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Gauhati High Court · body

2006 DIGILAW 1096 (GAU)

Niman Sonowal v. State of Assam

2006-12-11

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. By the judgment and order, dated 19.7.2001, passed in Sessions Case No. 131/2000, by the learned District and Sessions Judge, Golaghat, the accused-appellant stands convicted under Sections 376 and 417, IPC and sentenced to suffer, for his conviction under Section 376 IPC, rigorous imprisonment for 7 years and pay fine of Rs.5,000 and, in default, suffer rigorous imprisonment for a further period of 6 months and also suffer, for his conviction under Section 417, IPC, rigorous imprisonment for a period of one year, both the sentences having been directed to run concurrently. 2. The prosecution case, as unfolded at the trial, may, in brief, be described, thus : RB is daughter of PW1 and PW2 and the accused is one of their neighbourers. When RB was aged about 14 years and a student of class VII, the accused started an affair with her by promising to marry her. In the month of January 1998, the accused came to the house of RB and, on finding her alone at home, attempted to have sexual intercourse with her; when RB refused, the accused assured her that if anything would go wrong, he would marry her. On the basis of the promise for marriage made by the accused, RB allowed the accused to have sexual intercourse with her. Thereafter, the accused had occasionally sexual intercourse with her at her house and also in the field, where she took her catties to tend. In consequence of such sexual intercourse, RB became pregnant and when she was carrying pregnancy of one month, the accused gave her some medicines. As the medicines did not succeed in causing abortion, the accused gave some more medicines. The medicines, however, had no effect and when RB entered into the third month of her pregnancy, the accused disclosed the fact of RB's pregnancy to his sister-in-law. PW2 (mother, of RB), was also informed about the pregnancy, whereupon the accused took RB along with her mother and sister-in-law to Bokajan hospital for abortion. At the hospital, the accused admitted before PW2 that RB had conceived through him. As the doctor, at the hospital, demanded Rs.700 for causing abortion and neither the accused nor the family members of RB had such sum of money, they came back home on the basis of a promise made by the accused that he would arrange money and dp the needful. As the doctor, at the hospital, demanded Rs.700 for causing abortion and neither the accused nor the family members of RB had such sum of money, they came back home on the basis of a promise made by the accused that he would arrange money and dp the needful. The accused, thereafter, disappeared and RB gave birth to a female baby. PW1 (father of RB), lodged an FIR with the police. A case under Section 376 IPC was accordingly registered against the accused and the victim was medically examined. On completion of the investigation, police laid charge-sheet against the accused under Sections 376/212 IPC. 3. At the trial, when charges under Sections 376 and 417, IPC were framed against the accused, the accused pleaded not guilty thereof. 4. In support of their case, the prosecution examined six witnesses. The accused was, then, examined under Section 313 Cr.P.C. and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. The defence also adduced evidence by examining two witnesses. Having found the accused guilty of both the offences, the learned trial court convicted him accordingly and passed sentence against him as already mentioned hereinabove. Aggrieved by his conviction and the sentence passed against him, the accused has preferred the present appeal. 5. I have heard Mr. H.R.A. Chotidnury, learned senior counsel; appearing on behalf of the accused-appellant, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, what needs to be noted is that the evidence of PW1 and PW2 was recorded at the trial on 19.2.2001 and that of the alleged victim on 31.3.2001. According to the evidence of PW1, his daughter's present age is 16 years and the occurrence took place about three years back meaning thereby that in February 2001, RB was aged about 16 years and, hence, her age, at the time of the alleged occurrence, was about 13 years. This assertion of PW1 has gone entirely unchallenged and undisputed by the defence. Similarly, the evidence of PW2 (mother of RB), is that her daughter's present age is about 17 years and that occurrence took place about three years back. The evidence of PW2, thus, shows that the alleged victim's age was about 14 years at the time of the alleged occurrence. Similarly, the evidence of PW2 (mother of RB), is that her daughter's present age is about 17 years and that occurrence took place about three years back. The evidence of PW2, thus, shows that the alleged victim's age was about 14 years at the time of the alleged occurrence. The evidence of PW2 too has gone completely unchallenged by the defence. Thus, the undisputed evidence of the parents of RB shows that at the time, when the accused allegedly had sexual intercourse with RB, her age was about 13-14 years. I may, at this stage, pause here to point out that Dr. H. Saikia (PW5) is the doctor, who had, admittedly, examined RB, on 5.6.1998, at Golaghat Civil Hospital. His findings and opinion are as follows: Description of injury. 