Prosecution failed to prove beyond reasonable doubt that victim's consent was induced through misconception of fact, leading to the appellant's acquittal.

JUDGMENT

Date : 14-11-2023

1. Heard Mr. D.K. Das, learned counsel for the appellant as well as Mr. B.

Sarma, learned Addl. P.P. appearing for the State respondent.

2. This present appeal arises out of the judgment and order dated 24.04.2012, passed by the Sessions Judge Morigaon in connection with Sessions Case No. 44/2007 convicting Sri Diganta Medhi (hereinafter the appellant), under section 312/511 of the Indian Penal Code ( IPC for short) and sentencing him to undergo rigorous imprisonment for 3(three) years, under section 417 of the IPC and sentencing him to undergo rigorous imprisonment for 1(one) year and under section 376 IPC to undergo rigorous imprisonment for 5(five) years. The sentences were directed to run concurrently. 3. Brief facts unfolded from the FIR is that on 24.08.2005, when the victim ‘X’ (name withheld) was alone at home, the appellant trespassed into her house and committed rape on the victim. The victim was dissuaded from raising alarm, as the appellant promised to marry her, as he sympathized with the victim because she lost her mother. The appellant, however, failed to keep his promise. The appellant learnt that the victim was pregnant and administered contraceptive pills to the victim for the purpose of abortion but failed to terminate her pregnancy. Victim was carrying for six months, when the appellant disagreed to marry her. The victim then lodged the complaint before the Chief Judicial Magistrate at Morigaon. It is apt to mention that the victim was a minor at the time of the incident. The complaint lodged by the victim was forwarded to the O/C of Dharamtul P.S. to register a case and investigate the same.

4. The Investigating Officer (I/O in short) registered a Dharamtul P.S. Case No. 04/2006, under Sections 376 /312/511/417 IPC and embarked upon the investigation. The victim was forwarded to the Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure (Cr.P.C. for short). The statements of the witnesses were recorded. The victim was also forwarded to the Medical Officer for examination. On completion of investigation, charge-sheet was laid against the appellant.

5. On appearance of the appellant copies were furnished and this case was committed for trial.

6. At the commencement of trial charge was framed under sections 376/417/312/511 IPC , and read over and explained to the appellant who abjured his guilt and claimed to be tried.

7. To connect the appellant to the crime, the prosecution adduced the evidence of 5(five) witnesses including the Medical Officer (M.O. in short) and the Investigating Officer (I/O in short). Two court witnesses were examined and the defence adduced the evidence of 3(three) witnesses to refute the charges. To the incriminating circumstances against the appellant, several questions were asked under section 313 Cr.P.C to the appellant and his responses were recorded.

8. The learned counsel for the appellant Mr. D.K. Das, laid stress in his argument that the learned trial court has ignored the fact that the prosecution failed to prove this case beyond reasonable doubt. It is submitted that the victim was pregnant prior to the offence, which allegedly occurred on 24.08.2005 and, thus, the appellant was erroneously held guilty of offence under sections 376/417/312/511 IPC . Serious infirmities in the evidence were ignored by the learned trial court. The victim had alleged that she was sexually assaulted on 24.08.2005 and according to the medical report, the victim was pregnant for 190 days which is contradictory to her complaint. It is submitted that if we go by the complaint petition, then the incident allegedly occurred on 24.08.2005 and the victim ou