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2007 DIGILAW 936 (JHR)

Bibhisan Mahato v. State of Jharkhand

2007-12-17

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J.-In this appeal the appellant has challenged the judgment and order of conviction and sentence dated 27.4.2000 passed by Sri Tarkeshwar Prasad, Sessions Judge, Singhbhum West, at Chaibasa (Camp at Seraikella) in Sessions Trial No. 24 of 1998 whereby the appellant has been convicted for offence under Section 376 IPC and accordingly sentenced to undergo rigorous imprisonment for seven years. 2. The case against the appellant was registered on the basis of fardbeyan of the prosecutrix (PW 5) recorded on 14.7.1997 alleging therein that about eight months prior to the date of the occurrence, she had developed acquaintance with the appellant and had fallen in love with him. The appellant had promised that he would marry her. On the basis of such assurance, the prosecutrix had indulged in physical relation with the appellant as a result of which the prosecutrix had conceived, but when she insisted that the appellant should keep his promise and marry him, he refused. Meanwhile, her pregnancy became apparent and she revealed the matter to her parents whereafter a panchayat was convened in the village, but the appellant refused to attend the panchayat. Consequently, feeling cheated by the appellant, the prosecutrix accompanied by her maternal uncle (PW 4) went to the police station and lodged her FIR. 3. The appellant in his defence denied the charge pleading not guilty. His case in defence is that he has been falsely implicated in the case on account of political rivalry since a member of the family of the prosecutrix belongs to a particular political party which is hostile to another political party of which the appellant is a member. 4. As many as five witnessed were examined at the trial. They include the informant (PW5), parents of the prosecutrix PWs 2 and 3), Doctor (PW 1) and the maternal uncle of the prosecutrix (PW 4). The investigating officer of the case has not been examined. 5. 4. As many as five witnessed were examined at the trial. They include the informant (PW5), parents of the prosecutrix PWs 2 and 3), Doctor (PW 1) and the maternal uncle of the prosecutrix (PW 4). The investigating officer of the case has not been examined. 5. The trial court relying on the testimony of the prosecutrix and interpreting the estimony of the doctor who had medically examined the prosecutrix, recorded its finding that on the alleged date of occurrence, the prosecutrix was below 16 years of age and therefore consent of the prosecutrix to the sexual intercourse cannot be treated as legal and valid, which even otherwise, was obtained by the appellant on false representation with dishonest intention and by practicing fraud and deception on her. 6. Mr. Ananda Sen, learned counsel for the appellant, while assailing the judgment of conviction and sentence of the appellant submits that the conviction of the appellant under Section 376 IPC is misconceived and against the weight of evidence on record. Learned counsel explains that the evidence of the doctor (PW1) categorically declares the age of the prosecutrix on the date of medical examination as between 17-18 years and as interpreted by the Supreme Court in several cases, margin of two years on either side needs to be given and accordingly, the age of the girl must be assessed in between 19-20 years. Learned counsel in this context refers to the statement of the prosecutrix (PW 5) as recorded by the trial court wherein even the trial court has assessed the age of the prosecutrix as 20 years on the date of her deposition (26.3.1999). Learned counsel further adds that even according to the prosecution case, it cannot be said that the girl was below 16 years on the alleged first date of sexual intercourse with the appellant. Once again referring to the FIR of the prosecutrix alongwith her statement-- recorded under Section 164 Cr. Learned counsel further adds that even according to the prosecution case, it cannot be said that the girl was below 16 years on the alleged first date of sexual intercourse with the appellant. Once again referring to the FIR of the prosecutrix alongwith her statement-- recorded under Section 164 Cr. P.C as also her deposition recorded at the trial, learned counsel explains that the victim girl has categorically admitted that ever since she met the appellant, she had fallen in love with him where after both of them had freely indulged in sexual intercourse several times at several places and merely because the appellant had purportedly offered the victim girl to marry her, her evidence does not indicate or suggest that her consent was under impression of any promise of marriage. It is further submitted that the prosecution has not explained the delay of more than eight months in lodging the first information report and further more the explanation for the delay that a panchayat was held in the village is not also proved by examining any independent co-villager or any member of the so-called panchayat. 