Crl.A. 339/2001 BEFORE HON’BLE MR JUSTIC U.B.SAHA 1. At the very outset, the learned Counsel for the parties submit that by t he impugned judgment, the learned Asstt. Sessions Judge, Lakhimpur has also con victed and sentenced other accused persons along with the present appellant and the present appellant has preferred the instant appeal as she has been sentence d to undergo R.I. for ten years and other accused have preferred appeal before t he learned Sessions Judge, Lakhimpur. 2. This Court has already called for the records of those appeals filed by the other accused before the learned Sessions Judge, Lakhimpur and the Registry has received the records. It appears that no counsel has been engaged by those a ppellants. 3. It appears that by an order dated 20.6.2011, this Court has noted that t he present appellant was convicted under Section 366A IPC whereas other accused convicts who had preferred appeals before the learned Sessions Judge were convic ted under Section 376 IPC. In view of above, there is no impediment in proceedin g with the present appeal separately/independently from those appeals stated to be pending before the learned Sessions Judge, Lakhimpur. Accordingly, as agreed to by the learned Counsel for the parties, this appeal is taken up for final dis posal at this stage. 4. The instant appeal is directed against the judgment and order dated 1.8. 2001 passed by the learned Asstt. Sessions Judge, Lakhimpur, North Lakhimpur in Sessions Case No. 13(NL)/96 whereby and whereunder the present appellant Smt. Ja yanti Baruah was convicted under Section 366(A) IPC and sentenced her to suffer rigorous imprisonment for ten years and to pay a fine of Rs.6000/- i.d. to suffe r imprisonment for two years along with other accused who were convicted under S ection 376 IPC and sentenced to suffer R.I. for seven years and a fine of Rs.50 00/- i.d. to suffer imprisonment for one year more. 5. Heard Mr. B.D. Goswami, learned Counsel for the appellant as well as Mr. K.Munir, learned Addl. P.P appearing for the respondent State. 6. The brief facts of the case as stated before the trial Court are as foll ows: On 15.5.1994, at about 6-30 a.m, the present appellant took the victim g irl (P.W1) to go to Panbari-choidhya-punia-gaon, but by boarding in the bus, the appellant deceived her and took her to Bihpuria town where they met with one B angali goldsmith, namely, Narayan Debnath, who took them to one house and from there, the accused Narayan invited the victim girl to one nearby thatched house to take tea, when she refused, the present appellant pushed her to that thatche d house and then the accused Narayan forcibly raped her there. Some others also raped her in that thatched house and she fell unconscious. Later on, when she re gained her sense, she found herself in some other house and she could see the pr esent appellant and some other four-five young boys who too forcibly raped her one after another. Thereafter, the appellant had given Jimma of the victim girl to one Rajib Saikia who took her to one house and raped her for the whole night in that house. On next day, said Rajib Saikia had boarded her in one bus by whi ch she came Simaluguri and then to her house. 7. She informed her elder sister Smt. Bina Hatibaruah (P.W2) and her elder brother Khagen Gogoi (P.W 3) about the incident of rape, who took her to the Bih puria P.S. on the next day to lodge the FIR and upon receipt of the said FIR, th e police registered Bihpuria P.S. case No. 223/94 under Sections 366(A)/376(2)(G ) IPC and on investigation of the case, arrested some accused persons and sent t he victim girl to Dr. Jatindra Mohan Bora (P.W7) for medical examination and als o sent her to the Judicial Magistrate who recorded the 164 statement of the vict im girl. 8. After investigation, the police filed the charge sheet against the prese nt appellant under Section 366A IPC and against Kala Dey, Luku Moni Saikia @ Ba ruah,Rajib Saikia @ Phanidhar, Narayan Debnath, Gopal Majumder, Md. Nitul Rahman @ Majibur, Ganesh Dutta, Gopal Ghosh and Swapan Basu @ Bose under Section 376(A ) IPC. Amongst them, three accused, namely, Kala Dey, Lukumoni Saikia @ Baruah a nd Rajib Saikia @ Phanidhar were shown as absconders. 9. The case was ultimately committed to the court of the learned Sessions Judge, Lakhimpur and on commitment, the said case was transferred to the Court of the learned Asstt. Sessions Judge, North Lakhimpur. 10. Upon receipt of the records, the learned Asstt. Sessions Judge framed ch arges against the present appellant under Section 366(A) IPC and against other a ccused under Section 376 IPC, which are reproduced hereunder: That you on of about the 15.5.94 at about 6-30 A.M. you by practicing deceit i nduced the victim girl age 14 years to go from her house and took her to Bihpuri a with such intent that the said girl was seduced to illicit intercourse with ot her accused persons. And thereby committed an offence punishable under Section 366(A) of the Indian Penal Code and within And I hereby direct that you be tried by the said Court on his said charge The charge has been read over to the accused to which she pleads not gui lty. 11. The appellant as well as other accused persons have pleaded not guilty t o the charges and claimed to be tried. The prosecution in support of its case ex amined as many as 10 witnesses including the official witnesses. The plea of the defence side as transpires from the trend of the cross-examination of the prose cution witnesses is of total denial. Upon examination of the witnesses, the accu sed were examined under Section 313 Cr. P.C whereupon they have also denied the allegation. 