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2011 DIGILAW 374 (GAU)

Md. Abdul Hasen v. State of Assam

2011-04-28

A.K.GOSWAMI

body2011
JUDGMENT A.K. Goswami, J. 1. This criminal revision petition is directed against the judgment and order dated 12.4.02 passed by the learned Sessions Judge, Nagaon in Criminal Appeal No. 37/01 dismissing the appeal and affirming the judgment and order dated 3.9.01 passed by the learned Asstt. Sessions Judge, Nagaon in Sessions Case No. 61(N)/99 under Section 376 IPC and convicting the accused to undergo rigorous imprisonment for one year and to pay fine of Rs. 2,000/-, in default of payment of fine to suffer rigorous imprisonment for a period of sixty days. 2. I have heard Sri A.M. Bora, learned Counsel for the Petitioner and Mr. D. Das, learned Addl. Public Prosecutor, Assam. 3. On the ground that the Petitioner had married the victim of rape during the tendency of the trial, the learned trial court, by invoking the proviso to Section 376(1) IPC, had sentenced the accused as indicated hereinabove though otherwise the punishment provided under Section376(1) IPC is imprisonment for either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless a woman raped is his own wife and is not under 12 years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. 4. This Court, on 28.9.10 had directed the learned Counsel for the Petitioner to find out the latest position and inform the court whether the convict and the victim are still living together. When the matter was listed on 12.11.10, the learned Counsel for the Petitioner prayed for some more time to obtain the information as required by the order dated 28.9.10. To-day at the hearing, the learned Counsel for the Petitioner apprised the court that he has not been able to receive any instruction from the Petitioner as the letter sent by him has been returned un-served. It has been brought to the notice of the court that the Petitioner is also not in touch with the counsel appearing for him for many years. In such circumstances, the learned Counsel submits that he will not be in a position to apprise the latest position with regard to marital status of the Petitioner. It has been brought to the notice of the court that the Petitioner is also not in touch with the counsel appearing for him for many years. In such circumstances, the learned Counsel submits that he will not be in a position to apprise the latest position with regard to marital status of the Petitioner. In view of such statement, the case has been taken up for final hearing. 5. The facts, in a nutshell, are that the prosecutor Smti. Sarufa Khatun had lodged an FIR in the Samaguri Police Station with the allegation that the Petitioner had committed sexual intercourse with her against her will on and from 5.10.97 promising her to marry while she was working as a maid servant at the residence of the accused. As a result of such intercourse, she became pregnant and when she approached the accused to marry her, the accused refused and in such a situation, when she was carrying for seven months, she had lodged the said FIR. After completion of the investigation, the charge sheet was submitted under Section 376/493 IPC. The case was committed to the Court of Sessions and it was, thereafter, transferred to the court of learned Asstt. Sessions Judge, Nagaon for trial. The learned trial court framed charges under Section376/417 IPC. The Appellant had pleaded not guilty to the charge so explained to him and claimed to be tried. 6. During the trial, the prosecution had examined seven witnesses including the prosecutrix as PW 1, her mother as PW 2, a doctor in the form of PW 5 who had examined the PW 1, the Investigating Officer as PW 6. PW 7 is a Special Railway Magistrate, who had recorded the statement of the prosecutrix under Section 164 Code of Criminal Procedure which is proved as Ext-2. PW 5 had given an opinion that the PW 1 was aged about 14 to 16 years when he had examined her on 10.6.98. According to the mother, her daughter, PW 1, was aged about 14 years of age at the relevant point of time. 7. PWs 3 and 4 had deposed that there was a "Bichar" in the village held in connection with the aforesaid incident and according to them the accused/Petitioner had confessed his guilt before the villagers and had wanted to marry the prosecutrix. 8. 7. PWs 3 and 4 had deposed that there was a "Bichar" in the village held in connection with the aforesaid incident and according to them the accused/Petitioner had confessed his guilt before the villagers and had wanted to marry the prosecutrix. 8. PW 1, the prosecutrix, had deposed in detail regarding the commission of the offence by the accused as also the fact that she had become pregnant through the accused and ultimately had delivered a male baby. According to PW 1, the accused had committed sexual intercourse promising her to marry. She confided the aforesaid facts to her mother PW 2 who also supported her version in her deposition. On the basis of the materials on record, the learned trial court, finding enough materials against the Petitioner, held the accused Petitioner guilty under Section376 IPC. However, he was acquitted of the offence under Section 417 IPC. 9. Mr. Bora, learned Counsel for the Petitioner, with reference to the evidence on record, has submitted that in view of the fact that the Petitioner had married the prosecutrix during the tendency of the trial, this Court should impose minimum sentence on the Petitioner. He submits that the Petitioner had surrendered on 30.7.98 and thereafter he was granted bail on 27.10.98. He submits that the Petitioner may be sentenced for the period that he had already undergone in custody. He makes the aforesaid submission, as according to him, there is sufficient materials on record to hold the accused guilty under Section 376 IPC. To bolster his submission, the learned Counsel has placed a decision reported in (2008) 1 SCC 184 (Hasimohan Barman v. State of Assam). In the aforesaid case, the Petitioner No. 1, Hasimohan Barman, had entered into a sexual relationship with PW 1 on the promise that he would marry her and as a result thereof she became pregnant. The Appellant No. 1 and the other co-accused had forcibly administered injections as a result of which she had lost the pregnancy. Accordingly, the Appellants were convicted under Section 313 IPC which was affirmed in appeal by the High Court. During the trial, the complainant, Haleswari Barman and the Appellant No. 1, Hasimohan Barman got married and started living as husband and wife. Accordingly, the Appellants were convicted under Section 313 IPC which was affirmed in appeal by the High Court. During the trial, the complainant, Haleswari Barman and the Appellant No. 1, Hasimohan Barman got married and started living as husband and wife. The complainant had also filed an affidavit before the learned trial court stating that she had entered into a compromise and wanted the criminal case pending against the Appellant to be withdrawn. The Supreme Court, through the jurisdictional learned Addl. Sessions Judge, verified about the correctness of the affidavit furnished by the complainant and the learned Addl. Sessions Judge had sent a report to the court stating about the correctness of the same. In view of the aforesaid, the Supreme Court, while maintaining the conviction of the Appellant under Section 313 IPC, reduced the period of sentence to the period already undergone which was about ten months. 10. The learned Addl. PP, Assam submits that both the courts below had concurrently held the accused guilty under Section 376 IPC and the Petitioner has been very leniently dealt with. He further argues that the current status of the parties are not known and, therefore, the accused having spent only about three months in jail, this Court may not reduce the sentence any further. 11. In spite of efforts made by this Court to know the latest position with regard to the marital status of the Petitioner and the prosecutrix, it has not been posted with such information due to the reasons as indicated in the beginning of this judgment. The Petitioner spent time in jail only for about three months. In the case of Hasimohan Barman (Supra), the Supreme Court had sentenced the Appellant to the period already undergone on being satisfied through a report obtained that the parties are living as husband and wife peacefully and happily. Though the Petitioner had married the prosecutrix during trial, in the absence of any clear factual basis that the Petitioner and prosecutrix are living together as husband and wife, in the considered opinion of the court, the principle applied in the case of Hasimohan Barman (Supra), cannot be applied in the facts of this case. 12. In view of the aforesaid, I find no merit in this revision petition and accordingly, the same is dismissed. 12. In view of the aforesaid, I find no merit in this revision petition and accordingly, the same is dismissed. The interim order dated 9.8.02 stands vacated and the Petitioner is directed to surrender before the learned trial court. 13. Send down the LCRs forthwith. Petition dismissed