High Court
Legal Reasoning
HON’BLE MR JUSTICE PK MUSAHARY Heard Mr. I.H.Laskar, learned counsel for the appellant. Also heard Mr.B.B.Gogoi , learned Addl.P.P., Assam. This appeal has been preferred against the judgment and order dated 28.9 2. .2007 passed by the learned Sessions Judge, Hailakandi, in Sessions Case No. 39 /2006 convicting the accused appellant u/s 376 IPC and sentencing him to underg o Rigorous Imprisonment for three years and pay a fine of Rs.2,000/- in default R.I. for one month. 3. The prosecution story is disclosed in the written FIR lodged by the pro secutrix. It is stated that on 17.5.2005 at about 1 A.M. while she was sleeping inside her house with her minor children and while her husband was away for pur chasing cow at Algapur market, the appellant armed with dagger in hand and torc h light , by breaking the door of the house, entered into the bed room and by s howing the dagger, had sexual intercourse against her will and thereafter when t he victim and her daughter raised alarm, the accused fled away. On the next date at about 10 AM, while her husband returned home, the victim reported the matter to him. The victim’s husband disclosed the incident to some elderly persons of the locality, who advised him to report the matter to police. Accordingly, the v ictim rushed to Hailakandi Police Station alongwith her husband and lodged a w ritten FIR, whereupon a crime, being Hailakandi P.S.Case No. 143/2005, was regi stered on 17.5.2005 under Section 457/376/323 IPC. The I.O. visited the place of occurrence recorded statement of witnesses and produced the victim before the medical officer and got her medically examined. After completion of the invest igation, charge sheet was laid against the accused appellant u/s 457/376 IPC. Th e learned Magistrate concerned committed the case to the Court of Sessions, Hai lakandi for trial. Based on the materials placed on record, the learned Trial Co urt framed charge u/s 457/376 IPC against the appellant who pleaded not guilty a nd claimed to be tried. 4. The prosecution examined as many as six witnesses including the victim a nd the medical officer. The appellant was examined u/s 313 Cr.P.C. but he did no t examine any witness in his defence. The defence’s stand was complete denial on ly. On consideration of the materials and evidence on record, the learned trial court convicted and sentenced the appellant as already narrated above. 5. As usual there is no eye-witness to the alleged occurrence. The Court ha s to rely on the evidence of the prosecutrix and the medical evidence. The Court has to examine the veracity and reliability of the evidence of the victim woman for awarding a conviction or acquittal. First of all I would like to go through the statements made in the FIR. 6. In the FIR she has stated that she resisted the appellant who entered in her hou se with dagger and threatened her with the said dagger. In the course of resista nce she was assaulted by the appellant and she received injuries on her person. At that time she was pregnant of six months. In the said FIR , it is also stated that immediately after the occurrence, the informant raised hue and cry and hea ring the hue and cry, the local people gathered at her house. She reported them about the incident. In the Ejahar she also stated that her husband returned hom e in the next morning at 10 AM. In her evidence she narrated the incident before the Court in the same manner but she stated that she reported the incident as s oon as her husband returned home. She categorically stated in cross-examination that hearing the hue and cry, no person arrived at the place of occurrence. In t he FIR, she did not mention about the presence of one Kutai Bibi who was sleepin g in the adjacent room but she has for the first time, disclosed about the prese nce of Kutai Bibi in her evidence before the Court. However, she could not be ex amined as she had expired already before the evidence stage. 7. Now, I come to the evidence of medical officer who was examined as PW 5. He has proved the medical report, Ext.2. The doctor examined the prosecutrix o n 18.5.2005, on police requisition. As per his evidence and medical report he fo und the following:- (cid:28)1. Built - Average, Identification mark- Naevus on the right side of neck, Tee th-14/14, Breast- Well developed, Hymen- absent. No sign of injury or violence m ark was found on her person or her private parts. INFERANCE: 1. The patient is an adult of above 19 years of age as appeared by x-ray repor t. 2. No sign of recent rape as evident by absence of spermatozoa in the vaginal swab examination. 3. No sign of injury or violence mark on her person or her private parts. (cid:29) 8. There may not be any sign of recent rape in a case of married woman havi ng three children and that too while medical examination was conducted after two days of the alleged occurrence. As per medical report no sign of injury or mark of violence was found on her person or private parts. As per her evidence she r esisted the forceful action of the appellant to commit rape. In the course of su ch resistance it is expected that the woman would receive injury or injuries, may be simple, on her person, if not on her private parts. One may exclude inj ury on the private parts on the married woman but we cannot exclude possibility of receiving injury on the other parts of the body. According to her own stateme nt, the appellant dealt several blows on her person and she was afraid that it w ould cause miscarriage or damage to the baby in the womb but no such thing or in jury has been found as per medical report and evidence. 9. Moreover a serious contradiction has been found in so far as the prosecu trix in her FIR stated that some neighbours came to her house as soon as sh e made hue and cry and she reported the matter to them. The prosecution has no t examined any witnesses in support of the said statement. In the evidence it is rather found that the prosecutrix reported the matter to her husband only when he returned home in the next morning at 10 AM. Before that she had never rep orted the matter to the neighbours. With the aforesaid serious contradiction it is difficult to hold that the prosecutrix is consistent in her statement, rat her she has projected herself as inconsistent unreliable and untrustworthy witn ess and she has failed to gain the confidence of the Court. The claim of the pr osecutrix that she received injuries on her persons due to physical assault inflicted by the appellant fell flat inasmuch as the medical officer PW 5 clearl y and specifically stated that no injury was found on her person. 10.
Decision
In view of the above evidence on record, I find it difficult to accept the prosecution story, far more the claim of the prosecution that the charge has been proved beyond reasonable doubt. As stated earlier the prosecutrix has shown herself as a most untrustworthy witness. No conviction and sentence c ould be awarded against the appellant. Accordingly, the judgment and order convi cting and sentencing the appellant, which is under challenge, is hereby, set asi de and quashed. The appellant is acquitted on benefit of doubt . It is stated at the Bar that the appellant is on bail. The bail bond shall stand discharged. Ap peal stands allowed. 11. Return the LCR forthwith.