High Court
Case Details
Crl.A. 61/2011 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mr. A. Choudhury, learned counsel for the appellant and Mr. B. J. Dutta, l earned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 03. 03.2011 passed by the learned Addl. Sessions Judge, (FTC), Barpeta in Sessions C ase No. 61/2009 convicting the accused/appellant under Section 376 IPC and sente ncing him to undergo Rigorous Imprisonment (RI) for 10 (ten) years and to pay fi ne of Rs. 2000/-, in default, to undergo Simple Imprisonment (SI) for further pe riod of 2 (two) months. 3. Prosecution case may be briefly noted.
Legal Reasoning
4. One Amir Ali lodged a first information before the In-charge of Kalgachia Police Out Post under Sorbhog Police Station in the district of Barpet a on 26.09.2003 making the allegation that on 22.09.2003 between 12:00 noon and 1:00 pm when his minor daughter had gone to collect firewood at a distance from his residence, the accused came there and after gagging her, committed rape on h er. The first information further stated that his wife and son went to the place of occurrence and apprehended the accused. The accused was brought to their hou se but he somehow managed to escape and flee. Informant stated that he had infor med the village elders for holding a village (cid:28)Mel (cid:29) (meeting) but no such meeting could be held as the accused person did not cooperate, which caused delay in th e filing of first information. 5. The first information was forwarded to the Sorbhog Police Statio n whereafter, it was treated as FIR and was registered on 04.10.2003 as Sorbhog PS Case No. 240/2003 under Section 376 IPC. 6. Police investigated the case. In the course of investigation, th e victim was produced before the Magistrate, who recorded her statement under Se ction 164 Cr.PC. The victim was also medically examined. The police could not ap prehend the accused and, therefore, declared him as absconder. On completion of investigation, Investigating Officer (IO) submitted charge-sheet against the acc used under Section 376 IPC. 7. Ultimately, the accused surrendered before the learned Chief Jud icial Magistrate, Barpeta on 30.11.2009 and, thereafter, he was remanded to judi cial custody. The case being sessions triable, it was committed to the Court of Sessions, Barpeta. Thereafter, learned Sessions Judge, Barpeta transferred the c ase to the trial Court for disposal. When the trial Court framed charge against the accused under Section 376 IPC, which was read over and explained to him, he pleaded not guilty and claimed to be tried. 8. To prove the charge against the accused, prosecution examined as many as 9 (nine) witnesses. The accused was examined under Section 313 Cr.PC. H owever, the defence did not adduce any evidence. Defence plea was of total denia l. After considering the evidence adduced and other relevant materials on record , learned trial Court held that the prosecution was able to prove the charge aga inst the accused under Section 376 IPC beyond all reasonable doubt and, accordin gly, the accused was convicted under the aforesaid section and sentenced as stat ed above. 9. Aggrieved, the present appeal has been filed. 10. This Court by order dated 04.04.2011 had admitted the appeal and by a separate order dated 30.05.2011 passed in Misc. Case No. 235/2011, granted bail to the appellant. 11.
