Judgment:
P.K. Musahary, J.
1. Heard Mr. SK. N. Mohammad, learned Counsel, appearing for the accused appellant and Mr. B. Gogoi, learned Additional Public Prosecutor, Assam, for the respondent.
2. This appeal has been preferred against the judgment and order dated 22-6-2007 passed by the learned Sessions Judge, Dhemaji, in Sessions Case No. 23 (JN)/2006 convicting the accused appellant under Section 457 of the Indian Penal Code and sentencing him with rigorous imprisonment for 2 (two) years, and also with a fine of Rs. 2,000/- (Rupees two thousand), in default of payment of fine, rigorous imprisonment for a further period of 1 (one) month and also convicting him under Section 376 of the IPC and sentencing him with rigorous imprisonment for 7 (seven) years and with a fine of Rs. 3,000/- (Rupees three thousand), in default of payment of fine with R.I. for a further period of two moths.
3. The prosecution story, in brief, is that on 3-8-2005 at about 2.30 a.m. when the informant 'BM' was sleeping in her house, the appellant entered into her house by opening the door and committed rape on her. During commission of the offence, the informant raised hue and cry, which woke up her husband from his sleep and the husband caught hold of the accused, but he somehow managed to escape from the house of the informant. Before filing the FIR, the matter was informed to the Goanburah (Headman) of the village and a village meeting was held but the appellant did not turn up. Thereafter, an FIR was lodged on 7-8-2005 with the Officer-in-charge of Jonai Police Station, on the basis of which, Jonai P.S. Case No. 80/2005 was registered under Section 457/376 of the IPC. On completion of investigation, police laid charge-sheet against the appellant under Section 457/376 of the IPC. The case was committed to the Court of Sessions Judge, Dhemaji. The charges were framed against the appellant under the aforesaid sections to which the accused appellant pleaded not guilty and claimed to be tried.
4. The prosecution examined in all five witnesses including the victim woman. The defence adduced no witness. The Court examined the village Headman as C.W. 1.
5. Mr. Mohammad, learned Counsel for the appellant, taking me through the evidence of prosecution witnesses tried to pursue that it is not a case of rape under Section 376, IPC inasmuch as the victim woman knew about the entry of the appellant in her house by opening the door in the night while her husband and children were sleeping in the same bed together. From the evidence of P.W. 1, the victim woman, woke up her husband only after completion of cohabitation with the appellant. Mr. Nur Mohammad submits that the victim raised alarm to show herself as innocent because by that time her husband might have woken up and had sensed the illicit act. There may be evidence proving the entry of the appellant into the house of 'BM' and committing sexual intercourse with her but that would not ipso facto attract Section 376 of the IPC due to the attending circumstances suggesting that there was a consent of the informant victim woman and as such according to Mr. N. Mohammad, learned Counsel for the appellant, the appellant is not liable to be convicted under Section 376, IPC. According to him, the accused may, at best, be convicted under Section 457 of the IPC and the learned trial Court has rightly convicted and sentenced the accused appellant under the aforesaid Section 457 of the IPC.
6. Mr. Gogoi, learned Additional Public Prosecutor, Assam, appearing on behalf of State respondent, on the other hand, submits that this is a clear case of Section 376, IPC inasmuch as the consent of the victim woman could not be established by the defence. The evidence of victim 'BM' is that at the initial stage of sexual intercourse, she was under impression that it was her husband but in the mid way she could realize that it was another person, who was having sex with her without her consent and immediately she raised shout to wake up her husband. It is submitted by Mr. Gogoi that had there been any consent from the victim, she would not have shouted or alarmed to wake up her husband and therefore the theory of consent as projected by the appellant is not acceptable. The appellant, according to Mr. Gogoi, committed the offence under Section 457 of the IPC first and then committed rape on the victim woman. The defence could not deny his presence in the house of victim 'BM' and the incident was admittedly informed to the goanburah, (village Headman), who convened the village meeting. The evidence of gaonburah is that the appellant did not turn up to attend the village meeting. The conduct of the appellant is, therefore, suspicious and no lenient view could be taken, more so, considering the fact that he is a schoolteacher by profession. It is submitted by Mr. Gogoi, the learned Addl. Public Prosecutor that no interference with the impugned conviction and sentence as awarded on the appellant is warranted, rather the same be upheld and confirmed.
7. On perusal of the records and the evidence recorded by the learned trial Court, I find the following indisputable factual positions:
(i) the appellant entered into the house of victim woman 'BM' in the night of 3-8-2005,
(ii) he had sexual intercourse with the victim woman 'BM' on that particular date and time,
(iii) he was caught by the husband of the informant 'BM' and he could manage to escape from the scene,
(iv) he avoided to attend the village meeting convened by the village Headman and
(v) he had been absconding for a certain period.
8. It is also an admitted position that the victim woman is a married lady having children and living with her husband and she was sleeping in the night along with her children and husband on the same bed. On the other hand, the appellant is also a married man having his children and a teacher by profession. There is no doubt that both the appellant and the victim are major in age. Now, the only point to be determined is that whether the appellant had indulged in any sexual intercourse with the victim woman 'BM' with her consent.
9. On scanning the entire evidence on record, there is nothing in express term that the appellant was invited by the victim woman 'BM' to her house and on his entry into the house, she consented to have sex with him in the house where her husband and children were sleeping. It is well conceivable that no woman/wife would like to take any risk of enjoying sex in her own house in presence of her husband and children. It is also well conceivable that a man knowing fully well that a woman is sleeping with her husband and children in the house would like to enter into the house and have sex taking the risk of being caught. Such a risk may be taken by a male person provided there is any hint from the Woman concerned welcoming him at his own risk. It is to be noted that the victim woman 'BM' woke up at a particular time when the appellant was entering into the house of the victim and her husband and children were asleep and she allowed the appellant to proceed further to reach her. So the appellant reached her unopposed and indulged in sexual act. This clearly indicates that there was her passive consent. It is well appreciable that the victim woman, although she was having passive consent, was under a tremendous mental pressure and tension that her husband or children may wake up and would come to know about the illicit sex. It was under such situation, in the middle, or after completion of sexual act, she raised the alarm, lest she would be condemned by all.
10. Considering the entire facts and circumstances of this case and also evidence on record, I am of the considered view that the victim woman 'BM' gave passive consent to indulging herself in illicit sexual act on the particular occasion with ,the appellant and she being a consenting party, it would not attract the offence under Section 376 of the I. P. C.
11. In view of the above, the conviction and sentence of the appellant under Section 376 of the I. P. C. is not sustainable and the same is liable to be set aside and quashed. Accordingly, the same is set aside and quashed. However, the conviction and sentence under Section 457, I. P. C. is well established and the same is not liable to be interfered with and accordingly the same shall stand upheld.
12. Mr. Nur Mohammad, learned Counsel for the appellant submits that the appellant has almost served the sentence of two years under Section 457, I.P.C. Since the accused appellant has been acquitted in respect of charge under Section 376, I.P.C., it is directed that the appellant may be set at liberty after serving the sentence of two years under Section 457; I.P.C. if his further detention is not required in any other case.
13. The appeal stands allowed in part and disposed of.
14. The L. C. Rs. may be transmitted back.