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2015 DIGILAW 158 (GAU)

JADABANANDA SAIKIA @ DUDUL v. STATE OF ASSAM

2015-02-11

B.K.SHARMA

body2015
ORDER (ORAL) 1. This appeal is directed against the judgment of conviction dated 17.12.2005 of the learned Additional Sessions Judge (Ad-Hoc) FTC, Nagaon in Sessions Case No.337(N)/2003. By the said judgment, while convicting the accused/appellant u/s 417 IPC, he has been sentenced to undergo rigorous imprisonment for 01 (one) year and to pay a fine of Rs.5000/- (Rupees five thousand) and in default, to undergo further rigorous imprisonment for 03(three) months. 2. I have heard Mr. A.K. Purakayastha, learned counsel for the accused/appellant and have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I have also perused the materials on record. 3. The prosecution story in brief is that an FIR was lodged by the victim girl (PW-1) on 03.06.2003 stating therein that the accused/appellant with the false promise to marry her committed sexual intercourse with her in the month of September, 2002, consequent upon which she became pregnant. At the time of lodging the FIR, her pregnancy was 09(nine) months. 4. On receipt of the FIR, Nagaon P.S Case No.457/2003 was registered u/s 376/420 IPC. Statement of the victim girl was also recorded u/s 164 Cr.P.C. On completion of the investigation, charge sheet was submitted against the accused/appellant u/s 376/493 IPC. In due course, charge was framed against him u/s 376/417 IPC. The learned trial Court raising the following points for determination and having answered the same in favour of the prosecution with the aforesaid conviction and sentence imposed on the accused/appellant, he has preferred this appeal. 1) Whether the accused committed rape on Smti Kabita Bora? 2) Whether the accused cheated Kabita Bora by deceiving her fraudulently to surrender her chastity on promise to marry her which she would not do if she was not so deceived which caused her damage harm to her body, mind and reputation? 5. PW-1 is the victim girl, who in her deposition stated that the accused/appellant used to stay in her adjacent house, intervened by a wall. According to her, they had love affairs for the last about 04(four) years. The accused used to visit her with the proposal to marry. Subsequently he gave proposal for sexual intercourse, to which she agreed. According to her statement, in a span of 04(four) months, there was sexual intercourse between them for about 30 days, as a result of which, she became pregnant. The accused used to visit her with the proposal to marry. Subsequently he gave proposal for sexual intercourse, to which she agreed. According to her statement, in a span of 04(four) months, there was sexual intercourse between them for about 30 days, as a result of which, she became pregnant. In the cross examination, she stated that she gave birth to a female child on 06.06.2003. She also stated that the accused visited her on 03.06.2003 and on his refusal to marry her, he was handed over to police and thereafter the FIR was lodged. 6. PW-2 and PW-3 are the parents of the victim girl, who in their depositions stated about the relationship between the accused/appellant and their daughter, as a result of which she became pregnant. According to them, there was promise on the part of the accused/appellant to marry their daughter, but eventually he declined. 7. PW-4 in his deposition stated that about a year back, he visited the house of the victim girl. At that time, she was pregnant and on enquiry, the accused/appellant confessed that the victim became pregnant through him. 8. PW-6 is the doctor, who had examined the victim girl and found the following with the opinion that the age of the victim girl was 20 years and above and that she was pregnant for 35 weeks 05 days duration. “Teeth-14/13, Breast-Developed, Auxiliary hair- Present. Vaginal and other injuries- Nil. Abdominal examination:- Pregnant of 36 weeks found. Ultrasound was done at Ultra lab Centre, Nagaon, reported by Dr. I. Debnath. As per the report she is of 35 weeks 5 days of pregnancy at that time. X-ray was done and X-ray No.4042-43-44 reported by radiologist Dr. B. Hazarika dated 04.06.2003. Her age is 20 years and above.” In his opinion the age of the girl is 20 years or above. The girl is pregnant of 35 weeks 5 days duration. Ext.3 is his report and Ext.3(1) is his signature. 