1. Height 144 cms 2. Weight 43 kgs 3. Teeth 14 x 14 nos. 4. Public Hair Scanty 5. Auxiliary hair Scanty 6. Breast Well developed 7. Vaginal examination there is no sign of rape or violence in her private parts. 8. X-ray of the wrist joint shows non-fusion of epiphyseal ends of ulna and radius. Considering all the above findings, I am in the opinion of that the age of the girl is below 18 years of age. 7. Thus, the medical evidence on record was that there was no fusion of epiphyseal ends of ulna and radius. This apart, when the clear evidence of PW1 and PW2, who are parents of RB, is to the effect that their daughter, RB, was aged about 13-14 years at the time of the alleged occurrence, the medical evidence cannot override the evidence of the parents, particularly, when the evidence of PW1 and PW2 have remained unchallenged and undisputed and there is nothing in their evidence to indicate that their assertions as regards the age of their daughter are incorrect or false. Situated thus, I am firmly of the view that the finding of the learned trial court that the victim was aged less than 16 years at the time of the occurrence cannot be held to be incorrect. 8. Bearing in mind that RB was around 13-14 years old at the time, when she was studying at class VIII, let me, now, turn to the evidence of PW3. 8. Bearing in mind that RB was around 13-14 years old at the time, when she was studying at class VIII, let me, now, turn to the evidence of PW3. According to her evidence, accused is her neighbour, he started a love affair with her, when she was in class VI and because of this relationship, he used to go to their house and had promised her to marry. On the day of the occurrence, according to the evidence of PW3, the accused came to her house at about 12 noon, when her parents were not at home and tried to have sexual intercourse with her; but as she refused, the accused told her that he would marry her if anything went wrong. Believing the promise of marriage so made by the accused, PW3 allowed him to have sexual intercourse with her. Subsequent thereto also, the accused had occasionally sexual intercourse with her at her house and also at the paddy field, where she went to tend catties. It is in the evidence of PW3 that in course of time, when PW3 started carrying pregnancy of one month, the accused gave her some medicines, but the medicine did not work, whereupon the accused gave her more medicines, but the medicines, so given, also did not work and when she entered into her third month of pregnancy, the accused informed her sister-in-law and her mother too came to know about her (RB's) pregnancy. It is also in the evidence of PW 3 that the accused, then, took her (PW3) along with her mother and sister-in-law to Bokajan hospital; but the doctor demanded Rs.700 for doing abortion and as none of them had the said sum of money, they had to come back and after coming back from the hospital, the accused completely deserted her. 9. I have carefully scrutinized the cross-examination of PW3 by the defence and what I notice is that there is virtually no cross-examination of PW3 except that the defence has offered a number of suggestions. However, as these suggestions have been denied and there is no evidence probabling these suggestions, such suggestions have remained as mere suggestions. 9. I have carefully scrutinized the cross-examination of PW3 by the defence and what I notice is that there is virtually no cross-examination of PW3 except that the defence has offered a number of suggestions. However, as these suggestions have been denied and there is no evidence probabling these suggestions, such suggestions have remained as mere suggestions. In the light of the evidence of PW3, when the evidence of PWs 1 and 2 is considered with regard to PW3's age, there remains no room for doubt that when PW3 was aged about 13-14 years, the accused had sexual intercourse with her on several occasions. As PW3 was younger than 16 years at the time, when the accused had such sexual intercourse with her, the fact that PW3 had consented to such sexual intercourse would have no bearing in law. Situated thus, it is clear that consent, if any, of PW3 was not a consent in law and the acts of sexual intercourse by the accused with PW3 amounted to offence of rape. 10. Though the accused has also adduced evidence to show that DW1 had seen PW3 sleeping with her maternal uncle and DW1 had reported to DW2 what he had seen, such evidence does not show, far less prove, that PW3 had conceived through her maternal uncle even if DW1 and DW2 were to be believed. This apart, when PW3 was under cross-examination by the defence, no question was put to her that she had either slept with her maternal uncle or that she had conceived through her maternal uncle. In short, thus, the evidence adduced by the defence does not shake or cast doubt on the veracity of the evidence given by PW3 or her parents. 