High Court
Case Details
CRL.A(J) 5/2008 BEFORE HON’BLE MR. JUSTICE C.R. SARMA Heard Mr. M. Haloi, learned Amicus Curiae, appearing for the appellant and Mr. B .B. Gogoi, learned Addl. Public Prosecutor, Assam, appearing for the State-respo ndent. [2] This appeal, from the jail, is directed against the judgment and order, dated 29.09.2007, passed by the learned Additional Sessions Judge (FTC), Sivasagar, in Sessions Case No. 17(S-S)/2007, arising out of Simaluguri P.S. Ca se No. 82/2006 [G.R. Case No. 1123/ 2006], whereby and whereunder, the learned A ddl. Sessions Judge (FTC), Sivasagar convicted Shri Punaram Gohain (hereinafter called the appellant) under Section 376 of the Indian Penal Code ( in short, (cid:28)IP C (cid:29)) and sentenced him to suffer rigorous imprisonment for 10 (ten) years and pa y fine of Rs. 1,000/- (Rupees one thousand) only, in default suffer rigorous imp risonment for another period of 1 (one) month for his conviction under Section 3 76 IPC. [3] son, as appellant, has come up with this appeal.
Legal Reasoning
Aggrieved by the said conviction and sentence, the convicted per [4] The prosecution case, in brief, is that the appellant committed rape on the victim, who was his own daughter from his first wife. The appellant has two wives, four daughters and three sons. The victim girl was the eldest amo ngst the daughters and they used to live in the same room. On the fateful night, while the victim was sleeping with her sister, on the same bed, the appellant, being drunk, touched her body and committed ill act with her. She informed the i ncident to her aunt, Smti Rumi Borgohain, who had informed the villagers. On rec eipt of the said information, the Gaon Burah (PW 2) of the village, as informant , lodged an FIR with the Police. On receipt of the FIR, police registered a case under Section 376 IPC and launched investigation into the matter. During the co urse of investigation, police examined, as many as, 8 (eight) witnesses, includi ng the Medical Officer (M.O.), who examined the victim girl and the Investigatin g Officer (I.O.). [5] At the close of the investigation, police submitted charge sheet , under Section 376 IPC, against the appellant. The offence, being exclusively t riable by the court of sessions, the learned Judicial Magistrate, Ist Class, Siv sagar committed the case to the court of Sessions. The learned Addl. Sessions Ju dge (FTC), Sivasagar by the impugned judgment and order aforesaid, convicted and sentenced the appellant, as indicated herein above. [6]
Legal Reasoning
Mr. M Haloi, learned Amicus Curiae, appearing for the appellant, referring to the evidence on record, more particularly, the evidence of PW 1, i . e. victim girl and her mother, i.e. PW 6, has submitted that there is no evide nce on record, constituting ingredients of rape, i.e. offence under Section 375 IPC. The learned Amicus Curiae has submitted that the victim girl and the other witnesses except alleging commission of ill act by the appellant, had stated not hing regarding sexual intercourse. Therefore, it is submitted, by the leaned Ami cus Curiae, that the prosecution failed to establish, beyond all reasonable doub t, that the appellant committed rape on the victim girl and as such the learned trail Judge committed error by recording the conviction and sentence, as indicat ed above. [7] Mr. B.B. Gogoi, learned Addl. Public Prosecutor, appearing for t he State respondent, referring to the evidence of the victim girl and the statem ent made by her, under Section 164 Cr. P.C., has submitted that there are suffic ient materials to draw inference that the appellant committed rape on the victim girl and as such, the learned Additional Sessions Judge (FTC), Sivasagar rightl y convicted the appellant under Section 376 IPC. [8] In view of the above arguments, advanced by the leaned counsel, appearing for both the parties, I feel it appropriate to scrutinize the evidence , on record. [9] The victim girl, deposing as PW 1, stated that when she was slee ping with her sister on the same bed, her father, i.e. the appellant had touched her body and committed ill act with her. She also stated that, on being cried by her, her father assaulted her. She further stated that her mother, who came t o know about the incident, was also assaulted by her father. According to the sa id witness, her father repeated the said act for about four days and that she ha d informed the matter to her aunt, Smti Rumi Borgohain (not examined as witness) . [10] In her cross-examination, she (PW 1) stated that she used to wor k in a Beauty Parlour, for which her father had scolded her as he did not like h er to work in the Beauty Parlour. She denied the suggestion that, as her father did not allow her to work in a Beauty Parlour, she had falsely brought the alleg ations against him. Carefully perusing the evidence of the victim girl, I find that [11] she, except stating that her father committed ill act with her, did not state an y thing indicating sexual intercourse. Therefore, from her evidence, it is not p ossible to hold that sexual inter course was committed by her said father. [12] PW 2 (Shri Deven Borgohain) i.e. Gaon Burah of the village, who lodged the FIR, has exhibited the same as Ext. 2. This witness stated that heari ng hullah in the house of the appellant, he visited the latter’s house and came to know from the villagers, who had assembled there, that the appellant had comm itted ill act with the victim girl. He further stated that, on