High Court
Case Details
Crl.A. 93/2007 PRESENT HON’BLE MR JUSTICE A. C. UPADHYAY This appeal is directed against the judgment and order dated 22nd March, 2007 passed by the learned Additional Sessions Judge (FTC)-IV, Kamrup in Sessions case no. 199(K)/2006, whereby the appellant was convicted under Section 376 read with Section 511 of the IPC and sentenced to undergo rigorous imprison ment for three years and a fine of Rs 1000/- and in default to simple imprisonme nt for three months. In tandem with this conviction and sentence, appellant was also sentenced to undergo simple imprisonment for two months and a fine of Rs 20 0/- and in default to simple imprisonment for fifteen days under Section 342 of the IPC. 1. The FIR discloses that on 4.3.2006 at around 4 PM the victim went to the grocery of the accused, when she was dragged to his residential room by the acc used and later raped her. Agigated by the screaming of the victim when the villa gers poured in at the spot, the accused fled. On basis of the ejahar, police reg istered a case and started an investigation and on completion thereof, submitted a charge-sheet against the accused under Sections 342/376 of the IPC.
Legal Reasoning
2. On committal of the case for trial, the learned trial court framed a for mal charge under Section 376/342 of the IPC against the accused. On being read o ut and explained the charges, the accused pleaded innocent and demanded a trial. 3. During trial, prosecution examined in all eight witnesses, including the investigating officer, and on completion of recording of evidence of the witnes ses, statement of the accused under Section 313 of the CrPC was recorded, where the stand of the accused was of total denial and preferred to not adduce any evi dence in defence. On completion of trial, the learned trial court convicted and sentenced the accused, giving rise to this appeal.
Legal Reasoning
4. Learned counsel for the appellant vehemently submitted that as prosecuti on has miserably failed to prove the charge against the accused beyond all reaso nable doubt the appellant is liable to be acquitted of the charge u/s 376 of the IPC. On the other hand, learned Additional Public Prosecutor, submitted that th e forthright statement of the victim coupled with the evidence of the medico and the local witness have established the charge against the accused beyond all re asonable doubt and as such the judgment of the learned trial court do not call f or any interference in the facts and circumstances of the case. 5. s, I would like to state herein-below the core of the prosecution witnesses: In order to appreciate the submissions of learned counsel for the partie Points for determination: (i) whether on 4.3.2006 at around 4 PM at Issh 6. apur village the accused had wrongfully confined the victim in his room for some time? and (ii) whether on 4.3.2006 at around 4 PM at Isshapur village the accuse d had raped the victim? As both the sordid strands are intertwined, they are dis cussed and decided together for the sake of convenience. 7. Prosecution case as narrated in the FIR is that on 4.3.2006 when the vic tim went to the grocery of the accused, she was raped by the latter. The victim, examined as PW4, deposed that on the day of occurrence at around 4 PM, she alon g with one Binita went to the shop of the accused to buy (cid:28)Harpal (cid:29), when she was dragged by the accused in his residential room contiguous to his shop in presenc e of Binita and one Amba and tried to rape her after disrobing her. When she was crying for help, Binita informed the matter to her mother and the moment her mo ther came to the spot, the accused fled and by then the villagers poured in at t he spot and later held a village mel and an FIR was lodged with the police there after. The medical officer examined the victim. During the investigation, polic e seized the panty of the victim containing blood stain. On the day of occurrenc e, periodic condition on the victim was going on, as deposed by this witness. 8. Binita(PW1) deposed that at the relevant time, prosecutrix, one Amba and she went to the shop of the accused to buy Harpal and later to the house of the accused to cook food and the moment the victim entered the room of the accused by saying that he would play with the victim and dragged the victim in his room and bolted the door from inside. The witness later informed the matter to the mo ther of the victim. In her cross-examination, the witness stated that the accused ill-treate d the victim. 9. Amba(PW3), a 10-yeard-old girl, deposed that at the relevant time the vi ctim, Binita and she went to the house of the accused. She deposed that she was cooking food in the kitchen of the accused. The accused admitted that the prosec utrix and the witness had came to his stall to purchase Harpal. Later, she came out of the house of the accused to see Binita and the prosecutrix standing on a nearby road. Mustt. Sahanara Bibi(PW2), mother of the victim, deposed that on being i 10. nformed by Binita(PW1) she immediately went to the residence of the accused to s ee her daughter and the accused standing in the latter’s forecourt and on being asked, she was told by her daughter that the accused had attempted to rape her. She also deposed that at that time, periodic condition on her daughter was going on. In her cross-examination, the witness deposed that she did not see any i njury on her daughter’s body. 11. Md Ramjan Ali(PW5) deposed that on way back home he saw a sea of people in front of the shop of the accused and that he heard that some awkward incidenc e erupted between the accused and the victim. 