Crl.A. 264/2004 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY JUDGMENT AND ORDER 1. The accused-appellant has impugned the judgment and order dated 7.10.200 4 passed by the learned Sessions Judge, Dhemaji in Session Case No.3 (DH)/2004, whereby the accused-appellant was convicted under Section 498-A and was sentence d to undergo Rigorous Imprisonment for three (3) years and to pay a fine of Rs.5 ,000/- with default stipulation of six (6) months imprisonment. The accused-appe llant was further convicted under Section 313 IPC and was sentenced to suffer Ri gorous Imprisonment for seven (7) years and to pay a fine of Rs.10,000/- with de fault stipulation and one (1) year imprisonment. 2. I have heard Mr. D.R. Gogoi, learned counsel appearing for the appellant and Mr. B.B. Gogoi, learned Addl. P.P., Assam. 3. The brief facts leading to the filing of this appeal reveals that accuse d-appellant and the victim Mamoni Borgohain were in love for a long period. Fina lly, they became so attached that they got married and started living together a s husband and wife. After the marriage, victim Mamoni Borgohain was not well tre ated by her husband and his family members. But however, in the meantime, the vi ctim got pregnant. It is alleged that the victim on 8.3.2003 was put in a car by her husband and his sister-in-law and was taken to some Doctor at Silapathar. A ccording to the victim, her pregnancy was forcibly terminated by the doctor. The victim alleged that the accused-appellant stated before the doctor that he had already two children and as such he wanted to terminate the pregnancy of his wif e. The victim alleged that her pregnancy was terminated without her consent. She further alleged in the FIR that after the mis-carriage all the family members o f the accused started assaulting her. She was ill-behaved and ill-treated and pr oper food was not served to her. Thus, finding no alternative, victim came to he r parents house on 31.3.2003 and lodged ejahar at the police station, Dhemaji. 4. Basing on the aforesaid FIR, a case was registered by the police and inv estigation was launched. On completion of the investigation, charge sheet was su bmitted against the accused-appellant alleging commission of offence under Secti on 498 (A)/313 IPC. 5. The offence under Section 313 CrPC being triable exclusively by the Cour t of Session, the learned Judicial Magistrate at Dhemaji committed the case to t he Court of Sessions at Dhemaji for trial. 6. During the course of trial, nine (9) witnesses were examined in support of the prosecution case. After examination of the witnesses, the statement of th e accused was recorded as per provision of Section 313 CrPC. 7. On conclusion of the hearing, the learned Sessions Judge, Dhemaji, convi cted the accused-appellant as afiresaid giving rise to this appeal. 8. Mr. D.R. Gogoi, learned counsel appearing on behalf of the appellant sub mitted that there are wide discrepancies in the evidence of the witness, therefo re, the impugned judgment is liable to be set aside and quashed. 9. Mr. Gogoi, pointed out that the entire case of the prosecution hinges on the statement of the doctor, who carried out the abortion as alleged by the vic tim. However, the prosecution did not care to trace out either the place where t he abortion was carried out or the doctor who terminated her pregnancy, despite putting strong resistance as alleged by the victim. Learned counsel further show ed that the FIR was lodged by the victim after about 22 days from the date of mi s-carriage alleged by the victim, since, it is clear from the evidence on record that the alleged abortion took place on 8.3.2003 and the complaint before the p olice station was lodged by the victim on 31.3.2003. Referring to the evidence o f the Dr. Buragohain, PW-9, learned counsel Mr. Gogoi submitted that as per the opinion of the doctor there was cervical bleeding leading to abortion of the vic tim, but in the cross examination, the medical witness clarified that cervical b leeding may be caused due to some disease or menstrual problem. 10. In order to appreciate the argument advanced by the learned counsel for the appellant, it would be apposite to extract herein below the core of the evid ence of the prosecution witnesses vis-à-vis the defence stand. 