being asked by hi m, the appellant replied nothing. He did not state as to what was the alleged ’i ll act’. [13] In his cross-examination, this witness (PW 2) stated that he did not ask any thing from the victim girl. He further stated that the FIR (Ext. 2) was written by one of the villagers and that he did not read the same. [14] From the above, it appears that this witness (PW 2) was not awar e of the contents, made in the FIR aforesaid. It is also clear that he did not k now any thing from the victim. Therefore, the evidence of this witness appears t o be hearsay evidence. [15] Shri Ranjit Duara, one of the villagers, who also visited the ho use of the appellant, on the relevant day, deposing as PW 3, he stated that he c ame to know from the people, assembled in the house of the appellant, that the a ppellant had misbehaved with his daughter. He did not state anything regarding i ll act or sexual inter course. [16] In his cross-examination, this witness (PW-3) has stated that he did not enquire, any thing from the victim girl, about the incident. Therefore, his evidence was also hearsay evidence, being derived from others. [17] Shri Bimal Borgohain, who also visited the house of the appellan t alongwith others, deposing as PW 4, stated that the victim girl, in presence o f the Gaon Burah (PW 2) and other villagers had disclosed that the appellant com mitted ill act with her. But neither PW 2, i.e. the Goan Burah, nor PW 3 i.e. a co-villager, stated that the victim girl had disclosed any thing before them. H owever, this witness contradicted his own evidence by saying, in his cross exami nation, that he came to know about the occurrence from the villagers and that he did not ask any thing from the victim girl. Therefore, he also did not hear any thing from the victim girl. [18] Shri Raju Duara, one of the neighbourers of the appellant, dispo sing as PW 5 stated that he came to know from the villagers, who had assembled i n the house of the appellant, that the appellant had misbehaved with his daughte r. He also did not ask any thing from the victim girl. Therefore, his evidence, being hearsay evidence has not substance. [19] Smti Sashi Prava Gohain i.e. mother of the victim girl, deposin g as PW 6, stated that she came to know from Smti Rumi Borgohain i.e. the aunt o f the victim girl, that the appellant had committed ill act with his own daughte r i.e. victim girl. She further stated that, on being asked by her, the victim girl also told her that the appellant had committed ill act with her daughter. S he further stated that out of fear, she did not ask her husband, any thing about the incident. In her cross-examination, she (PW -6) stated that she used to li [20] ve with her husband i.e. the appellant and that the appellant asked the victim g irl not to work in the Beauty parlour. She also stated that she did not know if her daughter had falsely implicated the appellant. From her evidence, it is fou nd that she alongwith her children used to sleep in the same room i.e. the room where the victim and her sister were sleeping. Therefore, it is surprising as to why the victim girl i.e. her said daughter did not tell her about the incident. According to PW 6 she first came to know from Smti Rumi Borgohain. This aspect of the matter raises doubt about the prosecution story. That apart, the prosecut ion failed to examine Smti Rumi Borgohain, who was a vital witness. Non-examinat ion of such witness also raises doubt about the prosecution version. Though, the victim girl in her evidence, given as PW 1, has stated that, her mot her came to know about the occurrence, that she and her mother were assaulted by her father after the incident, PW 6 i.e. her mother did not state that she cam e to know about the incident, on the fateful night itself, from the victim girl. She also did not state that she was assaulted by her husband, i.e. the appellan t. In view of the above, I find no corroboration in the evidence of PW 1 aforesa id on the material point. [21] PW 7, Dr. Hemanta Kr. Baruah examined the victim girl. He stated that the victim girl was aged about 18 years and that there was no sign of inte r course. [22] se. PW 8 was the Investigating Officer, who investigated into the ca [23] From the above discussed evidence, it is found that none of the witnesses, more particularly victim girl, did not state that the appellant had c ommitted sexual inter course with her. The Law is well settled that in order to constitute the offence under Section 375 IPC, it must be established that there was penetration of the penis into the private part of the victim. [24] In the present case, the prosecution has failed to establish the said basic ingredient of rape. Therefore, I am inclined to hold that the prosec ution failed to establish, beyond all reasonable doubt, that the appellant commi tted rape on the victim girl. Therefore, the conviction and sentence, recorded u nder Section 376 IPC cannot be maintained. [25]
Decision
In view of the above discussion, I find sufficient merit in this appeal. Accordingly, the appeal is allowed. The impugned conviction and sentenc e are set aside. The appellant be acquitted and set at liberty forthwith, if not required for any other case. [26] Return the LCR. [27] Before parting with this judgment, I acknowledge, with appreciat ion, the assistance, rendered by Mr. M. Haloi, learned Amicus Curiae and direct that an amount of Rs. 5,000/- (Rupees five thousand) be paid to him as remunerat ion by the State.