12. Ultimately, the learned Asstt. Sessions Judge, after examination of the evidences and considering the submission of the learned Counsel for the parties passed the impugned judgment convicting the present appellant along with others and sentencing them as stated supra. 13. Mr. Goswami, learned Counsel for the appellant while urging for setting aside the impugned judgment so far as the present appellant is concerned submits that from the whole evidence, nothing would be found that there was any ill int ention of the appellant to induce the victim to go from her house with the appel lant to Bihpuria town and also there is no evidence that she was induced to have illicit intercourse with the accused persons. Therefore, the ingredients of Sec tion 366A is wholly missing which the learned Asstt. Sessions Judge failed to co nsider. 14. He also submits that even if this court considers that the present appel lant is involved with the alleged offence of inducing the victim girl, then also sentence awarded by the learned Asstt. Sessions Judge is disproportionate. He f inally contended that when the persons who are alleged to have been committed ra pe upon the victim girl was sentenced for seven years, the present appellant who is alleged to have been committed offence under Section 366A was sentenced for ten years which is higher in side and it would be proper for this Court to reduc e the sentence to the minimum up to seven years which was awarded to other accus ed persons. 15. Mr. Munir, learned Addl. P.P while supporting the impugned judgment and order of sentence passed by the learned Assistant Sessions Judge, Lakhimpur woul d contend that this is a case where the punishment so far as other accused perso ns are concerned is to be enhanced from seven years to life imprisonment as the case is relating to gang rape on a minor girl and so far as the present appellan t is concerned, it would be the duty of the Court to maintain the sentence impos ed upon her, as she is the person who induced the victim girl. He also placed re liance on the evidence of the Medical Officer Dr. Jatindra Mohan Bora,(PW7) who has examined the victim girl and found the following injuries: (i) Vulva- swollen (ii) Hymen- absence (iii) Vaginal-discharge/bleeding-nil (iv) Pubic hair- not grown (v) Auxiliary hair- not grown (vi) Breasts- beginning to develop (vii) Old scars over the Rt. Cheek resembling teeth bite present which might h ave occurred beyond 24 hrs of examination. (viii) Vaginal swab- not collected due to non-availability of facility (ix) Stains of semen like material not found over her body. And ultimately opined that the injury No. (i) and (vii) are significant of viole nt or forceful act. Clinically her age was found to be approx. 14 years and clin ically she was found to have been raped. He also submits that the evidence of P. W 1, 2 and 3 as well as the 164 statement of the victim girl recorded by P.W 8 i s enough for upholding the order of conviction and sentence as awarded in the im pugned judgment. 16. This Court has gone through the impugned judgment from which it appears that the learned trial Court has considered all the aspects and in his judgment he has also given reasons for convicting the present appellant along with other accused. Being the appellate Court, it would be proper for this Court to re-exam ine the evidence on record, particularly, the evidence of P.W 1,2,3,7 and 8. 17. P.W 1 is the victim girl who in her statement specifically stated that t he appellant came to her house on 15.5.1994 in the morning and asked her to acco mpany her (the appellant) to Panbari. Initially, she declined to go with the app ellant, but later on, when the appellant insisted on her, she went with her. The y boarded a vehicle at the appellant’s gateway and got down at Bihpuria where th e appellant talked with some people, one of them was a goldsmith, namely, Naraya n Devnath who asked her to go to his house for tea. Though the victim initially declined to go, but the appellant again insisted her and took her to a thatched house. Being taken inside, the accused Narayan committed rape on her and thereaf ter, another two men raped on her and she became senseless. At about 1.30 p.m. when she regained her sense, she found herself in another house where also she w as raped by 4/5 men. During the night the appellant handed over her to one Rajib Saikia who also committed rape on her and on the next day, Rajib boarded him i nto a bus bound for Simalguri, by which, she came back to her house. After reac hing home, she narrated the incident to her elder sister Bina Hatiboruah (PW2) a nd her elder brother, Khagen Gogoi (PW 3) who lodged the FIR thereafter. 