Sri Bikash Rajbanshi @APPELLANT@Hash State Of Assam

This is an appeal, challenging the judgment and order, dated 15.11.2014, passed by the learned Additional Sessions Judge, Jorhat, in Sessions Case

No. 105(JJ)/2013, convicting the accused-appellant and sentencing him to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.

10,000/- with a default clause for offence under Section 417 IPC.

Heard Mr. J. Roy, counsel, Mr. R. Hazarika. the state respondent. learned counsel for the accused-appellant, assisted by learned Also heard Mr.

R.J. Baruah, learned Additional Public Prosecutor for the state respondent.

I have also perused the records of the learned trial court including the impugned judgment and the evidence of the prosecution witnesses.

The fact giving rise to this case is that the informant lodged an FIR with the Pulibor Police Station alleging that the accused-appellant had

relationship with her since last 2 years and with a promise to marry her he had committed sexual intercourse with her resulting in her carrying

pregnancy. A village meeting was convened to settle the matter between them but the accused-appellant refused to admit that he had any relationship

with the victim/informant. The informant also alleged in the FIR that the accused-appellant developed physical relationship with her without her

consent with a promise to marry her only.

On receipt of the FIR, on the above facts, Pulibor Police Station registered a case, investigated into it, collected evidence and, finally, on completion

of investigation, submitted charge-sheet against the accused-appellant under Sections 493/376 IPC.

After exhausting all the required legal formalities, the learned trial court, framed a formal charge against the accused-appellant under Sections

493/376 IPC.7. The prosecution examined as many as 7 (seven) in this case to substantiate the accusation and the defence examined none.

After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 Cr.PC. In his such statement, he

is found to have denied the allegations made against him.

The evidence of the PW1/victim makes it appear that she developed love affair with the accused-appellant for last 2 years and during this period,

the accused-appellant promised to marry her and on such promise, had sexual intercourse with her for 2 days causing her pregnant. The

victim/informant informed the accused-appellant about her carrying pregnancy and requested him to marry her which the accused-appellant refused.

On 19.10.2011, the parents of the victim arranged a village meeting which was also attended by the accused-appellant.

But, there also he refused to marry the victim/informant and even denied the paternity of the child in her womb. Then, she lodged the FIR. The

evidence of PW7, the doctor, who examined the victim/informant is that the victim was carrying 24 weeks and 3 days pregnancy. The evidence of

other witnesses are in respect of the relationship between the victim and the accused-appellant and none of them are found to be privy to the

commission of the alleged sexual intercourse by the accused-appellant. They are the witnesses to the circumstances of the alleged facts.

Now, the fact remains that, the medical examination report taken together with the evidence of the PW1/victim, appears to be believable so far the

relationship between the victim and the accused-appellant is concerned. However, the medical evidence shows that she is a major and in her own

evidence/victim has stated that they were in relationship for about 2 years prior to the alleged village meeting and the accused-appellant had

intercourse with her twice only during this period. The conduct of the victim in consenting sexual intercourse with her by the accused-appellant, she

being a major, makes it appear that before refusal of the accused-appellant to marry her in the village meeting she was not alleging rape on her person

which tacitly means that she consented to the sexual intercourse.

Taking such view of the matter the learned trial court held the accused-appellant is guilty under Section 417 IPC for deceiving the victim/PW1 for

obtaining consent fraudulently to have sexual intercourse with him. The judgment of the learned trial court is a reasoned one indicting as to what for

the accused-appellant has been convicted under Section 417 IPC and the view adopted by the learned trial court is plausible and possible view, and

therefore, even if a second view is possible, the view adopted by the learned trial court, being plausible on the basis of the evidence on record, needs

no interference so far recording of the order of conviction is concerned.

So far the substantive punishment imposed upon the accused-appellant is concerned, it has been submitted by the learned counsel for the accused-

appellant that it is in the higher side, and therefore, the same needs to be reduced.

On consideration of the submissions made by the respective learned counsel for the parties, and on perusal of the materials on record, this court is

of the view that if rigorous imprisonment for 3 months is imposed as substantive punishment, the same will meet the ends of justice. Accordingly, the

substantive sentence of rigorous imprisonment for 6 months is reduced to substantive sentence of rigorous imprisonment for 3 months.

The fine imposed upon the accused-appellant by the learned trial court is raised to Rs. 25,000/-, and in default of payment of fine, he shall suffer

simple imprisonment for 15 days which will run consecutively with the substantive sentence.

Fine, if realized, be given to the victim/informant as compensation.

The period already undergone by the accused-appellant in judicial custody, during the investigation, trial, and after the judgment, shall be set off

against the substantive sentence of 3 months.

Accordingly, the appeal is partly allowed with the modification indicated in the foregoing paragraphs.

The accused-appellant is directed to surrender before the learned trial court to serve out the substantive sentence within 1 (one) month from the

date of receipt of the copy of the judgment.

Send down the LCR along with a copy of this judgment.