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2013 DIGILAW 176 (GAU)

Sukhil Mallick v. State of Assam

2013-03-13

C.R.SARMA

body2013
JUDGMENT C.R. Sarma, J. 1. Heard Mr. Y.S. Mannan, learned Counsel, appearing for the appellant. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam. This appeal has been preferred by Mr. Sukhil Mallick, against the judgment and order, dated 19.12.2006, passed by the learned Additional Sessions Judge (FTC No. 2), Kamrup, Guwahati in Sessions Case No. 365(K)/2005. 2. By the impugned judgment and order, the learned Sessions convicted the appellant, under Section 376 I.P.C. and sentenced him to suffer R.I. for 10(ten) years and pay fine of Rs. 2,000/-, in default, R.I. for 4 (four) months. 3. The prosecution case, in brief, is that on 02.12.2004, at about 8.30 P.M., the victim girl along with Sri Pradip Barman and Sri Sajal Sutradhar, went from her house in the motor cycle of Sri Pradip Barman for enjoying Rashpuja at Lakhitari. After enjoying Rashpuja at Lakhitari, she along with Sri Sajal Sutradhar and Sri Sukhil Mallick, i.e. the appellant, in a motor cycle, went to Tetelia to enjoy Rashpuja. From Tetelia, she was taken to Jalisora concrete bridge, by Sajal Sutradhar and Sukhil Mallick and Sajal Sutradhar was waiting with the motorcycle near the bridge aforesaid, the appellant, i.e. Sukhil Mallick, committed rape on her. After said incident, the victim girl along with the appellant and Sajal Sutradhar returned to Lakhitari and from there, she along with Pradip Barman and others went to her house. On the next day, she informed the incident to the members of the family. 4. On receipt of the information about the said incident, Sri Soni Barman (P.W.-6), who was brother of the victim girl, lodged an FIR with the Police, on 14.12.2004, i.e. after 12 (twelve) days of the occurrence. 5. On receipt of the said FIR, Police registered a case under Section 376/34 IPC, examined witnesses, got the victim girl examined by the Medical Officer and at the close of the investigation, submitted charge-sheet, under Section 376/34 IPC, against the appellant and others. 6. The offence being exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Kamrup, Guwahati, committed the case to the Court of Sessions and accordingly, the learned Sessions Judge framed charges under Sections 376/34 IPC, against Pradip Barman and Sajal Sutradhar. 7. The prosecution examined as many as 12 (twelve) witnesses, including the Medical Officer, who examined the victim girl and the Investigating Officer. 8. 7. The prosecution examined as many as 12 (twelve) witnesses, including the Medical Officer, who examined the victim girl and the Investigating Officer. 8. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce defence evidence. 9. Considering the evidence on record, the learned Sessions Judge, convicted the appellant, under Section 376 I.P.C., and sentenced him to suffer R.I. for 10(ten) years and pay fine of Rs. 2,000/-, in default, R.I. for 4 (four) months. The other two accused persons aforesaid were convicted under Section 376/109 IPC and accordingly, sentenced to suffer R.I. for 7 (seven) years each and pay fine of Rs. 2,000/-, in default, suffer R.I. for another 4 (four) months. Aggrieved by the said conviction and sentence, the appellant has come with this appeal. 10. Mr. Y.S. Mannan, learned Counsel, appearing for the appellant, referring to the evidence, on record, more particularly, the evidence of the victim girl and the Medical Officer, has submitted that as revealed from the evidence, on record, the victim girl, at no point of time, put up any resistance against the alleged act, committed by the appellant and as per the medical evidence, her age was above 16 (sixteen) years and below 18 (eighteen) years. Therefore, it is submitted that she was a consenting party and she being above 15 (sixteen) years, the conviction of the appellant under Section 376 IPC is not maintainable in the eye of law. Therefore, it is submitted that the impugned conviction and sentenced, recorded against the appellant, under Section 376 IPC, is bad in law and as such the same is liable to be set aside and quashed, resulting acquitted of the appellant. 11. The learned Additional Public Prosecutor, Assam, by supporting the impugned conviction and sentence, has submitted that there is specific evidence to show that the appellant had committed rape on the victim girl and as such the impugned judgment and order suffers from no illegality requiring interference, learned Sessions Judge committed no error by convicting and sentencing the appellant, as indicated above. 12. 12. Having heard the learned Counsel, appearing for both the parties and considering the evidence, on record, it is clearly found that, on the fateful evening, the victim girl went to enjoy 'Rashpuja' at Lakhitari along with Sri Pradip Barman and Sri Sukhil Mallick in a motor cycle and from there, she went, to another place, namely, Tetelia, for enjoying Rashpuja. This time, she went in a motor cycle with Sri Sajal Sutradhar and the appellant. There is nothing on record to show that she was forcefully taken by the appellant and others. 