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2014 DIGILAW 163 (GAU)

MONAJ JADAV @ YADAV v. STATE OF ASSAM

2014-02-10

C.R.SARMA

body2014
JUDGMENT & ORDER (ORAL) This appeal is directed against the judgment and order, dated 12.06.2012, passed by the learned Sessions Judge, Dhemaji, in Sessions Case No. 110(JN)/2010. (2) By the impugned judgment and order, the learned Sessions Judge, convicted the appellant for the offence under Section 366 and 376(1) IPC and sentenced him to suffer RI for 7 (seven) years and pay fine of Rs.5,000/-, in default, R.I. for another period of 1 (one) year for each count. It has been also directed that both the sentences shall run concurrently with set off. (3) The prosecution case, in brief, is that in the intervening night of 15.12.2009 and 16.12.2009, at about 1 O’ Clock the appellant had forcibly taken away the minor daughter of the informant from her house and kept the victim in a hotel at Guwahat for two days, wherein she was raped by the accused appellant. Subsequently, the appellant, with the victim, returned to Jonai and surrendered before the Police. (4) The mother of the victim, as informant, lodged an FIR with the Police, on 06.01.2010. On receipt of the FIR, Police registered a case under Section 366(A) IPC and launched investigation into the matter. (5) At the close of the investigation, Police submitted charge-sheet, against the appellant for the offences under Section 366(A) and 376 IPC. The learned SDJM, Jonai committed the case to the Court of Sessions for trial. (6) The learned Sessions Judge, considering the materials on-record, framed charges under Sections 366 and 376(1) IPC. The charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. (7) The prosecution examined as many as 9 (nine) witnesses including the Medical Officer (PW-8) and the Investigation Officer (PW-9). At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr.P.C. He denied the allegations, brought against him. (8) Considering the evidence, on-record, more particularly, the evidence of the victim girl and the evidence of her parents, the learned Sessions Judge came to the findings that the victim was below 16 years at the time of occurrence and accordingly held that the accused appellant was guilty of the offence under Section 366 and 376 IPC. The learned Sessions Judge, after hearing the accused person, recorded the sentence, as indicated above. The learned Sessions Judge, after hearing the accused person, recorded the sentence, as indicated above. (9) Aggrieved by the said conviction and sentence, the appellant has come up with this appeal. (10) Mr. M K. Boro, learned Counsel, appearing for the appellant, taking this Court through the evidence, on-record, more particularly, the evidence of the victim girl and the Medical Officer (PW-8) has submitted that there is sufficient material to show that the victim, at the time of relevant time, was above 16 (sixteen) years and below 18 (eighteen) years and that, considering the facts and circumstances of this case, the victim was a consenting party and as such the findings of the learned trial Judge that the appellant committed the offence under Section 376 IPC, is not tenable in the eye of law. (11) It is also submitted that the victim, during her journey from Jonai to Guwahati by train and also during her stay in hotel for two days, did not raise any objection or alarm and that this conduct of the victim indicates that she had willingly gone with the appellant. (12) It is also submitted that, in view of the Provision prescribed by Section 375 (Sixthly) IPC, the alleged sexual intercourse does not amount to rape, in the eye of law. (13) In view of the above, the learned Counsel for the appellant has submitted that the prosecution failed to prove the charges, brought against the appellant, beyond all reasonable doubt and as such, the impugned conviction and sentences are liable to be set aside. (14) Controverting the said argument, advanced by the learned Counsel for the appellant, Mr. B J Dutta, learned Additional Public Prosecutor, Assam has submitted that the evidence, given by the victim herself and her parents clearly indicates that the victim, at the time of the occurrence was only 15 (fifteen) years and as such, the benefit provided Provision, prescribed by Section 375(Sixthly) IPC will not be applicable in the present case. (15) The learned Additional Public Prosecutor has also submitted that it has been sufficiently established that the appellant had taken away the said minor from the custody of her parents, without their consent or permission with ill intention and raped her in a hotel wherein she was subjected to sexual intercourse. (15) The learned Additional Public Prosecutor has also submitted that it has been sufficiently established that the appellant had taken away the said minor from the custody of her parents, without their consent or permission with ill intention and raped her in a hotel wherein she was subjected to sexual intercourse. Therefore, it is submitted that that the learned Sessions Judge committed no error by convicting the appellant under Sections 366 and 376 IPC. (16) Having heard the learned Counsel, appearing for both the parties, I have carefully perused the impugned judgment and order and the evidence, on-record. (17) There is no dispute that the victim girl was taken by the appellant from the custody of her parents, without their consent and that she was kept in a hotel for two days. (18) From the evidence of the victim girl, it has also been clearly established that the appellant had sexual intercourse with her. The victim, in her evidence, stated that the sexual intercourse was committed without her consent. She, in her cross-examination, stated that during her stay in the hotel with the appellant, she did not raise any complaint or objection. Now the question is as to whether the victim was a consenting party and if so, what was her age at the relevant time. (19) From the evidence of the victim i.e. P.W.