18. In her cross, she stated that she was raped in three different places. I n the first place, two persons raped her. In the second place, 4/5 persons raped her. In another house, the accused Rajib Saikia who is her Bhinihi (elder siste r’s husband) also raped her. 19. P.W 2, Smt. Bina Hatibarua is the elder sister of the victim girl who in her deposition stated that on 14.5.1994, the elder sister of the appellant came to their house to ask the victim girl to accompany her to Panbari and the next morning, the appellant went to their house and informed the victim girl that the permission of this witness had been obtain to take the victim girl with her. Ac cordingly, the appellant took the victim girl for Panbari, but when she (the app ellant) returned home, she saw that her sister was not with the appellant. Being asked, the appellant informed her that one Bimal Saikia had taken her sister by force. Around 7 a.m on the next day, this witness went to Bihpuria along with h er elder brother and went to brother in law’s house at Jakaitelowa, but they did not meet the brother in law and her elder sister told them that she had no idea about this occurrence. When she was waiting at the Bazarpatty, a goldsmith tol d her that one Rajib Saikia had taken away her sister. Thereafter, when they ret urned home, at about 4 p.m., her sister came back home and told them about the i ncident of rape. 20. P.W 3, Khagen Gogoi in his deposition stated that the victim girl is her paternal aunt’s daughter. He also stated that the appellant went with the victi m girl for sight seeing. On the following day, the P.W 2 told him that the appel lant took the victim girl with her, but did not bring her with her and he came t o know that one Rajib had taken the victim girl. Though they searched for the vi ctim girl, but they did not find the victim girl and ultimately, when the victim girl returned home, they interrogated her when she disclosed about the incident of rape. 21. P.W 7 Dr. Jatindra Mohan Bora was Sr. M.O & H.O at Bihpuria PHC on 17.5 .1994 who examined the victim girl and found the age of the girl at the releva nt time of about 14 yrs. It is also stated by the doctor that vulva swelling in case of rape remains till 24 hours of sexual act and he found swelling the vulva of the victim girl. So he was of the opinion that sexual assault was done withi n 24 hours of his examination. 22. P.W 8, Sri Dulal Ch. Mech was the Judicial Magistrate, Lakhimpur who he ld the T.I.P for identification of the accused persons who in his deposition sta ted that during the course of T.I. P held on 27.5.1994, the victim girl identifi ed the accused persons, namely, Narayan Debnath, Gopal Mazumdar and Ganesh Datt a. Later the victim girl also identified the accused persons, namely, Nitul Rahm an and Gopal Ghosh. 23. Upon going through the aforesaid evidence of the prosecution witnesses a nd reasons given by the learned Trial Court, this Court is of considered opinion that this is a case where the learned trial Court rightly convicted the present appellant and she is a person who has admittedly induced the victim girl which would be evident from the statement of the victim girl. Therefore, it would not be proper for this Court to interfere with the impugned judgment so far as the o rder of conviction is concerned relating to the present appellant. Therefore, th e order of conviction under Section 366A IPC is maintained. 24. Now let us see whether the award of sentence is disproportionate or not as contended by Mr. Goswami. 25. By this time it is settled by the Apex Court that the sentence has to be awarded considering the social impact of the crime, particularly, where it rela tes to an offence against a woman. It is also noted by the Apex Court in variou s judgments that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 26. In the instant case, admittedly, the other accused committed a serious o ffence under Section 376 IPC and were sentenced for seven years R.I whereas the present appellant for committing lesser offence was sentenced for ten years R.I. which is maximum punishment for the offence committed under Section 366A IPC. 27. Considering the entire facts and circumstances of the case, the sentence of ten years R.I as imposed by the trial Court in Sessions case No. 13(NL)/96 i s reduced to suffer R.I for seven years and to pay a fine of Rs.1000/-, in defau lt to make payment, to suffer S.I for one month. As the present appellant is at present on bail, her bail bond stands cancelled. The appellant is directed to su rrender before the learned Asstt. Sessions Judge, Lakhimpur at North Lakhimpur w ithin a period of fifteen days to serve out the sentence, failing which, the lea rned Assistant Sessions Judge shall take her into the custody to undergo the sen tence as awarded by this Court on modification. 28. With the aforesaid order, the appeal is partly allowed. 29. Send down the L.C. records to the concerned Court immediately.