STATE OF ASSAM Vs. SAJINDUR RASHID

JUDGEMENT

(1.) The facts of the prosecution case disclose that one 10th alleged to be aged about 15 years a student is the victim of rape. The respondent-petitioner is the neighbour of the victim. The victim was studying at Class-X. On 12.8.2000, in the evening around 6 p.m. the accused visited the house of the victim. The victim was studying in her room and she was doing Mathematics. The accused insisted her to study Science. The victim refused. By that time, father of the victim (PW 4), who was in the next room, came and told the victim not to be defiant the accused and to take his advice. The mother of the victim was in the kitchen. The father was in the drawing room attending guests. The victim was in the bed room. The accused gagged her mouth, forcibly undressed and raped her. The victim could not raise hue and cry because her mouth was gagged. The accused, while going, threatened not to reveal the incident to anybody and threatened with dire consequences. The victim kept quite. The victim became pregnant. In the advanced stage of her pregnancy, the matter came to light. PW 5, who is member of the Women Organisation, intervened in the matter incidentally happened to be the aunt of the victim. PW 5 made enquiry and the accused admitted of having sexual intercourse with the victim. The parents and PW 5 tried to get the victim undergone abortion but because of the tender age of the victim, the same could not be done. The victim delivered a female child and eventually the female child died after a few days. The complaint is lodged about 14 months of the incident. The victim is examined as PW 2 and she has testified to the above facts. PW 5, member of the Women Organisation, has testified to the effect of making extra-judicial confession by the accused admitting sexual intercourse with the victim. Father is examined as PW 4 and mother is examined as PW3.

(2.) The medical evidence discloses that the victim had become pregnant and delivered a child. The child died couple of days after delivery. The medical evidence discloses the age of the victim as 17 years, which took place almost two years after the incident. There appears to be no evidence of school record to prove the age of the victim. If the age of the victim is less than 16 years according to medical evidence, the question of consent becomes an irrelevant factor. Even otherwise, the evidence of the victim discloses that there was no sort of consent on her part at the time of the sexual intercourse. The Trial Court does not appear to have properly assessed the evidence. In that view of the matter, the order of acquittal is set aside. The matter is remanded to the Trial Court to hear the arguments afresh and dispose of the matter on merits. It is further directed that if the prosecution or the defence wants to led any additional evidence, they may be permitted to adduce such evidence for just decision of the case. Accordingly, the revision is disposed of in the terms indicated above.