Gauhati High Court
Bapan Dey vs The State Of Assam on 6 April, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal 113 of 2011
Sri Bapan Dey,
Son of Sri Khukan Dey,
Lanka Town, Ward No. 4,
Railway Colony,
P.S.- Lanka, Dist- Nagaon (Assam).
...........Appellant
-Versus-
The State of Assam
..........Respondent
For the petitioners : B. Pathak, Adv.
For the Respondents : Mr. D. Das, Addl. PP, Assam.
BCEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing & Judgement: 06/04/2015
JUDGEMENT AND ORDER (ORAL)
1. This appeal is directed against the judgement of conviction dated 30/09/2010 of the learned Additional District and Sessions Judge (FTC), Crl. App. 113/11-oral dt. 06/04/15 Page 1 of 9 Sankardevnagar, Hojai. By the said judgement passed in Sessions Case No. 64(N)/2009, while convicting the accused appellant under Section 493/376 IPC he has been sentenced to undergo R.I. for 10(ten) years for the offence under Section 493 IPC with fine of Rs. 5,000/- and in default R.I. for further 6(six) months. So far as conviction under Section 376 is concerned, he has been awarded the same sentence independent of the sentence under Section 493 IPC. Both the sentences are to run concurrently. As submitted by Mr. B. Pathak, learned counsel representing the appellant, taking together the detention of the accused appellant during trial and after conviction, he has already undergone about 11 months of imprisonment.
2. On the basis of the FIR dated 01/06/2006 lodged by the victim PW-1, lanka P.S. Case No. 70/2006 was registered under Section 493/376 IPC. The story narrated in the FIR was that the accused used to give proposal to her of marriage for the last about four years. As she was minor she was not aware of marriage. However, for the last about six months, the accused started loving her and in turn she also started loving him. As stated in the FIR, she fell in love when she attained majority and that for the last about 3 ½ months, the accused made proposal of marriage and also stated that if she did not agree to the proposal, he would commit suicide. The victim further stated in her FIR Crl. App. 113/11-oral dt. 06/04/15 Page 2 of 9 that in the month of Falgun, the accused accepted her as wife after putting vermilion on her forehead in Mahakali Temple. The marriage was witnessed by one Smt. Rakhi Acherjee and Shri Mridul Nath. After the marriage, she was taken to her husband's Aunt's house situated at Ward No. 6 of Lanka town. Whenever, the victim insisted for taking her to the house of the accused, he promised to take her but did not. While staying in Aunt's house, they had physical relationship. Lastly, she stated in the FIR that one Smt. Rekha Malakar had been trying to arrange her sister's marriage with the accused appellant.
3. With the registration of the case, on the basis of the aforesaid FIR, police started investigation and on completion of the same, submitted charge sheet under Section 493/376 IPC. In due course charge under the said section was framed and the same being read over and explained, the accused pleaded not guilty and claimed to be tried.
4. During trial, prosecution examined 9(nine) witnesses and the accused was also examined under Section 313 Cr.P.C. The learned trial court framing the following points for determination, having answered the same in favour of the prosecution vide the impugned judgement of conviction, the appellant has preferred this appeal.
"(i) Whether the accused person deceit fully
cause to AB who was not lawfully married to the
Crl. App. 113/11-oral dt. 06/04/15 Page 3 of 9
accused, to believe that she was law-fully
married to him ?
(ii) Whether the accused had committed rape
on AB )real name withheld) against her will and
without her consent?".
5. I have heard Mr. B. Pathak, learned counsel for the appellant. Also heard Mr. D. Das, learned APP, Assam. I have also perused the entire materials on record.
6. Contrary to the stand in the FIR that, immediately after the marriage, the victim had lived with her husband i.e. the accused appellant in his Aunt's house, in her deposition as PW-1, she stated that after the marriage she had gone along with her husband to her in-laws house but her mother-in-law scolded her and asked the accused appellant to drive her out. However, she tried to maintain cordial relationship with the family members including her mother-in-law but she did not succeed. On the other hand, her mother-in-law along with her husband tortured her, both mentally and physically but she being married wife of the accused appellant tolerated all such torture and took utmost care to keep alive her marital status. One day she was driven out by her husband with the warning not to come back again.
7. In her cross examination, she stated that she had filed a case against the sister of the accused and another case against her mother-in- Crl. App. 113/11-oral dt. 06/04/15 Page 4 of 9 law. She also stated that she had obtained an order for maintenance by which monthly maintenance of Rs. 500/- was granted. She also stated that she had filed a domestic violence case and in terms of the orders passed therein, she was to receive Rs. 5,000/- as one time measure and Rs. 500/- per month. However, an appeal having been preferred by the accused appellant against the said order, she did not receive the amount.
8. PW-2 is the mother of the victim, who in her deposition stated that her daughter i.e. the victim was married by the accused appellant and the marriage took place at the Mahakali Mandir, Santiban, Hojai. PW-3 is the father of the victim who in his deposition also stated about marriage performed by the parties. According to him, he could come to know of the marriage from one Smt. Austomi Dey. He also came to know from said Smt. Dey about assault and torture on the person of the victim by the accused appellant.
