Gauhati High Court
Suren Orang vs State Of Assam on 1 February, 2005
Equivalent citations: 2005CRILJ3402, I(2006)DMC65, (2005)2GLR270
Author: H.N. Sarma
Bench: H.N. Sarma
JUDGMENT H.N. Sarma, J.
1. By this revision petition the accused petitioner has challenged the legality and validity of the judgment and order dated 17-4-97 passed by the learned Sessions Judge, Lakhimpur in Criminal Appeal No. 4(1)/ 1996 upholding the conviction and sentence passed by the learned Addl. Chief Judicial Magistrate Lakhimpur in GR Case No. 1134/93 convicting the accused under Section 493 IPC and sentencing him to undergo SI for one year and to pay a fine of Rs. 1000 in default to undergo SI for further one month.
2. The prosecution case, inter alia, in brief, is that on 7-4-93 the accused petitioner came to the house of the complainant in absence of her parents and performed sexual intercourse with her deceitfully inducing her to believe that she is his lawfully married wife by putting vermilion on her forehead. She gave her consent for sexual intercourse on the belief that the accused person is her lawful husband as the accused stated that he married her and put vermilion on her forehead. Due to this sexual intercourse followed by other such acts with the accused the complainant became pregnant and at the time of filing the complaint petition on 11-10-2003 she was pregnant for six months. The accused petitioner knowing the pregnancy avoided her company and on being asked, the accused assured that he would take her as his wife but in fact he avoided the complainant. Hence the complaint was filed before the learned Addl. Chief Judicial Magistrate, Lakhimpur, which was forwarded to the O/C, Bihpuria Police Station for registering a case and for causing necessary investigation. Accordingly a case under Section 493 IPC was registered against the accused petitioner and after investigation the police submitted charge sheet against the petitioner. On process being issued, the accused petitioner appeared before the learned trial court and charge under Section 493 IPC was framed and explained to him to which he pleaded not guilty and claimed to be tried.
3. During course of trial prosecution examined as many as seven witnesses including the victim complainant and the doctor. The defence produced no witness in his support. After completion of the trial the learned trial court on appreciation of the statement of witnesses and other materials on record convicted the petitioner under Section 493 IPC and sentenced him in the manner stated above vide judgment and order dated 15-2-1996 passed in GR Case No. 1134/93. Against the said judgment the accused petitioner filed a Criminal Appeal No. 4(1)/ 96 in the court of the learned Sessions Judge, Lakhimpur. The learned Sessions Judge independently assessed the evidence and o consideration of the entire facts and circumstances of the case did not find anything to alter the findings arrived at by the learned trial court and maintained the conviction and sentence vide judgment and order dated 17-4-97.
4. Being aggrieved, the present revision petition has been filed by the accused petitioner. Challenging the impugned judgment and order Mr. Kataki, learned counsel for the petitioner has submitted that the only eye witness in the instant case is the PW 2 (the complainant) and in fact the entire conviction rests upon the statement of PW 2 only and the statement of PW 2 does not inspire confidence for upholding the conviction and sentence against the accused petitioner. It has also been submitted by Mr. Kataki that the prosecution has not been successful to prove the necessary ingredients under Section 493 CrPC and as such the impugned conviction and sentence are liable to be set aside. Controverting the aforesaid submission Mr. Gayan, learned Public Prosecutor has submitted that the PW 2 is the most natural witness and in a case of such nature normally no eye witness is found except the victim and the prosecution has been able to prove the case beyond reasonable doubt. It has been submitted by Mr. Gayan that over all assessment of the materials on record it is amply proved that the petitioner is guilty of the offence alleged against him and the learned courts below on proper appreciation of the materials and evidence on record passed the impugned judgment and order convicting the petitioner and as such no interference is called for.
5. I have considered the rival contentions of the respective parties. In order to appreciate the submissions made by Mr. Kataki I have gone through the evidence of the witnesses, not for re-appreciation or reassessing the same, but in order to find out whether there is any perversity or illegality or impropriety in passing the impugned order. PW 1 Thunu Orang is the father of the victim girl (PW 2) who, inter alia, stated that taking advantage of his absence the accused came to their house and committed sexual intercourse with his daughter as a result of which a male child was born. PW 2 is the victim girl who stated, inter alia, that when she was alone in her house, as her parents were absent, the accused came to her house and put vermilion on her forehead stating that he married her and caused sexual intercourse with her for six days as a result of which she became pregnant. In her cross examination she stated that at the time of putting vermilion on her forehead there was no other person and she denied the suggestion that vermilion was not put on her forehead. PW 3 Gandowa Orang stated, inter alia, that when the victim girl became pregnant there was a village bichar to which the accused did not turn up. The victim girl gave birth to a male child. PW 4 Handu Orang also corroborated PW 2 and stated that the victim girl stated before him that the accused by putting vermilion on her head stated that he married her and accordingly committed sexual intercourse with her as a result of which she became pregnant, but the accused did not accept her as his wife. PW 5 Dighala Munda also corroborated the statement of PW 2 and PW 4 to the effect that the accused by putting vermilion on the forehead of PW 2 caused sexual intercourse with her as a result of which she became pregnant. PW 6 Ganesh Majhi is the village Headman of their village. In his deposition he stated, inter alia, that about three years ago the accused by putting vermilion on the forehead of the victim (PW 2) stated that he has married her and caused sexual intercourse as a result of which she became pregnant and a male child was born. PW 7 Dr. J.M Bora is the doctor who confirmed the pregnancy of the victim girl.
6. Under Section 493 IPC every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The essential ingredient for committing the offence under Section 493 are -(a) deceit causing false belief of existence of a lawful marriage and (b) cohabitation or sexual intercourse with the person causing such belief. The evidence of the prosecution witnesses as scanned above disclose that the petitioner by coming to the residence of the victim girl in the absence of her parents put vermilion on her forehead and induced her to believe that by such putting of vermilion on her forehead he has married her and thus obtaining consent caused sexual intercourse with her. Thus, the evidence on record amply proves that the prosecution has been able to prove that the accused has practiced deceit and by that deceit made the PW 2, who is not his wife, believe herself to be lawfully wedded to him and thereby she had sexual intercourse with the accused. The learned courts below discussed and appreciated the evidence and materials on record in its proper perspective. No perversity or illegality has also been shown in arriving at the finding by the learned courts below. The revisional jurisdiction of the High Court is well defined and in exercise of such power the High Court need not reassess or re-appreciate the evidence unless perversity or illegality is shown. In the instant case the petitioner has not been able to show any perversity or illegality in passing the impugned judgment and order by the learned courts below.
7. In view of the aforesaid discussion I do not find any merit in this application and accordingly the same is dismissed.