- 1, it is found that, initially she was taken from her house to the river bank on foot at 10 PM and thereafter, she was taken in a boat for crossing the river Siang and after crossing the river, they walked to the Jonai Railway Station for about two hours and after reaching the Jonai Railway Station, they moved to Guwahati by train. (20) Considering entire evidence, it appears that, during her said long journey from her house i.e. from Jonai to Guwahati and also during the stay in hotel at Guwahati, she did not raise any alarm or objection attracting other’s attention. (21) From the facts and circumstances of this case, it appears that though she got sufficient opportunities, more particularly, during her train journey, she did not raise any alarm or objection. (22) There is nothing, on-record, to show that she was put to any threat by the appellant, compelling her not to make any alarm or objection. This conduct on her part raises doubt about the prosecution version regarding forceful taking. (22) There is nothing, on-record, to show that she was put to any threat by the appellant, compelling her not to make any alarm or objection. This conduct on her part raises doubt about the prosecution version regarding forceful taking. Had she not been a consenting party, there was no difficulty, on her part, to raise objection or alarm, inviting other’s intervention inasmuch as she was travelling in a passenger train. (23) Therefore, considering entire aspect of the matter, I have no hesitation in holding that the victim was a consenting party and she went with the appellant at her own will. (24) Though the victim, in her statement, stated that she was aged about 15 (fifteen) years, she in her cross-examination, stated that her date of birth was 17.03.1997. If her said evidence, regarding date of birth is taken as correct, her age, at the relevant time i.e. 15.12.2009 was 12 years 9 months. (25) The said contradictory evidence, given by the victim, creates doubt about the credibility of the evidence regarding age. Thought the parents (PW-2 and PW-3) of the victim stated that their said daughter was 15 years, no substantive evidence, in support of the said claim, has been adduced. (26) From the evidence of PW-8, the Medical Officer, who examined the victim girl, it appears that radiological examination i.e. X-Ray, was done to ascertain her age and on the basis of the X-Ray report, the said Medical Officer opined that the age of the victim was above 16 years but below 18 years. There is nothing to disbelieve the said evidence, given by the Medical Officer. (27) The above stated medical evidence indicates that the age of the victim, at the relevant time, was above 16 years. It is settled law that, if two views are possible in a given case, the view, which goes in favour of the accused person, should be accepted. Therefore, in my considered opinion, the benefit regarding the age of the victim should be given to the accused appellant. (28) Therefore, I have no difficulty in holding that the victim, at the relevant time, was above 16 years. The learned Sessions Judge has rejected the said medical evidence without sufficient reason. Section 375 IPC, reads as follows: “First. - Against her will. Secondly.- Without her consent. (28) Therefore, I have no difficulty in holding that the victim, at the relevant time, was above 16 years. The learned Sessions Judge has rejected the said medical evidence without sufficient reason. Section 375 IPC, reads as follows: “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.” (29) The said Provision (Sixthly) indicates that sexual intercourse with consent, if the victim is not under 16 years of age, can not be treated as rape. (30) In view of the above, as the victim, at the relevant time, was not under 16 years of age and she being the consenting party, I have no hesitation in holding that the appellant is entitled to the benefit of doubt and as such, the conviction and sentence recorded under Section 376(1) IPC can not be maintained. (31) From the evidence, on-record, it has been clearly established that the victim was taken back to Jonai after keeping her in a hotel for two days. As revealed from the evidence, more particularly, the evidence of PW-1, it has been clearly established that the appellant had sexual intercourse with the victim during her stay with him in the hotel at Guwahati. (32) As discussed above, the medical evidence indicates that the age of the victim, at the relevant time, was below 18 years. The victim and her parents stated that she was about 15 years old at the relevant time. (33) Therefore, it has been sufficiently established that the victim was a minor at the time of occurrence and she was taken away by the appellant without the consent of her lawful guardian. The victim and her parents stated that she was about 15 years old at the relevant time. (33) Therefore, it has been sufficiently established that the victim was a minor at the time of occurrence and she was taken away by the appellant without the consent of her lawful guardian. From the evidence, on-record, it has been established, beyond all reasonable doubt, that the victim was seduced to illicit intercourse after taking her from the custody of her lawful guardian. (34) In view of the above, there is sufficient evidence to show that the appellant committed offence under Section 366 IPC. (35) In my considered opinion, the learned Sessions Judge rightly convicted the appellant for the offence under Section 366 IPC. The appellant has been sentenced to suffer RI for 7 years and pay fine of Rs.5,000/-, in default, RI for another period of 1 year for the offence under Section 366 IPC also. (36) It is also submitted, at the bar, that the appellant is in custody w.e.f. 12.06.2012. From the record, it appears that the appellant is a married person having his children to look after. He has already suffered imprisonment for more than 1 year 9 months. The appellant was arrested on 07.01.2010 and he was in custody till 09.04.2010. (37) From the above, it appears that, he is in custody for about two years. Taking into consideration, the period of remission to which the appellant would be entitled and the time which has elapsed from the date and the time of the offence, I am of the considered opinion that the appellant has suffered a lot resulting suffering of the members of his family. (38) Therefore, considering the facts and circumstances of the case, in which the offence was committed, I am of opinion that the ends of justice would meet if the appellant is sentence to undergo the imprisonment for the period, which he has already undergone. (39) Accordingly, while maintaining the conviction under Section 366 IPC, the sentence is modified to the extent, as indicated above. The conviction and sentence recorded under Section 376(1) IPC is set aside. No interference is made with regard to the fine. (40) The amount of fine, if realized, shall be paid to the victim as compensation. (41) With the above modification, this appeal is partly allowed. Return the LCR.