Gauhati High Court
The State Of Assam vs Md. Taleb Ali on 18 July, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal No. 24 of 2008
State of Assam.
----- Appellant
- VERSUS -
Md. Taleb Ali,
Son of Md. Sahad Ali,
Village-Khadanamari, Part-II,
P.S.-Bagribari,
District-Dhubri, Assam
----- Respondent/Accused.
BEFORE Hon'ble Mr. Justice Hitesh Kumar Sarma Advocate for the appellant : Mr. NJ Dutta, Addl. PP.
Advocate for Respondent/Accused : Mr. HRA Choudhury, Sr. Counsel Mr. IA Hazarika, Mr. NS Laskar.
Date of hearing : 12th of July, 2017.
Date of Judgment & Order : 18th of July, 2017.
JUDGMENT & ORDER (CAV)
This is an appeal preferred by the State under Section 378 of the Code of the Criminal Procedure against the judgment of acquittal dated 31.3.2007 passed by the Sessions Judge, Dhubri, in Session Case No. 39/2006.
2. The facts as unfolded during trial may be briefly summarized as follows:-
a. The prosecutrix lodged a written complaint before the Chief Judicial Magistrate, Dhubri, alleging that accused Taleb Ali used to love Crl. A. No. 24 of 2008 Page 1 of 17 her and on allurement of marrying her,one day, committed rape upon her and he did so on several occasions. As a result of the sexual relationship between the accused and the victim, the latter became pregnant. When the victim confronted the accused with the fact of her pregnancy, the accused instead of marrying her, proposed to terminate the pregnancy. In this regard, a village meeting was also held but the accused or his family members did not turn up in the meeting. Constrained by the circumstances the victim lodged a criminal complaint before the Chief Judicial Magistrate, Dhubri. The complaint was forwarded to Officer in Charge, Bagribari P.S for investigation. Upon investigation a chargesheet was laid against the accused for the offences 420/376 IPC.
3. In due course, the case was committed for trial to the Court of Session at Dhubri. The learned Sessions Judge, Dhubri, framed charges against the accused for the offence u/s 376 IPC to which the accused pleaded not guilty. Prosecution examined 7 witnesses to substantiate the charges. At the closure of prosecution evidence the incriminating materials appearing against the accused were put to him but the accused denied the allegations intoto and also declined to adduce any evidence.
4. By the impugned judgment, dated 31.3.2007, the learned Sessions Judge recorded an order of acquittal. The present appeal by the State, thus, has been preferred on the principal grounds of perversity in the appreciation of evidence and also for misinterpreting the meaning of 'consent' as provided in Section 90 of the IPC. It is also pleaded that conduct of the accused in proposing to terminate the child shows that he had no intention of marrying the victim from the beginning.
5. Turning to the evidence recorded in course of the trial, the principal witness PW 1, the victim of this case, deposed that accused Taleb Ali once proposed her that he loves her and thus started frequenting to her residence. In one of his visits the accused proposed to marry her. Pursuant to such proposal of marrying the victim, established sexual relationship with her. PW 1 also deposed that she was reluctant Crl. A. No. 24 of 2008 Page 2 of 17 to have physical relationship with the accused but he insisted on such a relationship. PW 1 further deposed that she became pregnant as a result of having sexual relationship with the accused. When she confronted the accused with her pregnancy the accused proposed to terminate the pregnancy though she did not agree. Later, when the family members came to know about the incident there was a village meeting but the accused kept away from the meeting and married another girl to avoid the relationship with the victim/PW1.
6. The cross examination of the pw 1 would reveal that defence has principally rested its case on the major age of the victim and that she had consented to such relationship.
7. PW 2 Abdul Mujib is the maternal uncle of the victim. He deposed that at the request of the mother of PW 1, he had approached the accused person's family. A village meeting was arranged but neither the accused nor members of his family turned up.
8. PW 3 Sayed Ali Sheikh is the father of the victim PW 1. He deposed that he is working as labourer at Guwahati. He returned home after coming to know about the occurrence. He approached the father of the accused to arrange the marriage between the accused and his daughter/victim. But, the father of the accused even after assurance of considering the proposal did not do anything. He also deposed that neither the accused or members of his family attended the village meeting convened on the issue.
9. PW 4 Sanowar Ali is a co-villager and he deposed that one day the accused approached him and stated that the victim is pregnant as a result of physical relationship with him and that he needed the assistance of PW 4 for terminating the pregnancy of PW 1, victim. PW 4 deposed that he offered no assistance in this regard.
10. PW 5 Ainal Hoque, also deposed in the line of PW 4 Sanowar Ali. As is revealed from the evidence of PW 5, the accused had approached PW 5 for assistance to terminate the pregnancy of PW 1.
