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2010 DIGILAW 29 (GAU)

Sajal Sutradhar v. State of Assam

2010-01-21

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. None appears, today, on behalf of the convict appellant when the matter was called upon for hearing. However, I have heard Mr. B.B. Gogoi, learned Addition Public Prosecutor, for the respondent State of Assam. 2. The instant appeal is directed against judgment and order dated 19.12.2006 passed by the Court of learned Ad hoc Addl. Sessions Judge No. 2, Kamrup at Guwahati, in Sessions case No. 365(K)/2005 convicting the accused appellant under Sections 375/109, IPC and sentencing him to suffer RI for 7 years and to pay a fine of Rs. 2,000/-, in default of payment of fine, to suffer RI for a further period of 4 months. 3. The case of the prosecution, in brief, is that the accused Sri Pradip Barman, who being the friend of the elder brother of the victim Smt. Junu Barman was in visiting terms with their family. On 2.12.2004, accused Sajal went to Lakhitari in the motorcycle of accused Sajal. After enjoying Raas at Lakhitari, the victim was taken to enjoy Raas Puja at Tetelia by accused Sajal and Sukhil in the motorcycle. The victim was taken from Tetelia to Jalisara concrete bridge by accused Sajal and Sukhil where accused Sukhil raped her over the bridge while the accused Sajal was sitting in the stationary motorcycle at some distance from the place of occurrence. Thereafter, she was taken to Lakhitari by accused Sajal and Sukhil and at Lakhitari, they met Pradip. Thereafter, accused Pradip and Sajal took her to her home and dropped there. The victim was a minor on the date of occurrence. 4. A crime being Khetri P.S. case No. 199/2004 under Sections 376/34, IPC was registered and the police, thereafter, started the investigation. On completion of the investigation, the IO submitted charge-sheet against accused Sukhil Mallick, Pradip Barman and Sajal Sutradhar under Sections 376/109, IPC. On 15.12.2004, the victim girl was produced before a Judicial Magistrate for recording her statement and on the same day, she was also produced before a Medical Officer for medical test. The case was, thereafter, committed to the Court of Sessions for trial. The learned trial Court framed charge against Sri Mallick under Section 376, IPC and also against co-accused Sajal Sutradhar and Pradip Barman under Sections 376/109, IPC. The accused persons including the present appellant pleaded not guilty and claimed to stand trial. The case was, thereafter, committed to the Court of Sessions for trial. The learned trial Court framed charge against Sri Mallick under Section 376, IPC and also against co-accused Sajal Sutradhar and Pradip Barman under Sections 376/109, IPC. The accused persons including the present appellant pleaded not guilty and claimed to stand trial. The prosecution examined as many as 12 (twelve) witnesses while the defence examined none. After full-dress trial and on consideration of the materials and evidence on record and upon hearing the learned Counsel for the parties, the learned trial Court convicted the main accused Sukhil Mallick under Section 376, IPC and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 2000/- and in default, to undergo rigorous imprisonment for a further period of 4 (four) months. The present appellant Sri Sajal Sutradhar and other accused Pradip Barman were convicted under Sections 376/109, IPC and were sentenced them to undergo rigorous imprisonment for 7 (seven) years each and to pay a fine of Rs. 2,000/-and in default, to suffer rigorous imprisonment for another 4(four) months each. Out of the 3(three) convicts, only accused Sajal Sutradhar who was convicted under Sections 376/109, IPC, as state above, is before this Court, in appeal. 5. Ext. 1 is the First Information Report (FIR), lodged by the brother of the victim girl wherein the name of the present accused appellant has been mentioned as one of the accused persons. Ext. 5 is the statement of the victim girl under Section 164, Cr PC, recorded on oath by the Judicial Magistrate concerned. In the said statement, the victim girl has mentioned the name of the present accused appellant as to how he was involved in taking her on the motorcycle to enjoy Raas Puja and thereafter, Mallick ravished her. Although the incident took place in the night of 2.12.2004, the FIR was lodged only on 14.2.2004. The delay, so occurred in filing the FIR, has been explained in the FIR itself as well as in the evidence of the PW 6 (brother of the victim girl). It was explained that the delay was caused because of the advice of the villagers to arrange a village mel but the said mel was never held and ultimately the FIR was lodged. 