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2013 DIGILAW 221 (GAU)

Papu Gogoi v. State of Assam

2013-03-22

P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. Heard Mr. K.D. Chetri, learned counsel for the appellant, Smti. Ahmeda Begum, learned Addl. P.P., Assam for the respondent No. 1 and Mr. S.K. Thakur, learned counsel, appearing for the respondent No. 2. This appeal is directed against the judgment and order dated 23.08.2011 passed by the learned Sessions Judge, Dhemaji, in Sessions Case No. 48(DH)/2010 convicting the appellant under Sections 366 /376(1) of the Indian Penal Code and sentencing him to undergo R.I. for 7 (seven) years and pay fine of Rs. 5,000/-, in default to undergo R.I. for another 6 (six) months for each count. 2. The facts, in brief, are that on 13.4.2010, one Smt. Prativa Basumatary of Mission area, Baligaon informed the police through a written ejahar that on 10.4.2010, while her daughter (Ms. M) was on the way to Gogamukh Chariali, was kidnapped by the appellant. On the basis of the aforesaid FIR a case being Gogamukh P.S. No. 65/2010 was registered under Section 366A, IPC. The I.O. during investigation got the victim girl examined by a doctor and obtained a report. She was also produced before a Magistrate and got her statement recorded under Section 164, Cr.P.C. The I.O. also examined witnesses while he visited the place of occurrence and arrested the accused person (present appellant). On completion of the investigation the I.O. submitted charge-sheet under Section 366A, IPC against the appellant. On receipt of case record on committal, the learned trial Court framed charges against the appellant under Section 366 /376(1), IPC, who on being read over and explained, pleaded not guilty and claimed to be tried. The prosecution examined 6 witnesses in all including the victim girl. The defence simply denied the charges and examined no witness. The learned trial Court, on consideration of the evidence on record and also upon hearing the parties passed the impugned judgment and order convicting and sentencing the appellant as stated earlier. 3. At the time of hearing Mr. K.D. Chetri, learned counsel, has taken me through the FIR (Ext. 1), statement of the victim girl recorded under Section 164, Cr.P.C. (Ext. 2) and also the evidence of the victim girl. 4. In the FIR the age of the victim girl has been mentioned as about 12 years and she was a student of Class-VII at the time of occurrence. 1), statement of the victim girl recorded under Section 164, Cr.P.C. (Ext. 2) and also the evidence of the victim girl. 4. In the FIR the age of the victim girl has been mentioned as about 12 years and she was a student of Class-VII at the time of occurrence. In her statement under Section 164, Cr.P.C. also she has stated that her age to be about 12 years as on 26.4.2010. Similarly in her deposition also she has mentioned her age to be about 12 years. 5. The Medical Officer, Dr. Pranab Hazarika was examined as PW 5. He testified that while he was posted at Gogamukh PHE, as Medical and Health Officer-I, examined the victim girl on police requisition. He prepared a medical report, Ext. 3 and proved the same. On examination he found as follows:-- (i) There is no mark of violence and injury over the body and private parts; (ii) There is no any recent sign of sexual intercourse. (iii) for determination of age, X-ray advice and report is found from Mili Hospital and Research Centre, Dhemaji. Age is above 12 years but below 14 years. (iv) There is no sign of injury and recent sign of sexual intercourse. (v) Age is between 12 years to 14 years. 6. The defence declined to cross-examine the Medical Officer, PW 5. 7. From the statement of the victim-girl under Section 164, Cr.P.C. as well as her evidence on record, it is found that the victim girl spent some days with the appellant and she had sexual intercourse, at least once, with the appellant. 8. According to her statement, the appellant did not use force while indulging in sexual act with her. She has not complained that she was forcefully raped by the appellant. As per the evidence she was a consenting party. So far so good. 9. But on consideration of the statement of the-informant (mother of the victim girl) who was examined as PW 1, the victim girl was aged about 12 years only at the time of occurrence. As stated earlier, the victim girl also mentioned that her age was about 12 years only at the time of occurrence. The Medical Officer, PW 5, who examined the victim girl, stated in his report as well as in his oral evidence that the age of the victim girl was about 12 to 14 years. As stated earlier, the victim girl also mentioned that her age was about 12 years only at the time of occurrence. The Medical Officer, PW 5, who examined the victim girl, stated in his report as well as in his oral evidence that the age of the victim girl was about 12 to 14 years. The defence did not try to prove that the finding of the medical officer is not correct inasmuch as it declined to cross-examine him. The defence counsel did not dispute the age of the victim girl as recorded by the medical officer in his medical report, The defence did not put any suggestion to the informant, mother of the victim, that she deposed falsely and the age mentioned by her was not correct. So also no suggestion was put to the victim girl that she was not minor at the time of occurrence. It stands as an admitted position that the victim was minor at the time of occurrence. Yet, it has been submitted by the learned counsel for the appellant that since the girl voluntarily accompanied the appellant and moved here and there with him for days together and she had sexual intercourse with him willfully, no offence under Section 376, IPC has been committed by him and he should be acquitted. 10. There is no dispute or at least it has not been disputed that the girl was not minor. The learned trial Court has arrived at the correct conclusion in regard to age of the victim girl and passed the impugned judgment and order rightly in accordance with law convicting the appellant under Section 376, IPC. Consent is not material in establishing the charge of Section 376, IPC if the victim girl is found to be below 16 years of age. This is what exactly happened in this case. Since the victim girl was a minor at the time of occurrence, she was not in the age of consent. The law presumes that a girl below 16 years of age can not give consent and even if consent is given by her to sexual intercourse that is not material. The offender in such case can not escape from being held guilty and punished under Section 376, IPC. 11. The law presumes that a girl below 16 years of age can not give consent and even if consent is given by her to sexual intercourse that is not material. The offender in such case can not escape from being held guilty and punished under Section 376, IPC. 11. In view of the above, I have no other alternative but to uphold the order of conviction as awarded by the learned trial Court vide judgment and order dated 23.08.2011 which are under challenge in this appeal. This appeal stands dismissed. Return the LCR forthwith.