CRL.A(J) 4/2005 BEFORE HON’BLE MR. JUSTICE H. N. SARMA Being aggrieved and dissatisfied with the judgment and order dat ed 12.1.2005 convicting the accused/ appellant under Section 376 IPC passed in S essions Case No. 196/2002 by the learned Addl. Sessions Judge, Nagaon (Adhoc), F TC and sentencing the accused/ appellant to undergo R.I. for ten years and to pa y a fine of Rs. 5000/-, in default to suffer further RI for six months, this app eal is preferred from jail. 2. To assist the Court Mr S Baruah, an advocate of this Court was e ngaged as amicus curiae. I have heard Mr S Baruah, learned amicus curiae and Mr K Munir, learned P.P. for the State/ respondent. 3. The prosecution case, inter alia, is that on the basis of an FIR lodged by one Someswar Deka who was examined as P.W.1 during trial with the Jaj ori Police Station, Jajori P.S. Case No. 10/2002 was registered on 2.3.2002. In the aforesaid FIR, it was alleged that at about 11 p.m. on 1.3.2002 while the da ughter of the informant who was a Class III student went to attend a marriage ce remony at village Kakamari, the accused enticed her to the nearby jungle for sat isfying his lust and caused serious injury to her daughter. 3. Upon registration of the case, the process of investigation star ted. The further case of the prosecution is that while the victim girl was not f ound at night in the marriage hall, she was searched and ultimately she was foun d coming with the accused and at that stage some of the villagers apprehended th e accused and took him to village Headman. The victim was also manhandled by som e of the villagers. Later on, police came to investigate the case and the accuse d was handed over to police. The I/O got the victim girl medically examined, sei zed materials and recorded the statement of the witnesses including the statemen t of the victim girl under Section 164 CrPC. After completion of the investigati on having found a prima facie case against the accused, the I/O submitted charg esheet registering GR Case No. 398/09 u/s 376 IPC. 4. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of the learned Sessions Judge, Nagaon wherein i t was registered as Case No. 196/02. The case was, thereafter, transferred to th e Court of the Ad-hoc Addl. District & Sessions Judge, Nagaon(FTC) for necessary disposal. 5. On charge being framed under Section 376 IPC on the basis of the materials submitted by the I/O, the accused was examined under Section 173 CrPC . The accused denied the charge and claimed to be tried. 6. During the course of trial, prosecution examined as many as six witnesses including the informant, victim girl as well as other witnesses. At th e end of the trial, the learned Trial Court convicted the accused under Section 376 IPC and sentenced him in the manner as indicated above. 7. Mr S Baruah, learned amicus curiae submits that the medical ex amination of the doctor, P.W.7 clearly rules out an offence under Section 376 IP C and that apart, the statement of the prosecution witnesses inspires no confide nce to sustain the conviction and sentenced imposed upon the accused. The inhere nt improbability of the case has also been pleaded by the learned amicus curiae. 8. Mr Munir, learned P.P. however, supporting the impugned judgment and prays for dismissal of the appeal, more particularly, when the matter relat es to commission of an offence on a minor girl who is aged about 12 years. 9. The submissions of the learned counsels have been duly considere d by the Court which led me to meticulous perusal of the materials available on record including the statement of the prosecution witnesses. 10. In the instant case, the FIR was lodged after 27/1/05 much after the date of the occurrence. The informant was examined as P.W.1 who deposed bef ore the Court that at the time of the occurrence the victim was 9 years old and while the victim girls had gone to attend the marriage ceremony the accused at a bout 2 pm. kidnapped the victim girl and committed illegal acts on her. The accu sed was a member of Band-party hired for the marriage ceremony. While he was ret urning with the girl, two boys from the village saw him and he was apprehended a nd handed over to the village Headman. He proved the FIR as Exhibit-1 wherein he put his signature [Exhibit-1(1)]. In cross, P.W.1 stated that when they came to the village Headma n wherefrom the victim girl as well as the accused was taken into custody. 11. P.W.2 is the mother of the victim girl who reiterated the statem ent of P.W.1. She further stated that her daughter was medically examined and he r statement was recorded before the Magistrate. She further stated that on the d ate of occurrence the accused committed illegal acts on her daughter and while t he victim shouted to calling her mother and others, the accused inserted clay on her mouth. 