Crl.A. 130/2009 BEFORE HON’BLE MR. JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER (CAV) The present appellant was convicted under Section 376 IPC and sentenced to undergo S.I. for 7 years and to pay fine of Rs. 2,000/- and in default of pay ment of fine, to undergo S.I. for another 3 ( three ) months vide judgment and order dated 23.6.2009 passed by the learned Addl. Sessions Judge, Tinsukia in Se ssions Case No. 126 (T) 2008. He has filed this appeal against the said judgmen t and order. 2. Briefly stated the prosecution case is that one Smti Mira Phukan Gogoi filed a complaint in the court of learned C.J.M, Tinsukia on 11.6.2007 allegin g that accused James Moran forcibly kidnapped her minor daughter Miss Sarala (real name withheld) and got her married after taking her around from one place to another .The said accused developed physical relationship with her daughter during those days . The learned C.J.M, Tinsukia forwarded the complaint to the O fficer In-charge, Doomdooma P.S. to register a case and investigate into the ma tter. On receiving the complaint, the police treated the same as FIR and made a G.D. Entry , being 116 dated 6.7.07 and registered a regular case as Doomdoom a P.S. 213/07 under Section 366 A IPC. During investigation, the police got the victim medically examined and collected the medical report from the Civil Hospi tal Doomdooma. The victim was also forwarded to the learned C.J.M,Tinsukia who r ecorded her statements under Section 164 Cr.P.C. The case was committed to the court of Sessions Judge, Tinsukia who made over the case to the learned Addition al Sessions Judge, Tinsukia for trial and disposal. On 18.10.2008 the charge wa s framed under Section 366/447 IPC and the accused on being readover and explai ned the charge , pleaded not guilty and demanded trial. The charge was subseque ntly altered to under Section 366 A /376 IPC in place of Section 366/447 IPC vid e an order dated 3.4.2009 to which also the accused pleaded not guilty. The pro secution examined in all 8 witnesses while the accused examined none in his defe nse . The case of the accused is of total denial. His statement under Section 3 13 Cr.P.C. was recorded in which he pleaded innocence. On consideration of the materials and evidence on record, the learned trial court convicted and sentenc ed the appellant as mentioned earlier. 3. Since the accused- appellant has been convicted and sentenced under Sect ion 376 IPC, it is necessary to have a reference to the provision under Section 376 IPC. It relates to punishment for rape. The offence of rape has been described in Section 375 IPC which is reproduced below :- 375 Rape-A man is said to commit rape who , except in the case hereinafte r excepted, has sexual intercourse with a woman under circumstances falling und er any of the six following descriptions :- First- Against her will. Secondly- Without her consent. Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or heart. Fourthly- With her consent when the man knows that he is not her husband, and th at 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 the consent, when , at the time of giving such consent, by person of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable 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 of age . Explanation -Penetration is sufficient to constitute the sexual intercourse nec essary to the offence of rape. Exception-Sexual intercourse by a man with his own wife, the wife not being und er fifteen years of age, is not rape. 4. As per the allegations in the complaint, the daughter of the informant w as forcibly brought and married by the accused .The complainant/ informant Smti . Mira Phukan Gogoi was examined as P.W-6. She stated that at the time of occur rence , her victim daughter was 15 years of age and she was reading in Class X . The incident took place on 23.5.07 . On 23.5.07 the accused James Moran visite d and stayed in the house of the complainant. In the next morning , while the informant was taking bath , the accused induced her daughter and drove away in a scooter on the pretext of purchasing some sweets and brought her to Tinsuk ia . He took her to different places . The informant tried to trace out her daug hter and she came to the court in search of accused James Moran. After 10/12 days, when she failed to trace out her daughter, she filed the complaint. She c ame to know from a person near the court premises that James Moran is a married person having 2 sons and his wife is still alive .While her younger daughter visited the appellant in the hospital he told her that the victim girl was at Dirak Chariali. After 6/7 days of knowing about the same she came to court and b rought her home. 5. The victim girl was examined as P.W-5 . She stated that she did not kno w the accused James Moran. He first came to their house with her mother before 1 month of the incident. He came about 4 times to their house and she used to tr eat him as maternal uncle. Her mother asked the accused to visit their house as she had minor daughters at home . One day the appellant visited their house at 7 p.m and he stayed in their house in the night . In the next morning on the pl ea of bringing some sweets, he asked her to accompany with him . She accordingly went out with accused James Moran in his scooter at 7 a.m. but he did not sto p the scooter at Rupai Siding and drove away in a high speed. The accused brough t towards Doomdooma but he did not stop at Doomdooma also and brought her to T insukia. At Tinsukia she was kept in a house of Muslim person and disappeared as suring her to come back soon. She was shifted to another house and kept in a bi g room under lock and key . After 3 days, 2 brothers of James came and entered t he room by breaking the lock. The accused then brought her to Sibsagar and kept in a house for 3 days. On the 3rd day , the accused brought her to