Legal Reasoning
Mr. A. Choudhury, learned counsel for the appellant has referred to the evidence adduced by the prosecution witnesses and submits that the ingre dients essential for constituting an offence of rape were totally absent in this case. The medical evidence also belied the prosecution case. Moreover, he submi ts that the evidence on record is clearly suggestive of the consensual nature of intercourse between the accused and the alleged victim. He, therefore, submits that in such circumstances the learned trial Court was not justified in coming t o the conclusion that the charge against the accused stood proved beyond all rea sonable doubt. In view of the contradictions in the evidence of the prosecution witnesses coupled with the medical evidence, learned counsel for the appellant s ubmits that the present is a fit case for giving the benefit of doubt to the app ellant. 12. Submissions made by Mr. Choudhury, learned counsel for the appel lant has been resisted by Mr. B. J. Dutta, learned Addl. PP, Assam. He submits t hat when the version of the victim is reliable and trustworthy, no corroboration is required. Medical evidence being in the nature of an opinion, cannot have an impact on the Court when the version of the victim inspires the confidence of t he Court. He submits that there is nothing on record to disbelieve the version o f the prosecution. Therefore, the conviction and sentence is justified. 13. Submissions made have been considered. 14. ced may be briefly referred to. Before proceeding further, relevant portion of the evidence addu 15. PW 1 is the informant, who is also the father of the victim. He has stated that his daughter is aged about 10 years. He came to know from his wi fe and daughter that the accused had sexual intercourse with his daughter. In hi s cross-examination, he has stated that he did not see the incident himself. He also stated that he had not submitted the age certificate of his daughter. PW 2 is the victim girl. At the time of adducing evidence, she d 16. isclosed her age as 20 years and the date of occurrence as about 6 years ago, wh ich meant that her age was about 14 years on the date of occurrence, as per her version. She has stated that at about 12:00 noon on the day of occurrence, she h ad gone out from the house to collect firewood. At that time, the accused embrac ed her and had sexual intercourse with her. When she raised hue and cry, her mot her and brother Saiful Islam came to the place of occurrence. Her brother Saiful Islam caught hold of the accused but the villagers took him away. While deposin g, she paused for sometime and then stated that the accused had fled from the sc ene. In her cross-examination, PW 2 stated that she got married about 1‰ years a fter the incident and has two children from her marriage. She stated that the do ctor had examined her on the day of the incident itself. PW 3 is the mother of PW 2. She stated that on the day of incid 17. ent, her daughter PW 2 had gone out from the house to collect firewood. She sear ched for her daughter and found the accused and her daughter. According to her, her daughter’s mouth was kept closed and on seeing her, the accused tried to fle e but he was caught. However, he managed to flee from the scene. In her cross-ex amination, she stated that there are lots of families in the vicinity of the pla ce of occurrence. After the incident, they made a complaint before the villagers but nothing was done. 18. Saiful Islam, the brother of the victim, is PW 4. He stated that on the day of incident, the accused had sexual intercourse with his sister. He had caught hold of the accused and brought him to their house. However, the accu sed could free himself and fled. He stated that he had found the accused under a bamboo grove. In his cross-examination, he stated that he has a shop selling ve getables. At the time of occurrence, his mother called him from the direction of the jungle. A commotion took place and when PW 4 caught hold of the accused, ab out 20/25 persons had gathered at the place of occurrence. However, the accused fled away and escaped. 19. PW 5 and 6 are neighbours and were declared hostile. However, in his cross-examination, PW 5 stated that when he arrived at the place of occurre nce, he saw Saiful Islam (PW 4) giving blows by hand to his sister PW 2. PW 6 in his cross-examination stated that he saw Saiful Islam holding the hands of the accused and that he heard from Saiful’s mother PW 3 that the accused was caught red handed having forcible sexual intercourse with her daughter under a bamboo g rove. 20. PW 7 is the doctor, who had examined the victim. He has stated t hat he did not find any injury mark either inside the vagina or on her private p arts. But the hymen was absent. He further stated that no semen was found. He, h owever, stated that the age of the victim girl was required to be ascertained by radiological examination. He also stated that there was no sign of recent force ful intercourse. In his cross-examination, he has stated that he had examined th e victim on 22.09.2003 at 8:00 pm in Kalgachia PHC but prepared the report on 29 .09.2003, which was issued on 06.10.2003. Radiological examination of the victim was carried out by PW 8, Dr. Paresh Kalita, Senior Medical & Health Officer, Ba rpeta Civil Hospital on 07.10.2003. On such examination, he opined that the vict im girl would be above 18 years but below 20 years and that he did not find any sign of recent sexual intercourse. 