MONTU KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Ms. D. Borgohain, learned Counsel for the Appellants. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor for the Respondent State of Assam.

(2.) This appeal has been preferred against judgment and order dated 07.05.2007 passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 30/2006 convicting the accused Montu Kalita to undergo R.I. for a period of 10(ten) years with a compensation of Rs. 50,000/-(Rupees Fifty Thousand) only to victim girl failing which he shall undergo another 5(five) years for the offence punishable under Section 376 IPC and sentencing accused Nilima Kalita to undergo R.I. for 7(seven) years with a fine of Rs. 1000/- I.D. further R.I. for another 2(two) months for her offence punishable under Section 109 IPC read with 376 IPC.

(3.) The prosecution case in short is that an FIR was lodged by one Basanta Kalita with Mosalpur Police Outpost on 18.06.2003 alleging, inter alia that accused Nilima Kalita who belonged to his own village, took his daughter Miss Heera(real name withheld), aged 15 years, on 05.01.2003, to Chaulabari village near Sarupeta to attend a particular function in the house of Smti. Kusum Kalita. Both of them spent a week there and thereafter, accused Nilima Kalita took informant's daughter to Uzan Barbori village and stayed in the house of her maternal uncle. In the second night, accused Appellant No. 1 Montu Kalita, who was the son of Nilima's maternal uncle and a surrendered ULFA, was called to the room of the accused Appellant No. 2 Nilima Kalita to have forcible sexual intercourse with the daughter of the informant by gagging her mouth. In the following day, both left Uzan Barbori village and came to Chaulabari village and spent two nights in the house of Kusum Kalita and thereafter, returned home. At the time of occurrence when the victim girl raised objection, she was put to instant fear by the accused Nilima Kalita. On receipt of the FIR, Mosalpur Police Outpost made a G.D. Entry and forwarded the same to the Officer-in-Charge, Barpeta Road Police Station as the place of occurrence falls under his jurisdiction. A case was registered and investigation was made. The I.O. visited the place of occurrence and collected evidence. The victim was medically examined and the medical report was collected. She was produced before the court of CJM, Barpeta, to record her statement under Section 164 of the Code of Criminal Procedure, 1973. The accused Montu Kalita was arrested and the police submitted charge sheet against both the accused persons under Sections 109/376 IPC showing accused Nilima Kalita as an absconder. Subsequently, the accused Nilima Kalita was also arrested. The case was committed to the court of Sessions for trial. Based on the available materials, the court of Sessions registered Sessions Case No. 30/2006 and framed charges under Section 109 IPC read with Section 376 IPC against both the accused persons. On charges being read over and explained to them, they pleaded not guilty and claimed to stand trial.