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Gauhati High Court · body

2015 DIGILAW 289 (GAU)

Ajit Malakar v. State of Assam

2015-03-11

B.K.SHARMA

body2015
JUDGMENT & ORDER (ORAL) 1. This appeal is directed against the judgment dated 24.02.2006 of the learned Sessions Judge, Jorhat passed in Sessions Case No.34((JJ)/2005 convicting the accused/appellant u/s 417 IPC and sentencing him to undergo rigorous imprisonment for 03(three) months with fine of Rs.10,000/- (Rupees ten thousand) and in default, to undergo further rigorous imprisonment for 03(three) months. 2. On the basis of the FIR (Ext.2) lodged with the Titabor Police Station on 56.06.2004, Titabor P.S Case No.48/2004 was registered and investigated upon. In the FIR, it was alleged that the victim (PW-1) was raped by the accused/appellant on three occasions when she had gone to his shop, as a result of which, she became pregnant for 7/8 months. According to the FIR, the accused had assured marrying her when she became pregnant. But, later on, turned around such assurance. Accordingly, the FIR was lodged. 3. During investigation, the statement of the victim girl was recorded u/s 164 Cr.P.C. On completion of the investigation, the Investigating Officer submitted charge sheet against the accused/appellant u/s 376/493 IPC. Charge having been framed against the accused/appellant u/s 376(1)/417 IPC, the same was read over the explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried. Thereafter, trial commenced. During trial, the prosecution examined 09(nine) witnesses. The accused/appellant was also examined u/s 313 Cr.P.C. 4. PW-1 i.e. the victim girl in her deposition stated that the accused/appellant had a grocery shop, to which she had gone about two years back. The accused/appellant put Vermilion on her head with the promise to marry her. Thereafter, she was taken inside the shop and they had physical relationship. Thereafter also they continued to have physical relationship and she became pregnant. When her menstruation was stopped, she informed the same to the accused/appellant and he assured of taking her as his wife. However, when he did not comply with the said assurance, she divulged the fact of her pregnancy to her mother and also lodged the FIR. In the cross examination, she admitted that she did not raise any hue and cry when the accused/appellant allegedly committed rape on her. 5. There is inherent contradiction in the statement made by the victim girl in the FIR, statement made u/s 164 Cr.P.C and the statement made during trial. In the cross examination, she admitted that she did not raise any hue and cry when the accused/appellant allegedly committed rape on her. 5. There is inherent contradiction in the statement made by the victim girl in the FIR, statement made u/s 164 Cr.P.C and the statement made during trial. Considering such inherent contradictions, the learned trial Court has held the accused/appellant not guilty of the offence punishable u/s 376 IPC. As regards the submission made that the accused/appellant was liable to be convicted u/s 493 IPC, the learned trial Court has held that no case was established against the accused/appellant to convict him u/s 493 IPC, for which charge was also not framed. 6. The only charge on which the accused/appellant has been convicted is u/s 417 IPC. Such conviction has been made primarily on the basis of the evidence of PW-2 and PW-8 and also PW-7, who was declared hostile. Once the evidence adduced by PW-1 is found contradictory and did not inspire the confidence of the Court, relying on the same very evidence, it could not have been held that the accused/appellant is guilty of the offence punishable u/s 417 IPC. 7. As noted above, the victim girl gave three different versions in her FIR, statement made u/s 164 Cr.P.C and the statement made during trial. In the FIR, she stated that she was raped by the accused/appellant, but on the other hand, in her statement recorded u/s 164 Cr.P.C, she stated that she had love affairs with the accused/appellant and had sexual intercourse. On the other hand, during trial, she stated that she did not raise any hue and cry when rape was committed on her nor had she revealed the fact to anyone. It was only after she became pregnant, she lodged the FIR alleging that the accused/appellant had committed rape on her. 8. For conviction u/s 417 IPC, the ingredients of Section 415 IPC will have to be established. On perusal of the evidence of PW-2, PW-7 and PW-8, there is nothing to suggest that the accused/appellant had in any manner induced or deceived the victim girl towards obtaining her consent. There is nothing to suggest that it was because of the promise made out to the victim by the accused/appellant, she indulged in physical relationship with him. On perusal of the evidence of PW-2, PW-7 and PW-8, there is nothing to suggest that the accused/appellant had in any manner induced or deceived the victim girl towards obtaining her consent. There is nothing to suggest that it was because of the promise made out to the victim by the accused/appellant, she indulged in physical relationship with him. There is also no evidence that she was made to believe that she was the legally married wife of the accused/appellant. 9. PW-2 is the mother of the victim girl, who in her deposition only stated that after her daughter became pregnant, the accused/appellant assured her of taking her along with him. But there is nothing in her evidence to show that any promise was made to the victim girl that there was physical relationship with her with the promise of marrying her. 10. PW-8 in his deposition referred to the particular village Mel, in which the victim deposed that she was in love with the accused/appellant. It was only after she became pregnant, she was allegedly assured of taking her along with the accused/appellant. Thus, it is not a case of deceiving or inducing the victim to have physical relationship with the accused/appellant promising anything to her. 11. Above apart, once the testimony of PW-1 is disbelieved so as not to convict the accused/appellant u/s 376 IPC and 493 IPC, the same very evidence cannot be relied upon towards convicting the accused/appellant u/s 417 IPC. 12. For all the aforesaid reasons, this appeal is allowed by setting aside the impugned judgment of conviction dated 24.02.2006 passed by the learned Sessions Judge, Jorhat in Sessions Case No.34(JJ)/2005. 13. Registry shall send down the LCR along with a copy of this judgment and order.