Crl.A. 215/2005 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B.K. SHARMA B. K. Sharma, J This appeal is directed against the judgement dated 2.9.2005 passed by t he learned Additional Sessions Judge (Adhoc) No.1 at Tinsukia in Sessions case N o. 32(T)/2004, convicting the accused appellant under Section 454/376/302 IPC an d sentencing him to undergo rigorous imprisonment for one year under Section 454 ; rigorous imprisonment for 10 years under Section 376 and rigorous imprisonmen t for life under Section 302 IPC and also to pay a fine of of Rs. 3,000/- and in default to undergo simple imprisonment for one year. All the sentences are to r un concurrently. 2. The FIR on the basis of which the criminal proceeding was set to motion is dated 1.5.2003, lodged by one Shri Khirode Hazarika (PW-1). The FIR was lodge d to the effect that the accused appellant alongwith one Shri Janmejoy Gogoi (Sa nju), both residents of Bajaltoli village committed rape on the victim girl in h er house at Dihingis Bangali Gaon and thereafter set her on fire by pouring Ker osene Oil with a view to kill her. As per the FIR, the victim girl raised commot ion and the neighbouring people came rushing and admitted her in Tinsukia Civil Hospital for treatment. 3. The victim girl was medically treated but she having succumbed to burn i njuries sustained by her, the accused appellant alongwith the other co-accused w as charge sheeted under Section 454/376/302 read with Section 34 IPC. The case b eing exclusively triable by the Court of Sessions, it was committed to the said court by the learned Sub-divisional (Sadar) Judicial Magistrate, Tinsukia by his order dated 12.2.2004. Be it stated here that on the basis of the aforesaid FIR , initially the police had registered Tinsukia PS case No. 135/2003 under Sectio n 454/376/326/307/34 IPC. The police after investigation etc. had submitted the charge sheet, on the basis of which the aforesaid charges were framed against bo th the accused persons. 4. During the trial, the prosecution examined 11 witnesses and the defence examined none. However, the statement of the accused persons were recorded under Section 313 Cr.P.C. 5. We have heard Mr. A.K. Das, learned counsel for the appellant as well as Mr. Z. Kamar, learned PP, Assam and gone through the entire materials on record . 6. PW-1, who had lodged the FIR, in his deposition has stated that he knows the accused persons, namely the accused appellant and said Shri Janmejoy Gogoi @ Sanju. The victim girl was the daughter of his paternal uncle. He in his depos ition, proved the FIR (Ext.1) and his signature therein {Ext. 1(1)}. He in his d eposition further stated that on the day of occurrence i.e. 1.5.2003, the accuse d persons had come to the house of his paternal uncle, had sexual intercourse wi th his daughter i.e. the victim girl and then set her on fire by pouring Kerosen e Oil. According to his statement, on the date of occurrence, he was on his way from Tinsukia. Seeing a gathering of people in front of the house of the victim girl, he made enquiry as to the cause of the same and was told that after commit ting the bad act on her by the two accused persons, she was set on fire after po uring Kerosene Oil. He was also informed that the girl was taken to the Tinsukia Civil Hospital for treatment there. He immediately rushed to the hospital, wher e he found the victim girl lying with burn injuries in her person. According to him, when asked, the victim girl told him about the incident. She also said that the two accused persons had gone to her house and had sexual intercourse with h er and thereafter set her on fire by pouring Kerosene Oil. Thereafter, PW-1 went to the Police Station and lodged the Ext-1 FIR. 7. PW-2 is a relation of the victim girl. She in her deposition stated abou t the incident. According to her, while returning from his neighbour’s house at about 5 pm, she found the accused persons about to leave the house of the victim . Entering home, she found her sister i.e. the victim girl in a state of burning . She also raised a commotion. The nearby people arrived and took her to Tinsuki a Civil Hospital. She died two months’ thereafter. She in her deposition stated about the investigation etc. carried out by the Police. She was signatory to the Ext-2 seizure list by which the wearing cloth (Mekhela and Kerosene Oil bottle) were seized. According to her, her statement was recorded by the police and she also made a statement to the Magistrate (Ext-3) under Section 164 Cr.P.C. She i n her deposition also stated that she had asked the victim sister about the inci dent who in turn told her that the accused appellant destroyed her life. 8. PW-3 in his deposition stated about gathering of people in front of the house of the victim girl on the day of occurrence. Going there, he found the vic tim with burn injuries. On being asked, she told him that both the accused had r uined her. Thereafter, she was taken to the hospital, where she died after about two months. 