High Court
Case Details
CRL.A(J) 6/2009 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) Since Criminal Appeal Nos. 132(J)/2008, 133(J)/2008 and 6(J)/200 9 arise out of the common judgment and order, the three appeals were heard toget her and are being disposed of by this common judgment. 2. The three appeals are directed against the judgment and order dated 07.0 8.2008 passed by the learned Assistant Sessions Judge, Jorhat in Sessions case N o. 17(J-J)/2006 convicting the three appellants under Section 376 (2)(g) IPC and sentencing them to undergo Rigorous Imprisonment (RI) for 10 (ten) years and to pay fine of Rs. 10,000/- each, in default, to undergo further RI for 1(one) yea
Legal Reasoning
r. Prosecution case may be briefly noted. 3. 4. On 21.03.2004 at about 10 am, prosecutrix lodged a first information bef ore the officer-in-charge, Moriani Police Station stating that at about 7 pm on 18.03.2004, while she was returning home from the market of Sonowal Tea Estate, Sri Johan Tirki, Sri Deepak Minj and Sri Amrit Tappo waylaid her near the christ ian graveyard in the middle of the garden. They gagged her and dragged her towar ds the jungle where all the three persons raped her. The first information was t reated as FIR and on the basis of the same, Moriani P.S. Case No. 12/2004 under Section 376 (2)(g) IPC was registered. 5. Police investigated the case. The victim girl was medically examined and her statement was also recorded under Section 164 CrPC. After completion of inv estigation, the investigating officer (IO) came to the conclusion that the accus ed persons had committed offence under Sections 341/354/34 IPC. Hence, charge sh eet was submitted accordingly. 6. Learned Chief Judicial Magistrate, Jorhat, however, disagreed with the c onclusion reached by the IO and took cognizance of the offence under Section 376 (2)(g) IPC against all the three accused persons by a reasoned order dated 16.0 2.2006. As the offence under Section 376 (2)(g) IPC is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions at Jorhat. 7. On case being committed and after appearance of the accused, charge was framed against all the three accused persons that on 18.03.2004 at about 7 pm at Sonowal tea garden near christian cemetery under Moriani Police Station, they c ommitted gang rape on the prosecutrix. When the charge was read over and explain ed to the accused persons, they pleaded not guilty and claimed to be tried. 8. Prosecution examined eight witnesses, including the Doctor and the IO. T hough initially, there was some confusion regarding examination of the accused u nder Section 313 CrPC, it is found from the record that such examination was don e though in the printed form of recording examination of accused, it is printed within bracket as Section 364 of the Code of Criminal Procedure. This printing m istake is required to be brought to the notice of the concerned authority for ne cessary correction. Defence adduced one witness as DW1. Defence plea was of tota l denial. Plea of alibi was also taken. 9. Learned trial Court after considering the evidence adduced and other mat erials on record, convicted the three accused persons under Section 376 (2)(g) I PC and sentenced them as indicated above. 10. criminal appeals from jail. 11.
