It is most extremely significant to note that while ruling on a very pertinent legal point that pertains to the sexual intercourse between the husband and the wife, the Gauhati High Court in a most learned, laudable, landmark, logical and latest judgmentin Case No. : Crl.A./372/2023 and cited in Neutral Citation No.: GAHC010219952023 and so also in 2024 LiveLaw (Gau) 70 that was pronounced as recently as on 27-09-2024 set aside a rape conviction and sentence order passed by a Trial Court on the ground that the accused and victim who is a major were legally married and therefore, the sexual intercourse between the two even if forcible cannot be considered as rape. It must be noted that the Sessions Court vide judgment and order dated August 10, 2023 convicted the accused under Section 376 of IPC and sentenced him to undergo rigorous imprisonment for seven years. The Bench noted that from the statement of the victim, it is apparent that she was a major girl when she left the house of her parents. The Bench thus very rightly set aside the impugned judgment and order that was passed by the Trial Court. No denying!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Honourable Mrs. Justice Malasri Nandi of Gauhati High Court sets the ball in motion by first and foremost putting forth in para 1 that, “Heard Mr. A.N. Ahmed, learned counsel for the appellant. Also heard Mr. B. Sharma, learned Additional P.P. representing the State.”
As we see, the Bench then envisages in para 2 that, “This appeal is directed against the Judgment and order dated 10/08/2023, passed by the learned Assistant Sessions Judge, Karbi Anglong, Diphu in Sessions case no. 68/2015, whereby the accused/ appellant was convicted u/s 376 IPC and sentenced to undergo rigorous imprisonment for Seven years and to pay a fine of Rs. 5000/- in default RI for one month.”
To put things in perspective, the Bench then envisages in para 3 while dwelling on facts of the case that, “The brief facts of the case is that an FIR has been lodged by the informant before the OC, Diphu Police Station stating inter alia that on 02/08/2014, his daughter went missing from Diphu Bazar. Later on, they came to know that the appellant kidnapped his daughter. Thereafter, the victim was recovered from the house of the accused/appellant located at Silbhanga village under Jagiroad police station.”
As it turned out, the Bench enunciates in para 4 that, “On receipt of the FIR, a case was registered vide Diphu PS case no. 217 of 2014 u/s 366/342/376/34 IPC and investigation was initiated. After completion of investigation, charge sheet was submitted against the appellant u/s 366/342/376 IPC, before the court of magistrate. As the offence u/s 366/376 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.”
As things stands, the Bench then lays bare in para 5 stating that, “During trial, charge was framed u/s 366/343/376 IPC, which was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. To substantiate the case of the prosecution, seven witnesses were examined. After closure of the evidence, the statement of the accused/appellant was recorded u/s 313 Cr.PC, wherein the incriminating material found in the evidence of the witnesses were put to him to which he denied the same. After hearing the learned counsel for both the parties, the trial court convicted the accused/appellant as aforesaid.”
Simply put, the Bench then stipulates in para 10 that, “Having heard the learned counsel for the parties and on perusal of the trial court record including the impugned judgment, the only point to be discussed here in this appeal is that whether the victim is the consenting party or not to have sexual intercourse with the appellant and the conviction u/s 376 IPC is maintained or liable to be set aside.”
Quite naturally, the Bench then points out in para 11 that, “To answer the question on the point, the evidence of the victim has to be gone through. The victim was examined in the case as PW-2. She deposed in her evidence that she got to know the accused accidentally on receipt of a phone call from the accused. The accused told that by mistake he called wrong number. Subsequently, he again called her in her mobile phone several times and they used to talk with each other. Thus, a friendship between them developed.”
Further, the Bench discloses in para 12 that, “Further evidence of PW2 is that one day the accused called her over phone and told that he wanted to meet her, thus they met on the road at Rongkhelan. Thereafter, he asked to accompany her to seventh mile which is near Manja. Both of them boarded in a bus but the accused did not get down at Seventh mile and instead he took her to Jagiroad. After getting down from the bus at Jagiraod, he took her to a house in a village. He told that the house belongs to his sister. He also introduced her to his sister and brother-in-law.”
Furthermore, the Bench reveals in para 13 that, “The victim also contended that on the first night, she and the accused occupied the same room. She slept on the bed and the accused on the floor. At around midnight, the accused came to her bed and started touching her inappropriately all over her body and also kissed her forcefully on her lips. She resisted his moves and told him angrily not to touch her or kiss her. After about two weeks, she was forcefully married to him by the relatives of the accused as per their Muslim custom and tradition. She stayed with the accused for about one and half months at different places. Finally, the accused took her to his own house and had sexual intercourse with her forcefully. She stayed about two weeks in the house of the accused. Subsequently, one day police came to the house of the accused and took her back home.”
