CRL.A(J) 5/2005 BEFORE THE HON’BLE MR JUSTICE H N SARMA THIS CRIMINAL APPEAL (J) HAVING BEEN HEARD ON 24TH DAY OF AUGUST, 2010, THE COU RT PASSED THE FOLLOWING- JUDGMENT (ORAL) This is an appeal preferred by the accused appellant in jail challenging the conviction and sentences imposed upon him by the Additional Sessions Judge No 2 (Ad hoc) Sivasagar, in Sessions Case No 47 (S-C) 2003 thereby convicting th e accused appellant under sections 366 / 376, IPC and sentencing him under secti on 366, IPC, to undergo eight year RI and to pay a fine of Rs. 5,000.00 in defau lt RI for two years and under section 376, IPC, to undergo RI for four years and to pay a fine of Rs. 5,000.00 in default RI for one year, concurrently. 2. I have heard Ms B Bhuyan, learned Amicus Curiae and Mr BB Gogoi, learned APP, Assam. 3. The prosecution case, inter alia, is that on 15.2.2003, one Lakhin Rajak , lodged an FIR at Namtola Police Out Post, on the basis of which GD Entry No 21 8, dated 15.2.2003 was made and the FIR was forwarded to the Sonari Police Stat ion for registering a case. After receipt of the FIR Sonari PS Case No 18/2003 u nder section 366(A), IPC was registered. In the FIR it was alleged that the mino r daughter of the informant who at the relevant time was about 11 years old went to the house of Sutu Majhi for attending a Sudhi ceremony. But she sis not retu rn till the morning. The formant first came to know that the accused appellant A shok Bhumiz had kidnapped her with the intention to marry her. 4. During the course of investigation, the Investigating Officer visited th e place of occurrence, recorded the statement of the witnesses under section 161 , CrPC, recovered the victim girl, medically examined her and recorded her state ment under section 164, CrPC, before the Judicial Magistrate, arrested the accus ed appellant and produced him before the Court who was remanded to judicial cust ody. The Investigating Officer after completion of all the formalities of the in vestigation submitted charge sheet under section 366(A), IPC. 5. The case is being triable by a Court of Sessions, the learned Magistrate committed same to the Court of the learned Sessions Judge, Sivasagar, which was registered as Sessions Case No 47 (S-C) 2003. 6. Upon perusal of materials available on records, the learned Sessions Jud ge vide order dated 5.9.2003 charged the accused appellant under section 366, IP C, to which the accused appellant pleaded not guilty and claimed to be tried. Th e case having been transferred to the Court of the learned Additional Sessions J udge No 2 (Ad hoc), Sivasagar, the learned Additional Sessions Judge upon perusa l of materials on record found that prima facie a case under section 376, IPC, w as also existed. Accordingly, upon hearing the learned Public Prosecutor as well as the defence counsel framed additional charge under section 376, IPC, to whic h the accused appellant also denied and claimed to be tried. 7. During the course of the trial, the prosecution examined as many as ten PWs including the victim girl, PW- 1, the informant, PW- 4 and the Investigating Officer, PW- 10. 8. Upon consideration of the evidence and materials on record, the learned trial Judge vide impugned judgment and order 17.11.2004 convicted the accused ap pellant under sections 366(A) and 376, IPC and sentenced him in the manner as in dicated above. 9. Challenging the impugned judgment and order of conviction and sentence, the accused appellant sent a letter to this Court, which is treated as an appeal from the jail. 10. The prosecutrix was examined as PW- 1 she has categorically stated that on the date of occurrence, she went to the house of Sutu Majhi to attend Sudhi ceremony , the accused appellant told her that he would accompany her to her hou se. While she came out instead of taking her to her house, he gagged her mouth a nd took her to a house of village Napuk on foot wherein the accused appellant co mmitted rape on her. On the next morning, she was taken to another village where in they stayed in the house of one Jiban Majhi and wherefrom the police recover ed her and arrested the accused appellant. The doctor examined her and as per su pervision of the Investigating Officer her statement was recorded by a Magistrat e. Her those statements were subjected to cross-examination but her positiv e deposition in-chief examination could not be demolished. 11. PW 2, Smti. Sita Rajak, the mother of the prosecutrix, in her deposition she stated that on the date of occurrence her daughter went to the house of Sut i Majhi but did not return till morning. She made search for her daughter and Su tu Majhi let her known that her daughter went with the accused appellant from h is house. One Kaniya informed PW- 2 that her daughter stayed with the accused ap pellant at Nimanagarh. After 7 /8 days she was found and the police recovered he r. In cross- examination, her deposition in-chief could not be demolished. 