Legal Reasoning
Heard Mr. A. Chamuah, Mr. G. Choudhury and Mr. K. Lahkar, learned Amicus Curiae for the appellants in the three appeals and Mrs. A. Begum, learned Addl. Public Prosecutor, Assam for the respondent State in all the appeals. Aggrieved, the accused persons as appellants have preferred the present 12. Mr. A. Chamuah, learned Amicus Curiae for the appellant in Criminal Appe al No. 132(J)/2008, submits that the prosecution version is highly improbable. T he evidence adduced by the prosecution witnesses are contradictory which materia lly affects the prosecution case. The medical evidence has completely ruled out commission of rape on the prosecutrix. The plea of alibi was disbelieved by the learned trial Court without any reason or justification. If all these are read t ogether on the one hand and the version of the prosecutrix on the other hand, no reasonable inference can be drawn about the truthfulness and veracity of the st atement of the prosecutrix. Learned trial Court had relied solely on the evidenc e of the prosecutrix to convict the appellant which was not justified and in the circumstances of the case, benefit of doubt should have been given to the accus ed/appellant. 13. Mr. G. Choudhury, learned Amicus Curiae for the appellant in Criminal Ap peal No. 133(J)/2008, submits that the IO at the initial stage itself did not be lieve the version of the prosecutrix and had filed charge sheet under Sections 3 41/354/34 IPC. Relying on and referring to the submissions of Mr. Chamuah, he su bmits that given the vital contradictions in the evidence of the prosecution wit nesses which have come on record, conviction of the appellant solely on the test imony of the prosecutrix would not be justified. Additionally, he submits that t he accused persons were not medically examined. The Father of the Church to whom the mother of the prosecutrix was stated to have gone first with the complaint, was never examined. He also submits that the accused persons were not examined under Section 313 CrPC, which omission has turned out to be fatal in the present case. Mr. K. Lahkar, learned Amicus Curiae for the appellant in Criminal Appea 14. l No. 6(J)/2009 adopts the arguments of the learned counsel appearing for the ap pellants in the other two cases. He also submits that the accused persons were n ot examined under Section 313 CrPC, which is mandatory in character. Additionall y, he submits that there was no existence of any common intention for commission of the offence and in the absence of the same, the accused/appellants could not have been convicted for the offence of committing gang rape. 15. Opposing the submissions made on behalf of the appellants, Mrs. A. Begum , learned Addl. Public Prosecutor submits that the victim was consistent in her testimony. She herself was the informant and during investigation, her statement was recorded under Section 164 CrPC. A conjoint reading of her version as refle cted in the FIR, 164 statement and her evidence before the trial Court would sho w that she was consistent in her stand. Her statement was trustworthy and inspir ed the confidence of the Court. Therefore, the trial Court was justified in plac ing reliance on her evidence and in convicting the accused persons on the basis of the same. When the statement of the prosecutrix is accepted, all other things will pale into insignificance, she submits. Submissions made have been considered. I have also perused the trial Cou Before proceeding further, a brief reference may be made to the relevant legal provisions. Section 375 IPC defines rape. Section 376 provides for punish ment for rape. Section 376 (2)(g) deals with gang rape. It is provided that whoe ver commits gang rape shall be punished with RI for a term which shall not be le ss than ten years but which may be for life and shall also be liable to fine. As per Explanation 1, where a woman is raped by one or more acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of the aforesaid provision. 18. A careful reading of the aforesaid provision would indicate that to prov e a charge of gang rape, the prosecution need not prove that all the persons com prising the group did actually commit the offence of rape. Even if one person in the group commits rape, all the persons of the group shall be equally liable an d would be deemed to have committed gang rape. However, the only exception to th is absolute rule is that the group of persons must act in furtherance of their c ommon intention i.e, it must be shown and proved that they had acted in furthera nce of their common intention to commit rape on the woman. 19. Section 114-A of the Indian Evidence Act, 1872 provides that in a case o f gang rape under Section 376 (2)(g) IPC, where sexual intercourse by the accuse d is proved and the question arises as to whether it was without the consent of the victim woman and if she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. 16. rt record. 17. 20. It is also a settled legal position that conviction for committing the o ffence of rape can be based on the sole testimony of the prosecutrix provided he r evidence is found to be trustworthy and inspires the confidence of the Court. In such circumstances, further corroboration is not necessary. 21. Having noticed the legal position as indicated above, let us now turn to the evidence of the prosecutrix, who was examined as PW7. 