Crl.A. 311/2002 BEFORE THE HON’BLE MR JUSTICE PK MUSAHARY Heard Mr. J. Ahmed, learned counsel for the accused/appellant. Heard als o Mr. BB Gogoi learned Addl. PP, Assam. 2. This Criminal appeal is directed against the impugned judgment d ated 14/08/2002 rendered by learned Addl. Sessions Judge, Nagaon, in Sessions ca se No. 139(N)/2000 convicting the appellant and sentencing him to under go RI fo r one year under section 417 IPC and acquitting him for the charge under section 376 IPC. 3. Briefly stated the facts of the prosecution case are that the ap pellant proposed to marry the victim girl Meera (real name withheld) and by forc e committed sexual intercourse with her, as a result of which she became pregnan t. Later on, when she requested the appellant to marry her, he refused to marry her. She did not disclose this fact to anybody and got herself married to one Ju lhaz. This marriage did not last long. Having come to know about the past relation with the appellant, Julhaz divorced her and sent to her parent’s house. Thereafter, she again requested the appella nt Fazlul Karim to marry her but he refused to do so saying that he had no relat ion with her. The appellant even tried to assault the victim girl. Having no oth er alternative the victim girl filed a complaint case in the Court of the learne d CJM, Tezpur, who took cognizance and proceeded against the appellant. The case was committed to the Court of Sessions, as the offence alleged is exclusively t riable by the Court of Sessions. The learned Trial Court, on consideration of th e materials available on record, framed charge against the appellant under secti on 376/411/417 IPC. He pleaded not guilty and stood trial. 4. The prosecution examined six witnesses including the victim girl . The victim girl is examined as PW 5. It was deposed by her inter alia that abo ut three years ago one Sofia Khatun, sister of the accused/appellant called her to her house at about 11:00/1:00 pm in the noontime. Accordingly, she went to So fia’s house. Sofia kept her in her house alone and went to cast vote. When she w as alone in Sofia’s house the accused appellant quietly came to Sofia’s house an d asked for some fire to light his cigarette, which she brought, from the kitche n. The accused appellant told her that he would marry her and then committed sex ual intercourse with her by force. The accused appellant did not marry her altho ugh such promise was made. She became pregnant and so she had to get married to Julhaz but when Julhaz came to know about the pre-marriage pregnancy, he dropped her away from his house and sent to her parent’s house. After being divorced by Julhaz she again met the accused appellant and asked him to marry her. She wa s rebuked and threatened by the appellant by showing dagger. She reported the m atter to the villagers and then the accused appellant tried to assault the villa gers including her father. This led her to lodge a complaint before the Magistra te. 5. The medical officer Mrs. (Dr) Rekha Bhuyan was examined as PW 6. She confirmed that she examined the victim girl when she was produced before he r at Dagaon PHC on 27/12/1999. On examining the victim girl, she found her carry ing 20 weeks pregnancy at that time and the victim girl, according to her opinio n, was aged 20 years. 6. PW 1 Sri Khairul Anam and PW 4 Aktor Ali were neighbourers of th e victim while PW 2, Mubarak Ali is a distant relative. All of them corroborated ly deposed that about 2 ‰ years ago when they were returning home after casting vote in the last Lok Sabha election, they heard hue and cry in the house of the victim girl as the victim was being beaten up by her mother. They came to know a bout the incident of rape and false promise by the accused appellant. A village Bichar (meeting) was convened in the house of Meera. PW 2 even deposed that the accused appellant Fazlul offered Rs. 5,000/- to compromise the case but it was n ot accepted by the villagers. Meera’s father Maksedul Islam was also examined as PW 3 who deposed in the same manner. 7. To rebut the evidence adduced by the prosecution, the defense di d not examine any witness. He even did not examine Sofia Khatun, who allegedly b rought Meera to her house to facilitate meeting of the accused appellant and Mee ra in her house and also committing the alleged offence on false promise. 8. Mr. Ahmed learned counsel for the appellant submits that Sofia w as not examined in defence of the appellant as because the prosecution could not prove the charges against him beyond reasonable doubt and therefore, it was not necessary to examine any witness in his defence. 9. Having gone through the evidence of victim girl PW 5, it is foun d that the defence did not put any suggestion while cross examining her on the f act that Sofia did not bring her to her house and she left the victim alone prov iding opportunity to the accused appellant to meet her and commit the offence. I t has therefore to be accepted that the charge that the aforesaid Sofia Khatun b rought the victim girl to her house and she gave the opportunity to the accused appellant to commit the offence while she was alone in the house of Sofia stood proved. Moreover, the corroborated evidence of other witnesses namely PW 1, 2, 3 and 4 can not be discarded in absence of any cogent and valid reason, more part icularly when the defence made no attempt to demolish their evidence by adducing reliable evidence. 10. There is no evidence on record that the victim girl was below 16 years of age and that she was minor at the time of occurrence. Moreover, it is apparent that she was a consenting party to the physical relation with the accus ed appellant as she did not disclose the same to anybody until she was refused t o be accepted and married by the appellant. In that view of the matter the accus ed appellant cannot be convicted under section 376 IPC. However, the other charg e under section 417 IPC i.e. cheating by way of giving false promise of marriage and making her believe the same and committing the offence stood proved by suff icient evidence and the same cannot be disturbed/interfered with. In view of the above, the order of conviction vide judgment dated 14/08/2002 as handed down on the present accused appellant is liable to be confirmed. 11. It has been stated at the bar by Mr. Ahmed learned counsel for t he appellant that as per order dated 10/02/2010 passed by this Court he has obta ined necessary instructions. According to his instructions the victim girl has b een married again to one Maksedul Islam of village Kolonijala, PS Juria and she is leading a peaceful life with her husband and family members. In this regard h e has produced a certificate in original dated 01/03/2010 issued by Government v illage headman of Rupohi circle, in Nagaon district which is marked ’x’ and kept as a part the record. 12. In my considered view the end of justice would be made if the se ntence as awarded by the learned trial court of RI for 1 year is converted to im position of fine of Rs. 5,000/- only on the accused appellant making it to be pa id to the father of the victim girl. Accordingly, it is directed that instead of serving RI for 1 year, the accused appellant shall pay an amount of Rs. 5,000/- as a fine to be deposited with the learned CJM, Nagaon, within a period of 3 mo nths from today and on deposition of such fine amount the learned CJM concerned shall disburse the same to the father of the victim girl. 13. The appeal stands disposed of with aforesaid modification in sen tence. 14. LCR be returned immediately.