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2007 DIGILAW 346 (GAU)

Mantu Das v. State of Assam

2007-05-14

AFTAB H.SAIKIA

body2007
1. Heard Miss S.K. Nargis, learned counsel who has been appointed as amicus curiae in place of Mr. B.M. Choudhury as Mr. Choudhury is found to be absent when the matter is called upon for hearing. 2. Also heard Mr. B.S. Singha, learned P.P. Assam representing the State. 3. This jail appeal has been directed by the appellant from jail challenging the judgment and order dated 22.1.2004 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 84/2003 whereby the appellant was convicted under section 366, IPC read with section 376, IPC and accordingly, he was sentenced to undergo rigorous imprisonment for a period of 10 years with compensation of Rs. 15,000 to the victim girl, in default, to undergo rigorous imprisonment for another 15 months for the offence punishable under section 376, IPC. However, no separate sentence was imposed upon the appellant under section 366, IPC. 4. The prosecution case in brief is that an ejahar was lodged by P.W. 1, the father of the victim girl P.W. 3 on 18.11.2002 with the Morigaon Police Station alleging that on 17.11.2002 yesterday at about 4.30 P.M. when the informant and his wife was absent from their residence, taking such advantage, the appellant kidnapped his minor daughter P.W. 3 forcibly from his house and on arrival at their house, they searched for the minor daughter. Thereafter, they confirmed that the accused Bishnu Das kidnapped their girl who was at the relevant time reading in Class X in Morigaon Higher Secondary School, who a couple of days ago also appeared the Test examination. According to the informant father, her age was 15 years. 5. On the basis of such information as disclosed in the ejahar, the police started investigation and during investigation, the Morigaon police rescued the girl on 19.11.2002 from Mantabori. She was, thereafter, medically examined on 20.11.2002 and her statement was also recorded under section 164 Cr.P.C. From her statement recorded under section 164 Cr.P.C., it was revealed that instead of*Bishnu Das, it was the appellant Mantu Das, who kidnapped the informant's minor girl so as to taking her to the place of Bishnu Das and in the process he committed sexual intercourse with her and thereafter the appellant left her at Mantabori. Accordingly, the police arrested Mantu Das, the appellant and finally the police submitted charge sheet against the accused-appellant Mantu Das for the offence punishable under sections 3667 376, IPC. 6. During trial before the learned Sessions Judge, Morigaon, to which the case, being exclusively triable by the Court of Sessions, was committed by the concerned learned Addl. Chief Judicial Magistrate, Morigaon, the prosecution examined as many as 9 witnesses including the victim, prosecutrix P.W. 3, P.W. 8, the Investigating Officer ('the I.O.') Bhadra Kanta Das and P.W. 9, Dr. Anup Kr. Baruah, who examined the victim girl when the defence adduced none. The appellant was also examined under section 313 Cr.P.C. and he denied the charge under sections 366/376, IPC pleading not guilty. 7. On appreciation of the material evidence on record both oral and documentary so produced by the prosecution as well as upon hearing the learned counsel for the parties, the learned Judge found the appellant guilty of the offence under section 366/376, IPC and convicted and sentenced him accordingly as mentioned above. 8. Miss. Nargis, learned amicus curiae, assailing the impugned conviction and sentence, has advanced basically three-fold arguments : - (1) that the testimony of P.W. 3, the prosecutrix, was full of contradictions and inconsistencies, (2) the victim girl was a consenting party which was evident from her evidence itself to the effect that she did not make any hue and cry and did not resist the accused appellant at the time of sexual intercourse upon her by the accused-appellant ; and (3) the evidence of Doctor-P.W. 9 was very much clear to the effect that the girl being a spinster was used to sexual intercourse on several occasions. 9. After going through the evidence of P.W. 3 and P.W. 9, the prosecutirx and the Doctor respectively, according to her, no essential ingredients as to rope the appellant in section 366 read with section 376, IPC could be proved by the prosecution beyond any reasonable doubt and accordingly, in the facts and circumstances, this is a case of acquittal instead of conviction under the above mentioned sections. 10. Refuting the contentions made on behalf of the appellant as advanced by the learned amicus curiae, Mr. 10. Refuting the contentions made on behalf of the appellant as advanced by the learned amicus curiae, Mr. Singha, learned P.P. Assam has strenuously relied upon the evidence of P.W. 3, the victim girl and P.W. 9 the Doctor and has vehemently contended that P.W. 3, being the prosecutrix, deposed that she was subjected to rape by the appellant twice and she did not disclose the said story to anybody due to fear as she was threatened by the appellant and that apart her deposition was wholly corroborated by the medical evidence of Doctor, P.W. 9 who in his opinion was very much categorical that she had her sexual intercourse in the past and such medical evidence was suffice and adequate to convict the appellant under section 376 read with section 366IPC. The prosecution was also successful in proving the case against the appellant, as revealed from the evidence of P.W. 1, the father, P.W. 2, the sister and P.W. 4 the mother of the victim. 