High Court
Case Details
Crl.A. 126/2008 BEFORE HON’BLE MR JUSTICE PK MUSAHARY Heard Mr. M. Choudhury, learned counsel for the appellant. Also heard Mrs. B. S aikia, learned Addl. P.P., Assam, for the Respondent State.
Legal Reasoning
The appellant was convicted u/s 376(1) IPC and sentenced to undergo simp 2. le imprisonment for 4 years and to pay a fine of Rs.1,000/- only in default of payment of fine further R.I. for 3 months vide judgment and order dated 30.5.2 008 passed by Sessions Judge, Dhemaji in Sessions Case No. 31 (DH) of 2007. By f iling this appeal he has challenged the order of conviction and sentence. 3. The prosecution case, in brief, is that the informant’s daughter who was working as domestic aide in the house of the appellant, was raped by the appell ant and at the time of commission of offence her daughter was aged 10 years only . The alleged occurrence took place on 14.9.2006 and the FIR was lodged on 17.10 .2006. The victim girl was medically examined on 17.10.2006. The police register ed a case being Dhemaji P.S.Case No. 278/2006 under Section 376(2)(f) IPC. For mal investigation was conducted and charge-sheet was submitted on 2.4.2007 u/s 3 76(2)(f) IPC and the case was committed to the Court of Sessions for trial. The learned Sessions Judge framed charge against the appellant in the aforesaid Sect ions of law. The appellant pleaded not guilty and demanded trial and accordingl y he faced the trial. The prosecution examined as many as 8 witnesses but the ap pellant examined none in his defence. On the basis of the materials and evidence on record, the learned trial Court convicted and sentenced the appellant as ind icated above. I have carefully gone through the records of the case. It is found that 4. alleged occurrence took place on 14.9.2006. The FIR was lodged on 17.10.2006 i.e . after more than one month. The delay in filing the FIR was sought to be explai ned by stating that the aforesaid time was spent in taking advice from well wis hers. Normally in the case of crime of this nature, the delay in filing the FIR is not taken seriously provided the explanation comes forth and the delay is onl y for few days. In the present case, admittedly, the delay is more than one mont h and the explanation given is not found satisfactory. In my considered view the delay in filing the FIR has affected the proceeding and it has found to be fata l. However, the other aspects of the matter are to be examined by the Court. 5. PW 1 is the mother of the victim girl . She is the informant in this ca se. As per her evidence her daughter was kept in the house of the appellant as d omestic aide for last three months and in her cross-examination she stated that her daughter disclosed the matter to her. She has not stated as to when the vict im told the informant about the incident. The victim girl was examined as PW 2. She stated that she was in the house of the appellant for last 6 to 7 months. Ac cording to her she was subjected to forceful intercourse on a night by the appel lant. There was repetition of the said act. The act of alleged forceful sexual i ntercourse took place on three other occasions. It appears that even after the s exual intercourse against her will, she did not report the matter to anybody els e. She, of course, stated that she told her mother after leaving the house of the appellant. In her statement nothing has been found about the date and time of disclosing the matter to her mother. PW 6 is the medical officer who examined the victim girl on 17.10.2006. 6. He proved the medical report, Ext.3, and his signature, Ext.3(1) appearing there on. On the basis of the aforesaid medical report he deposed before the Court abo ut his findings, which are as follows: (cid:28) Breasts are not developed. Auxiliary and Pubic hair are not developed. No any sign of external injury seen over her private parts like labia majora and minora and over her thigh. Vaginal introitus permits one finger. Hymen seen to be intact. For age determination, x-ray was done, x-ray shows the age of the victim below 15 years of age(approxmitaly) (cid:29) In the opinion of the doctor, the victim was below 15 years of age. The age was determined approximately on the basis of x-ray report. He also opined th at no definite sign of forceful sexual intercourse was found on the person of th e victim. In cross-examination, he however, admitted that no injury was found on the private parts of the victim girl and her hymen was found intact. The I.O. concerned was examined as PW 7. His evidence could not throw an 7. y significant light on the prosecution case inasmuch as he visited the place of occurrence only after receipt of the FIR on 17.10.2006 i.e. after more than one month from the date of alleged occurrence. I am not inclined to indulge further appreciation of evidence of other w 8. itnesses inasmuch as in the rape case, the evidence of the victim girl and the m edical officer should be given prime importance and it should be appreciated and taken into account first. The other witnesses in this case, are all reported on es. There is, obviously, no eyewitness to such incident. Same is the case in the present case. 9. I have already mentioned earlier that the delay of one month in lodging the FIR has affected the prosecution case. The only point left for consideration is the age of the girl. If it is found that she was really a minor girl at the time of alleged commission of offence, there would be no chance for the appellan t to escape from conviction and sentence. The doctor’s evidence about the age of the girl is not definite. He was not sure about the age of the girl but he has assessed her age as below 15 years approximately. The age of the victim girl may be about 15 years or below 15 years. The age can be calculated by the Court add ing two years in the upper side and below two years in the lower side of the pr ojected age of the victim girl. What is striking the mind of the Court is that the hymen of the victim was found intact. Although she stated in evidence that forceful sexual intercourse took place at least on three occasions, the doctor f ound no injury on her private part. If she was a minor girl or a virgin, she wou ld have received some injury on her person particularly on the private part. If she was ravished forcefully it is not expected that her hymen would remain intac t. Moreover, the victim did not report the matter to anybody and she reported it to her mother after a month or so. The conduct of the victim girl and her evi dence are found to be unnatural. So also her evidence is found unbelievable and untrustworthy. She is found to be a consenting party to the sexual act that had taken place between the appellant and herself. The evidence of victim girl is no t found to be consistent and trustworthy, and it has failed to gain the confiden ce of the Court.
Decision
10. In view of the above, I am of the considered view that the prosecution c ould not prove its case against the appellant beyond all reasonable doubt and co nsequently he is entitled to acquittal on benefit of doubt. 11. e. The appellant stands acquitted on benefit of doubt. The impugned judgment and order 30.5.2008 is hereby quashed and set asid 12. ntence and he has been released from the jail. It is stated at the Bar that the appellant has already served out the se 13. 14. The appeal is allowed and disposed of. Return the LCR.