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2010 DIGILAW 270 (GAU)

Deepak Bora v. State of Assam

2010-04-21

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A. Choudhury, learned Counsel for the Appellant and also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. This appeal has been preferred against the judgment and order dated 28.01.2005 passed by learned Sessions Judge, Morigaon in Sessions Case No. 111/2003, convicting the accused-Appellant under Section 313 IPC and sentencing him to undergo R.I. for 8 years with direction to pay compensation of Rs. 50,000/- to the victim girl and in default, to suffer R.I. for Anr. 5 years for offence punishable under Section 313 IPC. 3. The prosecution story, in brief, is that the accused-Appellant had love affair and had sexual relation with Maloti (real name withheld), due to which she got pregnant for 7 (seven) months. On 26.05.2002, the father of the victim along with some other persons came to the house of the accused-Appellant and had a discussion with his family members. During discussions, the family members of the accused-Appellant assured him to accept his daughter. After such assurance, the victim came to attend College on 27.05.2002. The accused-Appellant met her there and by assuring her of marriage, took to a Nursing Home at Morigaon where abortion was done against her will. After abortion the accused dropped Maloti at the house of one Rina Gogoi and disappeared. On receipt of FIR from the father of the victim girl, a case being Mayong P.S. Case No. 25 of 2002 under Sections 376/313/34 IPC was registered. After completion of the investigation, the police submitted charge sheet against Deepak Bora (present Appellant), Prabhat Bora, Swapan Bora and Paresh Bora. The case was committed by the learned SDJM, Morigaon to the Court of Sessions at Morigaon for trial. On perusal of the records, the learned Sessions Judge, Morigaon, discharged the accused Prabhat Bora, Swapan Bora and Paresh Bora as no material was found against them but proceeded against the accused-Appellant by framing charge against him under Sections 376/313IPC. The charges being read over and explained, the accused-Appellant pleaded not guilty and claimed to be tried. In order to establish the case, the prosecution examined as many as 10 witnesses including the victim girl, two I.O.s and one M.O. but the defence examined none. After the trial, the learned Sessions Judge convicted and sentenced the accused-Appellant as indicated above. 4. Mr. In order to establish the case, the prosecution examined as many as 10 witnesses including the victim girl, two I.O.s and one M.O. but the defence examined none. After the trial, the learned Sessions Judge convicted and sentenced the accused-Appellant as indicated above. 4. Mr. Choudhury, learned Counsel appearing for the Appellant submits that the prosecution has been able to prove that the accused-Appellant had affairs with Maloti and out of physical relation, she got pregnant but it failed to prove that the pregnancy was terminated or abortion was done against her will or without her consent inasmuch as no evidence was led by the prosecution by producing the doctor concerned of the Nursing Home, who allegedly conducted the abortion. Moreover, according to Mr. Choudhury, the doctor concerned involved in the abortion was not even cited by the prosecution as a witness in the charge sheet. Nor was the said doctor, prosecuted by initiating separate/independent criminal case against him under the appropriate provision of law. 5. It is submitted that causing of alleged miscarriage without the victim's consent having not been proved by examining the doctor concerned as witness by the prosecution and the charge under Section 313 IPC having not been proved beyond reasonable doubt, the accused-Appellant is not liable to be convicted and sentenced under the aforesaid section of the IPC and the present Appellant is entitled to acquittal. In the alternative, Mr. Choudhury, learned Counsel for the Appellant submits that offence under Section 417 IPC has been made out and proved by the prosecution and the accused-Petitioner may, at best, be convicted and sentenced thereunder instead of Section 313IPC. Under such situation and evidence on records, the accused-Appellant is entitled to acquittal from the charge under Section 313 IPC and instead, conviction under Section 417 IPC and as such the impugned conviction be altered accordingly and the sentence be modified to the period of imprisonment already undergone by him and also reduce the amount of compensation to Rs. 20,000/-. It has been stated that the accused-Appellant has already served more than 5 years against the total sentence of 8 years and the ends of justice would be met if the sentence is reduced to imprisonment already undergone. 6. I have gone through the evidence of victim girl who was examined as P.W. 5. 20,000/-. It has been stated that the accused-Appellant has already served more than 5 years against the total sentence of 8 years and the ends of justice would be met if the sentence is reduced to imprisonment already undergone. 