High Court
Case Details
Crl.A. 256/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER(ORAL) 1.
Legal Reasoning
Heard Mr. N. Ahmed along with Mr. S. Rahman, learned counsel for the accused appellant. Also heard Ms. B. Saikia, learned A.P.P., Assam along wi th Mr. Z. Kamar, learned P.P., Assam. 2. This appeal is directed against the judgment of conviction dated 26.9.2006 passed by the learned Sessions Judge, Kamrup in Sessions Case No. 153 (K)/2003 arising out of GR Case No. 771/02 convicting the accused appellant unde r Section 376/511 IPC and sentencing him to undergo RI for three year together w ith a fine of Rs. 2000/- and in default to undergo RI for another two months. 3. Kamalpur P.S. Case No. 206/2002 was registered under Section 376 /511 IPC on the basis of Ext.-1, the FIR dated 25.10.2002. The FIR was lodged by the mother of the victim. As narrated in the FIR, while the victim along with P W-5, both aged about 5 years had been playing in the courtyard of Shri Bhupen Bo ro, the accused appellant appeared there and lifted the victim girl inside the h ouse and committed the offence under Section 376 IPC. When she raised hue and cr y, the accused appellant fled away from the place of occurrence. As regards the delay in lodging the FIR, it was stated that there was a proposal for a village mell. The FIR further states that the girl was medically examined. 4. On receipt of the FIR, the police carried out the investigation. The girl was also examined under Section 164 CrPC. In her statement, she stated about the offence purportedly committed by the accused appellant on her. It wil l be pertinent to mention here that she made her deposition in Bodo language, wh ich was interpreted by one Shri Phanidhar Choudhury, an Advocate. Apart from the fact that the said Phanidhar Choudhury was not examined by the prosecution, the re is also nothing to show that Sri Phanidhar Choudhury, Advocate was expert in Bodo language and could play the role of an interpreter. 5. On conclusion of the investigation, the police submitted charge sheet and on the basis of the charge framed by the learned Trial Court, the tria l commenced. During trial, the prosecution examined 10 witnesses including the f irst informant, the victim, the I/O and the Medical Officer. The accused was exa mined under Section 313 CrPC, who in his deposition denied the charge. By the im pugned judgment of conviction, the accused appellant has been convicted for the offence of attempt to rape. 6. Learned counsel for the accused appellant has submitted that it will be dangerous to convict the accused appellant primarily on the basis of the testimony of the alleged victim girl, who was only 5 years of age, more particu larly, when her friend also aged about 5 years with whom she was playing in the courtyard of Sri Bhupen Boro has stated otherwise. He has submitted that it bein g not a case of establishing the charge beyond all reasonable doubt, the accused appellant is entitled to benefit of doubt. He further submits that the learned Trial Court having disbelieved the version of the victim girl for conviction und er Section 376 IPC, ought not to have convicted the accused appellant under Sect ion 511 IPC. According to him, if the testimony of the victim girl is to be disb elieved, the same is to be disbelieved as a whole and not partly. 7. Ms. B. Saikia, learned A.P.P., Assam appearing along with Mr. Z. Kamar, learned P.P., Assam submits that the accused having committed the heinou s crime on a minor girl, aged about 5 years, the impugned judgment of conviction is liable to be sustained. She submits that when the victim girl herself has st ated in both the occasions i.e. during her statement made under Section 164 CrPC and also during trial about the offence committed by the accused appellant, the re is nothing to disbelieve her version and accordingly, the accused appellant i s liable to be convicted. I have very carefully considered the submissions made by the lea 8. rned counsel for the parties and have also given my anxious consideration to the evidence on record. Except the victim girl, the evidence adduced by other witnesses 9. suggests that there was attempt to commit rape on the victim girl. In the FIR lo dged by the mother of the victim also, it was stated that there was attempt to c ommit rape. In the evidence of PW-1 i.e. the fist informant and mother of the vi ctim girl also, she has stated that there was attempt to commit rape. Significan tly, in her cross examination, she stated that she had lodged the FIR as she did not get money from the accused appellant. PW-3, in her deposition stated that t he victim girl had