JUDGMENT AND ORDER :

This appeal is directed against the judgment and order dated 28.08.2008, passed by the learned Addl. Sessions Judge, FTC, Biswanath Chariali in Sessions case No. 229/2006 convicting the accused appellant u/s 417 of the IPC and sentencing him to R.I. for 3 months and to pay fine of Rs.1000/- in default to imprisonment for 30 days.

2. Heard Mr. B.J. Dutta, learned Addl. PP, Assam. None appeared for the accused appellant to argue the case.

3. The accused appellant and the informant Minakshi Das had love affair and according to the informant, they solemnized the marriage in the Tezpur court by executing a marriage agreement. According to her before the marriage agreement was executed in the court both of them indulged in sexual intercourse in the printing press of the accused appellant as a result of which she became pregnant but after the marriage the accused appellant got her pregnancy terminated in the Midha Nursing Home at Tezpur and kept her in her parents’ house with the assurance that he would take her back after 1 year.

4. On 17.03.2005, the accused called her to his printing press and when she visited the press at Biswanath Chariali she saw the father of the accused and both the father and the son assaulted her and threw her out of the printing press. She was attacked with a knife as a result of which she sustained injuries. She directly came to the police station and filed FIR, Exbt. 1 alleging therein that on that day at about 12 noon, the accused appellant Ashim Saikia and his father Ghana Kanta Saikia confined her in the printing press and assaulted her with sharp weapon. It was also stated that she was in a love affair with the accused since 2004 and there was an agreement of marriage between them but the accused appellant refused to marry her and thereby cheated her. Police registered the FIR and on completion of investigation submitted charge sheet against the accused appellant u/s 376/493 of the IPC.

5. During trial of the case which commenced before the learned Addl. Sessions Judge, Biswanath Chariali, prosecution examined as many as 8 witnesses including the MO and IO. Defence pleaded total denial.

6. Though the informant Minakshi Das had stated in her evidence that she had love affair with the accused and they executed a marriage agreement in the court but during trial no copy of the agreement was produced and proved. She claimed that she was 4 months pregnant due to her cohabitation with the accused appellant but her evidence is not corroborated by the doctor, PW 3 Dr. Dulal Ch. Sarma who examined her on 20.03.2005 at Biswanath Chariali Civil Hospital. The doctor opined after examination of the victim that there was no sign of recent sexual intercourse and he also did not find any clinical sign or symptom of abortion by the patient. She also failed to produce and prove by documentary evidence that her pregnancy was terminated in the Midha Nursing Home. Though she claimed that she produced the marriage certificate before the police but the same was not brought on record and it was not tendered in evidence. There was no mention in the FIR that she was impregnated by the accused and that her pregnancy was terminated in the Midha Nursing Home. She also admitted that she has not stated before the IO that she was forcibly raped by the accused in his printing press and no such statement was even given before the court.

7. PW 2 Dibyajyoti Das who is the elder brother of the victim girl and PW 4 Rani Monjula Das who is the mother of the victim girl claimed that they were present at the time of execution of the marriage agreement at the Tezpur Court and PW 2 even claimed that he was present at the time of termination of her pregnancy in the Nursing Home. Both these witnesses are close relatives of the alleged victim girl and obviously they are interested to secure conviction of the accused appellant for his refusal to marry the girl. In a case of instant nature the evidence of the girl is of utmost importa

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