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2019 DIGILAW 448 (GAU)

Bankim Hajong v. State of Assam

2019-04-09

RUMI KUMARI PHUKAN

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JUDGMENT : 1. Heard Mr. H. Das, learned counsel for the appellant as well as Mr. A K Hussain, learned counsel for the respondent No. 2. Also heard Mr. D Das, learned Addl. PP, Assam. 2. Present appeal has been preferred against the judgment and order passed by the learned Addl. Sessions judge, Goalpara in Sessions Case No. 311/12 u/s 417 IPC whereby the accused/appellant has been convicted u/s 417 of IPC and sentenced him to RI for 1 (one) year and to pay a fine of Rs. 20,000/- and in default paying fine, RI for 3 months. 3. The prosecution case in brief is that the victim girl (PW-1) (name withheld) had love and affairs with the accused person and accused with an assurance to marry her, cohabited with her for several times. As a result of which, she became pregnant. The accused tried to cause miscarriage on being informed about the pregnancy of the victim. But she was not married as assured by the accused person. Later on, she came to know that he is a married person. Matter was informed to the village headmen and village mel asked the accused person to take the victim to his house and accordingly she was taken to his house where she resided for 3 (three) months. But as no proper accommodation was provided to her and she was not given social status as a wife, she returned to her own house and filed the ejahar before Lakhipur PS on 15.05.2011. 4. On the basis of the FIR, Lakhipur PS case No. 200/2011 u/s 417/376/323/344 IPC was registered and after due investigation of the matter charge-sheet was submitted against the accused person u/s 417/376/493 of IPC. 5. The accused person faced the trial and denied the charge that was framed by the Addl. Sessions Judge u/s 417/376/493 of IPC. During the course of trial, prosecution examined 6 (six) witnesses in support of the case and defence examined none. Plea of defence is total denial. At the conclusion of the trial, the learned trial Court held the accused guilty u/s 417 of IPC and convicted and sentenced him as aforesaid. 6. Assailing the aforesaid judgment and order, present appeal has been preferred on the ground that the learned Court has failed to appreciate the evidence in proper perspective of law and facts. At the conclusion of the trial, the learned trial Court held the accused guilty u/s 417 of IPC and convicted and sentenced him as aforesaid. 6. Assailing the aforesaid judgment and order, present appeal has been preferred on the ground that the learned Court has failed to appreciate the evidence in proper perspective of law and facts. It is contended that despite having no appropriate evidence on record conviction of the accused, resulted miscarriage of justice. 7. The learned counsel for the appellant has pressed all the grounds that has been narrated in the appeal memo to submit that in view of consensual physical relation between the parties, the order of conviction and sentence is not sustainable. On the other hand, according to the learned Addl. PP, there is no infirmity in the aforesaid judgment and order rendered by the learned Addl. Sessions Judge, Goalpara. 8. Learned counsel for the informant has urged before this Court that the conviction and sentence of the accused cannot be interfered into as the learned trial Court has rightly come to a conclusion on the basis of their evidence on record. It has also been contended that because of conduct of the accused/appellant, life of the victim has been ruined as she has not been given status of wife of accused in society. It is stated that victim has to now to maintain his child, born out of their relationship between the parties and she is in hardship to maintain her child. 9. Learned counsel for the appellant relying on a decision of 2016 (2) GLT 1012 Bhaiti Ali (MD.) Vs. State of Assam, it has been contended that the appellant is a young man and has no earlier criminal antecedent, so, the case of appellant, may also be considered as has been decided in the aforesaid case wherein this Court has considering the age, antecedent and other facts and circumstances of the case, converted the sentence to a fine only to be paid to the victim. Similar consideration may be extended to the present appellant also as he is a young man, having children, and no earlier criminal antecedent. 10. I have heard the submission of learned counsel for both the parties and the materials on record. 11. Similar consideration may be extended to the present appellant also as he is a young man, having children, and no earlier criminal antecedent. 10. I have heard the submission of learned counsel for both the parties and the materials on record. 