9. PW-5 is the Investigating Officer, who in his deposition stated that the FIR was lodged after the GD entry was made on the basis of the information furnished by the victim. The girl is pregnant of 35 weeks 5 days duration. Ext.3 is his report and Ext.3(1) is his signature. 9. PW-5 is the Investigating Officer, who in his deposition stated that the FIR was lodged after the GD entry was made on the basis of the information furnished by the victim. On receipt of the FIR, investigation was carried out and the statement of the victim girl was recorded u/s 164 Cr.P.C. In her statement made u/s 164 Cr.P.C, the victim girl stated that the accused/appellant was in love with her and that for the last about 9/10 months with the promise of marrying her, he indulged in sexual intercourse with her, as a consequence of which, she became pregnant. At the time of making deposition, her pregnancy was 09(nine) months. 10. On the basis of the aforesaid evidence, the learned trial Court has convicted the accused/appellant u/s 417 IPC, while disbelieving the prosecution case that it was a case falling u/s 376 IPC. On perusal of the aforesaid evidence, it is clearly established that the victim girl was a consenting party. She had sexual intercourse with the accused/appellant for 30 days in a span of 04(four) months. It was only when she became pregnant by 09(nine) months, she lodged the FIR. The learned trial Court has rightly held that it was not a case falling u/s 376 IPC. 11. As regards the conviction of the accused/appellant u/s 417 IPC, the learned trial Court has held that the accused/appellant had sexual intercourse with the victim girl promising her to marry. She had love affairs with the accused/appellant for about 03(three) years and voluntarily indulged in sexual intercourse with him. It was only when she became pregnant by 09(nine) months, she handed over the accused/appellant to the police after confining him in her house and thereafter lodged the FIR. It will be pertinent to mention here that her father (PW-2) is a police official. 11. Section 415 IPC is quoted below:- “415. It was only when she became pregnant by 09(nine) months, she handed over the accused/appellant to the police after confining him in her house and thereafter lodged the FIR. It will be pertinent to mention here that her father (PW-2) is a police official. 11. Section 415 IPC is quoted below:- “415. Cheating- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation- A dishonest concealment of facts is a deception within the meaning of this section.” 12. The evidence does not disclose that there was any inducement on the part of the accused/appellant. The victim was a consenting party. As per her own evidence, there was love affair between them for about 03(three) years and they had indulged in sexual intercourse. There is nothing to show that the accused/appellant had induced her in such an act with the promise to marry her. It is in the evidence of the PW-5 i.e the Investigating Officer that the victim girl in her statement before him did not state that the accused/appellant induced her with the false promise of marriage and had sexual intercourse with her. She also did not state before him that taking advantage of absence of other family members in the house, the accused used to come to her and had sexual intercourse. Rather, she stated before PW-5 that when there was none in the house, accused used to come to her and had sexual intercourse with her for innumerable times. She did not state before PW-5 that there was any promise on the part of the accused/appellant to marry her. 13. Above being the position, in absence of any ingredients of cheating towards commission of the offence punishable u/s 417 IPC against the accused/appellant, this appeal is allowed by setting aside the impugned judgment of conviction dated 17.12.2005 of the learned Additional Sessions Judge (Ad-Hoc) (FTC), Nagaon in Sessions Case No.337(N)/2003. 14. 13. Above being the position, in absence of any ingredients of cheating towards commission of the offence punishable u/s 417 IPC against the accused/appellant, this appeal is allowed by setting aside the impugned judgment of conviction dated 17.12.2005 of the learned Additional Sessions Judge (Ad-Hoc) (FTC), Nagaon in Sessions Case No.337(N)/2003. 14. The accused/appellant is on interim bail vide the order passed on 16.01.2006. Bail bond stands discharged. 15. Registry shall transmit the case record to the learned Court below along with a copy of this judgment.