11. Because of what have been discussed and pointed out above, the learned trial court was, in my firm view, wholly correct in concluding that the accused, having had sexual intercourse with PW3, when PW3 was less than 16 years, committed offence of rape punishable under Section 376(1), IPC. Viewed thus, it is clear that the conviction of the accused under Section 376(1), IPC deserves no interference. 12. Viewed thus, it is clear that the conviction of the accused under Section 376(1), IPC deserves no interference. 12. Turning to the conviction of the accused under Section 417, IPC, suffice it to mention here that there is nothing in the evidence on record to show that the accused, at the time, when he had made promise for marriage, did not intend to marry PW3. In such circumstances, though he might have been committed an offence under Section 376, IPC, he cannot be held liable for conviction under Section 417, IPC, for, consent obtained by him for sexual intercourse with PW3 was neither dishonest nor fraudulent. His subsequent conduct of fleeing away or deserting PW3 cannot override the fact that he (accused) had admitted before the mother of PW3 that PW3 had conceived through him, for, his conduct clearly indicates that he did want to marry PW3, when he had made the offer of marriage to PW3. In the circumstances, as indicated hereinbefore, the accused was not liable for conviction under Section 417, IPC. 13. In the result and for the reasons discussed above, while the conviction of the accused-appellant under Section 376(1), IPC is maintained, his conviction under Section 417, IPC is hereby set aside. As far as the sentence passed against the accused-appellant for the offence committed by him under Section 376, IPC is concerned, I find that the learned trial court, while sentencing the accused, observed, thus: At the same time, I have gone through the whole case record and I find how the minor girl was subjected to rape which resulted in early pregnancy and the birth of an illegitimate child. The child is still living with the prosecutrix without anybody to support her. This child will always remain as a stigma to the prosecutrix and it will always point accused finger at her. The victim being mother of an illegitimate child cannot stand high in the society as nobody would come to marry her as she is a mother without a father of the baby. Her whole personality has been destroyed. Her very fundamental right to live as a normal human being in this world has been snapped away. Everybody would look down upon her in hatred. She would not be able to take part in socio-religious functions in the society. Her whole personality has been destroyed. Her very fundamental right to live as a normal human being in this world has been snapped away. Everybody would look down upon her in hatred. She would not be able to take part in socio-religious functions in the society. It is a fact that the exact date of sexual intercourse could not be stated by her. But her pregnancy proves that date. As she was a consenting party, she could not go either to the doctor or to police soon after the incident and the accused availed that opportunity. But when he could not get the abortion completed through the doctor, he vanished from the scene. 14. Because of what the learned trial court has pointed out in order to determine as to what sentence shall be passed against the accused for the offence committed by him under Section 376, IPC, I do not find that the sentence passed against the accused-appellant is harsh or unreasonable. Considered, thus, the sentence passed against the accused-appellant, I am satisfied, needs no interference by this court in appeal. 15. In the result and for the reasons discussed above, while the conviction and sentence passed against the accused-appellant under Section 417, IPC are hereby set aside, his conviction under Section 376(1), IPC and the sentence passed against him, in this regard, are hereby maintained. The accused-appellant is directed to surrender forthwith in the court of the Chief Judicial Magistrate, Golaghat, to serve the sentence of imprisonment passed against him. 16. With the above observations and directions, this appeal shall stand disposed of. 17. Let the LCRs be sent back.