It is really worth noting that the Bench then notes in para 14 that, “In her cross examination, PW-2 replied that she had a talking terms with the accused over phone. She did not tell her parents that she had a talking terms with the accused over phone. The accused never threatened her. She agreed to meet the accused person at Rongkhelan, Diphu. She did not inform her parents that she would meet the accused at Rongkhelan. This witness also stated she did not raise hue and cry while she was taken away by the accused. She did not tell any of her friends that she was taken away by the accused forcefully.”
Do note, the Bench notes in para 15 that, “The other witnesses examined by the prosecution were not present when the victim was taken away by the accused. Admittedly, the victim was recovered along with the accused from Jagiroad as stated by PW-3 and parents of the victim.”
Do further note, the Bench then notes in para 16 that, “For the offence under section 376 I.P.C., the word ‘rape’ has been defined under section 375 I.P.C. wherein a man is said to commit rape on a female if the act is done against her will, without her consent; if it is with her consent it has been obtained by putting her or any person in whom she is interested in fear of death or of hurt with or without her consent when she is under 18 years of age or if she is unable to communicate her consent. Here it is not the case that the girl was unable to communicate her consent.”
While citing a relevant and remarkable ruling of Apex Court, the Bench then hastens to add in para 17 stating that, “Hon’ble Apex Court in the case of Wahid Khan vs. State of Madhya Pradesh, reported in 2010 (68) ACC 266 held that rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. So the physical assault on the victim was a rape or not is to be decided by the court on the basis of evidence on record. Whether the said victim was abducted or kidnapped with the intent of compelling her to marry any person against her will or that she may be forced or seduced to illicit intercourse and whether the physical assault on the victim comes under section 375 of I.P.C. is to be looked into and the evidence is to be scrutinized to come to a definite conclusion.”
Going ahead, the Bench points out in para 18 that, “As per the First Information Report, the victim was found missing from her house and when the girl was recovered by the police, the victim was found in the company of the present accused/appellant. When her statement was recorded u/s 161 Cr.PC, she stated that on the missed call of the accused/appellant, they started conversation with each other and at last on the call of the appellant, she left her home. They boarded in a bus from Diphu and reached at Jagiroad and stayed in the house of the sister of the accused wherein their marriage was solemnized and started living like husband and wife.”
Notably, the Bench then observes in para 19 that, “In her statement recorded by the magistrate u/s 164 Cr.PC, the victim stated that she was studying at Province College, Guwahati in BA 1st semester. On 2nd August 2014, the accused came to Diphu (Rongkhelan) and she fled away with the boy. She knew him before one month. He proposed her over phone. They lived together at Jagiroad. From 2nd August to 17th September, she had been staying with him. He forced her to go with him and promised her that he loved her very much. He married her on the basis of their religious custom. They lived at his house like husband and wife.”
Quite significantly, the Bench then points out in para 20 that, “From the statement of the victim, it is apparent that she was a major girl, when she left the house of her parents. There was no allegation against the appellant that the appellant applied force when the victim accompanied the accused to Jagiroad. It also appears that their marriage was held and they lived together as husband and wife. However, the victim nowhere stated that she was kept confined in the house of the accused, for which she was unable to communicate with any person. The victim also carried a mobile phone along with her but she did not inform her parents that the accused/appellant had confined her in his house, got her married and committed rape on her against her will.”
Most significantly, the Bench then encapsulates in para 24 what constitutes the cornerstone of this notable judgment postulating that, “From the evidence of the victim girl, it reveals that the appellant got married to the victim by following Muslim customs. It is not reflected from the evidence of the victim how the marriage took place i.e., in presence of Kazi or by following any other rituals. Admittedly, the victim left her house along with the accused/appellant without informing her parents or any of her relatives. The age of the victim was around thirty years at the relevant time. After their marriage, they lived together as husband and wife in the house of the appellant for one and half months. The victim did not raise any hue and cry at the time of solemnization of her marriage with the appellant. Though the victim got the opportunity to inform the matter to her parents or any other family members but she did not do so. Hence, the appellant and the victim being legally married husband and wife, the victim being major, the sexual intercourse between the two, if forcible, cannot be considered as rape.”
Equally significant is what is then mandated in para 25 stating that, “Exception 2 to Section 375 of IPC states “non-consensual sexual intercourse by a man with his wife, if she is over 15 years, does not amount to rape”. Thus, coercive and non-consensual intercourse by a husband with his wife (above 15 years of age) is outside the ambit of rape.”
As a corollary, the Bench then holds clearly in para 26 that, “In view of the above discussion and considering the facts and circumstances of the case, this court is of the view that the prosecution has failed to prove the case against the accused/appellant beyond all reasonable doubt.”
Resultantly, the Bench then concludes by holding in para 27 that, “In the result, the appeal is allowed. The Judgment and order dated 10/08/2023, passed by the trial court is hereby set aside. The accused/appellant is acquitted on benefit of doubt. The appellant, who is in jail, be released forthwith, if not wanted in any other case.”
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