Crl. A. No. 24 of 2008 Page 3 of 1711. PW 6 Atul Rajbongshi and PW 7, Dr. A.K. Choudhury are the Investigating Officer and Medical Officer respectively.
12. Heard Mr. NJ Dutta, learned Additional Public Prosecutor, Assam, appearing for the appellant as well Mr. HRA Choudhury, learned Senior Counsel for the respondent assisted by Mr. IA Hazarika, and Mr. NS Laskar, learned Counsel.
13. In the course of argument Mr Dutta learned Addl. P.P referred to the case of State of Uttar Pradesh vs Naushad, reported in (2013) 16 SCC 651 and argued that the learned trial Court arrived at a perverse finding while recording the order of acquittal and failed to correctly appreciate the law with respect to consent as provided in Section 90 of the Indian Penal Code (IPC).
14. On the other hand the learned Counsel for the respondent argued with reference to paragraph 30, 31 of Deelip Singh vs State of Bihar reported in (2005) 1 SCC 88, and submitted that this case is of passive consent without any misrepresentation of facts and hence no offence of rape is made out. The learned Counsel for the respondent also referred to the cases of Babu v. State of Kerala, (2010) 9 SCC 189 and State of Rajasthan v. Shera Ram, (2012) 1 SCC 602 thereby drawing the attention of the Court to the principles of purview of appellate jurisdiction particularly in appeal against acquittal.
15. Before appreciating the rival arguments, it would be proper to undertake a journey regarding the law laid down with respect to consent.
16. In Uday v. State of Karnataka, (2003) 4 SCC 46 the prosecutrix was studying in a college and residing with her parents, brothers and sisters. In her deposition, she stated that the appellant was a friend of her elder brother. The appellant resided in the neighbourhood and used to frequently visit her house -- almost daily -- and used to talk to her also, apart from other members of the family. A friendship developed between them and one day, the appellant proposed to her to marry Crl. A. No. 24 of 2008 Page 4 of 17 him. Later, they fell in love with each other. One day the accused talked to her and thereafter kissed her and embraced her and promised to marry her. He also had sexual intercourse with her. She was not willing to have sexual intercourse, but in the circumstances she consented to the sexual intercourse because the accused had promised to marry her. They continued to meet thereafter and went out frequently. During this period as well, the appellant had stated many times that he would marry her. The prosecutrix also admitted that she had sexual intercourse with the accused about 15-20 times and that they used to have sexual intercourse once or twice a week.
17. According to the prosecutrix, whenever she talked to the appellant about the marriage, he assured her that he would marry her after completion of the construction of the house, and that it would be a registered marriage. This state of affairs continued till she discovered that she was pregnant. She told the appellant about the pregnancy but he assured her that she should not worry and that he will marry her after some time. Eventually the marriage did not take place and a criminal case was lodged.
18. In this context the Supreme Court, in Uday (supra), held that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. The Supreme Court, however, added that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing Crl. A. No. 24 of 2008 Page 5 of 17 on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. (Para
21).
19. In the case of Uday (supra) the fact that the victim and the accused belonged to two different castes was a dominant factor which weighed upon the Supreme Court to hold that victim consented to sexual relationship with the accused knowing fully well that social marriage may not be possible. Hence the Supreme Court declined to hold that the breach of promise to marry amounted to rape.
20. In Deelip Singh v. State of Bihar, (2005) 1 SCC 88, the facts were such that the victim girl and the accused were neighbours and fell in love with each other, and one day, the accused forcibly raped her and later consoled her saying that he would marry her, that she succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her and therefore continued to have sex on several occasions. After she became pregnant, she revealed the matter to her parents. Even thereafter the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl. But the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father to establish the marital tie failed and therefore she was constrained to file the complaint after waiting for some time.
21. In the backdrop of above facts, the Supreme Court, in Deelip Singh (supra), considered whether the acts of the accused amounted to rape within the meaning of clause "against the will" under clause 1 to Section 375 IPC. On the facts of the case the Supreme Court held that clause first to Section 375 IPC was not attracted as the testimony of the victim was found to be doubtful.
Crl. A. No. 24 of 2008 Page 6 of 1722. Thereafter, the Supreme Court considered the facts of the case in the light of the second clause to Section 375 IPC i.e., "without her consent". It was observed by the Supreme Court that the concept and dimensions of "consent" in the context of Section 375 IPC have been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case.
23. Analyzing consent from the perspective of Section 90 IPC the Supreme Court, Deelip Singh (supra), held that the factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.