6. It was explained that the delay was caused because of the advice of the villagers to arrange a village mel but the said mel was never held and ultimately the FIR was lodged. 6. It is seen that there is no eye-witness to the alleged incident of taking away of the victim girl to the place of occurrence where accused Sukhil Mallick committed rape on the said victim girl. The prosecution depended solely on the evidence of the victim girl in convicting the accused persons. The Court is to examine in such cases as to whether the evidence of the victim girl is cogent, consistent, reliable and trust-worthy, inspiring confidence of the Court. 7. I have carefully gone through the FIR (Ext. 1), statement of the victim girl under Section 164, Cr PC (Ext. 5) and the evidence of the victim girl who was examined as PW 9. I find no contradiction or inconsistency in the statements of the victim girl made in Ext. 1 (FIR) and in her evidence/deposition. It is seen that the victim girl has been maintaining the same allegations/statements in Ext. 5 which were made in the FIR (Ext. 1). The defence, herein, has taken the plea that the victim girl was major at the time of incident and she was a consenting party. The defence has also taken the said plea on the basis of the Medical Report (Ext. 2) and the evidence of Medical Officer (PW 10). As per the medical report, the genital organ of the victim girl was found well-developed; there was old tear in the hymen at 3, 6, 9 and 12 O'clock position and the hymenal orifice admits 2 fingers freely; no injury was detected; the vaginal smear does not show spermatozoa and gonococeous in microscopic examination. The Doctor recorded his opinion, as under : (1) Evidence of recent sexual intercourse with the girl is not found. She is used to sex. (2) No injury detected on her body and private parts. (3) Her age is above 16 years and below 18 years. 8. Given the allegations/charge made against the present accused appellant, the Court is not concerned with the age of the victim girl inasmuch as the rape was not committed on her by him. He abetted the main accused Sukhil Mallick in the commission of offence. (3) Her age is above 16 years and below 18 years. 8. Given the allegations/charge made against the present accused appellant, the Court is not concerned with the age of the victim girl inasmuch as the rape was not committed on her by him. He abetted the main accused Sukhil Mallick in the commission of offence. The evidence led by the prosecution clearly establishes the part taken by the present accused appellant, which amounts to abetment in the commission of offence under Section 376, IPC. I, therefore, find no justification in recording conviction under Section 376/109, IPC against the present accused appellant Sajal Sutradhar. He, being an abetter, at best, could be dealt with under Section 116 of IPC and be sentenced under Section 116, IPC, which provides that : Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be provided with imprisonment of any description provided for that offence for a term which may extend to one-fourth of the longest term provided for that offence; or with such fine as is provided for the offence, or with both. 9. In the facts and circumstances of the present case and also on the basis of evidence on record, the present accused appellant Sajal Sutradhar may be convicted under Section 116, IPC for abetting the main accused Sukhil Mallick in committing rape on the victim girl and the present accused appellant may be sentenced under Section 116, IPC. Accordingly, in view of the above, the conviction and sentence in respect of the present accused appellant Sajal Sutradhar shall stand modified to the period of imprisonment he had already undergone. 10. It is stated at the Bar that the accused appellant Sajal Sutradhar has been behind the bar for more than 3 years. As such, accused appellant Sajal Sutradhar be set at liberty forthwith if his further detention is not required in connection with some other case. 11. It is made clear that the other 2(two) convicts, namely, Pradip Barman and Sukhil Mallick, who are not before this Court, would not get the benefit of this judgment. 12. The appeal accordingly stands allowed with the modifications, as reflected above. 13. LCRs be remitted to the lower Court concerned immediately. Appeal allowed.