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2008 DIGILAW 445 (GAU)

Munindra Deka v. State of Assam

2008-06-17

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Heard Mr. B. Chowdhury, learned amicus curiae for the Appellant and Mr. B.S. Sinha, learned Addl. P.P. for the State of Assam. 2. This appeal has been preferred from jail being aggrieved with the judgment and order of conviction, dated 16.1.2006 passed by the learned Sessions Judge, Morigaon in Morigaon Sessions Case No. 42 of 2005. By this impugned judgment and order of conviction the Appellant was convicted for one year rigorous imprisonment under Section 496, IPC with fine of Rs.500 in default of payment of fine rigorous imprisonment for one month and also convicted under Section 376, IPC and sentenced him to under go 8 (eight) years rigorous imprisonment with fine of Rs.1000 and in default to suffer another two months rigorous imprisonment. 3. The brief facts as it appear from the records for the prosecution are that the prosecutrix, a Naga lady and one Morjina Begum took shelter in Jaluguti Agragami Mohila Samity, Nabheti and while taking shelter thereat they had been to Morigaon in a line bus but they became traceless. Search was made but their whereabouts were not known. One Ms. Rausanara Begum being the Secretary of the Jaluguti Agragami Mohila Samity, Nabheti having both the girls traceless lodged an FIR with the Morigaon Police Station for the recovery of the girls and taking appropriate action and accordingly the officer-in-charge, Morigaon Police Station registered a case and commenced investigation. During investigation both the girls were recovered. At the conclusion of the investigation a charge sheet was laid against the Appellant under Section 366 and 376 IPC. Case was committed thereafter to the Court of Session for trial of the accused. Learned Sessions Judge having found sufficient materials framed charges under Sections 496 and 376, IPC and the accused pleaded not guilty. Prosecution examined six witnesses including two official witnesses. No defence evidence was adduced. Accused-Appellant pleaded his innocence while examined under Section 313 of the Code of Criminal Procedure. The learned trial court at the conclusion of the trial found the Appellant guilty under both the charges and accordingly rendered judgment and order of conviction as aforesaid. 4. Prosecution examined six witnesses including two official witnesses. No defence evidence was adduced. Accused-Appellant pleaded his innocence while examined under Section 313 of the Code of Criminal Procedure. The learned trial court at the conclusion of the trial found the Appellant guilty under both the charges and accordingly rendered judgment and order of conviction as aforesaid. 4. The learned amicus curiae while supporting this appeal raised the following pertinent issues (1) that the prosecution miserably failed to prove the charges by cogent and sufficient evidence which rendered the judgment and order of conviction illegal and incorrect; (2) that the essential ingredients which are required to be proved by the prosecution in order of substantiate the charges upto to the hilt are lacking in this case and, therefore, the conviction cannot sustain. 5. From the perusal of the evidence on record it is found that the girl (PW5) was taken by the accused/Appellant, who is, admittedly a married man unto his residence and forcibly kept her for several days. It is in the evidence of PW5 that the accused-appellant put vermillion on her forehead thereby she was made to believe that she was legally married wife of the Appellant. She, in that believe, slept with the accused-Appellant for several times and had sex with the Appellant on several occasions. Ultimately she was recovered, therefrom, and her statement was recorded by police under Section 161, Code of Criminal Procedure and was put under medical examination. The doctor who performed the medical examination of the prosecutrix also opined that she is about 18 year of age. Doctor's evidence does not speak that she is 18 years or above, so the evidence of the doctor makes it apparently clear that she did not attain the age of 18 years on the date of examination. The words is about 18 years, occurring in the evidence of the Doctor (PW3) give an impression that PW5 did not attain the age of 18 years. Medical examination was admittedly done after recovery of the girl (PW5) from the house of the accused-Appellant and thereafter she was produced before the doctor (PW3) for her medical examination. PW2, Morjina Begum who accompanied PW5 also corroborated the evidence of PW5 that it was Appellant who had taken PW5 and put vermillion on her forehead and had sex with her. PW2, Morjina Begum who accompanied PW5 also corroborated the evidence of PW5 that it was Appellant who had taken PW5 and put vermillion on her forehead and had sex with her. Thus, evidence of the PW2 and PW5 make it abundantly clear that accused had forcibly taken PW5 unto his residence and put vermilion on her forehead and by that act made her to believe that she is the wife of the accused-Appellant. 