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2012 DIGILAW 706 (GAU)

Ujjal Das v. State of Assam

2012-06-06

I.SHAH

body2012
The judgment and order dated 08-08-2006 passed by the learned Addl. Sessions Judge (FTC), Sonitpur, Tezpur in Sessions Case No.159 of 2005 convicting the appellant under Section 366(A)/376/420 IPC and sentencing him thereby to undergo rigorous imprisonment for 5 years with a fine of Rs.2000/- in default of fine, further rigorous imprisonment for 3 months for the offence under Section 366(A) IPC, imprisonment to 7 years and fine of Rs.3000/- in default, rigorous imprisonment of 6 months for the offence under Section 376 IPC and rigorous imprisonment for 3 years and fine of Rs.2000/- in default, further rigorous imprisonment for 2 months have been assailed in this appeal 2]. I have heard Mr. TJ Mahanta, learned Amicus Curiae for the appellant and Ms. B. Saikia, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 3]. The facts of the prosecution case are: On 22-03-2005 while the victim, a minor girl and student of Class-VIII was attending her usual classes, the accused Ujjal Das came to her school. He told the Headmaster of the School that maternal aunt of the victim has suffered heart attack. The victim was persuading her study residing with the said aunt. The Headmaster ascertaining the identity of the accused and after obtaining due application allowed the victim to leave the School. The victim identified that accused as her brother. The accused took the victim to Jorhat under threat. She was kept confined in a rented house. Another accused Lesan Borgohain, who has been acquitted by the trial court, was also sharing the same house. After the School hours when the victim did not return home, her mother was informed who came and lodged the FIR on 23-03-2005. Police registered a case and the victim was recovered from Jorhat after one month. Her statement under Section 164 Cr.P.C was recorded wherein she alleged that the accused committed rape on her during her stay at Jorhat. She was also examined by the doctor. On completion of investigation, police submitted the charge sheet against the accused persons under sections 366(A)/376/420 IPC. 4]. The accused-appellant pleaded not guilty to the charges framed against him under Section 366(A)/376/420 IPC and claimed to be tried. Charge under Section 420 IPC only was framed against the another accused who was acquitted after the trial. 5]. Altogether 12 witnesses were examined by the prosecution. 4]. The accused-appellant pleaded not guilty to the charges framed against him under Section 366(A)/376/420 IPC and claimed to be tried. Charge under Section 420 IPC only was framed against the another accused who was acquitted after the trial. 5]. Altogether 12 witnesses were examined by the prosecution. The victim (PW-1) and her mother (PW-2) in her evidence disclosed her age 14 years at the time of occurrence. PW-7, the doctor, who examined the victim, opined that age of the victim was above 16 years and below 18 years at the relevant time. Learned trial court appreciating the evidence on record held that the victim was around 16 years of age at the time of occurrence. 6] Relying on the evidence of victim (PW-1), the Headmaster of the School (PW-6), Assistant Teacher (PW-6) and Chowkidar (PW-11) of the School, the trial court found that the accused induced the victim to go with him on the pretext that her aunt was sick and kidnapped her. She was taken to Jorhat where she was kept confined for one month till she could be rescued by the police. 7]. PW-2, mother of the victim stated that when the victim was recovered she told her that the accused took her to Jorhat and assured her that she would be engaged in suitable job. PW-3, aunt of the victim stated that the victim told her that the accused induced her to go with him. PW-4, cousin brother of the victim also stated the accused lured the victim to engage her in a job. 8]. There is no evidence on record that the victim was kept confined secretly in the house for whole one month. She was removed from Tazpur to Jorhat. She did not raise any hue and cry. However, she deposed that the accused threatened her to kill if she dares to raise any hue and cry. She was with the accused at Jorhat for one month. She never tried to escape from the house or to report the matter to anybody else. From the evidence of other witnesses, it appears that the accused assured her that she would be employed. 9]. The victim was below the age of 18 years. Therefore, even if she was consenting party, she did not attain the age of consent. The prosecution led on credible evidence to prove that the accused kidnapped the victim. From the evidence of other witnesses, it appears that the accused assured her that she would be employed. 9]. The victim was below the age of 18 years. Therefore, even if she was consenting party, she did not attain the age of consent. The prosecution led on credible evidence to prove that the accused kidnapped the victim. Therefore, the accused was rightly convicted under Section 366 (A) of the IPC. 10]. As regards the conviction under Section 376 IPC, the victim stated that the accused committed rape on her several times. The medical evidence shows that there was no sign of rape. Therefore, it becomes necessary to examine the prosecution case whether there was a threat or whether there was consent. 11]. From the evidence on record, it is clear that on the date of occurrence when the appellant came to School, he told the Headmaster of the School that aunt of victim was seriously ill. The victim was then called by the Headmaster. She identified the accused as her brother. Accused wrote leave application on her behalf on which she put her signature. The accused took her out of the school and then to Jorhat. According to her she was threatened. She stayed at Jorhat in a rented house along with the accused and after a month she was recovered. She told her mother and her aunt that the accused promised her to procure job for her. In the circumstances, it is extremely difficult to accept her evidence when she states that she was taken by the accused without her consent. During her stay at Jorhat along with accused, she raised no protest. She made no effort to seek help from others nor even tried to run away. In such situation in the absence of any other material to show to the contrary it will be difficult to accept the prosecution case that there was a forcible rape as contended by the prosecution to find the appellant guilty under Section 376 IPC. The age of the victim was above 16 years as per the medical report. The prosecution failed to establish that the age of the victim was below 16 years. Therefore, she attained the age of consent as per Section 375 IPC. The age of the victim was above 16 years as per the medical report. The prosecution failed to establish that the age of the victim was below 16 years. Therefore, she attained the age of consent as per Section 375 IPC. The trial court although held that she was aged around 16 years did not properly appreciated the evidence in regard to her consent which is a mandatory requirement before finding a person guilty under Section 376 IPC. All these factors cast a serious doubt on prosecution story that the accused committed rape on victim without her consent. The appellant is, therefore, certainly entitled to get benefit of doubt with regard to offence under Section 376 IPC. 12]. The accused has been convicted under Section 420 IPC. To convict a person under Section 420 IPC, the prosecution must prove- (1) the accused cheated another person; (2) he thereby induced the person to deliver any property or to make or destroy the whole or any part of valuable security; (3) he did so dishonestly. 13]. In the present case there is no such material that the accused induced the victim to deliver any property or to make, alter or destroy the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into valuable security. There was no material under Section 420 IPC. Therefore, the conviction and sentence under Section 420 IPC was not proper. 7 14]. In view of the aforesaid discussions, the appeal is partly allowed. The judgment and order dated 08-08-2006 passed by the learned Addl. Sessions Judge (FTC), Sonitpur, Tezpur in Sessions Case No.159 of 2005 convicting the accused under Section 376 IPC and 420 IPC are set aside. The conviction and sentence under Section 366 (A) IPC are upheld. 15]. Send down the LCR along with a copy of this judgment and order to the court below. _____________