12. Rahul Amin(PW6) deposed that he did not know about the incidence. 13. Jonab Ali(DW1), the father of the victim, deposed that when he returned home from his place of work on 4.3.2006 at around 4 PM, he did not see his wife and the daughter at home either and at around 6 PM when they came home and he as ked about, he was told by his wife that when the accused tried to catch his daug hter’s hands, her daughter cried out for help and immediate thereafter, the vill agers came to the spot and took them to the police station. According to this witness, Samila Khatua, the wife of the accused, while denying the involvement of his husband(accused) in the incidence, admitted that at the relevant time she met Amba at the latter’s residence and when she reached home, her husband(accused) left for her parents’ home at Barpeta. 14. The victim stated hat she had gone to the house of the accused. At 4 PM, Binita and the victim came to the grocery of the accused and bought Harpal. Th e grocery and the house of the accused are contiguous to each other. The moment the victim inched the house of the accused, he caught the hand of the victim and forcefully lifted her on his bed. The victim stated that the accused disrobed her and she cried. But the accused attempted to ravage her modesty but could not as she cried for help. Binita went to our house and informed the incidence to t he mother of the victim. When, she rushed to Kitab’s house, she came out and Kit ab fled. Having heard her screaming, the neighbours rushed to the spot and there after convened a mel, but the victim did not accept to compromise and filed the FIR. 15. From the above, it is crystal clear that at the relevant time the victim and the PW3 went to the shop of the accused to purchase (cid:28)Harpal (cid:29) and thereafter PW3, started cooking food at the latter’s kitchen. The accused in his statement under Section 313 CrPC had admitted that at the time of incidence, victim and o ne Binita came to his shop to buy (cid:28)Harpal (cid:29) PW9, the doctor, who examined the victim, found the following injuries o 16. n her person: (cid:28)Physical examination: Height 95cm (ii) weight Not taken (iii) Chestigirth at ni pples line 18 cm (iv) Abdomen girth (at umbilical)) 73 cm. Teeth: Temporary Nil Permanent 14/14 = 28(All) Total 28. Space for 3rd meter teeth - Absent in all for quadrants. Hair (a) (b) (c) (d) Scalp hair - 26cm in length black coloured. Axillary hair - scanty (light brown) 0.5 cm in length. Public hair - 2-3 cm in length, black in colour. Breasts - Developed, hemispherical in shape, Nipple, &. developed, no discharge seen on squaagi the nipples. Menarcha - 1 years back. Menstrual cycle - 30 days regular cycle. Last menstrual period on 1.3.06. History of puberty - (a) (b) (c) Genital enaminetish - (-) Vulva - On abduction thigh both libia manor/minor. Hymen - Old tear present 3 o’clock - 6 o’clock position, Redness and ten Genital organs - Developed. derness present. The surrounding area admits tip of the fingers. Vagina - Healthy. Cervize - Healthy Uterus - Not palpable per abdomen. Evidence of venereal diseases - Not detected clinically. Evidence of injury on her body or private parts - Not detected. Vaginal smears taken on glass slides for laboratory investigation - In the opinion of the Doctor: Her age is above twelve years and below fourteen years. There is no evidence of recent sexual intercourse on her person. Injuries present as described in column no. 17(c) (cid:29). 1. 2. 3. The medical officer found redness and tenderness in the surrounding area of the hymen, which admits two fingers, with ruptured hymen, reflects assault o n the private part of the victim. 17. ned the victim in a room and attempted to rape the victim. From the evidence of prosecution, it is clear that the accused had confi 18. The accused admitted to have caught the hand of victim. Evidence of the other witnesses reflected that the accused dragged the victim to his residentia l room undressed her and laid her on the bed, contiguous to his shop. There is n othing on record to disbelieve the evidence of the victim. The defence could not rebut the evidence of prosecution by cross-examining them; rather, the PW1 in h er cross, had admitted that the accused confined the victim in the room and atte mpted to ill-treat the victim. 19. From evidence of both the prosecution and the defence witnesses, it is c lear that the accused confined the victim and attempted to rape her. 20. On a careful perusal of the materials on record, I do not find sufficien t materials to interfere in the findings of the learned trial court and accordin gly the appeal is dismissed. Send back LCR. 21. The accused appellant is now on bail. His bail bond shall stand can celled. He shall surrender before the trial court within 15 days from the date o f receipt of this order to serve out the sentence, failing which, the trial cour t shall proceed against him, in accordance with law. Before parting with the record, I would like to appreciate for t 22. he assistance rendered by Mr PP Dutta, learned amicus curiae in arriving at the aforenoted judgment. He is entitled to a remuneration, which is quantified at Rs . 4500/-, to be paid by the State of Assam.