12. P.W-3, Arjun Rajak, he in his deposition stated that the daughter of th e informant, PW- 4, went to the house of Sutu Majhi to attend Sudhi ceremony , she was there till mid night and thereafter she left the house of Sutu Majhi alo ng with the accused appellant. His statement corroborated with the statement mad e by PW- 2. 13. PW- 4, Lakshin Rajak, is the informant and father of the prosecutrix who also reiterated the statements given by PW- 2. He lodged the FIR. 14. Sutu Majhi was examined as PW- 5 who deposed that the prosecutrix attend ed the function in his house in the night of occurrence wherefrom she was taken away by the accused appellant with a plea to accompany her upto her house. But i nstead of taking her to her house the accused appellant kidnapped her. He furthe r stated that the father of the prosecutrix came to his house in search of his d aughter and he told him that the accused appellant kidnapped the prosecutrix. 15. PW- 6 is Mendo Majhi who also attended the function in the house of PW- 5 on the date of occurrence. His statement corroborates the statement made by PW - 2 and other witnesses. 16. PW- 7 is the doctor who examined the victim girl on 17.2.2003 at Sivasag ar Civil Hospital. In his deposition he stated that after examination he did not find any injury in her hymen and vaginal smear examination revealed no spermato zoa. In his opinion, the prosecutrix was below 11 years and there has been no se xual intercourse. He proved the medical report as Ext. 1 and Ext.1(1) is his sig nature. X-Ray report with X-Ray plate as Ext. 2. 17. The deposition of PW- 8, Jagasich Rajak, corroborates the statement made by the prosecutrix, PW- 2, PW-3 and PW-4. 18. Jibon Majhi was examined as PW- 9. His statement corroborates the statem ent of other witnesses that the accused appellant went to his house along with a girl and they stayed in his house wherefrom the police recovered the victim gi rl and arrested the accused appellant. In cross-examination, this witness stated that the accused appellant did not disclose his relationship with the girl. 19. PW-10, Ghana Kanta Bhuyan, is the IO who investigated the case. He narr ated the manner and method of investigation and having found prima facie case ag ainst the accused, submitted the charge sheet under section 376, IPC. In his cross-examination, no contradiction of the statements of PWs coul d be elicited from him. 20. The circumstances those appeared against the accused appellant were brou ght to the notice of the accused appellant who was examined under section 313, C rPC, to which he denied. 21. On close scrutiny of evidence and materials disclose a case against the accused appellant under section 366(A) / 376, IPC. The age of victim girl stated to about 11 years, which is notice denied by the defence. She was kidnapped fro m the house of Sutu Majhi by the accused appellant with a false plea that she wo uld be taken to her house. The accused appellant committed rape on her although doctor did not find any act constituting the offence but the direct evidence of prosecutrix cannot be disbelieved. All the attending circumstances before and af ter the commission of offence were proved by the prosecution beyond reasonable d oubt. Accordingly, it cannot be said that the prosecution could not prove the ca se against the accused appellant. 22. At this stage, Ms B Bhuyan, learned Amicus Curiae, submitted that consid ering the period spent by the accused appellant in jail, he may be released. Lea rned Public Prosecutor, Assam, also heard on this point. 23. From the records it appears that the accused appellant was arrested on 7 .2.2003. He was neither released on bail during investigation stage nor during t he trial. He was kept as under trial prisoner. He could not produce any defence lawyer. Since the date of his arrest, the accused appellant is in jail till date . Thus the accused appellant is in jail for more than seven years continuously. The minimum sentence for the offence under section 376, IPC, is seven years and, hence the petitioner has already served for more than seven years six months. C onsidering entire facts and circumstances and also the fact that the accused app ellant is all through out in jail since the date of his arrest in 7.2.2003, it c annot be said that the accused appellant was to some extent prejudiced in defend ing his case. Considering all these facts and circumstances, the sentence impose d upon the accused appellant is reduced to the period already undergone. The ac cused appellant be released forthwith, if he is not required in connection with any other case. 24. The appeal is allowed to the extent indicated above. 25. Ms B Bhuyan, learned counsel was appointed as Amicus Curiae who argued t he case on behalf of the accused appellant. She shall be paid a sum of Rs. 3,500 .00.