informed her that there was attempt to commit rape on her. Ho wever, PW-4 in his deposition stated that the accused appellant had committed th e offence under Section 376 IPC. 10. PW-5 is a vital witness inasmuch as she was present when the all eged incident occurred. She also, like that of the victim girl aged was about 5 years. Both of them were playing in the courtyard of Sri Bhupen Boro. She in her deposition simply stated that the victim had come and kissed both of them and l eft the place. In her cross examination, she has stated that the mother had gone to nearby river for washing cloth and she kept the house under lock and key. If that be so, there could not have any occasion for the accused appellant to take the victim girl inside the house and commit the offence. 11. PW-6 is the interpreter, who had interpreted the Bodo language i n which the witnesses had stated into Assamese. PW-7 is the I/O, who in his depo sition stated about the investigation and as to how he had collected the medical report. PW-8 is another witness, who was not examined by the police. He, in his deposition stated about the incident, which he had heard. PW-9 is the doctor, w ho had examined the victim girl, who in his deposition stated about the opinion rendered on the basis of the medical examination on the victim girl. For a ready reference, the opinion rendered by him is quoted below: (cid:28)Opinion: On the basis of physical and radiological examination of Smti Rinkumoni Boro, I am of the opinion that:- 1. 2. 3. Evidence of sexual intercourse is not detected on her person. No any violence injury mark detected on her person. Her age is above 5 years and below 7 years. Ext.3 is my report in 3 sheets whereupon Ext. 3(1), 3(2) & 3(3) are my signature s. (cid:29) 12. PW-10 is another I/O, who in his deposition stated about the sta tement of the victim girl recorded under Section 164 CrPC. He also stated about examining the girl by the doctor. During the course of the investigation he was transferred and he had handed over the diary to his successor. In cross examinat ion, he has stated that the PW-3 did not tell him that she was reported by the v ictim about the occurrence. 13. From the aforesaid evidence, what is seen is that there were two versions. If we believe the testimony of the victim girl, the accused appellant had committed the offence under Section 376 IPC. On the other hand, it was a ca se of attempt to commit rape. Significantly, the PW-5, who was present along wit h the victim girl did not implicate the accused appellant in any manner. Similar ly she in her deposition categorically stated that the accused appellant had com e to the place where they were playing and after kissing them went out from the place. In cross examination, she had stated that the house was under lock and ke y. If that be so, it was not possible for the accused appellant to enter into th e house and commit the offence under Section 376 IPC laying the victim girl in t he bed. As noticed above, PW-3 in her deposition stated that the victim girl had informed her that there was attempt to commit rape on her by the accused appell ant. 14. Learned Trial Court has held the accused appellant guilty of the offence of attempt to commit rape and thus has convicted the accused appellant under Section 376 IPC read with Section 511 IPC with the sentence to undergo RI for three years. Thus, the Trial Court did not believe the version of the victim girl made under Section 164 CrPC and so also during trial. If the statement of the victim girl is not to be believed then the same will have to be in toto and not partially. So far as the other witnesses are concerned, what is found is tha t there was some corroboration in respect of the purported offence committed by the accused appellant under Section 376/511 IPC. It is in this context, learned counsel for the accused appellant has placed reliance on the decision of this Co urt reported in 2010 (4) GLT 599. As in the instant case, the said case was also a case of the offence under Section 376 (2) (f)/511 IPC. That was also a case o f attempt to rape of a minor. It was held that if two views are possible, the vi ew favourable for the accused appellant is required to be accepted. For all the aforesaid reasons, I am inclined to accept the appea 15. l. In my considered opinion the accused appellant is entitled to benefit of doub t and accordingly the impugned judgment of conviction dated 26.9.2006 passed by the learned Sessions Judge, Kamrup in Sessions Case No. 153(K)/2003 stands set a side and quashed. 16. Criminal appeal stands allowed. Send down the LCR with a copy of this judgment and order.