SIBA RAM BARUA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The accused Shri Suresh Barua was tried for an offence under Sections 457/376 of the Indian Penal Code (hereinafter referred to as IPC), for commission of lurking house trespass by night and rape of Smti. Prabhawati Baruah. The Court of Assistant Sessions Judge, Nagaon in Sessions Case No. 25(N) 99 held that, the prosecution has proved the charges levelled against the accused and convicted him accordingly. The judgment and order of conviction was challenged before the Court of Sessions Judge, Nagaon, who allowed the appeal vide judgment dated 19.6.2000 and remanded the case to the trial court to pass afresh an appropriate judgment as per law. While remanding the case, fee learned Sessions Judge, has recasted the following points for determination. a) Whether there was any lurking house trespass by night in the house of the prosecutrix by the accused as alleged and if so, whether such lurking house trespass by night was with intent to commit any offence, which is punishable with imprisonment ? b) Whether the accused had sexual intercourse will Smti Prabhawati Baruah against her will and without her consent? c) Whether the sexual act was done under the circumstances falling under any of the five descriptions specified in Section 375 IPC and, d) Whether there was sufficient penetration to constitute the offence as per the definition of rape?

(2.) On remand, the learned Assistant Sessions Judge reconted the statement of the accused afresh under Section 318 of the Gde of Criminal Procedure (hereinafter referred to as Code) and witnesses on the defence were examined and cross-examined it compliance with the order of the learned Sessions Judge and held that, the prosecution has been able to prove the charges against the accused and accordingly convicted the accused under Sections 457/376 IPC and sentenced Mm to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 2000/- (Rupees Two thousand) only, in default, to suffer R.I. for another period of 5 (five) months for the offence under Section 457 of the IPC and also convicted him under Section 376 IPC and sentenced him to suffer R.I for 7 years and to pay a fine of Rs. 5000/- (Rupees Five thousand) only, in default, in undergo another period of R. I. for 1 (one) year vide judgment dated 20.11.2000. The aforesaid judgment of conviction and sentence was taken on the file of the learned Sessions Judge, Nagaon, being Criminal Appeal No. 65(N) 2000, who had affirmed the judgment dated 20.11.2000, passed in Sessions Case No. 25 (N) 99 by the learned Assistant Sessions Judge, Nagaon, vide judgment dated 20.3.2001 which is under challenge, invoking power under Sections 397/401 of the Code.

(3.) Prosecution case in bride is that, on 8.7.1998 at about 12 AM, while the prosecutrix was sleeping in her house, the accused had entered into the house by breaking the bamboo door and used force on the prosecutrix with the intention to outrage her modesty and fore the blouse which the prosecutrix was wearing. A complaint with regard to the incident was lodged on 9.7.98 with the Raha Police Station which was registered as Raha PS Case No. 55/98 under Sections 448/354/427 IPC. The Investigating Agency investigated the matter and recorded the statement of the witnesses under Section 161 of the Code. The police seized the torn red blouse from the place of occurrence and arrested the accused. The prosecutrix was examined by the Doctor on 13.7.1998 and her statement was recorded under Section 164 of the Code. While the investigation was under progress, the investigating agency prayed to add the offences under Section 457/376 IPC which was allowed by the learned Chief Judicial Magistrate, Nagaon and on completion of investigation, submitted the charge sheet under Sections 457/354/376 IPC against the accused.