Judgment:
A.K. Patnaik, J.
1. This is an appeal against the judgment dated 9-1-92 of the Additional Sessions Judge, South Tripura, Belonia in S.T.40(S.T/B) of 1988 convicting the appellant for the offence of rape under Section 376, IPC and sentencing him to R.I. for five years and a fine of Rs. 2,000/- and in default to suffer R.I. for three months more.
2. The brief facts of the case are that an FIR was lodged on 16-2-1986 by Smt. Saraswati Paul with the Officer-in-Charge of Baikhora P.S. alleging that a year back in the month of Baishakh the appellant came to her house during noon time in absence of her parents and forcibly cohabitated with her by tempting her to marry soon. She further alleged that during the said month of Baishakh, the appellant cohabitated with her for three concecutive days, but out of fear, she kept it secret from her parents and in the month of Magha when she had labour pain, her parents came to know that she was pragnant. Thereafter, with the help of a local doctor Sukumar Poddar, she gave birth to a male child who died three days after. Her father narrated the incident to eminent persons of the locality in the village and the appellant confessed his guilt but refused to marry her because the money offered to him by her father did not satisfy him. Pursuant to the said FIR an investigation was carried on by the police and a charge-sheet was filed on the basis of which a charge for the offence of rape under Section 376, IPC was framed by the Addl. Sessions Judge, South Tripura, Belonia against the appellant. In course of trial, the Radiologist of G. B. Hospital, Agartala was examined as P.W.1, according to whom the age of the victim girl, Saraswati Paul, was between 14 to 16. Saraswati Paul was examined as P.W.2 who repeated her version in the FIR. Her father and mother have been examined as P.Ws.3 and 4 who stated that it is only during the month of Magha when their daughter had labour pain that they came to know about the cohabitation of their daughter with the appellant. Two local persons, P.Ws.5 and 6, however, have stated in their evidence that they know nothing about the incident. Another local person has been examined as P.W.7, who stated in his version that he had attended the meeting in the house of P.W.6 in which the appellant admitted his guilt but T demanded cash money, ornaments, etc.-for taking Saraswati Paul as his wife. Dr. Sukumar Poddar has also been examined as P.W.8, who stated that during the month of Pausha or Magha, he arranged delivery of a male child in the house of P.Ws.3 and 4 and the woman who delivered the child was identified as the wife of Nimai Paul, the brother of Saraswati Paul but on-the following day, he heard that it was Saraswati Paul, who had given birth to a male child and not the wife of Nimai Paul. The Investigating Officer has been examined as P. W.9. No evidence was led on behalf of the appellant. On the basis of the aforesaid materials, the learned Addl. Sessions Juge convicted the, appellant under Section 376 of IPC.
3. At the hearing of the appeal, the contentions raised by Mr. M. L. Roy, learned counsel for the appellant, were that delay of more than one year in. the filing of FIR would show that the prosecution story was not at all believeable. Further Dr. Sukumar Poddar, P.W.8, has stated in his evidence that the woman who delivered the child was identified as the wife of Nimai Paul and not Saraswati Paul, P. W.6 in whose house a meeting was alleged to have been held and the accused-appellant is said to have confessed his guilt has himself denied in his answer to question put by the Court that no such meeting was held in his house regarding settlement of dispute between Saraswati Paul and the appellant. Mr. Roy, further submitted that assuming though not conceding that the appellant cohabitated with Saraswati Paul, the evidence of Radiologist, P.W.I, indicated that Saraswati Paul was not under 16 years of age and hence the sixth clause under Section 375 of IPC which applies only to a victim girl 'under sixteen years of age' was not attracted. On the other hand, the evidence of Saraswati Paul (P.W.2) would show that cohabitation by the appellant with Saraswati Paul was with her consent. Therefore, no offence of rape had been committed by the appellant and the trial Court's finding in the impugned judgment that consent of Saraswati Paul was not material was entirely erroneous.
4. Mr. S. Das, learned Public Prosecutor, Tripura, submitted that while it is true that the Radiologist, P.W.I, in his investigation has not definitely found the victim girl Saraswati Paul to be under 16 years of age, the fact remaining that the appellant cohabitated with the said victim girl as a result of which she become pregnant and he has admitted such cohabitation in the meeting held in the house of P.W.6. On the facts and in the circumstances of the case, therefore, the appellant cannot be allowed to go scot free and should be punished with fine which would compensate the victim girl.