22. She stated that she knew the accused persons who were from the same gard en. She had gone to the market after taking her salary. The time was about 7 pm. While returning home, the three accused persons caught hold of her and took her across the fencing of an enclosed garden and raped her near a bamboo grove. She stated that all the three accused persons raped her one after another. She did not raise any hue and cry out of fear. According to her, there was no human habi tation near the place of occurrence. When she came home, she told her mother abo ut the incident. On the following day, the mother went and met the Father of the Church. She stated that she had lodged the first information. She was medically examined in the hospital and was also produced before a Magistrate. She, howeve r, stated that she had washed the clothes that she was wearing at the time of th e incident. Police had seized a chocolate colour petti-coat which had been washe d. She stated that since that incident, her mental condition got worsened. Becau se of it, she was sent to Tezpur Mental Hospital by the garden hospital. In her cross examination, she stated that there were some families near the road to the graveyard. At the time of occurrence, people were coming to and fro from the ba zar. She also stated that there was a community hall in the graveyard and that s he was taken away from near that house. At that time, when she was taken towards the graveyard, people were still on the road. She went home alone but did not r aise any hue and cry on the road. Finally, she stated that except Amrit, the oth er two accused had raped her. 23. PW1 is the mother of the victim PW7. She stated that her daughter had go ne to the garden for taking her salary and was supposed to return home after som e shopping. When she did not return till 7 o’clock in the evening, she became wo rried and sent her youngest son Antony (PW3) to look out for her. After about ha lf an hour, her daughter returned home. PW1 found her whole body stained with mu d and water and her clothes were covered with dirt. When asked, she stated that while she was returning home, the three accused persons gagged her near the chri stian graveyard and took her to the jungle where they raped her one after anothe r. PW1 stated that she went to Moriani to relate the incident to the Father, th e priest of the local Church as both the victim’s family and the accused persons were christians. Though the Father had assured her to hold a village meeting to settle the matter, nothing happened, whereafter, her daughter lodged the first information. The delay in filing the FIR was explained as because of the assuran ce given by the Father to settle the matter. She stated that after the incident, her daughter had lost her mental stability. Her daughter was still undergoing t reatment in the Tezpur Mental Hospital. She had stated that she had brought her daughter to the Court under her care. In her cross examination, she stated that the bazar remains open till late in the evening and people of the garden do thei r purchasing there after their work. She stated that there were houses at a dist ance of about 10/15 metres from the place of occurrence. She also stated that he r son who had gone out in search of her daughter, later came back home alone. Sh e further stated that had the Father settled the issue, she would not have filed the case. PW2 is one of the sons of PW1 and younger brother of the victim. His evi 24. dence was also more or less on the same line as PW1. 25. PW3 Antony is the youngest son of PW1 and also the brother of the victim . In his evidence, he stated that he went out in search of his sister as asked b y his mother and found her lying on the road near the christian burial ground. H e stated that he saw the three accused persons going away along the pucca road b y the side of the burial place. Thereafter, he took his sister home. The things that his sister had purchased from the market were lying scattered on the road. After reaching home, his sister cried and told them about the incident. They had met the Father who assured them that he would settle the matter. Therefore, the y did not go to the thana right away. When nothing was done, the FIR was filed. After the incident, his sister broke down mentally and had to be sent to Tezpur Mental Hospital for treatment. Before the incident, she was in perfect mental co ndition and was a permanent garden worker. In his cross examination, he stated t hat he saw the three accused persons near the place of occurrence running away. He stated that initially PW7 was lying by the side of the road with the vegetabl es purchased from the market lying scattered. His sister somehow managed to walk some distance from the place of occurrence after which she again lied down by t he side of the road. 26. PW4 is a local councillor and wife of the victim’s younger brother. In h er cross examination, she stated that the victim told her that first Deepak had raped her followed by Johan and Amrit. 27. The doctor was examined as PW5. He stated that on 21.03.2004 at about 1: 30 pm, he had examined the victim. He stated that on examination of the victim, he did not find any injury marks over the body including her breast. No injury m ark or sign was detected in and around her private parts. Vaginal swap was taken for examination and as per laboratory report, no spermatozoa was seen. As per m edical opinion, there was no evidence of vaginal intercourse within 72 hours of examination. The age of the girl was about 18 years. 