9. PW-4 is the mother of the victim. She was away from home when the incide nt occurred. At the time of the incident, she was in her neighbour’s house atten ding a marriage feast, where she heard about the burn injuries sustained by her daughter. Coming back home she found her daughter lying with burn injuries. When asked, she told her that the two accused after committing the bad act on her, s et her on fire by pouring Kerosene Oil when she told both of them that she would disclose the incident to her mother. According to her, her daughter died due to burn injuries. 10. PW-5 is the brother of the victim girl. At the time of deposition, he wa s about 14 years of age. While recording his deposition, the trial court general ly interrogated him to derive satisfaction as to whether he was fit to depose. A fter driving such satisfaction, his deposition was recorded. 11. PW-5 in his deposition stated about the visit of the accused persons to their house and as to how after closing the door, committed the bad act on his s ister on the bed. He could notice the incident through a gap in the door. Accord ing to him, when his sister cried out, the accused appellant threatened to kill her. On that when she told the accused persons that the incident would be disclo sed to her mother, both the accused set her on fire by pouring Kerosene Oil. Not icing the incident, he raised a commotion and about that time, villagers came an d took his sister to hospital. 12. PW-6 is a reported witness and signatory to Ext-2. PW-7 is also a report ed witness. PW-8 is the doctor who had conducted the post-mortem on the dead bod y. As per the post-mortem report, the cause of death was exhaustion resulting fr om suppurative burn injuries found on the body and malnutrition during life. The post-mortem report was exhibited as Ext-6 and the witness proved the signature therein {Ext-6(1)}. 13. PW-9 is another Doctor of Tinsukia Civil Hospital, who examined the vict im girl on the day of occurrence on being admitted to the hospital. She in his d eposition stated that as per the statement given by the victim girl, the accused persons had come to her room and molested her. When she cried out, the accused poured Kerosene Oil and set her on fire. On medical examination of the victim, t he following inferences were drawn. (1) Approximately 55% burn of mix type. Nature of injury - grievous in nature. (2) No any mark of injury over her private part, i.e. (external genitalia). (3) The girl committed intercourse. Sign of recent forceful intercourse coul d not be ascertained at the time of examination. (4) Opinion regarding actual age of the victim girl could not be given as ra diological report is not available as well as measurement of height and weight c ould not be taken due to serious condition of the victim girl . 14. PW-10 is a Judicial Magistrate who had recorded the statement of victim under Section 164 Cr.P.C. She in her deposition, proved the said statement (Ext -12). 15. PW-11 is the Investigating Officer who had conducted the investigation. He in his deposition generally stated about the investigation carried out and se izure of the materials. 16. The appellants, who were examined under Section 3131 Cr.P.C., denied the ir involvement in the incident. 17. The learned trial court on the basis of the evidence on record while acq uitted the other co-accused, convicted the present accused appellant. Aggrieved, he has preferred the instant appeal. 18. We have gone through the statements of PWs. Ext-3 is the statement of PW -2 under Section 164 Cr.P.C. She in her said statement had stated that after re turning home from a wedding ceremony, she found both the accused at their gatewa y. They were known to her. According to her, she found them leaving their house in a hurry. Going inside, she found that her sister i.e. the victim was in a sta te of burning. She alongwith her brother extinguished the fire by sprinkling wet sand etc. available there. She also put water on her body. Thereafter, people g athered. On being asked, the victim named the accused appellant stating that he had ruined her. Thereafter, she was taken to Tinsukia Civil Hospital where she w as treated. Thereafter, she was taken to Assam Medical College, Dibrugarh. At th e time of making the statement, she was, undergoing treatment there. 19. Ext-5 is the Section 164 Cr.P.C. statement of Shri Manas Hazarika (PW-5) . He in his deposition, while narrating about the incident stated that he alongw ith his grand mother was in the kitchen when the incident occurred. The victim w as lying on her bed. It was around 4-30 p.m. in the evening and at about that ti me, both the accused came to their house. According to the statement, they commi tted bad act on his sister by felling her down on the bed. When she cried out, h e looked through the gap of the bamboo door. Ramen then threatened to kill her w hen she said that she would report the matter to her mother. Thereafter, both th e accused poured Kerosene Oil over her from a bottle that had been there in the house and set her on fire by striking a match. Thereafter, they went away. 20. Ext-12 is the statement under Section 164 Cr.P.C. of the victim. As per her statement, on the day of