6. I have gone through the evidence of victim girl who was examined as P.W. 5. In her examination-in-chief, she deposed amongst other as follows: In the year 2002, at the time of mense, I did not attain mense. Then I reported the matter to Sri Deepak Bora. Then, I told him to take me with him. Then, he refused to take me with him but brought some medicine and told to me to take. Though I used these medicines, no medicine can remove the pregnancy and it continued till 7th months. On 27.5.2002 while I went to attend my college at that time Deepak Bora forcefully brought to Morigaon Welman Nursing Home. Deepak Bora aborted my pregnancy at Morigaon Welman Hospital through the Doctor, Tuleswar Bora was there and Deepak Bora identified me to be wife to Dr. Tuleswar Bora and kept me in the hospital from 27.5.2002 to 30.5.2002. On 30.5.2002 Deepak Bora took me to the house of Rina Gogoi of Santipur. When Rina Gogoi asked Deepak Bora about the occurrence seeing me ill-health condition. Deepak told her whole occurrence. Deepak kept me there and went away to bring money for treatment but on that day, Deepak Bora married Anr. girl on that day. 7. The aforesaid Rina Gogoi was examined as P.W. 7 by the prosecution. She corroborated the evidence of Maloti by deposing that the victim girl was brought by accused Deepak Bora to her house from the hospital and the victim girl narrated the incident to her. According to her, accused Deepak Bora left Maloti at her house on the pretext to going out to pay the fare of the Vehicle. But he did not come back to her house. After 3 days, two elder brors. of Maloti came and took her home. The prosecution got Maloti medically examined by Dr. Madhav Dutta, P.W. 6, who submitted a report and deposed confirming the abortion. 8. The first I.O. Sri Pradeep Nath was examined as P.W. 9. According to him, he investigated the case from 5.6.2002 to 12.10.2002. He searched for the accused persons but he was absconding. He also visited the Nursing Home but Dr. Madhav Dutta, P.W. 6, who submitted a report and deposed confirming the abortion. 8. The first I.O. Sri Pradeep Nath was examined as P.W. 9. According to him, he investigated the case from 5.6.2002 to 12.10.2002. He searched for the accused persons but he was absconding. He also visited the Nursing Home but Dr. Tuleswar Nath was not found there. In cross-examination, the first I.O. stated as follows: I examined (Maloti), the victim on 6.6.2002 at Police Station. There is no mention whether she came alone or brought by somebody.... Victim (Maloti) stated before me that in the Nursing Home Dr. Tuleswar Nath forcefully aborted her pregnancy against her will. I completed my service for 18 years and started investigation of serious nature cases since last 14 years. Miscarriage is cognizable offence. I got a cognizable offence against the doctor. On 8.6.2002 I did visit the home of doctor nor Nursing Home. I did not arrange to arrest him. Dr. Tuleswar Nath attended Morigaon Nursing Home but to that effect I did not collect any documents. There is no note in my case diary that I ever visited Morigaon Nursing Home. I did not send any information to the house of accused that we would visit their house on 7.6.2002 at 10.00 A.M. I went to house of accused on 8.6.2002 at 9.00 A.M. I again visited home of accused. 9. A conjoint reading of evidence of P.W. 5, victim girl; P.W. 7, Rina Gogoi and P.W. 9, first I.O. clearly establishes that Maloti was taken to the aforesaid Nursing Home for abortion. It is found proved that the abortion was carried out by the doctor in the said Nursing Home, forcefully without her consent. The aforesaid witnesses have corroborated each other so far the forceful abortion without her consent is concerned. I have closely and carefully gone through the evidence of the aforesaid witnesses and found that the defence counsel did not put any suggestion to the victim girl that she was not forcefully aborted by doctor in the said Nursing Home nor did it put any suggestion that, the abortion was carried with her consent. I have closely and carefully gone through the evidence of the aforesaid witnesses and found that the defence counsel did not put any suggestion to the victim girl that she was not forcefully aborted by doctor in the said Nursing Home nor did it put any suggestion that, the abortion was carried with her consent. Similarly, the defence counsel while cross-examining the P.W. 7, Rina Gogoi, did not put any suggestion to the effect that accused-Appellant Deepak Bora did not bring the victim girl to her house and that the victim girl did not tell her (P.W. 7) that she did not tell her about forceful abortion. The defence counsel also did not put any suggestion to P.W. 9 (first I.O.) to the effect that while examining and recording her statement, the victim girl did not tell her about forceful abortion by the doctor in the said Nursing Home. Thus, the corroborated evidence of the aforesaid three witnesses stands un-demolished so far as it relates to forceful abortion. The question that may arise is as to whether in absence of any supporting evidence to that effect from the doctor concerned, it would be proper and justified to convict the accused-person on the evidence of the victim and aforesaid witnesses. 