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2006 DIGILAW 1308 (JHR)

Premlal Bhagat v. State of Bihar (Now Jharkhand)

2006-11-10

D.G.R.PATNAIK

body2006
JUDGMENT D.G.R. Patnaik, J. 1. This appeal is directed against the judgment of conviction dated 10.12.1999 and corresponding sentence passed by the Sessions Judge, Singhbhum West at Chaibasa, whereby the appellant Premlal Bhagat was convicted for the offence under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years. 2. Brief facts of the case, which was registered on the basis of the first information report lodged by the prosecutrix on 27.1.1998, is that the accused had established sexual relation with her for the past 11 years prior to the date of lodging of the FIR, on the assurances of marriage and during this period, she had conceived several times and was made to undergo termination of her pregnancy each time by the accused. It was when the accused refused to marry her and had proceeded to marry elsewhere, she decided to lodge complaint against the accused and had forwarded a letter to the Superintendent of Police and on his direction, she appeared at the police station where her FIR was recorded and the case was registered against the accused. Further case of the prosecution is that after registration of the case, prosecutrix was medically examined by the doctor, who had on the date of her examination had assessed the age of the prosecutrix in between 20 to 22 years. 3. Accursed had preferred to be tried, refusing to plead guilty to the charge. 4. Altogether 8 witnesses were examined by the prosecution at the trial including the prosecutrix (PW 2) and her parents (PW 5 and PW6) as well as the doctor (PW 1) who had medically examined the prosecutrix and also the investigating officer (PW 8). 5. The trial Court had placed reliance upon the testimony of the prosecutrix and after finding support from the medical evidence, has recorded its finding of guilt against the accused for the offence of rape and sentenced him accordingly. 6. 5. The trial Court had placed reliance upon the testimony of the prosecutrix and after finding support from the medical evidence, has recorded its finding of guilt against the accused for the offence of rape and sentenced him accordingly. 6. Appellant has assailed the impugned judgment of conviction and sentence primarily on the ground that the learned trial Court has committed grave error in failing to appreciate the evidences in proper perspective, ignoring the fact that, even according to the evidence of the prosecutrix, she had allowed herself to be sexually exploited by the accused for years together out of her own free will and consent, albeit on the belief and assurances of marriage, though knowing fully well that she is not the legally married wife of the accused. Learned Counsel submits that the ingredients of offence as defined under Section 375, IPC is not attracted at all, as because the prosecutrix was apparently a consenting party to the alleged sexual intercourse, which she had indulged several times with the accused out of her own volition. Learned Counsel submits further that the contention of the prosecutrix, that she was exploited sexually continuously for the past 11 years, is a false and misleading statement which she had contradicted herself by her own statement in her cross-examination. Learned Counsel refers to the evidence of the prosecutrix (PW 2) in her cross-examination wherein she has admitted that she had conceived only once in the year 1996 and the pregnancy was aborted at the clinic of one Dr. Sengupta at Jamshedpur and this indicates that the period of alleged sexual exploitation could not be for the past 11 years. Learned Counsel submits further that even the investigating officer, on being asked specifically, has failed to confirm the period during which the prosecutrix is purported to have been sexually exploited and, therefore, going by the evidences including the age of the girl assessed medically, prosecutrix was a major woman and definitely not a. minor below the age of 16 years on the first date when the accused had allegedly established sexual relation with her. It is further submitted that significantly, parents of the girl who have been examined as PW 5 and PW 6 have also not claimed that the prosecutrix was a minor girl and even they admit that they had no knowledge about the alleged sexual exploitation of the prosecutrix prior to the date of the institution of the present case. 7. Learned Counsel for the State, on the other hand, submitted that from the evidence of the prosecutrix that she was sexually exploited continuously for a period of 11 years and the evidence of the doctor that the age of the girl assessed after registration of the case, was in between 20 to 22 years, it appears that the prosecutrix was definitely a minor below the age of 16 years on the initial date when the accused and seduced her on the false promise of marriage and established sexual relation with her. 8. On examining the evidence of the prosecutrix (PW 2) it appears that she has admitted to have indulged in sexual relation with the accused without there being any force applied on her and she claims that she had consented to the sexual relation on believing the promise and assurance of the accused to marry her. Though she claims to have been exploited sexually by the accused for the past 11 years, she acknowledge that she had conceived only once and that too in the year 1996 and her pregnancy was terminated with her own consent. Significantly, the investigating officer has also acknowledged that he is not able to say as to since when did the accused establish sexual relation with the prosecutrix. This indicates that no serious investigation was done by him on this vital issue. The evidence of the parents of the prosecutrix do not throw any light on this issue, nor do they offer any support to the claim of the prosecutrix that she was exploited sexually for the past 11 years. This indicates that no serious investigation was done by him on this vital issue. The evidence of the parents of the prosecutrix do not throw any light on this issue, nor do they offer any support to the claim of the prosecutrix that she was exploited sexually for the past 11 years. In the light of the above circumstances, contention of the learned Counsel for the appellant that the prosecutrix cannot be said to be a minor on the first date when she introduced herself to sexual intercourse with the accused, appears to have substance and in this view of the matter, the inference that the prosecutrix being herself a major woman, had consented to maintain sexual relations with the accused, knowing fully well that she is not his legally married wife. The prosecution thus appears to have failed to bring cogent and reliable evidence on record to attract the ingredients of the offence punishable under Section 376, IPC. The learned trial Court appears to have ignored this aspect of the prosecution's evidence. 9. For the reasons stated above, I find merit in this appeal. Accordingly, this appeal is allowed. The judgment of conviction and sentence, as passed by the trial Court against the appellant, is hereby set aside. Appellant is acquitted of the charge for the offence under Section 376, IPC. Since appellant is on bail, he is absolved from the liability of his bail bond. Appeal allowed. Appeal allowed.