are required to be established:- i) ii) the six clauses given under Section 375 IPC; iii) years; Sexual intercourse by a man with a woman with the consent of the woman. The sexual intercourse must be under circumstances failing under any of That the accused had sexual intercourse with his own wife aged under 12 12) The medical evidence of the Doctor (PW.9) does not reflect the age of th e victim. Apparently, in such a situation it is presumed that the victim was not a minor at the time of occurrence. Rather, the observation made by the Court be low while recording her statement under Section 164 of CrPC, clearly reveals tha t the victim was within the age of 17 to 19 years. Therefore, the victim cannot be treated to be below the age of 16 years at the time of occurrence. Therefore, admitted sexual intercourse by the accused with the victim, with the approval a nd consent did not constitute rape. 13) In the circumstances as discussed above, sexual intercourse which the vi ctim had with the accused was with her consent. The victim was not deceived or c heated by the accused in any manner to attract the ingredients of offence under Section 376 of IPC. Therefore, apparently the ingredients of offence under Secti on 376 IPC are missing in the instant case against the accused-appellant. 14) ngredients are required to be satisfied: In order to constitute an offence under Section 493 IPC, two essential i i) Deceit causing a false belief in the existence of a lawful marriage; ii) Cohabitation or sexual intercourse with the person causing such beli ef. 15) In order to establish the offence under Section 493 of IPC, prosecution is required to prove that the accused practiced deception in order to cause a fa lse belief in the mind of the victim that she was lawfully wedded to him and the reby she had cohabitation or sexual intercourse with the accused. 16) The evidence on record do not reveal that the accused had falsely induce d the victim to believe that she was married to him and there was no occasion wh atsoever for the victim to believe that she was formally and lawfully married to the accused. PW.1, the victim herself has stated in her evidence that the accus ed ever wanted to marry her and even after having been driven away by the family members of the accused, the accused had come and stayed with her and maintained the relationship. Therefore, apparently there is no element of deception causin g false belief of existence of a lawfully marriage between the accused and the v ictim. In the absence of deceive causing a false believe by the accused, the ess ential ingredients of Section 493 of IPC, cannot be said to have been establishe d against the accused-appellant. Therefore, the conviction of the accused under Section 493 of IPC, is not maintainable. 17) In order to established a charge under Section 315/511 IPC, the prosecut ion is required to established that the act or omission of the accused must be s uch that there should be prohibition/prevention for the child to be born alive o r it must be caused to die after its birth.