11. PW-1 in her evidence stated that on 4.1.2003, the accused married her an d took her to his house and at the time of the marriage, she was already two (2) months pregnant and thereafter on 8.4.2003, the accused took her to Silapathar, where she was taken to a Pharmacy and at the instance of her husband i.e. the a ccused-appellant, abortion was carried out by the doctor forcibly upon her. In h er cross examination, she has categorically revealed that she did not make any s tatement before the police regarding the statement made by the appellant-husband before the doctor regarding having two children before carrying out the abortio n. PW-3 is also, reported witness. She was informed by victim regarding the abor tion but surprisingly PW-2 the victim, did not state that she ever reported the matter to PW-3. PW-4 is also reported witness. PW-5,6 and 7 are all reported wit nesses as well. In order to establish a charge under Section 313 IPC, the prosec ution is required to establish the following ingredients of offence. i) That the accused caused miscarriage to a woman with child. ii) That he did so voluntarily; iii) That the miscarriage was caused without consent of that woman. 12. Apart from the element as aforesaid required to be proved under Section 312 IPC, the prosecution is also required to establish that the accused caused m iscarriage of the woman without her consent as contemplated in Section 90 IPC. S ection 90 IPC clearly lays down that the consent is not a consent, if the consen t is given by the person under fear of injury, or under a misconception of fact and if the person doing the act knows, perhaps or has reason to believe, that th e consent was given in consequence of such fear or misconception. 13. From the evidence on record, it clearly transpires that the victim alleg ed that no consent after several days from the alleged abortion, which was carri ed out by the doctor. Very interestingly, the doctor who carried out the alleged abortion was neither examined as witnesses nor he was arrayed as an accused in this case. There was no evidence to establish that the victim ever resisted the abortion or complained about it immediately after the abortion to prima-facie sh ow that she had no consent for the abortion. Apparently, the FIR was filed after almost 23 days from the date of occurrence reflects some element of after thoug ht and concoction in the story put forward by the victim. 14. From the evidence of the victim it clear transpires that for 12 days aft er the abortion, she stayed with the accused-appellant and admittedly had sexual intercourse 2/3 times with him during this period. From the conduct of the vict im, it transpires if at all abortion was carried out an interference can be draw n that same must have been done with the consent of the victim. Therefore, from the evidence on record, it appears that prosecution miserably failed to prove th e ingredients of an offence under Section 313 IPC against the accused-appellant beyond all reasonable doubt. The finding arrived at by the learned trial Court i s apparently perverse and the conviction and sentence is liable to be set aside and quashed. 15. In respect of the commission of offence under Section 498 (A) IPC, the l earned Addl. P.P. in his usual fairness has submitted that there is no element o f cruelty by the husband or his relatives to attract the ingredients of offence under Section 498-A IPC 16. Admittedly, the victim came to the residence of the accused-appellant on 5.1.2003. As admitted by PW-2, the victim torture and ill-treatment was meted t o her after abortion of her pregnancy. As stated by the victim, she maintained a cordial relationship with her husband since she had sexual intercourse twice wi thin 12 days of her staying with her husband after the abortion was carried out. Accordingly the allegation of the victim every cruelty and torture was meted ou t to her during the aforesaid period. All the aforesaid factors lead us to belie ve that it would not be safe to rely on the testimony of the sole evidence of th e prosecutrix to hold the accused-appellant a guilty of the offence under Sectio n 498 (A) IPC. There is no sufficient evidence to hold that the victim was subje cted to cruelty as contemplated in Clause (a) and (b) of Section 498(A) IPC. 17. In view of the above discussion since the prosecution failed to prove th e charges beyond all reasonable doubt, this Court is of the considered view that the accused-appellant is liable to be acquitted of the aforesaid charges under Section 313/498(A) IPC . 18. Consequently, the appeal is allowed and the judgment and order dated 7. 10.2004 passed in Session Case No.3 (DH)/2004 by the learned Sessions Judge, Dhe maji is hereby set aside and the accused is set at liberty forthwith. The bail b ond furnished on behalf of the accused-appellant stands discharged. 19. Send back the LCR together with a copy of this judgment.