11. On perusal of the evidence of the victim PW-1, it reveals that she narrated about such physical relation with the accused/appellant out of love and affection on the promise made by the accused/appellant to marry her. The accused made physical relation with her in absence of her parents when they went outside in connection with their livelihood. According to her due to such physical relation she conceived and the accused however refused to marry her for which they called for a village bichar and they decided to keep the victim in the house of the accused/appellant and the accused/appellant took the victim to his house and kept her for a few months but due to indecent behavior of the family members including the earlier wife of the accused, she returned back to her home. 12. The PW-2 and PW-3 are the parents of the victim who have stated the same that with a promise to marry their daughter (PW-1). The accused indulged with physical relation with victim, as a result of which she became pregnant. Although the accused took her to his house as per the decision of the local village Bichar but as the accused did not keep her as a wife, she has to return to the parental house. 13. The medical officer/ PW-5 certified about the pregnancy of the victim on the day of examination i.e. on 19.05.2011 and deposed that she is stated to be aged above 18 years. 14. The evidence of PW-4 (Sri Sachendra Hajong) reveals that he has no personal knowledge about the matter save and except that the victim was kept in the house of accused for the alleged commission of rape. 15. The learned trial court on a detailed discussion of evidence on record come to a findings that as the victim was a married one and having consensual sex with the accused/appellant there cannot be a offence of rape u/s 376 IPC as it was done not against her consent. 15. The learned trial court on a detailed discussion of evidence on record come to a findings that as the victim was a married one and having consensual sex with the accused/appellant there cannot be a offence of rape u/s 376 IPC as it was done not against her consent. On the next, it is also observed that ingredient of offence Section 393 IPC will not be attracted in the present case hence, the learned trial court although acquitted the accused from the charges u/s 376/393 of IPC but has held the accused guilty u/s 417 of IPC, on a findings that because on false assurance on the part of the accused/appellant she herself made such physical relation with him. Obviously, the statement of the victim of sexual assault cannot be disbelieved unless there are any compelling reasons. The learned trial court has rightly appreciated the entire mattes on record. 16. Further, it can be noted that accused being a married person has entered in such a relationship with the victim being fully aware that he is not in a position to marry the victim girl, having his wife and children. Despite he made false assurance with a view to deceive her so as to continue such undue relationship with her. The ingredient of the offence u/s 415 and 417 of IPC is apparently made out. There appears no scope to interfere in the decision so rendered by the trial Court. 17. Only facts that emerges in favour of the appellant is that he agreed by the decision of the village Bichar, took the victim to his house and also kept for several months in his house. But because of indecent behavior of the other family members, victim however could not continue to stay in his house and she had to return to her parental house. This aspect of the conduct of the appellant shows some genuineness on his part to restore the relation to which he ultimately failed. Further, the accused person has no criminal antecedent and is a married man having children. 18. Taking note of all the above, and also as rendered in Bhaiti Ali (supra), this court is of opinion that it will meet the ends of justice if the accused/appellant is sentenced to a fine with a view to redress the grievances of the victim women, having child. 18. Taking note of all the above, and also as rendered in Bhaiti Ali (supra), this court is of opinion that it will meet the ends of justice if the accused/appellant is sentenced to a fine with a view to redress the grievances of the victim women, having child. Moreso, offence was committed in the year 2011 and several years has elapsed by this time and the necessity of the victim is to up-bring the child and in such pretext redressal of her grievances is important. 19. Having regard to all above and age and antecedent of the accused person, sentence of imprisonment is hereby converted to fine only. Accordingly the accused/appellant is hereby sentenced to a fine of Rs. 50,000/- (Rs. fifty thousand only) u/s 417 of IPC, in default SI for 6 (six) months. Amount of fine be given to the victim girl. However, as directed by the learned trial Court, the District Legal Service Authority, Goalpara shall make an enquiry in terms of provision of the Assam Victim Compensation Scheme, 2012 and provide adequate compensation to the victim and her child at the earliest within a period of 3 (three) months from today. Return the LCR along with a copy of judgment.