High Court
Case Details
Crl.A. 163/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
Heard Mr. K.D. Chetri, learned counsel for the accused appellant. Also heard Mr. N.J. Dutta, learned A.P.P., Assam. 2. This appeal is directed against the judgment of conviction and sentence dated 28.5.2008 passed by the learned Additional Session Judge (FTC), Karimganj in Sessions Case No. 40/2007 convicting the accused appellant under Section 376 IPC and sentencing him to undergo RI for 10 years and fine of Rs. 5000/- in defa ult to suffer RI for additional period of 6 months. Initially a written complai nt was submitted by the victim before the learned Chief Judicial Magistrate, Kar imganj on 3.1.2007 and the same was sent to the Patharkandi Police Station with a direction to register a case for investigation. Learned Chief Judicial Magistr ate also directed to submit report after investigation. On the basis of the said direction of the learned Chief Judicial Magistr 3. ate, Patharkandi P.S. Case No. 14/2007 was registered under Section 376/347/34 I PC on 29.1.2007. As per the complaint lodged, the accused appellant a relative o f the victim Ajanta Suklabaidya is the daughter of the accused and sister-in-law of the victim. The brother of the victim married Ajanta. When Ajanta became men tally ill, the accused brought her daughter to his house and also brought the vi ctim for nursing his daughter. On the 6th day of stay of the victim in the house of the accused appellant, she was allegedly raped by the accused appellant. Alt hough the victim reported the incident to the wife of the accused appellant, but she warned her not to disclose the matter to anybody. In the complaint, it was further alleged that she in a helpless condition attempted to return to her hous e, but the other two accused persons restrained her and compelled her to stay in the house of the accused appellant. Be it stated here that the other two accuse d are the sons of the accused appellant. 4. As per the complaint lodged, the victim became pregnant and after about 6 months, the accused appellant took her to the house of her maternal uncle and left her there. After registering the aforesaid P.S. Case, the police carried ou t the investigation and on completion of the same, submitted charge sheet. Howev er, on perusal of the materials on record, the Trial Court discharged the other two accused persons. But, on the other hand, the accused appellant having been c onvicted under Section 376 IPC, he has preferred the instant appeal. 5. During trial, the prosecution examined 5 witnesses and the defence exami ned 3. The impugned judgment of conviction is primarily on the basis of the depo sition made by the victim girl i.e. PW-1, who in her deposition stated that on t he 6th day of her stay in the appellant’s house, he had committed the offence un der Section 376 IPC. She in her deposition stated that when she wanted to shout, she was prevented from doing so. As per her testimony, she had reported the inc ident to the wife of the accused and his two sons, who were also accused in the case. As per her testimony, they had asked the victim not to report the incident to anyone. She also stated that they had beaten her up and confined her in the house preventing from going outside. As per her version, she was also stopped fr om meeting her mother and brother when they visited the house of the accused app ellant. It was only upon developing 6 months pregnancy, she was taken to her mat ernal uncle’s house by the accused appellant only to be left there. In her cross-examination, she has stated that during her stay in the hou 6. se of the accused, her brother and mother visited on 10/15 occasions, but she wa s not allowed to meet and talk to them. It was also stated that she was kept und er lock & key whenever her mother and brother had visited. She in her cross-exam ination also stated that she used to sleep with her sister-in-law i.e. the daugh ter of the accused on the same bed and that the wife and the two sons of the acc used used to stay in another room. Significantly, she in her cross-examination s tated that she had forgotten the date of the incident. Her cross-examination als o reveals that there are houses of other people near to the house of the accused appellant. On being asked as to why she could not report the alleged incident t o them, her version was that she was kept confined by the wife of the accused. 7. PW-2 is the mother of the victim, who in her deposition stated about 6 m onths pregnancy of her daughter. In her cross-examination while stating that her daughter-in-law behaved abnormally after her marriage also stated that her daug hter also behaved abnormally. However, later on contradicted the said statement. She also stated that her daughter was not behaving abnormally. There was sugges tion to her that the victim was taken to Ramkrishna Nagar town for treatment the re. PW-3 is the doctor, who examined the victim. In her deposition stated that s he was pregnant when examined. PW-4 is the brother of the victim, who in his dep osition stated that the victim had developed some illness of losing her consciou sness and that she was treated for the said illness. He in his deposition stated that the accused had taken her home to take care of Ajanta. In his cross-examin ation he categorically stated that he had visited the house of the accused appel lant when his sister was there and that he was received warmly with good food et c. From the testimony of this witness, it is not discernible that the victim was prevented from meeting him rather it is evident that he used to meet her. 8. n stated about the investigation in general and submission of the charge sheet. PW-5 is the I/O, who carried out the investigation, who in his depositio 9. The accused was examined under Section 313 CrPC. His version of the case was total denial. DW-1, 2 and 3 in their deposition stated that the accused app ellant never slept in the bed where the victim use to sleep along with the DW1. DW-1 is Ajanta for whose care the victim was brought. She in her deposition cate gorically stated that the victim never told her or even to her husband about the incident purportedly committed by her father. DW-2 and 3 in their deposition st ated that the victim was somehow mentally ill, for which she was treated. Thus, it was sought to be suggested that the victim was mentally ill and thus her test imony was not believable. 