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2016 DIGILAW 151 (GAU)

Bhaity Ali v. State of Assam

2016-02-29

PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER : Paran Kumar Phukan, J. Under assailment in this appeal in the judgment and order dated 05.04.2006, passed by the learned Addl. Sessions Judge, (Adhoc), Jorhat in Sessions Case No. 53(J-J0)/2005, convicting the accused appellant, Bhaiti Ali under Section 417 of the IPC and sentencing him to R.I. for 6 months and to pay a fine of Rs. 25,000/- in default, R.I. for another 3 months. 2. The sum and substance of the prosecution case is that the complainant, (victim girl), a resident of village Kakojan under Teok Police Station in the year 2004 used to come to Jorhat frequently in connection with her nursing training course. While visiting Jorhat she came in contact with the accused appellant and love affair developed between them. On 08.09.2004, the accused appellant took her to Teok to a hotel and with the promise of marriage had sexual intercourse with her as a result of which she became pregnant. 3. The accused appellant tried his best to terminate the pregnancy through doctors but she refused to and divulged the incident to her mother. Even after her refusal to terminate the pregnancy, the accused appellant continued to maintain relationship with her and he repeatedly promised that he would marry her. He ultimately disclosed that he was a married man having children and he started avoiding her. Having no other alternative, the complainant lodged an FIR with the Teok Police. Refusal of the police to take any action on the FIR filed by her compelled her to file a complaint before the learned CJM, Jorhat. The learned CJM called for a police report and accordingly a report was submitted by the O/C, Teok P.S. stating that no case has been registered on the basis of any FIR filed by the complainant. 4. Thereafter, learned court proceeded to examine complainant and her witnesses and having found a prima facie case under section 376/417 of the IPC committed the case to the court of Sessions for trial. 5. The case came for trial before the learned Addl. Sessions Judge (Adhoc), Jorhat. During trial the complainant examined 7 witnesses including officials. Defence examined none and took the plea of total denial. The learned Court on conclusion of trial found the accused appellant guilty of offence u/s 417 of the IPC and convicted and sentenced him accordingly as stated above. The case came for trial before the learned Addl. Sessions Judge (Adhoc), Jorhat. During trial the complainant examined 7 witnesses including officials. Defence examined none and took the plea of total denial. The learned Court on conclusion of trial found the accused appellant guilty of offence u/s 417 of the IPC and convicted and sentenced him accordingly as stated above. However, he was acquitted of the offence u/s 376 of the IPC. 6. Being highly aggrieved by the judgment and order of conviction, the accused appellant preferred this appeal on the ground that the learned Sessions Judge passed the impugned judgment under misconception of law and facts, that there was non-application of mind by the learned Addl. Sessions Judge, that the evidence of the prosecutrix and her witnesses have not been properly appreciated for which the judgment is liable to be set aside. 7. Heard Mr. A. Thakur, learned Senior counsel assisted by Mr. H Medhi, learned counsel appearing for the accused appellant and also heard Mr. D. Das, learned Addl. PP, Assam. Perused the impugned judgment and evidence on record. 8. Arguing the case Mr. Thakur, learned counsel appearing for the accused appellant emphatically submitted that no ingredients of section 417 IPC has been established against the accused appellant. His next contention is that there was enough delay in filing the complaint which casts serious doubt regarding the veracity of the prosecution case. 9. Controverting the submissions Mr. D. Das, learned Addl. PP, submitted that all the essential ingredients of section 417 IPC have been established against the accused appellant. Regarding delay his submission is that the complainant initially filed FIR before police but since no action has been taken by police she was compelled to file the complaint before the court and as a result there was some delay in filing the same, delay is properly explained from the facts of the case. 10. Before I delve deep inside the prosecution story in the backdrop of the submissions of the learned counsel for both the sides, let me now focus my attention to the evidence of the material witnesses particularly, the evidence of the prosecutrix. 10. Before I delve deep inside the prosecution story in the backdrop of the submissions of the learned counsel for both the sides, let me now focus my attention to the evidence of the material witnesses particularly, the evidence of the prosecutrix. It is in her evidence that she developed love affair with the accused appellant while she was coming to Jorhat in his Mini Bus for nursing training course, on being insisted by the accused appellant, she went to Teok with him where the accused appellant promised that he would marry her and thereafter had sexual intercourse with her in a room of the hotel. She was not willing no co-operate but due to promise made by the accused appellant she agreed and surrendered to his lust, as a result of the cohabitation she become pregnant and after 2 months her mother came to know about her pregnancy and on being interrogated she disclosed that accused appellant was responsible for her pregnancy and he promised to marry her. Neighbours also came to know about her pregnancy. Her mother called the accused appellant and he admitted that he had sexual intercourse with the prosecutrix and assured that he would marry her. Due to assurance given by him no case was filed against him. 11. The accused appellant took her to doctor for termination of her pregnancy but she refused. The accused appellant took her to the house of his driver and again had sexual intercourse with her with promise of marriage. Thereafter, she was taken to Jorhat Civil Hospital for termination of pregnancy but she refused to do so which annoyed him and he left her in Jorhat town and informed that he was a married man and he had children. 