24. The Supreme Court, Deelip Singh (supra), eventually held that while a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent Crl. A. No. 24 of 2008 Page 7 of 17 ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly.
25. The law laid down in Uday (supra), was distinguished in Deelip Singh (supra), holding that in Uday (supra), the Supreme Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact and as such Uday (supra),does not lay down a broad proposition that a promise to marry could never amount to a misconception of fact.
26. I may also profitably take the aid of ratio of Rao Harnarain Singh v. State, (AIR 1958 P&H 123) which lays down a succinct interpretation of submission and consent. It was held that a mere act of helpless resignation in the face of inevitable compulsion, quiescence, non- resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law. Consent, on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has wished as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it Crl. A. No. 24 of 2008 Page 8 of 17 always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
27. Reverting to Deelip Singh (supra), it would be worth reproducing the questions formulated by the Supreme Court in the context of the case. The questions were as follows;
28. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her?
29. On the facts of the case the Supreme Court, in Deelip Singh (supra), held that since the accused and the victim belonged to different castes it indicates that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. The prospect of the marriage proposal not materializing had also entered her mind. Thus, her own evidence reveals that she took a conscious decision after active application of mind to the things that were happening. It would be seen that case of Deelip Singh (supra), is distinguishable on facts of the present case.
30. The analysis of the cases discussed above can be summarized in the following manner;
i. A false promise is ordinarily not a fact within the meaning of the Penal Code. However, there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding Crl. A. No. 24 of 2008 Page 9 of 17 circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
ii. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.
iii. While a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, but a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim Crl. A. No. 24 of 2008 Page 10 of 17 will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly.
iv. Consent, on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has wished as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
31. In view of the discussion undertaken above, when I turn to the evidence of PW 1, the victim, she deposed that accused used to visit her house as he belonged to the same village. The accused initially proposed that he loves the victim. A love affair, thereafter, grew between the victim and the accused where-after the accused frequented his visits to the residence of victim. In one of such visits, the accused offered to marry the victim and naturally, by the time when the proposal of marriage was made, a strong bonding grew between the accused and Crl. A. No. 24 of 2008 Page 11 of 17 the victim. The consent for sexual intercourse was obtained after the promise to marry.
32. The evidence of victim that the accused established sexual relationship with her remained unimpeached during cross examination. This apart, the accused and the victim belonged to the same community and also same village and there was no barrier in their marriage. Under these circumstances, when the victim was of marriageable age, the allurement of the accused to marry the victim for the purpose of having sexual intercourse was a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, and accordingly, the consent is vitiated by misrepresentation of fact and hence this is a case falling within the ambit of Section 375 clause secondly.
33. The learned Counsel for the respondent while referring to Babu vs. State of Kerala, (2010) 9 SCC 189 argues that the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court.
34. A similar view was expressed in the case of State of Rajasthan vs. Shera Ram, (2012) 1 SCC 602 wherein the Supreme Court held that a judgment of acquittal has the obvious consequence of granting freedom to the accused and unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled Crl. A. No. 24 of 2008 Page 12 of 17 canons of criminal jurisprudence, the Court shall be reluctant to interfere with such judgment of acquittal.
35. There is no denying the principles laid down that ordinarily the Appellate Court should be slow in interfering with an order of acquittal when an equally conflicting view is possible than the one taken by the trial Court. However, this principle is subject to the another principle that if there exists any perversity in the judgment of trial Court whereby the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law an interference by the appellate Court would be justified.
36. In the present case it is apparent from the perusal of the evidence that trial Court did not appreciate the law laid down, as discussed hereinbefore, with respect to consent. There is absolutely no discussion whether the consent obtained by the accused for sexual intercourse with the victim was a mere hoax or not.
37. It would be necessary to point out certain aspects of the learned trial Court's judgment to ascertain the aspects of perversity.
38. First of all, the trial Court found the victim to be reliable on all material aspects. If that were to be so then discarding the categorical statement of the victim about the fact that the accused obtained the consent after a promise to marry her should have been equally relied upon. The relevant observation of the trial Court is reproduced herein below;
14. The question is whether the evidence of the victim alone in respect of the alleged occurrence can safely be relied upon or not. She has supported the contents of the ejahar and stated that the accused loved her and promised to marry her and had sexual intercourse with her as a result of which she became pregnant. Her evidence does not suffer from inconsistencies on material points and it can be safely be relied upon and accordingly relied upon.