Kakopathar and took shelter in the house of his uncle where they stayed for 5/6 days . Fro m there the accused came to his house. Next day she came to know that the accuse d/ appellant consumed poison and admitted in hospital. She was brought to Tinsu kia Civil Hospital where the accused/ appellant was under treatmernt .At Tinsuk ia Civil Hospital James’s wife rebuked and assaulted her . She also wiped out th e vermilion from her forehead . She was taken back home by her mother . In her deposition, the victim girl stated that while she was staying with the accused, they had physical and sexual relation. She also stated that at the time of occur rence she was aged about 17 years. In cross - examination she clearly stated that while she was driven awa y from the house by the accused in his scooter she did not protest nor did she cry for help. Even when she was proceeding with the accused towards Sivasagar i n a bus and thereafter to Dirak she did not tell any passenger that she was forc ibly taken away by the accused . They were proceeding and behaving like husband and wife . While they stayed in the house of the uncle of the accused she was tr eated as their daughter-in-law. 6. The evidence of P.W-5 and 6 established the fact that the accused James Moran used to visit the informant’s house since before and on the date of occurr ence he stayed a night in her house and in the next early morning he drove away with the victim girl in a scooter . Both the accused and the victim girl stayed at Tinsukia and then proceeded to other places. At no point of time, right from leaving her house with the accused person, she never protested the accused, rath er she gladly accompanied him .There is no whisper in her evidence that she re sisted the accused while he had enjoyed sex with her during their stay at severa l places . Her conduct demonstrates that she was a consenting party. The accus ed- appellant , under such facts and circumstances cannot be convicted under Sec tion 376 IPC unless it is shown or proved that the victim girl is below 16 year s of age who is not capable of giving consent to such sexual acts. It is, theref ore, necessary to find out that there are materials to come to a conclusion tha t the victim girl was a minor girl below the age of 16 years at the time of o ccurrence . 7. It is relevant to refer the evidence of Medical officer , P.W-1, who examined the victim girl on police requisition. He stated that finding of X-Ray report suggests that the age of the victim girl is more than 20 years. In her st atement U/S 164 Cr.P.C, the victim girl stated that she was 16 years old. In her deposition before the court she has stated that at the time of occurrence she w as 17 years. The learned trial court held that in absence of any paper as to prove the age of the victim girl the opinion of Doctor based on X-Ray is reasona bly accepted. Thus obviously the victim girl was a major girl above 18 years a t the time of alleged occurrence. The view taken by the learned trial court is a cceptable by this court also . The victim girl on a conservative calculation c an be treated as above 16 years but below 21 years of age. Once it is establish ed that the victim girl is above 16 years of age she has attained the age of co nsent and cannot be brought under description No. 6 of the offence U/S 375 IPC . 8. From the evidence of victim girl P.W-5 , it is found that she willingly and voluntarily accompanied the accused without any hesitation and objection and she remained with him several days and stayed at different places . She was c arrying mobile phone and while her younger sister contacted over Mobile Phone s he asked her sister not to be worried. No force was used by the accused while the victim was taken out from her residence inasmuch as there is no whisper in h er evidence before the court as well as in her initial statement recorded under Section 164 Cr.P.C. before the Judicial Magistrate. Besides her oral evidence there is enough medical evidence which suggest that she was not forced by the accused in enjoying sexual intercourse. As per evidence of P.W-1, Medical Office r, the prosecutrix was used to sexual intercourse . According to him no injury was seen , her hymen was absent and her vaginal canal admits 2 fingers easily. H ad there been some forceful sexual intercourse or abuse , she would have sustai ned at least minor injuries on her private parts. Besides , if such sexual abuse was committed against her will or consent , she could have objected or resist ed or she could have informed her mother or sister. The evidence of the prosecu trix does not show that her consent to sexual act was obtained by putting her in to fear in any manner by the accused . She resorted to no such objection or act ion against the accused. The conduct of the victim is that of a matured woman ha bituated in enjoying sex . Under such circumstances, it cannot be held that the accused committed rape on her against her will . The ingredients of Section 375 IPC are absent in this case and the accused- appellant cannot be convicted u nder Section 376 IPC. I am unable to agree with the findings and conclusions of the learned trial court in holding that the accused/appellant is guilty U/S 376 IPC and accordingly, I set aside and quash the impugned conviction and sentence awarded against the accused/appellant. He stands acquitted of the charge under Section 376 IPC. 9. But it is for consideration of the court as to whether the accused is liable to be convicted U/S 417 IPC inasmuch as he had sexual intercourse with the victim girl withholding or suppressing the fact that he is a married man an d having 2 children. The accused/ appellant not only enjoyed sex with the pros ecutrix but also put vermilion on her forehead to show her as his wife. From th e evidence on record it has been established that the prosecutrix and her mother came to know