High Court · 2012

3. Heard Mr. BM Choudhury, learned counsel for the petitioner and Mr. BS Si nha, learned Addl. PP, Assam for the State. I have also perused the impugned jud gment and the prosecution witnesses.

4. The plea of the accused was of total denial and no defence evidence was tendered.

5. The victim’s case is that while she was a student of Class IX, the accu sed used to take tuition at home and he fell in love with her. Thereafter, the a ccused also developed physical relation which continued till 2002 and during thi s long period of 12 years, the accused gave promise of marriage on several occas ions. On the promise of marriage, the victim girl submitted herself to the accu sed and as a result of their co-habitation the victim girl became pregnant on two three occasions and all the pregnancies were aborted in the hospital.

6. Finally, when the accused refused to marry the victim girl, she filed an FIR on 23.3.2002. After the investigation, the charge sheet was submitted under Sections 493/420/313 IPC. However, the accused was tried only for the offence u nder Section 417 and 313 of the Indian Penal Code.

7. Altogether seven witnesses were examined by the prosecution. PW 1 is the victim girl herself; PW 4 is her brother’s wife; PW 3 is friend of the victim g irl from the neighbourhood; PW 5 is the Medical Officer and PWs 6 and 7 are the Investigating Officers.

8. Mr. Choudhury learned counsel for the appellant submitted that the prose cution witnesses have not given details as to whether the pregnancies were termi nated nor any witness was examined to corroborate the victim’s statement that the pregnancies were terminated without her consent. Besides this, the Doctors, who had terminated the pregnancies were also not examined by the prosecution. PW 5 is the Medical Officer, who had examined the victim girl after fili 9. ng of this case. The Doctor has affirmed that the victim girl was habituated to sexual intercourse and there were sufficient evidence of termination of pregna ncies. In fact, other prosecution witnesses were also not cross-examined to disp ute the fact of pregnancy. On the other hand, PWs 2,3 and 4 have corroborated the version of the victim girl about the repeated pregnancies and termination of the same. Now the question is whether the pregnancies were terminated with the con 10. sent of the victim girl or against her will. I have already mentioned earlier th at at the time of going to the hospital, no independent witness or family member s had accompanied the victim girl to the hospital. In this way, there is solitar y evidence of victim girl in this regard.

11. The victim girl has deposed that in the first instance of termination of pregnancy, the accused had accompanied her to the hospital. However, on the se cond occasion, the accused had only provided money to assist her. But he did not accompany the victim girl to the hospital since at the relevant time the accuse d was suffering from Tuberculosis. In my considered opinion, if the victim was r eally not interested to terminate the pregnancy, she should have reported it to her parents and the family members. In stead of that, the victim girl herself we nt to the hospital alone on the second occasion.

12. PW 2 is totally silent to speak about the pregnancy and its termination.

13. PW 3 has spoken about the termination of the pregnancy but she is also totally silent to depose that the victim girl was unwilling to terminate the pr egnancy.

14. PW 4 is the brother of the victim girl. He has deposed that his sister u sed to take some amount of money from him to help the accused. In this way, it i s clear that the financial position of the accused was not very sound. This fact also indicates that the victim girl must have arranged money from her own sour ce to terminate the pregnancies on her own without any force from the accused. C onsequently, the conviction of the accused/appellant under Section 313 of the In dian Penal Code is hereby set aside.

15. With regard to the conviction of the appellant under Section 417 of the Indian Penal Code, almost all the witnesses have deposed that they were report ed by the victim girl that the accused had promised to marry her. As noted earli er, PW 3 is an independent witness and she was only 17 years old at the time of giving testimony in the court and she was also a student. This witness has also deposed that the victim girl told her that the accused promised her to marry an d only on such promise the victim girl allowed physical relation.

16. PW 4 has also deposed at the relevant time that he was staying at Guwaha ti since he was serving there in ASEB. When he visited his native place, he foun d the accused visiting his sister and, as such, he enquired from the accused to which the accused told him that he would marry the sister of the witness. Simil ar testimony has been given by the PW 2. Apart from the corroborative evidence from all the witnesses the other f 17. act is that the accused had maintained physical relation with the victim girl fo r long period of 12 years and during this period, the victim girl became pregnan t twice, if not more than that. It is difficult to believe that a teenaged girl would have allowed sexual intercourse without any promise of marriage. Similarl y, the accused was also visiting the victim girl in the presence of her family m embers, including her mother and sister-in-law. In my considered opinion, these female persons must have allowed frequent visit to the accused only after giving promise of marriage. Hence, I find no difficulty to affirm the conviction of the appellant under Section 417 of the Indian Penal Code.

18. In the result, the appeal stands partly allowed. The conviction of the a ppellant under Section 313 IPC is hereby set aside. However, the conviction of t he appellant under Section 417 of the Indian Penal Code is hereby upheld. Simila rly, the sentence of 6(six) months imprisonment and fine of Rs. 1,000/- with def ault sentence of further SI for one month is also affirmed. Needless to mention that the period of sentence already undergone by the appellant shall be set off under Section 428 Cr.P.C.

19. The accused is directed to surrender in the court of learned Sessions Ju dge, Kamrup, Guwahati immediately to serve out the remaining period of sentence and also to deposit the fine amount.

20. Return the LCRs with a copy of this judgment.