12. On the next day a written FIR was filed, since police did not register any case she had to file the complaint before the Court. In cross examination also she reiterated that there was love affair between her and the accused appellant and he had promised to marry her and had sexual intercourse with her and due to this reason no protest or resistance was offered by her. She gave birth to a child on 01.07.2005 and she denied the defence suggestion that the child was from other person. She gave birth to a child on 01.07.2005 and she denied the defence suggestion that the child was from other person. The other witnesses examined by prosecution apart from the doctor and the IO are reported witnesses and they have come to know about her relationship with the accused appellant and her pregnancy from her. 13. PW 1, her mother had stated that when she was informed about the pregnancy by her daughter she called the accused appellant and the accused appellant admitted his guilt and promised that he would marry her daughter and due to this reason no case was initially filed against him. 14. On a critical analysis of the entire evidence on record more particularly, the evidence of the prosecutrix it comes to the fore that the prosecutrix was engaged in love affair with the accused appellant with promise of marriage had sexual intercourse with her in a hotel at Teok, because of the promise made by the accused appellant she did not offer any resistance, as a result of the co-habitation she became pregnant and when she disclosed about her pregnancy to the accused appellant he again assured that he would marry her and before her mother also he admitted his guilt and promised that he would marry her. Her evidence further reveals that he repeatedly insisted the prosecutrix to terminate the pregnancy and for that purpose he took her to Jorhat Civil Hospital for but she refused to terminate her pregnancy. On that day only he disclosed to her that he was a married man having children and left her in Jorhat town and ran away. The version of the prosecutrix got support from her mother and father who have been examined as PW 1 and PW 7 respectively which is further corroborated by the other witnesses including the doctor who has been examined as PW 4. His evidence is that on examination of the girl he found that she was pregnant and she was carrying the pregnancy for about 24 weeks and in that connection he issued a certificate which he proved as Exbt. 1. His evidence is that on examination of the girl he found that she was pregnant and she was carrying the pregnancy for about 24 weeks and in that connection he issued a certificate which he proved as Exbt. 1. The prosecutrix consistently stated that the accused had intercourse with her with promise of marriage and due to promise made by him she did not file any case against him at the initial stage and when it was found that he had no intention to marry her she filed the complaint. 15. The law is well settled with regard to cheating and the decision of the Karnataka High Court in K.P. Thimmappa Gowda may be referred to. The part which was not interfered with by the Hon'ble Apex Court is reproduced below:- "to convict a person under Section 417, the prosecution has to prove that the accused has committed deception on PW 9 and intentionally inducing PW 9 to do or omit to do anything which she would not have done or omitted if she were not deceived and which act or omission caused damage and harm to PW 9 in body, mind and reputation. The evidence of PW 9 clearly discloses that the accused who had employed the poor illiterate girl induced PW 9 to allow him to have sexual intercourse with her after the first time he had forcibly and deceptively abused her sexually and thereafter by intentinally inducing PW 9 by deception stating that he would marry her, made her to cause damage and harm to her body, mind and reputation. The evidence given by PW 9 is very clear in that aspect of the matter and we hold that the accused has also committed an offence under Section 415 IPC which is punishable under Section 417 IPC." 16. This aforesaid judgment has been referred to by our High Court in Goutam Prasadi v. State of Tripura while discussing a case of similar nature. Now the pertinent question to be decided in a case falling u/s 417 IPC are:- (1) Whether the accused has committed deception or intentionally induced the prosecutrix to do or omit to do anything which she would not have done or omitted if she were no so received. (2) Whether such act has caused damage and harm to the prosecutrix in body, mind and reputation. 17. (2) Whether such act has caused damage and harm to the prosecutrix in body, mind and reputation. 17. In the instant case from the evidence of the prosecutrix and corroborated by the other witnesses there is no doubt that the accused appellant who is a married man by deceptive means managed to have sex with the prosecutrix with promise of marriage but later on when she refused to terminate her pregnancy he left her in Jorhat town and ran away, for the first time he disclosed that he was already married and conduct of the accused itself satisfactorily established that from the very inception he had the intention to cheat the prosecutrix by having sex with her and he gained over her by promising that he would marry her. 18. Having heard the learned counsel appearing for both the parties and having regard to the facts and circumstances of the present case and having gone through the impugned judgment of the learned Addl. Sessions Judge, I do not find any infirmity in the judgment which calls for interference in this appeal. 19. The offence was committed in the year 2004 and more than 11 years have elapsed from the date of commission of the crime. At the time of commission of the crime, he was aged about 25/26 years. He is self-employed and he has a family to support. He has been subjected to protracted trial. At this stage, in my considered view sending him jail to would not serve any purpose. 20. Having regard to the age, antecedent and the facts and circumstances of the case, instead of sending him to imprisonment, he is sentenced to pay fine of Rs. 50,000/-, in default, to imprisonment for 6 (six) months. 21. With the above modification of sentence, appeal stands dismissed. 22. Fine, if realized, shall be paid to the victim as compensation. 23. Send down the LCR along with a copy of the judgment for information and necessary action. 24. The accused appellant is directed to surrender before the Trial Court within 1 (one) month from today and to deposit the fine, failing which, he will serve out the sentence of imprisonment passed against him.