10. Admittedly, the doctor concerned was not cited as a witness nor was he examined by the prosecution and as such, there is a lapse on the part of the prosecution in proving the case through evidence of a material witness. The evidence of the aforesaid three witnesses would have been rendered of no consequence if the defence would have projected a case that there was no forceful abortion as alleged by the prosecution. The said stand having not been reflected in the cross-examination of the aforesaid witnesses, in my considered view, the non-examination of the doctor concerned, who conducted the abortion, would be of no help to the defence. For the same reasons, the evidence of the aforesaid witnesses would not be liable to be discarded and disbelieved. Why the doctor concerned was not prosecuted for allegedly carrying put the abortion by force is a separate issue that should have been taken up by the police separately or independently under the appropriate provision of existing law. 11. For the same reasons, the evidence of the aforesaid witnesses would not be liable to be discarded and disbelieved. Why the doctor concerned was not prosecuted for allegedly carrying put the abortion by force is a separate issue that should have been taken up by the police separately or independently under the appropriate provision of existing law. 11. In view of the aforesaid discussions and findings, I find no ground for interference with the conviction recorded by the learned trial Court and I refrain from passing an order acquitting him from the charge under Section 313 IPC. The accused-Appellant is a young man of about 28 years and the victim girl was also a young lady of about 21 years. At such youthful stage of life, it was quite natural that they had developed love and physical relation. The accused-Appellant has not denied such physical relation and the resultant pregnancy of the victim girl. For some reasons, not disclosed to anybody, Appellant refused to accept her at the subsequent stage, may be, due to some mis-advice he resorted to an illegal act of forceful abortion for which he is found to be regretful. May be, due to such regret, he declined to adduce any evidence for his defence and made a prayer with apology for minimum imprisonment and fine. There is nothing on record that the Appellant has any criminal antecedent or he is found to be involved in other crime/offence after he was convicted in the present case. The Courts are required to award just and appropriate sentence after giving due consideration to the facts and circumstances of each case and also the aggravating and mitigating factors and circumstances in which a crime has been committed. These should be balanced delicately on the basis of really relevant circumstances in a dispassionate manner by the Court. This is really a very difficult task for the Courts. The object of awarding adequate and appropriate sentence and how the aggravating and mitigating circumstances should be delicately balanced has been explained in Shailesh Jasvantbhai and Anr. v. State of Gujarat and Ors. reported in (2006) 2 SCC 359 . In the said case, the trial Court held the accused persons to be guilty and sentenced each to undergo RI for 10 years with fine of Rs. 3,000/- with default stipulation for the offences punishable under Sections 307 and 114 IPC. v. State of Gujarat and Ors. reported in (2006) 2 SCC 359 . In the said case, the trial Court held the accused persons to be guilty and sentenced each to undergo RI for 10 years with fine of Rs. 3,000/- with default stipulation for the offences punishable under Sections 307 and 114 IPC. The High Court concerned in appeal, in the case of an accused, restricted the sentence to the period already undergone on the consideration that the accused is a student who appeared in standard X examination and without any criminal antecedent. But, later on, the Apex Court found from records that the said accused was involved in nine other cases and as such, it rejected the High Court's order reducing the sentence. 12. At the end of the hearing, Mr. Choudhury on instructions, submitted at the bar that Maloti has already got married and leading a happy marital life. It may not be wrong to apply to this case, the principle laid down in Ravji v. State of Rajasthan reported in (1996) 2 SCC 175 , wherein it is held that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. I find that these are some mitigating circumstances under which, lesser punishment and fine could be inflicted on the Appellant and in my considered view, it would meet the ends of justice, if the sentence is reduced to the period already undergone by him and the compensation of Rs. 50,000/- to Rs. 25,000/- (Rupees Twenty five thousand) only to be deposited with the Court of Sessions Judge, Morigaon before his release and the said amount shall be paid to the victim through her parents on proper verification and identification. 13. It is ordered accordingly. 14. The appeal stands disposed of with the aforesaid modification in the sentence and compensation. The Appellant shall be set at liberty subject to payment/deposit of the compensation amount of Rs. 25,000/- with the learned Court of Sessions Judge, Morigaon, provided his further detention is not required in connection with any other case. 15. Send down the LCR to the Court below forthwith. Appeal disposed of.