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2013 DIGILAW 88 (GAU)

Narayan Das v. State of Assam

2013-02-06

P.K.MUSAHARY

body2013
Mr. T. J. Mahanta, learned counsel submits that he was engaged by the appellant but the brief has been taken back from him. A new set of counsel have been appointed by the appellant, however, their names are not shown in the cause list. For effective disposal of this appeal, Mr. P.P. Dutta, learned counsel, who is in the roll of amicus curiae and present in the court today, with his consent, is appointed to act as amicus curiae and assist this court on behalf of the appellant. 2. Heard Mr. P.P. Dutta, learned amicus curiae and Mr. B.B. Gogoi, learned Addl. P.P., Assam appearing for the respondent. 3. This appeal filed under section 374(2), Cr.PC challenges the judgment dated 31.8.2006 passed by the learned Sessions Judge, Golaghat in Sessions Case No.5 of 2006 convicting the appellant under section 366A, IPC and sentencing him to suffer R.I. for 3 years and also convicting him under section 376, IPC and sentencing him to suffer R.I. for 7 years and to pay fine of Rs. 5,000 in default further R.I. for 6 months. 4. The prosecution story, in brief, is that on 27.2.2004, the appellant induced the victim girl, who was aged below 18 years, to go with him with an intent to commit forceful illicit intercourse with her and in fact committed rape on her. The said allegation was made in the FIR lodged by victim's mother with the Golaghat Police Station, on the basis of which the Golaghat P.S. Case No. 99/2004 was registered under section 366A/376/420, IPC. The usual investigation was conducted. The victim was medically examined and her statement was recorded under section 164, Cr.PC. On completion of the investigation charge sheet was laid and the case being committed by the Magistrate concerned, the learned trial court framed charge under section 366A/376, IPC against the appellant. When the said charge was read over and explained, the appellant denied and claimed to be tried. During the trial the prosecution examined as many as four witnesses including the victim girl and the medical officer. On the basis of the evidence on record, learned trial court convicted and sentenced the appellant as mentioned earlier. The incident took place on 27.2.2004. FIR was lodged on 3.3.2004. 5. First of all, I would like to appreciate the evidence of victim girl who was examined as PW 1. On the basis of the evidence on record, learned trial court convicted and sentenced the appellant as mentioned earlier. The incident took place on 27.2.2004. FIR was lodged on 3.3.2004. 5. First of all, I would like to appreciate the evidence of victim girl who was examined as PW 1. The victim is acquainted with the appellant as his sister resides adjacent to the house of victim. She has stated that about two years ago the accused visited his sister and she came to bid farewell to the appellant when he was about to leave his sister's house. The appellant forcibly took her away to Titabar in the District of Jorhat by bus and kept her there and on the very night the accused committed rape on her. On the following day the victim was assaulted by the sister of the accused for making complaint about the misdeed committed by the appellant. In her cross-examination, she stated that she was reading in Class-V on the date of occurrence. She denied the suggestion that she was about 18 years of age at the time of occurrence. She also denied the suggestion that she had love affair with the appellant. 6. The other important witness is PW 3 who has medically examined the victim girl on 3.3.2004 on police requisition. Her findings are as follows : "Height -- 141 cms, weight -- 34 KGs Hair -- Auxillary -- scanty, pubic -- plenty, Breast -- well developed, external genetalia -- well developed, internal genetalia -- uterus is of normal size, Hymen -- intact, Spermatozoa -- not seen. X-Ray of right wrist joint shows non-fusion of ossification centres of radius and ulna. X-Ray enclosed." 7. PW 4, Sri Sandreswar Pathak is a co-villager and an independent witness. He stated that the house of elder sister of the accused is adjacent to his house and about two years ago, the accused came to the house of his elder sister and at that time, the victim girl also came to that house. He heard that the accused came to pay social visit and thereafter both the victim and the appellant went out and remained together for four days somewhere and thereafter both of them returned to their village. He however, does not know what happened to them. 8. He heard that the accused came to pay social visit and thereafter both the victim and the appellant went out and remained together for four days somewhere and thereafter both of them returned to their village. He however, does not know what happened to them. 8. The evidence on record shows that the house of the appellant's sister and the house of the victim are adjacent to each other and they have a regular visiting term. As per the evidence of the victim girl herself, she, of her own, came to the house of the appellant's sister to bid farewell to him. Although she has stated that she was forcefully taken in the bus, she has not stated that she resisted the action of the appellant. She did not state in the evidence that she was threatened by showing any arms or her mouth was gagged at the time of alleged forceful elopement. She has not stated that she made hue and cry to attract the people and save herself. They have, rather undertaken a journey together by bus to Titabar in Jorhat district and spent a night in the house of the appellant. Thereafter they came back to Golaghat town. However, she was left alone at Golaghat from where she returned to her own house. During her stay in the house of the appellant, she had sexual intercourse with the appellant against her will by force. 