9. PW-4 is the Doctor who had examined the victim on 06/06/2006 and found the following :-
"(16) Height-149c.m., wt-48 k.g., Brest well develop, teeth 14/14, public and auxiliary hair present. Hymen old tear. Injury in private parts nil. Her L.M.P. 29/5/2006.
Identification mark
(17) One black mole on Rt. Side of face. One old
scar seen in nostril and one in Rt. Hand.
Crl. App. 113/11-oral dt. 06/04/15 Page 5 of 9
(18) As reported by the radiologist Dr. B.K.
Hazarika :-
(i) Rt. Wrist join --- epiphyces for lower end
and radius and ulna are not completely united.
(ii) Rt. Elbow join --- the epiphyces for lower
and humorous are united.
(iii) Rt. Iliac bone --- the epiphyces has not been united. Radiological age is 17/18 years."
10. According to the opinion, there was no evidence of recent forceful sexual intercourse. The age of the victim was 17/18 years. He also opined that he could not detect the sign and symptom of rape depending upon the injury and other corroborative findings on the body and private parts of the victim.
11. PW-5 in his deposition stated that he came to know from one "Mahila Samity" and a club that the accused had married the victim and they they wer living together. PW-6 is the President of an organization who in her deposition stated about the agreement of the mother-in-law to settle the matter at Rs. 10,000/- but the victim as well as PW-6 did not agree with the said proposal. PW-7 is the sister of the victim who in her deposition stated that marriage was performed between the victim and the appellant on the day of Shivratri when they visited the particular Kalimandir at Santibon. PW-8 is the I.O. who in his statement generally stated about the investigation that was carried out. Crl. App. 113/11-oral dt. 06/04/15 Page 6 of 9
12. It is on the basis of the aforesaid evidence, the trial Court has convicted the accused appellant under Section 493/376 IPC. While doing, it has been held that the consent on the part of the victim was under
fear of injury or under a misconception of fact. To constitute an offence under Section 376 IPC, ingredients of section 375 will have to be present. Similarly, to constitute the offence under section 483 IPC, there will have to be deceitful act making the victim to believe that she was lawfully married to him, thereby co-habitating or having sexual intercourse with him in that behalf.
13. As per the own evidence of PW-1 supported by her parents, the accused appellant had performed marriage with her and lived together as husband and wife. As discussed above, she also filed a maintenance case and as per the order therein, is in receipt of monthly maintenance of Rs. 500/-. She also filed a case alleging domestic violence against her mother-in-law and the accused appellant. Thus, the victim never denied that there was marriage between her and the accused appellant. She never alleged that there was deceitful act on the part of the accused appellant to make her to believe that she was lawfully married to him.
14. As discussed above, there is wide variation between what she stated in the FIR and what she deposed during trial. As per the Ext.1 FIR Crl. App. 113/11-oral dt. 06/04/15 Page 7 of 9 immediately after the marriage they started living in the house of the appellant's relation i.e. Aunt. The FIR was lodged because there was a purported endeavour on the part of one Smt. Rekha Malakar to give her sister on marriage to the accused appellant. On the other hand, in deposition made during trial, the PW-1 categorically stated that after the marriage, she was taken to the house of the accused appellant but she was not acceptable to her mother-in-law. However, she continued to live there hoping for good. She also deposed that as the wife of the accused appellant, it was her duty to bear the torture allegedly meted out to her.
15. None of the witnesses deposed that the accused appellant allured the victim in any manner by deceitful means to make her believe that she was legally married wife of the accused appellant, though actually not. As to what is the variation between the story narrated in the FIR and the one narrated during trial has been noted above. Although Mr. Das, learned APP, Assam in reference to the statement of the accused made under Section 313 Cr.P.C. in which he denied the existence of marriage between himself and the victim, submits that in view of such stand of the accused appellant, the ingredients for constituting the offences under Section 493/376 IPC duly established but the said statement cannot be made the foundation towards convicting the accused appellant in lieu of the prosecution evidence. The prosecution Crl. App. 113/11-oral dt. 06/04/15 Page 8 of 9 failed to establish beyond all reasonable doubts the ingredients against the accused appellant towards convicting him under Section 493/376 IPC.
16. It is clearly established in the evidence that the victim clearly understood the particular marriage performed with the accused appellant to be a valid marriage and it was on that foundation, she continued to live with the accused appellant but the occasion for her to lodge the FIR arose when there was proposal of one Smt. Rekha Malakar to give her sister on marriage to the accused appellant.
17. For all the aforesaid reasons, I am inclined to accept this appeal by setting aside the impugned judgement of conviction. Appeal is allowed.
18. The appellant is already on bail in terms of the orders passed on 29/08/2011 passed in Crl. MC No. 485/2011. The bail bond stands discharged.
19. The Registry shall send down the LCR along with the copy of the judgement to the learned court below.
JUDGE Sukhamay Crl. App. 113/11-oral dt. 06/04/15 Page 9 of 9