12. P.W.3 is the victim girl. At the time of deposition she was aged about 13 years. She stated before the Court that the accused lifted her from th e marriage hall in his shoulder and committed illegal acts on her. The accused c ommitted such an act three times on her. She also narrated the story to the poli ce that the accused inserted clay on her mouth and her statement was recorded by the Magistrate vide Exhibit-2. Exhibit-2(1)is her signature. In cross, she stated that the accused lifted her on his shoulder and she was beaten up. She further stated that when people gathered the accused ran away. 13. P.W.4, the Gaonburah of the village also corroborated the statem ent of P.W.1. He further stated that the I/O came to his house at about 9 p.m. and recorded the statement of the witnesses. 14. P.W.5, a co-villager stated that on the night of the date of occ urrence while he was coming from his shop he saw two persons were coming and he could identify one of them to be the victim girl and thereafter he along with on e Bakul Deka took the said accused to the house of the Gaonburah. 15. P.W.6 was the attached officer at Jagori P.S. on 2.3.2002 and he was entrusted with the investigation of the case by the Officer-in-Charge. He s tated that an FIR was lodged by P.W.1 and he visited the place of occurrence and recorded the statement of witnesses including the victim girl who was medically examined and her statement was also recorded under Section 164 CrPC. The accuse d was arrested by him and he collected the medical report. After completion of t he investigation he submitted chargesheet against the accused. He also examined the accused u/s 313 CrPC 16. P.W.7, Dr. Nazrul Islam who was serving as MNHOI on 2.3.02 at Na gaon Civil Hospital examined the victim girl. The examination report of the vic tim girl so made by the Doctor and his opinion is given below: Height- 125 cm , Weight- 25 kg, Teeth 14/14, Breast- under developed, Axillary & pubic hair- absent, Hymen- Intact, Vaginal injury -Nil. X-ray was done and the number plat is 1520/1521/1522, As per clinical and radiol ogical test her age is between 12/13 years. Opinion: The age of the girl is 12/13 years. There is evidence of any sexual inter-course . There is no sign of violence on her private part. Ext.3 is the medical certif icate issued by me and Ext.3(1) is my signature. In my certificate I have mentioned that hymen of the girl was intact and vaginal injury was nil. When there is no vaginal injury there is no sexual inter-cours e. My findings are ought to have been that there is no evidence of sexual inter course. 17. The accused was examined under Section 313 CrPC by putting the circumstances that appeared against him during the examination of the prosecutio n witnesses to which he denied the circumstances and stated that the allegations are false. 18. Considering the evidence of the prosecution witnesses we find it is correct as pointed out by the learned amicus curiae that neither the victim girl nor any of the witnesses has made such allegation before the Court in clear terms constituting the ingredients of Section 376 IPC i.e. commission of rape. But from the entire facts and circumstances of the case and considering the natu re of offence as alleged to have been committed, although the victim girl specif ically stated commission of such acts on her and on the basis of the other mater ials on record, it is certainly indicative of commission of rape that would cons titute offence u/s 376 IPC. 19. From the evidence of the doctor, we find that there was no sign of rape upon the victim girl, more particularly, the hymen of the victim girl wa s found to be intact. However, even in a case where although the hymen remains i ntact the commission of offence u/s 376 IPC may be attracted. Perhaps, in consid eration of the above materials, the accused was convicted and sentenced to under go RI for ten years as indicated above. 20. Mr S Baruah, learned amicus curiae finally submits that consider ing the nature of the allegations which were proved in the case and the age of t he accused and he being the lone earner of the family, some leniency maybe shown in sentencing him and the accused may be exonerated. On this point the learned P.P. has also been heard. 21. The accused is in custody from the date of the judgment i.e. 12. 1.2005 till date and during the course of investigation also the accused was in custody since 2.3.2002 to 14.6.2002. After committal of the case the accused was allowed to remain on bail. Thus, the accused has already spent about six years in custody. 22. Considering the submission made by the learned amicus curiae and the nature of evidence in the case, the conviction of the accused u/s 376 IPC i s converted to the period already undergone in imprisonment. 23. The accused be set at liberty forthwith, if he is not otherwise required in connection with any other case. 24. Before parting with the judgment, it may be mentioned that the M r. Siddartha Barua, learned amicus curiae would be entitled to an amount of Rs. 3500/- as professional fees for rendering his valuable assistance to the Court i n arriving at a decision. 25. Transmit the LCR forthwith.