10. Mr. K.D. Chetri, learned counsel for the appellant submits that going by the aforesaid evidence, it cannot be said to be a case of establishing the offe nce under Section 376 IPC beyond all reasonable doubt. He submits that as per th e said evidence, there was no offence under Section 376 IPC and even if it is pr esumed that there was any such incident, the same was with the consent of the vi ctim girl. Countering the above argument, Mr. N.J. Dutta, learned A.P.P., Assam, th 11. e testimony of the PW-1 i.e. the victim girl cannot be brushed aside. He submits that in absence of any material contradiction, her testimony cannot be disbelie ved. 12. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also gone through the entire materials on record. My findings and conclusions are as follows: 13. Apparently the prosecution case is mainly on the evidence of the victim girl i.e. PW-1. Admittedly her evidence regarding commission of the offence by t he accused appellant punishable under Section 376 IPC has not been corroborated by any other evidence. PW-2 and 4 are the reported witnesses. The testimony of P W-1 and 2 regarding the testimony that the victim girl was confined and not allo wed to see her mother and brother is totally belied by the evidence of PW-4 as d iscussed above. If that be so, a question necessarily will arise as to what prev ented the victim girl from telling her brother i.e. PW-4 about the purported inc ident. 14. the following observations: The aforesaid fact has been appreciated by the learned Trial Court with (cid:28)It is revealed from the record that statement U/S 164 Cr.P.C. was made after one month of lodging the complaint i.e. on 03.02.2007. So a presumption ma y be drawn that what is written in the FIR are not as per version of the victim. The fact was exaggerated and the fact which state U/S 164 CrP.C., is true but w hen she deposed before the court during trial on 23.05.2007 i.e. after three mon ths twenty days she adduced a new fact that when she reported the incident she w as beaten and confined. So material fact is developing each occasion aforesaid w hich cast a doubt about the real fact regarding confinement. Hence, considering the evidence of her mother, her brother I must say that the fact of confinement as stated by the victim is not true but it is added in this case to make the cas e of rape convincing before this court. That is why in my considered view no cas e has been established against the accused Nos 2 and 3 for wrongful confinement and criminal intimidation. Therefore, the point No. 1 is decided in negative. (cid:29) 15. If we go by the aforesaid appreciation of the evidence by the learned Tr ial Court, which is also evident from the materials on record, it will be seen t hat the PW-1 kept on developing the case, firstly at the stage of making the sta tement under Section 164 CrPC and secondly at the time of making deposition duri ng trial. Her version under Section 164 CrPC and during trial are quite distinct and different than that what was complained in the complaint. Coupled with this position, when there is no corroborative evidence to support the case of the PW -1, in my considered opinion, it will be too dangerous to convict the accused ap pellant under Section 376 IPC solely on the basis of her testimony. 16. The Trial Court while making the aforesaid observation, however, recorde d the finding in the impugned judgment of conviction that her testimony is belie vable except that of illegal confinement. If she was not believable in respect o f one element of the offence, it could not have been held that she was truthful in respect of the most important element i.e. the offence under Section 376 IPC. Learned Trial Court has believed the version of PW-1 even after holding that th e testimony of the victim girl regarding illeal confinement and that she had rep orted the incident to the wife of the accused appellant and other persons is not believable. While partly relying upon the testimony of the victim girl, the lea rned Trial Court failed to appreciate the main element of the offence was to be tested on the touchstone of the other element, which according to the victim was present, but in fact was not present.
Decision
17. For all the aforesaid reasons, I am of the considered opinion that the a ccused appellant is entitled to benefit of doubt and accordingly he stands acqui tted from the charges under Section 376 IPC. The appeal is allowed by setting as ide and quashing the judgment of conviction and sentence dated 28.5.2008 passed by the learned Additional Session Judge (FTC), Karimganj in Sessions Case No. 40 /2007. There shall be no order as to costs. 18. nd order. Registry is directed to send down the LCR with a copy of this judgment a