6. Section 496 of the Indian Penal Code reads as under: 496. Marriage ceremony fraudulently gone through without lawful marriage.- Whoever, dishonestly or with a fraudulent intention, goes through the ceremony or being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment or either description for a term which may extend to seven years, and shall also be liable to fine. 7. So in order to prove a charge under the Section 496, IPC the prosecution is to prove that there was fraudulent intention on the part of the accused and he went through the Ceremony of marriage dishonestly inducing the woman to believe that she is the lawful wife of that particular person. It also speaks that the person who fraudulently has gone through a marriage ceremony must have the knowledge that the girl is not legally or lawfully married to him. In that situation the person who fraudulently or dishonestly induces the girl to believe through a marriage to be legal wife of that person, the person will be liable for punishment under Section 496 of the Code. If the evidence of the PW2 and PW5 are conjointly read, it would go to show that the Appellant by putting vermilion on her forehead made her to believe that she is the lawful wife of the Appellant. It is submitted by Mr. B.S. Sinha, learned Addl. P.P. for the State of Assam that the fraudulent intention can be inferred from the acts of the Appellant. That apart it is also argued by Mr. Sinha that the Appellant is a married man and knowing fully well he put vermilion on the forehead of the PW5 in order to make her believe that she is lawfully married wife. P.P. for the State of Assam that the fraudulent intention can be inferred from the acts of the Appellant. That apart it is also argued by Mr. Sinha that the Appellant is a married man and knowing fully well he put vermilion on the forehead of the PW5 in order to make her believe that she is lawfully married wife. The learned Session Judge while discussing the evidence in reference to the charge under Section 496, IPC clearly held that evidence on record sufficiently proved the Appellant liable under Section 496 of the Indian Penal Code. After careful perusal of the facts and circumstances of the case and evidence on record the findings on the charge under Section 496, IPC do not warrant interference from this Court. 8. The Appellant was also charged under Section 376, IPC. Section 375 of the Indian Penal Code defines as under: 375. A man is said to commit "rape" who, except in the under circumstances falling under any of the six following description- First. - **** Secondly. - **** Thirdly. - **** Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes, that he is another man to whom she is or believes herself to be lawfully married. Fifthly. - **** Sixthly. - **** Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Evidence of PW2 and PW5 go to show that the Appellant dishonestly induced PW5 to believe herself to be the wife of the Appellant by putting vermilion on her forehead which squarely falls within description "fourthly" of Section 375 of the Indian Penal Code. It is in the evidence on record that during the period of her stayal in the house of the accused-Appellant, the accused-Appellant had sex on several occasions and such act was allowed believing herself to be the wife of the Appellant. So the learned Sessions Judge while discussing the charge reference under Section 376, IPC also clearly held that consent was obtained by the Appellant fraudulently making her to believe the legally married wife. The learned Session Judge, therefore, held that the accused-Appellant is also liable to be convicted under Section 376, IPC. So the learned Sessions Judge while discussing the charge reference under Section 376, IPC also clearly held that consent was obtained by the Appellant fraudulently making her to believe the legally married wife. The learned Session Judge, therefore, held that the accused-Appellant is also liable to be convicted under Section 376, IPC. This Court also after careful scrutiny of the evidence on record does not see any illegality or error committed by the learned Sessions Judge. 9. Having considered the facts and circumstances of the case and the evidence on record this Court does not find any cogent and reasonable ground to interfere with the judgment and order of conviction so impugned. The judgment and order of conviction rendered by the learned trial court are accordingly affirmed and upheld. 10. For rendering valuable assistance to the court by the learned amicus curiae, is entitled to a fee of Rs.3,500. 11. This appeal is accordingly disposed of. Send down the record forthwith.