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2009 DIGILAW 911 (GAU)

Sankirtan Tanti v. State of Assam

2009-12-17

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. None appears for the accused appellant when the matter was called upon. Heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. This appeal has been preferred by the accused appellant against the judgment and order dated 30.6.2003 passed by the learned Addl. Sessions Judge (Ad hoc), Fast Track Court, Biswanath Chariali, Sonitpur, Assam in Sessions Case No. 106/2002 convicting him under Section 417 IPC and sentencing him to undergo 3 (three) months simple imprisonment and fine of Rs. 10,000, in default to pay fine within three months, further simple imprisonment for three months. 3. The prosecution case in brief is that on 24.11.1999 the accused appellant invited Smt. T.T. (real name of the victim girl withheld) on the occasion of 'Lakhipuja' to be celebrated in his house. She went to the house of the accused on 20.11.1999. Puja was over in the night. Thereafter the family members of the accused appellant asked Smt. T.T. to stay back in their house to help thorn in harvesting. Accordingly she stayed back in their house till 10.1.2000. During that period, on 24.11.1999 at about 12 O'clock in the night, when Smt. T.T. went outside to urinate, the accused held her mouth and attempted to commit rape on her. As the accused person failed in his attempt, he made a promise in the name of god to marry her. Believing in his promise she had sexual intercourse with the accused on 24.11.1999 till 9.1.2001 on three/four occasions, which resulted into pregnancy. The accused refused to marry and to accept her as his wife. She then filed a complaint before the SDJM, Biswanath Chariali on the basis of which a crime, being Biswanath Chariali P.S. Case No. 64/2000, was registered under Section 493/417, IPC. On completion of investigation, the, I.O., submitted charge sheet against the accused appellant under Sections 376/493/417, IPC. Thereafter the case was committed to the court of Sessions, Tezpur. The charge under Section 437/417, IPC was framed against the accused appellant to which he pleaded not guilty and claimed to be tried. The prosecution examined altogether 11 witnesses including the investigating officer, the Doctor and the victim girl. The defence examined none. 4. As expected and quite naturally there is no eye-witness to the alleged incident. The charge under Section 437/417, IPC was framed against the accused appellant to which he pleaded not guilty and claimed to be tried. The prosecution examined altogether 11 witnesses including the investigating officer, the Doctor and the victim girl. The defence examined none. 4. As expected and quite naturally there is no eye-witness to the alleged incident. I have gone through the statement of the victim woman recorded under Section 164, Cr.PC as well as her oral evidence tendered before the learned trial court. I find that she has all along been maintaining the allegations made in her complaint/FIR. On consideration of the statement of the victim girl under Section 164, Cr.PC and also her evidence on record, it is ascertainable that she consented to have the sexual relationship with the accused appellant on his promise to marry her. She was induced to sexual intercourse with the appellant on a word being given by the appellant that he would marry her. Although the charge was framed under Section 376/417, IPC, the accused appellant was, therefore, rightly convicted under Section 417, IPC. The evidence of the medical officer, PW7, is that the victim girl was aged about 16/17 years which means that she was above 16 years on the date of occurrence and she was capable of giving consent to sexual intercourse. 5. It has been well established in the evidence that the victim girl consented to sexual intercourse due to inducement and promise of marriage held out by the accused appellant which he did not keep after she was found pregnant. Although the accused appellant denied the charge, he could not rebut the same by adducing sufficient evidence. It is to note that the accused appellant did not examine any witness in support of his stand that he had no physical relation with the victim girl and the pregnancy was not due to physical relationship with him. 6. It is found from the evidence that the victim is a rustic and illiterate girl hailing from a poor family and that too from the most disadvantaged tea garden labour community. It is not expected that a girl from such background would bring such allegation/charge against a person without having truth therein at the risk of her youthful life and loosing her chances of marriage. It is not expected that a girl from such background would bring such allegation/charge against a person without having truth therein at the risk of her youthful life and loosing her chances of marriage. There is no ground for disbelieving the evidence of the victim girl unless some positive evidence is adduced by the defence rebutting her allegation. 7. It is noteworthy that the defence while cross-examining the victim girl, did not put any suggestion to the effect that he did not give any false promise to her and he had no physical relation with her. The established law is that the accused can be convicted solely on the basis of the evidence of the victim girl, no matter whether they are corroborated or not, if her evidence is found to be natural, trustworthy, believable and inspires confidence of the court. In this regard reference may be made to Vimal Suresh Kamble v. C. Apal S.P. and Anr. (2003) 3 SCC 175 . Going by the evidence of the victim girl, I find that the evidence of the victim girl of the aforesaid standard, the conviction can be recorded unhesitatingly. The learned trial court rightly convicted the accused appellant under Section 417, IPC inasmuch as there is sufficient reliable evidence on record. It was established that the accused appellant gave false promise of marriage to the victim girl for which and only for which she consented to the sexual intercourse with him. A Division Bench of this Court had occasion to deal with and decide a similar case in Bipul Medhi and Ors.`State of Assam (2006) 3 GLT 585 wherein it is held that if a woman, believing the promise of marriage consents to have the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the promise of marriage made by the promisor was a hoax to obtain consent of a woman. Further it is held that if the act of the accused of having sexual intercourse is also likely to cause damage or harm to the body, mind and reputation of the woman, then the same would also amount to cheating. 8. Further it is held that if the act of the accused of having sexual intercourse is also likely to cause damage or harm to the body, mind and reputation of the woman, then the same would also amount to cheating. 8. Viewed in the light of the above cases, I do not find any infirmity in the findings and reasoning of the learned trial court in convicting the accused appellant under Section 417, IPC and accordingly I have no hesitation to uphold the aforesaid impugned judgment convicting and sentencing the accused appellant under Section 417, IPC. This appeal fails and accordingly the same is dismissed. 9. The accused appellant is directed to surrender before the learned trial court forthwith to serve the full term of the sentence. If the accused appellant fails to surrender, the learned trial court shall take necessary steps against him in accordance with law. Bail bond stands cancelled. 10. Send back the LCR.