High Court
Case Details
Crl.A. 59/2010 BEFORE HON’BLE MR JUSTICE P.K.MUSAHARY
Legal Reasoning
Heard Mr. R.Sarma, learned counsel for the appellant. Also heard Mr.K.A.Mazumdar , learned Addl.P.P., Assam. 2. This appeal has been preferred against the judgment and order dated 12.3 .2010 passed by the learned Sessions Judge, Nalbari, in Sessions Case No. 46/200 7 convicting the accused appellant u/s 376 IPC and sentencing him to undergo Ri gorous Imprisonment for 7 years and also to pay a fine of Rs.500/- for the offen ce u/s 376 IPC, in default of payment of fine another R.I. for 1 month and also to undergo R.I. for 6 months for offence u/s 417 IPC. 3. The prosecution case is that the appellant used to visit the informant’s house, used to take around his sister to enjoy various festivals etc., maintain ed relationship and committed rape on her on 11.8.2006 at about 7 PM against her will when he was not present at home. When she wanted to scream, the appellant asked her to remain quiet promising that he would marry her. The age of the info rmant’s sister was only about 16/17 years at that time. Having come to know abou t the incident, he convened a village meeting. The appellant attended the said m eeting and and took her to his house promising to marry her but he used to tortu re and drove her away from his house. Thereafter, the informant lodged FIR and a case, being Tamulpur P.S. Case No. 120/06, was registered u/s 448/323/420/376 IPC. The I.O. visited the place of occurrence, started investigation and record ed statement of witnesses and produced the victim before a medical officer and g ot her examined medically and also got her statement recorded u/s 164 Cr.P.C. by a Magistrate. After completion of the investigation, charge sheet was laid agai nst the accused appellant u/s 376 IPC. The learned Magistrate concerned committe d the case to the Court of Sessions, Nalbari, for trial. Based on the materials placed on record, the learned Trial Court framed charge u/s 417/376 IPC against the appellant who pleaded not guilty and claimed to be tried. The appellant st ood the trial. During the trial the prosecution, in order to bring home the aforesaid c 4. harge, examined as many as 7 witnesses, including the victim girl. The appellant was examined u/s 313 Cr.P.C. and the incriminating evidence found against him, were placed before him. He was offered chance to adduce evidence but he declined to avail the chance and examined no witness in his defence. The learned trial C ourt, on consideration of evidence on record and upon hearing the parties, convi cted and sentenced the appellant as mentioned above which is under challenge in the present appeal. For the purpose of disposal of the appeal, in my considered view, it is 5. necessary to find out whether the victim girl was above 16 years of age at the t ime of occurrence. First of all let me turn to FIR (Ext.4) which was lodged by brother of the victim girl (PW 6). In the FIR her age has been mentioned as 16 /17 years on the date of occurrence i.e. 11.8.2006. The victim girl herself, in her statement u/s 164 Cr.P.C. recorded by the Judicial Magistrate, Ist Class, N albari, stated that she was aged 17 years as on 19.9.2006. At the time of recor ding her evidence before the learned trial Court, she disclosed her age about 18 years as on 11.3.2008( day of deposition). The medical officer, PW 2, in his d eposition stated that as per radiological test/examination, her age was above 18 years as on 29.1.2008(day of deposition). If the averments made in the FIR, sta tement of the victim and the opinion of the doctor (PW 2) are taken into conside ration, she was undoubtedly aged above 16 years at the time of occurrence. In th e internal examination, the doctor found victim’s vagina admitting two fingers a nd hymen absent. With the aforesaid materials on record it is held that the vict im girl was major in her age having attained the age above 16 years on the date of occurrence. The evidencve of the victim girl (PW 3) is that the appellant, on 11.8.2 6. 006 at about 7 PM when her brother was not at home, visited their house and had sexual intercourse with her by force and against her will. She resisted but she failed. Thereafter, the appellant cohabitated with her on several occasions and she was told that she got pregnant .The appellant assured her to marry but he f ailed to keep his promise due to which she had to disclose the matter to her brother who arranged for a village meeting. In the village meeting the appell ant did not turn up and therefore, she was advised to file a case. Accordingly h er brother PW 6 lodged an FIR (Ext.4). 7. From the above evidence of the victim girl, there is no difficulty in ap preciating that on the first occasion of sexual intercourse, she resisted the ap pellant but she did not disclose it to her brother or any friend or relative. Sh e had been enjoying sex with the appellant on several subsequent occasions. She never made any complaint before the police or the village elders against the app ellant. From the manner in which she was maintaining physical relationship with the appellant, it is easily discernible that she was a consenting party from the very first occasion and she voluntarily indulged in cohabitation with him. At t he time of first occurrence/cohabitation the victim was major and she was in a p osition to give consent. She was capable of giving her consent. The position wou ld have been different if she was below 16 years of age on the first occasion of sexual intercourse and in that case her consent would have been considered imma terial and in spite of her consent the appellant would have been liable to convi ction u/s 376 IPC. The victim girl having been found above 16 years and at the age of conse 8. nt and she was voluntarily indulging in sexual intercourse with the appellant on several occasion, I am of the considered view that the learned trial Court comm itted error both in fact and law in convicting and sentencing the appellant u/ s 376 IPC. The appellant is, therefore, liable to be acquitted. Accordingly, the appellant is acquitted of the charge under Section 376 IPC. 9. In regard to conviction of the appellant u/s 417 IPC, I find no infirmit y and illegality inasmuch as the prosecution has been able to establish the afor esaid charge beyond reasonable doubt. The evidence on record is that the appella nt held out promise to the victim girl and indulged in sexual intercourse with h er without fulfilling the promise. From the conduct of the appellant there is n o manner of doubt that he had dishonest intention from the very beginning of con tact/meeting with the victim girl and continued the physical relation with her w ith false promise for marriage and thereby cheated her, which attracts offence u/s 417 IPC. The conviction of the appellant u/s 417 as recorded and ordered by the learned trial Court in the judgment under challenge stands upheld. 10. It is stated at the Bar that the appellant has been in custody /imprison ment for a period of 4 months 10 days as on today. In my considered view, the en ds of justice would be made if the appellant is sentenced to imprisonment for th e period already undergone and directed to pay fine of Rs.2000/- to be deposited in the trial Court within a period of 30 days from the date of receipt of the L CR alongwith a copy of this order. In case the appellant fails to deposit t he aforesaid fine amount, within the above time frame, the appellant shall under go simple imprisonment for 4 months.
Decision
11. al stands partly allowed and disposed of. With the aforesaid modification in the conviction and sentence, the appe