Crl. A. No. 24 of 2008 Page 13 of 1739. In the same breathe, immediately after holding the victim's evidence to be reliable, the trial Court recorded the following observation in the same paragraph of the judgment;
"....In the instant case, it transpires on going through the evidence of the victim that the alleged occurrence was not against her ill or without her consent. The accused loved her and she was a major girl. The ejahar also reveals that the accused used to visit her house having been attracted by her love. The deposition of PW 1 to the effect that the accused visited her house and committed the alleged act on several occasions also shows that he had access to her house. Without consent or will such thing cannot happen."
40. The observations of the learned trial Court that the victim had consented to the sexual intercourse with the accused are found to be contrary to his own findings that the victim is found to be reliable. What seems to have prevailed upon the learned trial Court is that victim is a major and since the accused had access to her house she had voluntarily consented to the sexual act. However, what was overlooked by the learned trial Court was that issue for determination was not the consent per se rather; whether the consent was obtained by misrepresentation of fact. In other words, whether the conduct of the victim reveals that her participation in the sexual act was voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
41. Since the learned trial Court held that the victim is found to be reliable on all material aspects it necessarily leads to a finding that the victim had given her consent only when she was assured by the accused of marrying her in future. The next aspect of determination, which the learned trial Court failed to take into account, was the conduct of accused. For, if the Court were to give a finding whether the representation made by the accused was with a view to elicit the assent of the victim without having the intention or inclination to marry her Crl. A. No. 24 of 2008 Page 14 of 17 the conduct of the accused after the crime becomes relevant. The analysis of the evidence, tendered on record, would be necessary to come to a finding whether on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax. These findings, which are necessary to ascertain whether the consent given by the victim has been vitiated by misrepresentation of facts, cannot be determined unless the post crime conduct of the accused is taken into account.
42. In order to ascertain whether the acts of accused in establishing sexual relationship with the victim was induced by a some elements of misrepresentation of facts, in the form of promise to marry, the conduct of the accused at or after the occurrence of events need to be analyzed.
43. In this regard Section 8 of the Evidence Act provides as follows;
Sec. 8. Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1.--The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Crl. A. No. 24 of 2008 Page 15 of 17Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
44. It is the categorical statement of the PW 1, victim, that when she confronted the accused about her pregnancy he insisted that the pregnancy be terminated. The evidence of PW 1 finds ample corroboration in the deposition of PW 4, Sanowar Ali and PW 5 Ainal Hoque. Both these witnesses deposed that the accused had approached them for assistance to terminate the pregnancy of PW 1.
45. If the promise to marry was genuine the conduct of the accused in proposing to terminate the pregnancy creates a strong belief that the promise to marry the victim was a mere hoax. It explains the state of mind of the accused that he was reluctant to own up the responsibility of fathering a child to an unmarried woman.
46. The second strong circumstances appearing against the accused which explains his state of mind is that while the family of the victim insisted on a village meeting which was eventually held neither the accused nor his family turned up in the said meeting. This conduct clearly establishes a repudiation of previous conscious acts of the accused whereby he had established sexual relationship with the victim with a promise to marry her.
47. The third circumstance appearing against the accused and which also explains his state of mind is those evidence on record which reveals that while the two families were engaging in conciliatory process whether the accused should marry the victim, the accused married another girl. The conduct of the accused shows that he had no desire of marrying the victim right from the beginning.
48. All these material evidence regarding the conduct of the accused have been ignored by the learned trial Court. These circumstances amply establish that the accused did not really entertain the intention of marrying the PW 1 and the promise to marry held out by him was a Crl. A. No. 24 of 2008 Page 16 of 17 mere hoax. The consent, ostensibly given by the victim, will thus be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly.
49. In the result, the judgment of the trial Court calls for interference as material aspects of facts and law, which have been specifically indicated and discussed above, have been overlooked while arriving at the finding of acquittal. In view of the evidence tendered on record and the circumstances as pointed out hereinbefore the inevitable conclusion is conviction of accused for committing an offence under Section 375 IPC clause 'secondly' made punishable under Section 376 of IPC.
50. Accordingly, the accused/respondent is convicted.
51. On conviction, the accused/respondent is sentenced to Rigorous Imprisonment for 7 (seven) years and a fine of Rs, 25,000/-, and in default of payment of fine, Simple Imprisonment for 6 (six) months.
52. While considering the imposition of sentence, the Court has taken into account that this is a very old pending case and the judgment appealed against is of the year 2007. Therefore, the statutorily prescribed minimum substantive sentence is imposed on the accused/respondent.
53. The fine, on realisation, shall be given to the victim/prosecutrix as compensation.
54. The accused/respondent is directed to surrender before the learned Sessions Judge, Dhubri to serve out the sentence within 1 (one) month.
55. Send back the LCR alongwith a copy of this judgment.
JUDGE Nilakhi Crl. A. No. 24 of 2008 Page 17 of 17