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2010 DIGILAW 307 (GAU)

Hemanta Medhi v. State of Assam

2010-05-04

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. D.C. Borah, learned Counsel for the accused/Appellant and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 2. The accused/Appellant is before this Court against the judgment and order dated 25.3.2003 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 22/2002 whereby he was convicted under Section 497, IPC and sentenced to undergo R.I. for a period of 4 years with a fine of Rs. 5,000 in default of the payment of fine to suffer R.I. for another 6(six) months. 3. The prosecution story as unfolded from the FIR, lodged by one Smt. Rina Das with the I/C Nellie Out Post, which was forwarded to the O/C, Jagi road and registered as Jagi road P.S. Case No. 41/98 under Section 376, IPC is that on 19.3.1998, while the informant was sleeping in her house at about 12 noon, her neighbor, the accused/Appellant, Sri Hemanta Medhi, forcibly committed sexual intercourse on her. At that time she created hue and cry and her husband arrived at the scene. The accused/Appellant, Hemanta Medhi fled away and thereafter she lodged the FIR. After registration of the aforesaid case, the police investigated the matter and submitted charge sheet against the accused/Appellant under Section 376, IPC. The learned Chief Judicial Magistrate, Morigaon committed the case to the Court of Sessions at Morigaon for trial. The learned court of Sessions on the basis of the materials available against the accused/Appellant, framed charge under Section 376, IPC, to which the accused/Appellant pleaded not guilty and claimed to stand trial. 4. The prosecution examined six witnesses including I.O. and the Medical Officer, while the defend examined none. At the conclusion of the trial and after hearing the learned Counsel for the parties, the learned trial court convicted and sentenced the accused/Appellant as stated above. 5. From the record it appears that the informant-victim woman was examined under Section 164, Code of Criminal Procedure. In her statement she stated that the accused/Appellant came to the victim's house and committed sexual intercourse forcibly while her husband was not present at home. The accused/Appellant escaped through another door while her husband returned home. In her deposition as PW1 before the learned trial court, she maintained her statements made before the Magistrate under Section 164, Code of Criminal Procedure. 6. The accused/Appellant escaped through another door while her husband returned home. In her deposition as PW1 before the learned trial court, she maintained her statements made before the Magistrate under Section 164, Code of Criminal Procedure. 6. I have carefully gone through the evidence of Kedang Das, husband of the informant, who was examined as PW3. He has categorically stated before the court that while he returned home from the jungle, he found his wife and the accused/Appellant in a compromising position and on sensing his return the accused/Appellant fled away from his house. Immediately after the incident he informed some villagers and there was a village meeting. The villagers advised the wife of the PW3 to lodge an FIR which was accordingly done. 7. It is found from the record that the informant-victim woman was medically examined by a doctor, PW5, who prepared and submitted a medical report. According to the medical report there was no sign of rape. The doctor recorded his opinion as under: - Smt. Rina Das was examined and there were no signs of rape, no marks of injury and no any signs of pregnancy at the time of examination. From the X-Ray finding her age is above 18 years. 8. There was no eye witness to the occurrence except the husband of the victim woman as it is not expected that such offence could be committed in presence of other. The occurrence took place at noon, in the day time and could be seen by none other than informant husband who suddenly returned from the jungle and found both the accused/Appellant and his wife in such compromising position. The evidence of the husband cannot be treated as unbelievable or untrue, inasmuch as, a husband is not expected to make any allegation against her own wife of having illicit sexual relation with other person. From the medical report it is found that the informant was a consenting party to the aforesaid sexual intercourse, inasmuch as, no sign of injury was found on her person to demonstrate that she resisted the attempt to commit rape on her. From the medical report it is found that the informant was a consenting party to the aforesaid sexual intercourse, inasmuch as, no sign of injury was found on her person to demonstrate that she resisted the attempt to commit rape on her. It must be noted that the incident took place in the day time at noon and it was expected from the victim woman that if her version is to be accepted that the accused/Appellant committed rape on her forcibly, she would have resisted it, she being a married woman, against the attempt made by the accused/Appellant who was comparatively of younger age. Had there been some resistance and hue and cry on her part, some villagers would have come forward to save her. The informant-wife is found to be unfaithful to her husband. She has been maintaining illicit sexual relation with the accused/Appellant for quite sometime. Such relation could be detected coincidentally when her husband suddenly returned home from the jungle and could see in his own eyes both the accused/Appellant and the informant enjoying sex quietly inside the house. 9. As per the evidence, the Appellant at the relevant time, was a young man of 18 years and at such prime of life, usually a youth is found prone to sexual adventure and he dared to take the opportunity as the informant herself invited and encouraged the accused/Appellant to indulging in such sexual relation. The filing of the FIR found to be merely a tricks on the part of the so called victim woman to save her skin and show herself as an innocent woman putting the entire blame on the accused/Appellant, who is comparatively much younger in age to her. 10. On consideration of the evidence and materials available on record, I have no hesitation to come to a conclusion that the allegation made by the informant-victim woman and the charge framed on the basis of the aforesaid allegation, is not only unfounded but also an utter falsehood. This so called victim woman has shown herself a totally unreliable person having played the tricks and pretended to be innocent before her own husband. The learned trial court, in my considered view, rightly discharged the accused/Appellant from the charge under Section 376, IPC, which is not required to be interfered with. 11. This so called victim woman has shown herself a totally unreliable person having played the tricks and pretended to be innocent before her own husband. The learned trial court, in my considered view, rightly discharged the accused/Appellant from the charge under Section 376, IPC, which is not required to be interfered with. 11. So far the conviction under Section 497, IPC is concerned, it must be noted that it is not the accused/person who indulged himself in the illicit sexual relation to come under the mischief of offence called adult racy under Section 497, IPC. As has been observed earlier that the informant, the victim woman is a married woman of about 28 years old and she was in a position to attract and influence the accused/Appellant as his "Deor", cousin brother of her husband, who out of sexual adventure, advanced to maintain the relationship with her. It is stated at the bar that he was a college going youth and he has no criminal antecedent and he has, by this time, got married and living peaceful marital life. At the same time it is also stated at the bar that the informant-victim woman is also living a peaceful marital life with her husband forgetting the aforesaid unfortunate incident. 12. In my considered view, under such facts and circumstances of the case, no conviction can be recorded against the accused/Appellant under Section 497, IPC. The above are the mitigating circumstances under which the accused/Appellant can be acquitted of the charge under Section497, IPC. The ends of justice demand that the peaceful marital life of the accused/Appellant as well as the informant should not be disturbed by upholding the conviction and sentence passed by the learned Sessions Judge, Morigaon. 13. In view of the aforesaid discussions and observations, the impugned judgment and order dated 25.3.2003 passed by the learned Sessions Judge, Morigaon stands quashed. Consequently, this appeal stands allowed. Appellant stands acquitted. The accused/Appellant is on bail. The bail bond shall stand discharged. 14. Send down the LCR forthwith. Appeal allowed