21. The IO of the case gave evidence as PW 9. He has stated that the informant had lodged the ejahar on 04.10.2003 where the date of the incident wa s shown as 22.09.2003. He also stated that on the day of occurrence, the medical examination of the victim girl was done at Kalgachia PHC. When the accused was confronted with the evidence in his examination under Section 313 Cr.P.C., he de nied the allegation. 22. This was the evidence before the Court. 23. A cumulative assessment of the evidence would indicate that ther e was an attempt to understate the age of the victim girl. In the first informat ion, PW 1, the informant, disclosed the age of his daughter as approximately 14 years. However, when he deposed, he declared the age of his daughter as about 10 years. No age certificate of the victim girl was produced before the Court and exhibited. As noticed above, the radiological examination of the victim girl ind icated her age to be above 18 years but below 20 years. Thus, from the medical e vidence and in the absence of any documentary evidence to the contrary, conclusi on can be drawn that the victim girl was above 18 years of age. 24. The question, therefore, is whether there was any forceful sexua l intercourse by the accused with the victim girl PW 2 within the meaning of Sec tion 375 IPC. 25. PW 1, the informant, confessed that he did not see the incident. PW 3, the mother, stated that when she went out searching for her daughter, she found the accused and her daughter and the mouth of her daughter was kept close d. The accused tried to flee but was caught hold of by Saiful Islam PW 4, her s on. In her cross-examination she has stated that there were lots of families in the vicinity of the place of occurrence. PW 2, the victim, in her cross- examina tion stated that she had gone to collect firewood at a distance of about 1 bigha from her house. In such circumstances, it would be highly improbable for the ac cused to have gagged the victim and thereafter to have committed forceful sexual intercourse with her, an adult woman, with not only her residence nearby but a large number of families residing in the vicinity. Again, PW 2 in her evidence s tated that the accused had sexual intercourse with her. She did not say that the accused had sexual intercourse with her against her will. Her further statement that she had raised hue and cry and on hearing her hue and cry, her mother and brother had come to the place of occurrence is contradicted by her mother (PW3) when she says that she saw them together with the mouth of her daughter kept clo sed. Though the mother said that she and her son went out looking for her daught er, the son (PW4) stated that he was in his shop selling vegetables when his mot her called him from the direction of the jungle. 26. PW 4, Saiful Islam, the brother stated that on the day of occurr ence, the accused had sexual intercourse with his sister. If this piece of evide nce is read together with the evidence of PW 5 that he saw Saiful Islam giving b lows to the victim, a reasonable inference can be drawn that the victim was a co nsenting party to the act of sexual intercourse with the accused which had enrag ed her family members. The fact that the first information was lodged belatedly would also be a reflection on the consensual nature of the act and the attempt t o cover up. 27. There is another aspect of the matter. Admittedly, first informa tion was lodged on 26.09.2003 and the FIR was registered on 04.10.2003. The date of occurrence is shown as 22.09.2003 between 12:00 noon to 1:00 pm. The doctor says that he examined the victim on 22.09.2003 at 8:00 pm which is before lodgin g of the first information. He did not mention about any GD entry or police case number in his report which he prepared on 29.09.2003, seven days after the medi cal examination and which he issued on 06.10.2003. This only indicates that the medical examination of the victim was done at the instance of the family members to present the incident as a case of rape. In such circumstances, the whole thing becomes very suspicious a 28. nd lacking credibility. Thus, I am of the view that the conclusion arrived at by the learned trial Court that the prosecution witnesses could not be discredited appears to be misplaced. On the contrary, the prosecution case appears to be hi ghly improbable and is clearly an attempt to cover up what appears to be a conse nsual act. 29. It is the cardinal principle of criminal jurisprudence that the charge against the accused must be proved beyond all reasonable doubt. In the pr esent case, it cannot be said that the charge against the accused stood proved b eyond all reasonable doubt. In the absence thereof, the accused should be given the benefit of the doubt, which I hereby do. 30. Accordingly, appeal is allowed. Impugned conviction and sentence is hereby set aside and quashed and the accused/appellant is set at liberty. Ba il bond stands discharged. 31. Office to send down the case record immediately.