5. Law is well settled that the prosecution has to prove beyond reasonable doubt that the accused committed the offence of rape. The second clause of Section 375, IPC makes it clear that when a man has sexual intercourse with the woman without her consent is said to have committed the offence of rape. The sixth clause of Section 375 of IPC, however, states that when a man has sexual intercourse with a woman under 16 years of age with or without her consent is said to have committed the offence of rape. Thus, if the prosecution establishes beyond reasonable doubt that the accused had sexual intercourse with a woman who was under 16 years of age, consent of the woman would be totally immaterial. But the Radiologist of G. G. Hospital, Agartala (P.W.I) has clearly stated that by radiological investigation he found that the age of the victim girl Saraswati Paul was between 14 to 16 years. It is, therefore, quite possible that the victim girl was 16 years of age at the time when the appellant had sexual intercourse with her. The prosecution, therefore, has not been able to prove beyond reasonable doubt that Saraswati Paul was under 16 years of age so as to attract the sixth clause of Section 375, IPC and it is not possible to hold the appellant guilty of the offence of rape irrespective of whether Saraswati Paul gave her consent to such sexual intercourse or not.
6. The next question which arises for determination is whether the appellant had sexual intercourse with Saraswati Paul without her consent. Saraswati Paul (P.W.2) has herself stated in the F.I.R. that the appellant tempted her to cohabit with him by saying that he will marry her soon and that during the month of Baisakh he cohabitated with her for three consecutive days. Similarly, in her examination before Court she has stated that the appellant cohabitated with her several times and gave her word that he will marry her. Further, in her cross-examination she has admitted that there are many houses surrounding their house and yet she did not raise any alarm when the appellant forced her to cohabit. She has, however, stated that during the cohabitation the appellant kept his palm on her mouth. But then after cohabitation she did not make any complaint to her parents who came to know about her cohabitation with the appellant only when she became pregnant several months thereafter and she lodged the F.I.R. after a year before the police. Thus, although, she has stated both in the F.I.R. as well as in her examination before the Court that her cohabitation with the appellant was due to force applied by the appellant, from the entirety of the evidence it is apparent that the cohabitation was with her consent. On the evidence on record, therefore, I am of the considered opinion that no offence of rape as defined in Section 375 of IPC read with the second clause thereof is made out against the appellant and the conviction of the appellant under Section 376 of IPC was not warranted.
7. That is not to say that the appellant has not committed any offence at all. In fact the trial Court has taken a view in the impugned judgment that the appellant was guilty of the offence of cheating under Section 417 of the IPC, but did not convict him for the said offence as no charge had been framed against the appellant under Section 417 of the IPC. In my opinion if the trial Court had doubt as to which of the two offences the appellant had committed, sufficient powers were available under Section 221(2) of the Criminal P.C., 1973 to convict the appellant of the offence of cheating under Section 417 read with Section 415 of the IPC if it appeared from the evidence that he had committed an offence different from that for which he had been charged. The evidence of Smt. Saraswati Paul (P.W.2) is clear that she was induced to sexual intercourse with the appellant on a word being given by the appellant that he will marry her and such evidence of a woman of a society given at the cost of her reputation cannot be disbelieved by the Court except for extraordinary reasons. Regarding the contention of Mr. Roy that Dr. Sukumar Poddar, P.W.8, has stated that the woman who delivered the child was identified to him as the wife of Nimai Paul and not Saraswati Paul, it was natural for the family of Saraswati Paul to suppress the fact of delivery of the child by Saraswati Paul at the stage. In fact P.W.8 has himself clarified in his evidence that only the day after delivery of the child he came to learn that it was Saraswati Paul who had delivered the child. Similarly, the fact that P.W.6 has denied that any meeting was held in his house does not in any way affect the evidence of P.W.2. The appellant, therefore, was guilty of the offence of cheating as defined in Section 415 of the IPC and was accordingly liable for punishment under Section 417 of the I.P.C.
8. Considering, however, the fact that the appellant is a daily labourer and is married and has a child, I am of the opinion that ends of justice would be served if a fine of Rs. 7,000/- (Rupees Seven Thousand) is : imposed on the appellant. On default to pay the aforesaid fine within a period of 6 (six) months from today, the appellant would be liable for Rigorous Imprisonment for a period of 1 (one) year. I further order under Section 357 of the Criminal P.C., 1973 that the whole of the aforesaid fine of Rs. 7,000/- recovered from the appellant would be paid to Smt. Saraswati Paul as compensation for the injury suffered by her on account of the offence committed by the appellant. The learned Addl. Sessions Judge, South Tripura, Belonia will ensure payment of the aforesaid compensation to her. The impugned judgment of the Addl. Sessions Judge, South Tripura, Belonia in S.T.40 (S.T/ B) of 1988 is modified and the appeal is disposed of accordingly.