7. Learned counsel for the State while controverting the grounds advanced on behalf of the appellant offers support to the finding of guilt recorded by the trial court against the appellant under Section 376 IPC. Inviting attention to the deposition of the prosecutrix, learned counsel for the State would explain that the prosecutrix, has specifically stated that though she was in love with the appellant, it was pursuant to his offer and promise to marry her and on the belief of such promise that she had allowed the appellant to exploit her sexually. Learned counsel argues further that the age of the prosecutrix on the date of her medical examination was between 17-18 years whereas the date of occurrence was eight months prior to the date of her examination which makes out her age as below 16 years on the date of the first date of occurrence. 8. The entire case of the prosecution revolves around the testimony of the prosecutrix and also on the testimony of the doctor (PW1) who had assessed the age of the prosecutrix between 17-18 years. 8. The entire case of the prosecution revolves around the testimony of the prosecutrix and also on the testimony of the doctor (PW1) who had assessed the age of the prosecutrix between 17-18 years. It appears from the testimony of the prosecutrix that she was a school student and studying in class X. The proper basis of the evidence regarding the age of the prosecutrix would have been the school admission register wherein her age was expectedly recorded. Parents of the prosecutrix (PWs. and 3) have not offered any definite evidence regarding the age of the victim girl. Even the prosecutrix is 'not consistent in her statement with regard to her own age inasmuch as in the FIR she claims herself to be 15 years of age, while in her statement recorded on 16.8.1997 under Section 164 Cr. P.C. a copy of which is available in the case diary though not adduced by the prosecution in evidence, she had claimed herself to be aged 13 years. Yet in her deposition recorded on 26.3.1999, she had given her age as 15 years. Certainly, on the date of the FIR in July, 1997, if she was 15 years of age, she cannot continue to be of the same two years later. The only evidence regarding the age of the prosecutrix is therefore the medical evidence and the deposition of the doctor who medically and radiologically examined the victim on 15.7.1997 and according to which she was between 17-18 years of age. If as alleged, the first act of commission was eight months prior to the date of the FIR, then also her age could reasonably be assessed between 16.17 years and certainly above 16 years. The trial court though assessed the age of the prosecutrix, but instead of giving two years margin on the plus side, has reduced the margin computing the girl's age as below 16 years on the alleged date of the occurrence. This method is certainly prejudicial to the defence and cannot be accepted. The issue to be determined even if the age is assessed at 16 years on the date of occurrence, is whether her consent to sexual intercourse was obtained by the appellant by practicing fraud and deception on her or whether it was a voluntary act on the part of the victim girl irrespective of the purported promise given by the appellant. 9. 9. Reading the evidence of the prosecutrix, it appears that at paragraph 9 of the cross-examination, she had candidly admitted that she and the appellant had indulged in sexual intercourse several times and on each and every occasion, it was with her consent and reading her evidence further, it transpires that she was in love with the appellant and had allowed him to indulge in sexual intercourse and to use 'her. Though she maintains that the appellant had offered to marry and had also promised but there is no indication in the entire evidence of the prosecutrix to suggest that she was persuaded by the promise of the appellant and believing his promise she had consented to the sexual intercourse with the appellant. In her evidence she admits that it was when she had conceived that the appellant had assured to keep her with hil1 It is therefore apparent that though she Knew fully well that she was not the legally married wife of the appellant, she allowed herself to be exploited by the appellant without any coercion or any inducement and the only inducement, if any, was her own love with the appellant. The fact that she was not aggrieved by the conduct of the appellant namely the act of sexual exploitation is also evident from the delay of more than eight months in lodging the first information report. In fact, she kept her amorous relation with the appellant a secret from her parents for more than eight months and she revealed the matter to her parents after the had pregnancy which could not be concealed any further from public eye. 10. Learned trial court does not appear to have discussed the evidence on record in proper perspective and has allowed itself to be swayed by the statement of the victim that the appellant had promised to many her but later backed out and refused to many her after her pregnancy. The finding of the trial court therefore cannot be sustained and is fit to be set aside. 11. I find merit in this appeal, which is accordingly allowed and the judgment and order of conviction and sentence of the appellant in Sessions Trial No. 24 of 1998 is set aside. The appellant is on bail. He is acquitted of the charge and discharged from the liability of his bail bond.