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2009 DIGILAW 901 (GAU)

Khagen Das v. State of Assam

2009-12-15

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. None appears for the accused/appellant when the matter was called upon. 2. Heard Mr. B.B. Gogoi learned Addl. P.P., Assam. The appellant has preferred this appeal against the judgment and order dated 31.12.2002 passed by the learned Ad hoc Addl. Sessions Judge No. 2, Kamrup, Gauhati in Sessions Case No. 31(K) of 2002 (G.R. Case No. 573 of 1999), whereby the accused/appellant was convicted under Section 417, IPC and sentenced to undergo rigorous imprisonment for 1 (one) year and to pay fine of Rs. 5,000 in default to undergo rigorous imprisonment for another 3 (three) months. 3. Briefly stated, the prosecution case is that on 22.9.1999 one Smt. Basanti Das filed a written complaint before the learned SDJM, Rangia, alleging that she had love affair with the accused/appellant who promised to marry her and she was taken to a temple where they had exchanged garlands and the accused/appellant put vermilion on her forehead accepting her as his wife. The accused/appellant asked the informant to stay for some time in her parents' house due to certain difficulties. During her stay in her parents' house, they had cohabited and as a result she became pregnant. Then the accused/appellant forced her to take some tablets and got the pregnancy terminated. Further it was alleged that the accused/appellant took Rs. 6,000 from her assuring that he would arrange a job for her. The accused/appellant managed the job of Mandal for himself in the office of the SDC, Abhayapuri, but he failed to arrange the job for the informant. However, the accused/appellant repeatedly promised that he would take the informant (PW1) to his house but he never did so and instead married another girl at Abhayapuri on 20.9.1999 and refused to accept her as his wife. 4. The learned SDJM after receiving the said complaint forwarded the same to Kamalpur Police Station for registration of a case and for conducting investigation. Accordingly, the case was registered and the investigation was started. After the completion of investigation, charge sheet was submitted by the police under Sections 493/313/420, IPC. On committal, the learned session court framed charges under Sections 313/493/420, IPC against the accused/appellant, which was read over and explained to him. He pleaded not guilty and claimed to be tried. The prosecution examined as many as 5 (five) witnesses including the Investigating Officer, while the defence examined none. On committal, the learned session court framed charges under Sections 313/493/420, IPC against the accused/appellant, which was read over and explained to him. He pleaded not guilty and claimed to be tried. The prosecution examined as many as 5 (five) witnesses including the Investigating Officer, while the defence examined none. After conclusion of the trial and upon hearing the learned Counsel for the parties, the learned trial court convicted and sentenced the accused/appellant, as indicated above. 5. The informant Smt. Basanti Das examined herself as PW1. She narrated the story/allegation as was made in the FIR. Her evidence is that the accused/appellant on several occasions tempted her to have sexual relation with him resulting into pregnancy. In order to make her believe in his promise to marry her, the accused/appellant took her to the temple and exchanged garland and also put vermilion on her forehead as a mark of acceptance as his wife. After the marriage in the temple, he stayed in the parental house of the victim woman where he cohabited with the victim/informant and after she was found pregnant, the accused/appellant forced her to terminate the pregnancy by forcefully administering tablets. The accused/appellant made the victim informant believe that he has been arranging some jobs for which he took Rs. 6,000 from her but instead of arranging job for her, he arranged a job for himself and thereafter, married another woman. 6. There is no corroborative evidence to the testimony of the victim woman. The conviction can be ordered in certain cases on the solo evidence of the victim woman if it is found trustworthy and reliable. In this case, the victim woman took the stand that after the marriage in the temple she came with the accused/appellant to her parent's house and stayed for a certain period during which they had physical relation and she got pregnant. 7. The basic fact that the accused/appellant came and stayed in the house of the informant after the marriage in the temple is not corroborated by any reliable witness. The prosecution did not make any attempt to examine the parent's particularly the mother of the informant. It was expected that at least the mother of the informant should have been examined to testify the aforesaid fact namely, staying of the accused/appellant in her house after the alleged, marriage in the temple. The prosecution did not make any attempt to examine the parent's particularly the mother of the informant. It was expected that at least the mother of the informant should have been examined to testify the aforesaid fact namely, staying of the accused/appellant in her house after the alleged, marriage in the temple. This fact having not been proved, it is difficult to accept the stand of the prosecution that the accused/appellant had occasion to exploit the informant woman sexually or otherwise. 8. The other allegation that the accused/appellant took Rs. 6,000 forcibly from the informant to provide her employment is also similarly found to be unacceptable. The evidence adduced by the prosecution is not sufficient to record conviction of the accused/person and it must be said that the prosecution had been unable to prove the charge against the accused appellant and accordingly, the impugned judgment dated 31.12.2002 is liable to be set aside, which is set aside hereby. The accused/appellant is entitled to get the order of acquittal on benefit of doubt. 9. Appeal stands allowed. 10. The bail bond stands discharged. Appeal allowed.