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2019 DIGILAW 955 (GAU)

Nazim Uddin v. State of Assam

2019-08-29

AJIT BORTHAKUR

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JUDGMENT : Ajit Borthakur, J. Heard Ms. F Begum, learned counsel for the petitioner and Mr. RJ Baruah, learned Additional Public Prosecutor, Assam appearing for the State/ respondent. None appeared for the respondent No.2. 2. By this petition under Section 482 read with Section 401 of the Cr.P.C., the petitioner has prayed to set aside and quash the impugned Judgment and order, dated 16.07.2012, passed by the learned Sessions Judge, Goalpara in C.A. No.12/11 dismissing the appeal and upholding the Judgment and order, dated 10.02.2011 passed by the learned Assistant Sessions Judge, Goalpara in Sessions Case No. 64 of 2010 convicting the petitioner and sentencing him to suffer simple imprisonment for 6(six) months and to pay fine of Rs.5,000/- in default to simple imprisonment for 1(one) month for offence under Section 417 of the IPC. 3. The respondent No.2/informant lodged an FIR, on 13.05.2010, before the Officer-In Charge of Lakhipur PS, through Court, alleging, inter alia, that the petitioner with a view to marry her fell in love. After making a false promise to marry her, the petitioner committed sexual intercourse for about a year ahead of filing the FIR. The aforesaid FIR was registered as Lakhipur PS Case No. 229 of 2010 under Sections 417/376/313 of the IPC and after completion of investigation the police laid a charge sheet under Section 417/376 of the IPC against the petitioner. The charges were framed accordingly by the learned Assistant Sessions Judge, Goalpara. The petitioner pleaded not guilty. In the case, the prosecution examined ten witnesses. Thereafter, the statement of the petitioner was recorded under Section 313 Cr.P.C., where he denied all the allegations and declined to examine any witness in defence. Then, the learned trial Court, on appreciation of evidence held the petitioner guilty under Section 417 of the IPC and convicted and sentenced him as stated above. The learned Sessions Judge, Goalpara affirmed the conviction and sentence aforementioned in C.A No.12/2011. 4. Ms. F Rahman, learned counsel for the petitioner, submits that the learned courts below failed to appreciate the basic contradictions in the FIR, statement recorded under Sections 161 and 164 Cr.P.C. of the victim girl and the testimony of the prosecution witnesses including that of the doctor, which clearly establish the innocence of the petitioner by reason of absence of the ingredients of cheating. 5. Mr. 5. Mr. RJ Baruah, learned Addl.P.P., Assam submits that the evidence on record shows beyond doubt that the petitioner in the pretext of loving the victim girl, made a false promise to marry her, who was major and indulged in sexual activity with her. 6. I have considered the above arguments advanced by the learned counsel of both sides and perused record including the impugned judgments. 7. Now, let us look at the evidence on record. 8. Pw-1, the mother of the victim girl deposed that at the relevant time, the accused petitioner used to visit their home to meet her daughter. One day, about six months ago, her daughter Aysa did not return from the paddy field and after some days her daughter telephoned to her son-in-law, Babur Ali that the petitioner had taken her to Guwahati and kept her there. Then, her son-in-law took her back from Guwahati. She was reported by her daughter that the petitioner had forcibly took her to Guwahati. Thereafter, she filed the FIR. 9. Pw-2, the father of the victim deposed that one evening, his son- in-law Babul Ali reported him that Aysa informed him, over telephone, that the petitioner kidnapped her to Guwahati with intend to marry. Babur Ali brought back Aysa from Guwahati. He was reported by his daughter that the petitioner had taken her to Guwahati with intend to marry. In the village meeting the father of the petitioner promised that the petitioner will marry his daughter, but ultimately, he did not marry her. 10. Pw-3, one of the uncle of the victim girl deposed that the petitioner had taken the victim to Guwahati with intend to marry her. After some days, Babur Ali brought back the victim from Guwahati. Thereafter, in a village meeting a decision was taken that the petitioner will marry the victim girl, but the petitioner did not marry her and as such, the FIR was lodged. 