occurrence i.e. on 1.5.2003 at around 5 pm, while s he was lying on her bad at home, both the accused came to her room. According to her, the accused appellant came nearer and talked to her. Thereafter, he grabbe d her and committed sexual intercourse. On that, she told him that the incident would be disclosed to her mother. Hearing that, the accused poured Kerosene Oil over her and set her on fire. As per her statement, there was none present at ho me at that point of time. On being set on fire, she raised a commotion. Her brot her Manash (PW-5) arrived and she ran towards the rear of their house. Thereafte r people gathered and the accused persons ran away. Thereafter, she was taken to Tinsukia Civil Hospital from where she was taken to Assam Medical College, Dibr ugarh. 21. Ext-10 is medical report furnished by the Doctor (PW-9). The medical rep ort was furnished by PW-9 after examining the victim while she was being treated at Tinsukia Civil Hospital. The examination was carried out at about 6-50 p.m. on the day of occurrence itself. As per the medical report, on being asked, the victim girl had stated before her that the accused appellant had came to her roo m and molested her and that when she cried out, he poured Kerosene Oil over her body and set her on fire. As per the report, there was approximately 55% burn of mixed type. Type of injury was indicated as grievous. As per the medical report , the inference drawn was as follows :- Inference : 1. Approximately 5% burn of mix type. Nature of injury grievous in nature 2. No any mark of injury over her private part i.e. (External genitalia). 3. The girl committed intercourse. Sign of recent forceful intercourse coul d not be ascertained at the time of examination. 4. Opinion regarding actual age of the victim girl could not be given as ra diological report is not available as well as measurement of height & weight cou ld not be taken due to serious condition of the victim girl. The victim girl immediately referred to A.M.C.H., Dibrugarh . 22. From the entire evidence on record, what we find is that strictly speaki ng the offence allegedly committed by the accused appellant does not indicate pr esence of the ingredients of Section 376 IPC. A man is said to commit rape who , except in the case excepted under Section 375 has sexual intercourse with a wo man under circumstances falling under any of the six descriptions, which are as follows :- First - Against her will. Secondly - Without her consent. Thirdly - With her consent, when her consent has been obtained by puttin g her or any person in whom she is interested in fear of death or of hurt. Fourthly - With her consent, when the man knows that he is not her husba nd, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him perso nally or through another of any stupefying or unwholesome substance, she is unab le to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years o f age . 23. The exception provided is in respect of sexual intercourse by a man with his own wife, which is not the case in hand. 24. From the evidence of even the eye witnesses, it cannot be said to be a c ase of committing rape on the victim girl by the accused appellant rather it app ears that same was as per her own volition and consent. Even in the vivid descri ption of the said act by the PW-5, there is no indication of any forceful act on the part of the accused appellant, rather it appears that the victim girl was a consenting party. 25. From the evidence of the mother of the victim girl (PW-4), it appears th at the victim and the accused appellant were known to each other and, in fact, a t-least on one occasion, she had gone out with him alongwith one Shri Diganta. S he in her deposition stated about cordial relationship with the accused appellan t. 26. We have noticed the statement made by PW-5 and the victim under Section 164 Cr.P.C. So far as the statement of PW-5 is concerned, the accused appellant alongwith the other co-accused had come to their house on the day of occurrence at about 4-30 p.m. Thereafter, the accused appellant committed the bad act on h er sister. He in his deposition, never stated that any force was applied to the victim or she had resisted the accused appellant from committing the particular act. The victim also in her statement under Section 164 Cr.P.C. did not implicat e the accused appellant of the charge of rape. She simply stated about commissio n of the particular act but nothing was stated about the force being applied or resistance being raised. In such a situation coupled with the other attending fa cts and circumstances, it will be totally unsafe to hold that the accused appell ant is guilty of an offence under Section 376 IPC. 27. We have already noted the Ext-10 medical report, as per which the actual age of the victim could not be given. It would have been altogether a different case, had it been proved that the victim was a minor at the time when the offen ce of rape was allegedly committed by the accused appellant. As per the statemen t of PW-9, extracted above, there was no sign of recent forceful intercourse, al though she was used to that. As per the narration made to her by the victim, she was only molested by the accused appellant. With such contradictions and absen ce of the elements of rape, in our considered view, it would be unsafe to attrib ute commission of rape by the accused appellant on the victim girl. This is, mor e so, when the prosecution failed to prove the age of the prosecutrix. 