about the fact of having a wife and children only when they cam e to Tinsukia Civil Hospital to see the accused- appellant and confronted with h is wife. There is no denial to the fact of earlier marriage of the accused and survival of his wife and children and , therefore, it is a clear case of cheati ng U/S 415 IPC causing damage or harm to the victim girl in her body, mind and r eputation. As a young lady , the victim had a dream and plight for getting marr ied to a man of her choice and lead a happy conjugal life . The accused/appellan t has shattered her dream and caused irreparable damage to her body, mind and re putation. In the Indian society , a young lady who looses her chastity and rep utation due to deceitful act, cannot regain her reputation and in rare cases su ch girl may get married and in many cases such unfortunate young lady is ost racized by the society. Such girl , for no fault of her , is condemned by the s ociety and looses charm of life and even commits suicide . In many cases , it i s, therefore, necessary to deal strongly with such deceitful person of the soci ety ,so that he is not allowed to go unpunished. 10. It appears that the learned trial court largely relied the case of Sta te of H.P. Vs Mango Ram , reported in (2000) 7 SCC 224 . It was a case where t he prosecutrix was above 16 years who was allegedly raped but on medical examina tion no mark of injury over vulva was found and hymen was found intact with a small laceration at 6.0 position and as per the Medical officer, it was diffi cult to say whether intercourse had taken place or not. The learned trial court in that case , upon consideration of evidence of the prosecutrix which was cor roborated by the medical evidence , held that the accused committed rape on the prosecutrix and he was made liable for offence punishable under Section 376 IPC . It was also held that the submission of body under fear of terror does not amo unt to consent. The question is as to whether there was resistance by the prose cutrix depends upon the relevant circumstances. In the aforesaid cited case, th e accused followed the prosecutrix and when she reached the cow-shed she was ca ught hold by the accused from behind and the prosecutrix tried to extricate her self from him but she was overpowered by the accused and made to lie her on the floor of the cow-shed. The accused untied the knot of her Chalowar and put in d own and thereafter committed sexual intercourse. According to the prosecutrix s he resisted the accused by scratching him with her nails . There was bleeding from her private part . The facts and circumstances of the present case is vastl y different from the aforesaid case . Present is the case where no evidence ha s been led by the prosecutrix to establish that she was forced by the accused- appellant for sexual acts or she ever resisted the accused in committing the s exual acts . The other case relied upon is Jakir Ali Vs. State of Assam, report ed in 2007 (3) GLT 497 . The accused person in the aforesaid case induced the pr osecutrix to have sexual intercourse by making a false promise to marry her and believing the said promise , the prosecutrix consented to have sexual intercou rse with him and as a result she conceived and was carrying pregnancy of abou t 3 months . She reported the matter to her mother . Her parents went to the hou se of the accused and asked him to marry the victim girl but the respondent refu sed to marry her. In the said case , this court held that though mere failure to fulfill the promise of marriage may not constitute the offence of cheating , h owever, if the dishonest intention of the accused at the very inception can be i nferred and the prosecution can establish the ingredients of Section 415 , a s imple case of cheating can be held to have been made out. It was also held that the ingredients of offence under Section 376/417 IPC have been made out and t he conviction and sentence awarded by the trial court do not warrant interferen ce. In the case at hand , no allegation had been made by the prosecutrix that the accused promised marriage for obtaining her consent to sexual acts. In fac t , as per the evidence of the prosecutrix , the accused put vermilion on her forehead and introduced her as his wife to others . There was no evidence of re fusal by the accused to accepting her as his wife but for strong objection from his wife he consumed poison and got hospitalized . This fact has been testifie d by the prosecutrix herself in her evidence who admittedly visited the accused in the hospital and was threatened by the wife of the accused . Although the a ccused suppressed the fact of his earlier marriage and existence of 2 children , there is no evidence of his malafide intention to abandon the prosecutrix after enjoying sex with her. However, the accused /appellant cannot be treated as an innocent person as he has suppressed from the prosecutrix the fact of his earlie r marriage and existence of 2 children. The allegation of cheating is , therefor e , apparent in the conduct of the accused although he had no intention to refus e marital status to the prosecuitrix . 11. In view of the above discussions , it can be concluded that the accused/ appellant committed offence liable under Section 417 IPC . The accused / appell ant is , therefore, convicted U/S 417 IPC and sentenced to undergo simple impri sonment for 1 year or fine or both. It is stated at the bar that the accused/ ap pellant is serving sentence in compliance of the impugned judgment and order fr om 23.6.2009 and by now he has served sentence , for about 2 years. The accused / appellant has therefore, served the full sentence under Section 417 IPC and h e be set at liberty forthwith , if his further detention is not required in c onnection with any other case/ cases. Bail Bond , if any , stands discharged. 12. Send down the L.C.Rs. forthwith.