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2013 DIGILAW 660 (GAU)

Md. Ekram Hussain v. State of Assam

2013-09-09

I.A.ANSARI

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. By the judgment and order, dated 12.09.2011, passed, in Sessions Case No. 135(N)/2009, by the learned Sessions Judge, Hojai, the accused-appellant, Md. Ekram Hussain, stands convicted under Sections 376 IPC and sentenced to suffer rigorous imprisonment for 7 (seven) years with fine of Rs.5,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 6 (six) months with the direction that the fine, if realized, shall be given to the victim by way of compensation. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) The alleged victim, Miss X, is the daughter of the informant (PW1). The house of the accused is adjacent to the parental house of Miss X, the accused being a son of the second wife of the informant's brother-in-law. At the time, when Miss X was a student of Class-VII in Dighar Par High School, the accused, who was a married man, developed physical relationship with Miss X and continued to have sexual intercourse with her. The relationship of Miss X and accused remained unknown to others. (ii) As a result of such a relationship, which the accused maintained with Miss X, Miss X conceived and she, on 26.01.2009, at about 11 A.M., gave birth to a male baby. On being questioned at the time, when she fell sick before the delivery of the baby, she informed her parents and others that it was as a result of physical relationship, which the accused had maintained with her, that she had conceived. Her father, who used to come home from the place, where he uses to work, for one or two days after every fifteen days or one month, was informed by the mother of Miss X about what had happened. A mel (i.e. meeting/sitting by the villagers) was held, the accused was called there and, on being asked, the accused admitted that he had fathered the baby and promised to marry Miss X. (iii) Later on, however, the accused went back on his words and refused to marry Miss X. In fact, he fled away. At the time, when Miss X delivered the baby, she was a student of Class-IX of Dighar Par High School and, in terms of the Transfer Certificate of the said School, she was a minor. At the time, when Miss X delivered the baby, she was a student of Class-IX of Dighar Par High School and, in terms of the Transfer Certificate of the said School, she was a minor. (iv) Though an information was lodged with the police, at Murajhar Police Station, the police did not take adequate action. Miss X's father (PW1), then, lodged a complaint with the Superintendent of Police, Nagaon, as regards inaction of the police and, on the orders of the Superintendent of Police, Nagaon, Murajhar Police Station Case No. 42/2009, under Sections 376 /420/506 /34 IPC, was registered against the accused. (v) During investigation, DNA test was performed and the report, submitted, in this regard, by the Forensic Science Laboratory, Assam, revealed that the baby, in question, was a result of sexual relationship between the accused and Miss X. Thereafter, a charge-sheet was laid, under Sections 376 /420 /506 /34 IPC, against the accused. 2. At the trial, when charges, under Sections 376(1) and Section 506 of the IPC, were framed against the accused, the accused pleaded not guilty to both the charges. 3. In support of their case, prosecution examined altogether 5 (five) witnesses including the victim (Miss X). The accused was, then, examined under Section 313 Cr.PC and, in his examination, aforementioned, he admitted to have had physical relationship with the victim. No evidence was adduced by the defence. 4. Having found the accused guilty of the offence under Section 376(1) of the IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 5. I have heard Mr. R. De, learned counsel, appearing for the accused-appellant. I have also heard Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 6. While considering the present appeal, what needs to be borne in mind is that notwithstanding the initial denial, the accused, subsequently, admitted the physical relationship, which he used to maintain with Miss X (PW2) though the accused was a married man. This apart, when the accused was asked by his co-villagers, the accused, according to the evidence on record, admitted that he had maintained physical relationship with Miss X and the baby, which she had given birth to, was his baby. This apart, when the accused was asked by his co-villagers, the accused, according to the evidence on record, admitted that he had maintained physical relationship with Miss X and the baby, which she had given birth to, was his baby. Though the accused had promised to his co-villagers that he would marry Miss X, he, later on, fled away. 7. Coupled with the above, the DNA test, which had been performed in the present case, admittedly, disclosed that the accused was the father of the male baby, which Miss X gave birth to. 8. Coupled with the above, PW2 has given description as to how the accused maintained, with the promise that he would marry her, physical relationship with her, in the kitchen, which was located outside the house of her father,. 9. In the face of the above evidence on record, it could not be contended before this Court that the accused-appellant did not maintain physical relationship with PW2 since the time she was in Class-VII till she was Class-IX in the said School, and she gave birth to a child, which had been fathered by the accused. 10. What has, however, been disputed is the fact that the victim was a minor at the time, when the accused maintained physical relationship with her. 11. While considering the question of age of Miss X, it may be noted that her father (PW1) has deposed that Miss X (PW2) was 15 years 2 months old at the time of the occurrence. Though he has admitted that he does not remember, when his daughter (PW2) was born, he has assessed that he has calculated the age of PW2 from the date of his marriage. That this calculation was wrong, there was no such suggestion. 12. Though PW1 has been cross-examined on the above aspect of his evidence, this Court does not find that his evidence could be shaken. This apart, PW1 has denied that his daughter (PW2) was aged about more than 18 years at the time of her having physical relationship with the accused and though the evidence of PW1 was disputed, no evidence was adduced by the defence to show that PW2 had completed the age of 18 years, or more, at the time when the accused had sexual intercourse with her. 13. 13. Coupled with the above, it has not been in dispute that PW2 was a student of Dighar Par High School and, at the time, when she was in Class-VII, the accused had developed his physical relationship with her and that when she was in Class-IX, she gave birth to the baby aforementioned. Though the accused has denied, as has been indicated above, that he had physical relationship with PW2, the same has been proved with the help of not only the unshaken evidence of PW2, but also by the DNA report, which could not be assailed by the defence. 14. In the context of what has been pointed out above, it is of immense importance to note that the accused had developed physical relationship with PW2, while PW2 had been a student of Class-VII at Dighar Par High School, and the Transfer Certificate (Ext. 2), issued by the Headmaster of the said School, was, in this regard, proved by her father. According to this Transfer Certificate, she left the said School, on 31.12.2008, when she was studying at Class-IX, and her date of birth was 01.01.1994. 15. From the Transfer Certificate (Ext. 2), it clearly transpires that in the year 2006, when Miss X (PW2) was in Class-VII, she was 12 years old. 16. The genuineness of the contents of Ext. 2 were never questioned or disputed by the defence. Thus, the entries, made in the Transfer Certificate, have to be treated as admitted. Thus, the admitted evidence proves very clearly, as pointed out above, that at the time, when Miss X (PW2) was studying in Class-VII, she was aged about 12 years and was, therefore, a minor and when she was a minor, the accused-appellant had been having sexual intercourse with her. This act of the accused-appellant ought to have treated, and has correctly been treated, as sufficient cause to constitute the offence of rape, committed by the accused-appellant, punishable under Section 376(1) of the IPC inasmuch as Miss X (PW2), being a minor of 12 years old was incapable of giving valid consent to such an intercourse. 17. Situated thus, this Court does not find that the finding against the accused-appellant, which the learned trial Court has reached, suffers from any infirmity, legal or factual. 18. 17. Situated thus, this Court does not find that the finding against the accused-appellant, which the learned trial Court has reached, suffers from any infirmity, legal or factual. 18. In the result and for the reason discussed above, this appeal fails and the same shall accordingly stand dismissed inasmuch as neither the conviction of the accused-appellant calls for any interference nor does the sentence, passed against him, require any modification. 19. Send back the LCR. With the above observations and directions, this appeal stands disposed of.