28. As in the instant case, in the case of Sunil Vs. State of Haryana report ed in (2010) 1 SCC 742, the apex Court seeing the evidence that possibility cann ot be ruled out that a prosecutrix was habitual to sex and that the prosecution failed to prove the age of the prosecutrix, held that the same was a serious fla w in the prosecution version. As in the instant case in the said case also, the accused appellant was a frequent visitor to prosecutrix’s house. In the said cas e, it was found that there was relationship between the victim and the accused. In such circumstances, it was held that a close and gainful examination of the a ge of the prosecutrix was imperative which having not proved, the accused was en titled to benefit of doubt. 29. For the aforesaid reasons, we are of the considered opinion that the acc used appellant is also entitled to benefit of doubt so far as the offence under Section 376 IPC is concerned. 30. This now leads us to the question as to whether the accused appellant ca n be said to be guilty of offences committed under Section 454 and 302 IPC. From the evidence on record, what has transpired is that the accused appellant after entering into the room in which the victim was sleeping, indulged in sexual int ercourse with her and thereafter when she threatened him that the incident would be disclosed to her mother, he poured Kerosene Oil on her so as to cause burn i njury. 31. There is overwhelming evidence that Kerosene Oil was poured on the victi m and she was set to fire. As per the medical evidence she had sustained 55% mix ed burn injury and the nature of the injury was grievous. According to the evide nce given by the PW-9 i.e. the Doctor who treated the victim at Tinsukia Civil H ospital, burns to the extent of 55% can be cured but it is dangerous to life and that the safety of life of patient in case of burn injuries depends upon the hi gh quality treatment. As per the post-mortem report (Ext-6), the cause of death is exhaustion resulting from suppurative burn injuries found on the body and mal nutrition during life. The victim after the burn injuries had survived for about two months and thereafter she died. In such circumstances, we are of the consid ered opinion that the case cannot be said to be one under Section 302 IPC. What has transpired from the evidence is that the victim had acquaintance with the ac cused appellant. The sexual intercourse on the particular day, if any, was volun tary. It was only when she had told him that the incident would be narrated to h er mother, he got panicky and did the particular act at that particular moment. 32. A reading of the injuries would indicate that though the general conditi on of the victim was bad, yet, there was no categorical statement in the medical report that the injuries were responsible for causing the death, rather the med ical evidence indicates that with better care and treatment, the injuries could have been cured. The circumstances in which the incident had occurred suggest th at there was no pre-meditation on the part of the accused appellant to commit mu rder of the victim. Everything happened at the spur of the moment. It cannot be said to be a case of causing death by doing the act with the intention of causin g death falling under Section 300 IPC, warranting conviction under Section 302 I PC. 33. Having regard to the entire facts and circumstances, we are of the consi dered opinion that it is a case in which the accused appellants should be held g uilty of the offence committed under Section 304 Part-II IPC. He having committe d the said offence is also guilty of the offence committed under Section 454 IPC . Consequently, the conviction of the accused appellant under Section 302 IPC is converted to one under Section 304 Part-II IPC, while maintaining his convictio n under Section 454 IPC. 34. After having held the accused appellant to be guilty of the offence unde r Section 304 Part-II of IPC, the question which arises for consideration is as to what punishment be awarded to the accused appellant. Considering the matter i n its entirety, we are of the considered opinion that the appropriate punishment will be 7(seven) years imprisonment for the offence committed under Section 304 Part-II IPC. The sentence awarded for the offence committed under Section454 I PC is maintained. Both the sentences would run concurrently. While calculating t he sentence of seven years imprisonment, the period of imprisonment the accused appellant has already undergone during the trial and after conviction by the afo resaid judgement dated 2.9.2005, shall be set off. 35. Appeal is allowed to the extent indicated above. Send down the LCR immed iately alongwith copies of this judgement and order.