28. der Section 164 CrPC was examined as PW6. 29. The IO was examined as PW8. He stated that he had arrested the accused p ersons and had forwarded them to Court. Thereafter, he was transferred. He hande d over the case record to the officer-in-charge of the police station. Later on, The Judicial Magistrate who had recorded the statement of the victim un Sri Dhrubajyoti Saikia submitted the charge sheet. 30. Though contention has been raised on behalf of the appellants that the a ccused persons were not examined under section 313 Cr.P.C., on an examination of the record, it is found that they were infact examined but in the printed form of recording examination of accused, there appears to be a printing error as ins tead of Section 313 of the Criminal Procedure Code, it is printed as Section 364 of the Criminal Procedure Code. This mistake may be brought to the notice of th e appropriate authority so that similar mistake may not be repeated in future co nsidering the importance of such examination in a criminal trial. In his examina tion, Sri Johan Tirki denied the allegations against him and also stated that he was in the prayer house at that time. Similar is the stand taken by Sri Deepak Minj and Sri Amrit Tappo. The sole defence witness DW-1 was a garden labourer. He stated that on t 31. he day of occurrence there were many young boys and girls present in the Church from 5 PM to 9:30PM rehearsing for Good Friday. He stated that the three accused persons were also present there participating in the rehearsal. He further stat ed that he knew the victim since her childhood and according to him, she was men tally unsound. He also stated that victim was irregular in going to her work and often her family members had to come to take her home. In his cross examination , he stated that on the day of occurrence, about 60 to 70 people were inside the Church where rehearsal was going on for celebrating Good Friday. He also stated that the day of occurrence was the pay day in the garden. He, however, admitted that the accused persons were his friends. 32. 33. This was the evidence before the Court. Evidently, PW-7, the prosecutrix, was undergoing treatment in the Tezpur Mental Hospital at the time of her deposition before the Court. PW-1, her mothe r, stated that the prosecutrix was still undergoing treatment in the Tezpur Ment al Hospital as she had not fully recovered. She had brought her under her care t o depose before the Court. The fact that PW-7 was being treated for mental illne ss when she came to depose was also supported by PW-2 and PW-3, both of them bei ng her brothers. PW-7 herself stated that she was sent to the Tezpur Mental Hosp ital by the garden hospital. The question, therefore, arises is whether PW-7 was in a proper frame of mind or mental state to give evidence in Court. The record does not show that any endeavour was made by the learned trial Court to ascerta in the mental state of the prosecutrix before recording her statement, as to whe ther she was capable to depose before the Court. There is also no evidence on re In addition to the above, there are certain other crucial omissions in t cord to show that she was capable of giving a true and correct version of the in cident. The evidence of the prosecution witnesses only reinforces the above posi tion. Infact, the prosecution witnesses say that she was still in the hospital a nd required treatment. Thus, evidently the prosecutrix was of unsound mind still undergoing treatment when she deposed before the Court. Further, the statement of PW-7 in her cross-examination, which appears to be an abrupt and sudden state ment and diametrically opposed to the entire prosecution case, that except Amrit , the other two accused had raped her, may also be a reflection of her mental co ndition. Therefore, the Court is of the view that relying entirely on the versio n of the prosecutrix, who was of unsound mind, may not be a safe thing to do. Th e view of the learned trial Court that the evidence of the prosecutrix inspired confidence and that she was a trustworthy witness appears to be misplaced. 34. There is another aspect of the matter. PW-7 i.e., the prosecutrix hersel f stated that since the said incident, her mental condition got worsened. This s tatement can only mean that she was already having a mental problem which got ag gravated after the incident. Though the prosecution witnesses i.e. PW-1, 2 and 3 have stated that it was because of the incident that PW-7 lost her mental balan ce, nothing was placed on record in support thereof. Neither the garden hospital personnel nor any doctor from the Tezpur Mental Hospital were produced before t he Court as witness to show that her mental illness developed after the incident . No medical documents like certificate etc. in support thereof were exhibited. Learned trial Court also did not summon any of the above authorities to seek a c larification of this aspect. 35. In the face of the above, the Court is of the opinion that it would be v ery unsafe to convict the accused persons on the sole testimony of the prosecutr ix who is mentally unsound. 