13. From the evidence of the victim girl, who deposed as P.W.-9, it is found that she went with the appellant and Sri Sajal Sutradhar to the Jalisora concrete bridge and in the said bridge, the appellant had committed rape on her. She nowhere stated that any force was applied to her or that she had raised any objection or put up any resistance. From her evidence, it also appears that she did not sustain any injury on her person. Hence, there was no violence against her body. There is no evidence to show that her garments were forcefully removed by the appellant. 14. From her said evidence, it is found that, after the alleged incident, she again, along with Sajal Sutradhar and the appellant went back to Lakhitari in the same motor cycle and from there, she went to her house along with Sri Pradip Barman. She did not disclose about the incident to any person including Pradip Barman and the members of her family either immediately after the incident or after arriving at her residence. 15. From her evidence aforesaid, it is found that, she, on the next day, had revealed about the said incident to her maternal aunt, who informed the matter to other members of the family. She clearly stated that she did not disclose about the incident to her parents and other members of the family in her residence after her arrival in the house. It is quite surprising as to why she did not inform about such a serious incident either to Pradip Barman, with whom she went to enjoy Rashpuja, or to her parents and other family members. She awaited till the next day, for the reason best known to her, for disclosing about the incident to her maternal aunt. It is quite surprising as to why she did not inform about such a serious incident either to Pradip Barman, with whom she went to enjoy Rashpuja, or to her parents and other family members. She awaited till the next day, for the reason best known to her, for disclosing about the incident to her maternal aunt. This conduct, on her part, raises doubt about the veracity of the case. The said doubt is fortified by the absence of any mark of injury or violence, on absence of any sign of using force in respects of her wearing apparels. She did not state that she was put to any threat by the appellant. 16. Considering the entire aspect of the matter and facts and circumstances of the case, it appears that she was a consenting party. Admittedly, as held by the learned trial Judge, minor's consent is no a consent. Section 375 of IPC, which defines rap, reads as follows: 375. Rape--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances failing under any of the six following descriptions: First.--Against her will. Secondly.--Without her consent. Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.--With or without her consent, when she is under sixteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The provision ''Sixthly" of the said Section indicates that the consent of a victim, who is under 16 (sixteen) years of age, is immaterial. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The provision ''Sixthly" of the said Section indicates that the consent of a victim, who is under 16 (sixteen) years of age, is immaterial. In view of the Criminal Law (Amendment) Ordinance, 2013, which came into effect w.e.f. 03.02.2013, the consenting age under Section 375 IPC has been fixed as 18 years. The alleged occurrence, in the case in hand, took place on 02.12.2004, i.e. prior to the coming into effect of the said Ordinance. Therefore, as per the earlier law (Section 375, Sixthly) if the victim is above 16 (sixteen) years and the alleged offence is committed with her consent, then the act will not constitute rape, in the eye of law. 17. The Medical Officer (P.W.-10), who examined the victim girl, opined, after physical and radiological examination, that the age of the victim girl was above 16 (sixteen) years and below 18(eighteen) years. The Medical Officer further opined that as per the medical jurisprudence, the age of a person may be varied by 2 (two) years or either side. The opinion, given by the Medical Officer, regarding age of a person can not be rigid. Therefore, if 2 (two) yeas are added on either side, the victim will be 18 (eighteen) years. That apart, the victim girl, in her cross-examination, stated that her age was 16 (sixteen) years. In view of the above, the victim was found to be above 16 (sixteen) years by the Medical Officer. In view of the above discussion and the definition provided in Section 375 (sixthly), the alleged offence being committed with consent, can not be termed as rape. 18. In view of the above, considering entire aspect of the matter and the evidence, produced by the prosecution, I am of the considered opinion that the prosecution failed to establish that the appellant committed rape on the victim girl. Therefore, the impugned conviction and sentence can not be maintained. 19. Accordingly, I find sufficient merit in this appeal. The impugned conviction and sentenced, so far it relates to the present appellant, is set aside and the appellant is acquitted and set at liberty forthwith, if not required in any other case. Return the LCR.