11. Having given anxious consideration to the extensive arguments so advanced by the learned counsel for the parties and also on comprehensive appreciation of the testimony of the witnesses namely, P.Ws. 1, 2, 3, 4, 8, (I.O.) and P.W. 9 the Doctor, it is found that P.W. 3 in her examination-in-chief deposed that on the day of occurrence, i.e., on 17.12.2002 at about 4.30 P.M. when her parents went to maternal uncle, at that time the accused Mantu visited their house and told her that, Bishnu with whom she had love affairs and intimacy, would take away her in the evening and accordingly, he asked her to go with him. As she was in love and attachment with Bishnu of Ahatguri, she accepted the message and came with Mantu and while they were going through a paddy field and taking advantage of dark, Mantu committed forcible intercourse with her twice. Thereafter he told her that Bishnu was not at the destination and so he brought her to the house of the elder sister of the accused/appellant situated at Aujuri. She spent the night in the house of the sister of the appellant. Mantu was also stayed. In the morning he took her to Fulaguri and on the way he met a man to whom Mantu asked about the distance of motorable road. She spent the night in the house of the sister of the appellant. Mantu was also stayed. In the morning he took her to Fulaguri and on the way he met a man to whom Mantu asked about the distance of motorable road. The said man showed the path but he suspected them and followed accordingly. When the man asked Mantu to which place they would go, Mantu replied that he would go to Guwahati and at that moment, the victim girl got afraid. The said unknown person then due to suspicion, took them to their house and he was one Boli Medhi, P.W. 6. Medhi provided them meal for noon and thereafter took them to a neighbouring village and she was kept in a house of that village and from that place the accused on a plea to search Bishnu, left the house and did not return. On cross-examination, she testified that though her love with Bishnu continued for about 6 months, no sexual intercourse took place with Bishnu. On the other hand, Mantu, being a married man, and at the relevant time, his wife was in advance stage and being a Carpenter by profession, sometime helped in their household affairs and accordingly, he was visiting them earlier. Even that when she went for private tuition at Natua gaon, sometime Mantu escorted her in his cycle. However, on that day, he did not show anj ill behaviour. She was categorical in her deposition in cross-examination that at the time of sexual intercourse, she did not create hulia. First she applied force but subsequently she had to surrender. When she was taken to Aujuri, on the road there were 2 shops. At about 9 P.M. they arrived at the house of the appellant's elder sister. In the night she slept with the elder sister of the appellant. She did not disclose to anybody about the sexual intercourse upon her by the appellant but reported only as to how she was brought. 12. The medical evidence of P.W. 9 on the other hand was found as under : - opined as under : -"General examination : (1) Secondary sex character well developed. (2) No evidence of any injury on her body. (3) Teeth 7/7, 1/9 Examination of private parts : Patient took her bath and changed her clothes after the incident. Hymen is torn. (2) No evidence of any injury on her body. (3) Teeth 7/7, 1/9 Examination of private parts : Patient took her bath and changed her clothes after the incident. Hymen is torn. No redness and tenderness found at the time of examination. There was evidence of sexual intercourse in the past. Inference : (1) Radiological age as reported by rediologist vide X-ray No. CKLF No. Nil dated 25.11.2002 of Morigaon Sono Scan and Diagnostic ' Centre-Age is above 16 years (2) There is evidence of sexual intercourse. (3) There was no injury on her body (4) Both from history and physical examination, it is found that she had sexual intercourse for a couple of time in the past. (5) Since she took bath and changed her clothes so no semen mark was found on her private part." 13. On careful consideration of the evidence of P.W. 3 read with P.W. 9 the Doctor, it candidly appears that the victim girl was a consenting party and her conduct as stated in the cross-examination was very much doubtful so as convict the appellant for commission of offence of rape. In her deposition she testified that she did not raise any hue and cry when she was sexually assaulted by the appellant. Even from the evidence of Doctor-P.W. 9, it is also cleared that she was habituated to sexual intercourse. It is surprising how a student of Class X before her marriage could have such sexual intercourse on several times as was evident from the evidence of Doctor P.W. 9, who in his evidence candidly explained that the prosecutrix had her sexual intercourse on couple of times which meant "for several times". 14. That being the position, this court is of the considered view that no case has been made out by the prosecution to convict the appellant under sections 366/376, IPC. Accordingly, the conviction and sentence imposed by the learned Sessions Judge is hereby set aside and quashed. 15. The appellant be set at liberty forthwith, if he not required in connection with any other case. 16. In the result, the appeal succeeds and stands allowed. 17. Accordingly, the conviction and sentence imposed by the learned Sessions Judge is hereby set aside and quashed. 15. The appellant be set at liberty forthwith, if he not required in connection with any other case. 16. In the result, the appeal succeeds and stands allowed. 17. Before parting with the record, we would like to put on record our appreciation to Miss Nargis, the learned appointed amicus curie for her help and assistance rendered to arrive at a decision in this jail appeal and accordingly, it is ordered that she is entitled to get her professional fee which is quantified at Rs. 2500. L.C.R. be sent down immediately.