9. I have gone through the statements of the prosecutrix recorded under section 164, Cr.PC. Although it is not an evidence in true sense, since it was the statement made at the initial stage, the court can look into it for the purpose of consideration of the evidence of the victim girl. As per her statement under section 164, Cr.PC, the appellant promised to marry her and due to such promise, she accompanied the appellant to his house but the appellant betrayed her after having the sexual intercourse with her per force. 10. The important point for consideration is as to whether the victim girl was at the age of consent at the time of alleged commission of offence. For the purpose of section 366A, IPC, the girl should be below 18 years of age and for the purpose of section 376, IPC she should below 16 years. 10. The important point for consideration is as to whether the victim girl was at the age of consent at the time of alleged commission of offence. For the purpose of section 366A, IPC, the girl should be below 18 years of age and for the purpose of section 376, IPC she should below 16 years. As per the medical report her age was calculated at below 18 years; that means, she was above 16 years. She attained the age of consent for the purpose of offence under section 376, IPC. Now, I have to consider whether she was a consenting party as regards the offence under section 376, IPC. The evidence is clear enough that the victim girl is well acquainted with the appellant. The appellant used to visit his sister's house located adjacent to their house and she, on the date of occurrence, came to bid farewell to him at his sister's house. If the statements of the victim girl under section 164, Cr.PC are taken into consideration, there would be nothing wrong in holding that she accompanied the appellant of her own as there was a promise of marriage from him. She had been to the house of the appellant voluntarily and stayed with him. There was no force employed by the appellant and she was a consenting party to the sexual intercourse or what had happened between them. 11. In view of the above, since the victim was a consenting party, the ingredients of section 376, IPC would not be attracted and the charge framed against him under the aforesaid section cannot be established. The accused appellant is, therefore, liable to be acquitted insofar as he is charged under section 376, IPC. The above discussion in regard to charge under section 376, IPC can be pressed into service for consideration and finding out as to whether the offence under section 366A, IPC has been made out or established inasmuch as the prosecutrix willingly accompanied the appellant and stayed there overnight. As per the medical evidence the victim was below 18 years. It was the opinion of doctor based on the ‘X-Ray’ report. There was no ossification test conducted on the victim girl to ascertain her age. There was no definite finding on the age of the girl. As per the medical evidence the victim was below 18 years. It was the opinion of doctor based on the ‘X-Ray’ report. There was no ossification test conducted on the victim girl to ascertain her age. There was no definite finding on the age of the girl. The age of the victim girl may be about 18 years or below 18 years but the present trend of the law is that the age projected by the medical officer can be taken 2 years more in the upper side and two years less in the lower side. In any case victim's age would be about 20 years in the upper side and about 16 years in the lower side. Without spending much time on the age of the victim girl, it is felt necessary to first advert to the provision under section 366A, IPC. For the sake of convenience and ready reference it is quoted hereunder: "366A. Procuration of minor girl. -- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with an intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine." 12. What is emphasised in the said section is that the girl under the age of 18 years, should be induced by the accused to go from any place or to do any act with an intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. 13. The prosecution story as well as evidence on record have revealed that it is the appellant himself who had taken the victim to his house and alleged intercourse took place between them. There was no third person involved in this case to attract ingredients of section 366A. In that view of the matter, I am unable to accept the stand of prosecution that a case of section 366A, IPC has been established. Moreover, what is very specific in the medical evidence is that her hymen was found intact suggesting that there was no sexual intercourse with the victim girl. 14. In that view of the matter, I am unable to accept the stand of prosecution that a case of section 366A, IPC has been established. Moreover, what is very specific in the medical evidence is that her hymen was found intact suggesting that there was no sexual intercourse with the victim girl. 14. In view of above, I hold that the prosecution failed to. establish a charge under sections 366A and 376, IPC and consequently, the appellant is liable to be acquitted. Accordingly, the impugned judgment and order convicting and sentencing the appellant is hereby, set aside and quashed. The appellant stands acquitted. The appeal succeeds. The appellant be set at liberty forthwith, if he is not required in connection with any other case. 15. Amicus curiae be paid an amount of Rs.5,000 as his legal fee for the legal assistance rendered by him. 16. Return the LCR.