11. Pw-4 the victim girl deposed that she had a love affair with petitioner and the petitioner on promise of marrying her, took her to Guwahati. The petitioner committed sexual intercourse on her. Thereafter, the petitioner did not marry her, rather he married another girl. 12. Pw-6 deposed that a village meeting was held on the allegation that the petitioner made a false promise of marriage to the victim girl. The petitioner committed sexual intercourse on her. Thereafter, the petitioner did not marry her, rather he married another girl. 12. Pw-6 deposed that a village meeting was held on the allegation that the petitioner made a false promise of marriage to the victim girl. In the meeting, the father of the petitioner said that his son would marry his daughter, but the petitioner did not marry her instead he married another girl. 13. Pw-7 Sri Partha Bhattacharjee, the learned JMFC, Goalpara recorded the statement of the victim girl. He recognized Ext. 1 the said statement. 14. Pw-8 Dr. MK Chaudhury deposed that on 25.07.2010 while she was posted as Sr. Medical and Health Officer at Goalpara Civil Hospital she examined the victim girl and held the opinion that there was no sign of rape vide Exhibit 2, the medical report. 15. Pw-9, Md. Babur Ali, the police officer, deposed that on receipt of a telephonic message from the victim to the effect that the petitioner had taken her to Guwahati with intend to marry her and after two days, the petitioner left her there and fled away. Thereafter, he went to Guwahati and rescued the victim and sent her to her guardian. 16. Pw-10, Robin Biswas, the I.O., deposed that on 17.07.2010, he visited the place of occurrence, sent the victim for recording her statement u/s 164 Cr.P.C. and after completion of investigation, he filed the charge sheet against the petitioner under Section 417/376 of the IPC. He recognised Exhibit 5 the charge sheet. 17. On perusal of the allegations made in the FIR filed by the victim girl, her statement recorded under Section 164 Cr.P.C. and her evidence as PW-4, it is , as a whole, revealed that love relationship developed between her and the petitioner and pursuant thereto they developed physical intimacy for about a year. It is further revealed that both of them travelled by public mode of conveyance to Guwahati and stayed for days in the house of a relative of the petitioner. The victim (PW-4) believed the petitioner's promise to marry her, which prompted her to consent to the petitioner's sexual intercourse, but when she allegedly conceived, the petitioner refused to marry her. 18. The victim (PW-4) believed the petitioner's promise to marry her, which prompted her to consent to the petitioner's sexual intercourse, but when she allegedly conceived, the petitioner refused to marry her. 18. Although the victim (PW-4) in her evidence stated to be a minor at the relevant time of the occurrence, her mother (PW-1) contradicted deposing that she was aged 18 years at that time, which finds corroboration from PW-8, the doctor, who gave the opinion that her age was 18 years, which might, of course, vary by two years on either side. Therefore, being major, the victim's (PW-4) consent was material under Section 90 of the IPC being consent was given voluntarily without any misconception of fact. The remaining evidence shows that there was a village bichar in connection with the incident and after the victim conveyed of her pregnancy to the petitioner, he refused to marry her. Therefore, the petitioner having made false promise of marriage to the victim girl (PW-4), who attained the age of majority, induced her to have sexual intercourse with her and evaded marriage, the petitioner's act certainly fell within the meaning of 'cheating' defined in Section 415, which is punishable under Section 417 of the IPC. 19. Considered thus, this Court finds no material infirmity in the impugned judgment and orders except in the sentence part, mentioned above, which has lost its significance by lapse of time from the year 2010 and accordingly modified under Section 386 Cr.P.C. as the petitioner had undergone detention for a couple of months during the period of investigation. It is, therefore, directed that the sentence of imprisonment for 6(six) months shall be reduced to the period of under trial detention of the petitioner under Section 428 Cr.P.C.. The sentence to pay fine of Rs.5,000/- (Five Thousand) is, however, enhanced to Rs.10,000/- (Ten Thousand only) in default to suffer simple imprisonment for 1(one) month under Section 417 of the IPC. 20. The fine amount shall be deposited within a period of 2(two) months from today. 21. The petition stands disposed of. Return the LCR.