36. he case presented by the prosecution which the Court must take note of. Firstly, the date of the incident is 18.03.2004 but the FIR was lodged o 37. n 21.03.2004. The delay has been explained by saying that the family of the vict im had approached the Father of the local Church and had narrated the incident t o him. According to the prosecution version, the Father had assured them that he would settle the matter by holding village meeting. Since nothing happened, the prosecutrix herself lodged the first information. Though the delay in lodging t he first information has been explained, the fact remains that the Father of the local Church was not produced as a witness. In my opinion, the evidence of the said Father was essential because he was the first person before whom the incide nt was narrated and his absence has cast serious doubts on the prosecution versi on. The Hon’ble Supreme Court in the case of State of UP -Vs- Jaggo reported in AIR 1971 SC 1586 clearly stated that a witness whose evidence is essential to th e unfolding of the narrative should be called. This salutary principle is necess ary for eliciting the truth. Absence of such a witness seriously affects the tru th of the prosecution case. 38. Secondly, the victim was medically examined on 21.03.2004 i.e. three day s after the incident. PW-7 herself stated that she had washed the clothes that s he was wearing at the time of incident, including the chocolate colour petticoat which was seized by the police. As per medical evidence, there was no sign of a ny injury mark over any part of her body, including in and around her private pa rts. It is difficult to believe that three persons had gagged the victim, dragge d her from the road to a certain distance and then had forcible sexual intercour se with her one after the other and yet there will not be a single injury mark o n the body of the victim. Furthermore, as was bound to be, the laboratory examin ation of the vaginal swab of the victim did not indicate presence of spermatozoa as the swab was taken 3(three) days after the incident and in the meanwhile she must have washed herself a number of times. The doctor also opined that there w as no medical evidence of vaginal intercourse within 72 hours of the medical exa mination. 39. Thirdly, none of the accused persons were medically examined to find out whether there were any injuries on their genitals or any other parts of their b odies. In the context of the charge, this again is a very crucial omission. The Hon’ble Supreme Court in the case of Sadashiv Ramrao Hadbe -Vs- Stat 40. Fourthly, though the SI of police was examined as PW-8, it appears from his evidence that he did not complete the investigation. Investigation was compl eted by one Shri Dhrubajyoti Saikia, who submitted the charge-sheet. At this sta ge, it may be pertinent to point out that the charge-sheet was filed against the accused persons under section 354 IPC but the Court took cognizance of offence under section 376 (2)(g) IPC. In such circumstances, evidence of Shri Dhrubajyot i Saikia was very crucial but he was not examined. His absence has cast serious doubts on the prosecution version. 41. Fifthly, from the evidence, it has emerged that the market near the gard en remains open till late in the evening. The evidence discloses that the day of occurrence was also a pay day in the garden. It has also come out in the eviden ce that there were residential houses in the vicinity of the place of occurrence . It is, therefore, highly improbable that there could have been a sexual assaul t by three persons on an adult woman when persons would be present in the near v icinity in sizeable numbers. 42. e of Maharashtra and another reported in (2006) 10 SCC 92 held as follows :- (cid:28)9. It is true that in a rape case the accused could be convicted on the sole te stimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any med ical evidence or the whole surrounding circumstances are highly improbable and b elie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix The Court shall be extremely careful in accepting t he sole testimony of the prosecutrix when the entire case is improbable and unli kely to happen. (cid:29) 43. In view of above, it cannot be said with any degree of certainty that th e charge against the accused stood proved beyond all reasonable doubt. In the ci rcumstances of the case, there may be serious doubt and suspicion about the invo lvement of the accused in the commission of the offence alleged. But doubts and suspicions howsoever strong cannot take the place of hard evidence. It is the ca rdinal principle of criminal jurisprudence that the charge against the accused m ust be proved beyond all reasonable doubt. In view of above, I am constrained to come to the conclusion that the charge against the accused cannot be said to ha ve been proved beyond all reasonable doubt and, therefore, the accused should be given the benefit of doubt.
Decision
44. In view of the above conclusion, it is not necessary to go into the ques tion as to whether the accused had acted in furtherance of their common intentio n. It is also not necessary to examine the case in the light of section 114 A of the Evidence Act as sexual intercourse by the accused cannot be said to have be en proved. 45. All the three appeals are accordingly allowed. Impugned conviction and s entence dated 07.08.2008 is set aside. The three appellants, who are in jail, s hall be released forthwith, if not required in any other case. Office to send down the case record immediately. 46. 47. Before parting with the record, the Court would like to place on record its appreciation of the assistance rendered by all the learned Amicus Curiae, wh o shall be paid their fee as prescribed.