High Court
Case Details
Crl.A. 174/2007 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY This appeal is presented against the judgment dated 30.7.2007 in the Sessions Ca se No.183(K)/2006 rendered by the learned Addl. Sessions Judge (FTC) No.4, Kamru p, Guwahati whereby, the accused/appellant is convicted under Section 376 of the IPC and was sentenced to undergo R.I. for 10 years and to pay fine of Rs.1,000/
Legal Reasoning
- and in default of fine, to undergo R.I. for further 6 months. 2. I have heard Mr. B M Choudhury, learned counsel appearing for the accuse d/appellant. The State is represented by Mr. D. Das, learned Addl. Public Prosec utor. 3. The case set up by the prosecution is that on 15.5.2002 at about 12:30/1 :00 noon time, taking advantage of the absence of anyone in the house where the victim is a maid servant, the accused Sridhar Kalita came to the tenanted house premises of the informant Munindra Nath Sarmah on the pretext of taking drinking water and securing entry inside the house, he committed rape on the victim, age d about 15 years. The accused threatened the prosecutrix to not to disclose the incident to anyone and accordingly she did not disclose the occurrence to her ma ster/mistress, when they returned home in the afternoon. But as the prosecutrix was constantly crying on the next few days, on being repeatedly asked the incide nt was belatedly disclosed to her master (the informant) on 18.5.2002. According ly a delayed FIR was lodged by Munindra Nath Sarmah (PW.1) and the Rangia P.S. C ase No.163/2002 was registered under Section 448/376/506 of the IPC. After compl etion of investigation, the accused was charged. The Magistrate of 1st Class, Ra ngia committed the case to the Sessions Court and when charge was framed under S ection 376 of the IPC, the accused pleaded not guilty and accordingly trial was started. During trial, 9 witnesses were presented by the prosecution whereas evi dence was not adduced in defence. PW.1 is Munindra Nath Sarmah in whose house the prosecutrix worked as ma 4. id servant stated that on 15.5.2002 when the witness returned home at about 4 P. M., he was informed by his wife that the prosecutrix was crying but on querry sh e did not disclose about the rape. But she mentioned that the accused came to dr ink water to their house but she did not reveal anything further on that day. Ac cording to his testimony, the PW.1 called the accused on the next day and asked him about the reason for the prosecutrix’s crying constantly after the visit of the accused to their residence. The accused claimed that he is a regular visitor to their house and he had affectionate feeling for the prosecutrix and when he kissed her, she started crying. Three days later, on 18.5.2002, the prosecutrix on being prompted by one Punya Kakati disclosed to the informant that she was raped by the accused on 15 .5.2002. The witness immediately informed the matter to the President of the Gao n Panchayat, Kamini Kalita and his own relation Radhanath Sarmah and thereafter the FIR was lodged in the Rangia P.S. According to the witness, the prosecutrix did not reveal the incident earlier out of fear as the accused threatened her of dire consequences. In his cross-examination, the PW.1 stated that he is one of the tenants in one of the rented house of the accused. The witness denied the suggestion tha t a false allegation is made because higher rental demanded by the accused, from this witness. The mistress of the prosecutrix is Smti Bimala Devi and she was presente 5. d as PW.2. In her testimony, the witness stated that when the incident occurred on 15.5.2002, she, her husband and her own son, aged about 5 years were not pres ent in the house during noon hours. When she returned from school at about 2:30 P.M., the prosecutrix informed her that the accused visited the house to drink w ater. The previous day, the mistress was informed by her elder brother about the slang talks of the accused and his bad intention towards the prosecutrix as she had informed about this to her elder sister who in turn, informed the father of the prosecutrix and from whom, the witness’s brother learnt about the evil inte ntion of the accused. This witness stated that although the prosecutrix has a jolly bearing, b ut on 15.5.2002 she was found abnormally in a depressed state. But when the pros ecutrix was asked, she did not reveal what had happened and only said that the a ccused forcibly entered the house and closed the door and when the prosecutrix t hreatened him with informing her mistress, the accused went away threatening the prosecutrix. To the mistress’s query later, the accused informed that he merely kissed the prosecutrix on 15.5.2002. In her cross-examination, the witness stated that the prosecutrix inform ed her that the accused with a wooden plank had shutdown the rear exit door of t he house and that is why the victim was unable to escape, when the accused enter ed the house and forcibly shut the frontdoor from inside. She stated that the po lice had seized the wooden plank used by the accused to shut out the rear exit d oor from outside. PW.3 is Kamini Kalita, the President of the Gaon Panchayat. He was infor 6. med about the incident by the informant when the prosecutrix disclosed the same on 18.2.2002. 7. PW.4 is the prosecutrix herself. She stated that when her master and mis tress and the school going son were away on 15.2.2002, the accused visited the r esidence and asked for some drinking water. When the prosecutrix gave him a glas s of water, the accused asked for 2nd glass and when the prosecutrix entered the kitchen to get the second glass of water, the accused entered the house and shu t the front door. Thereafter the victim’s mouth was gagged by the accused and he raped the victim. The victim wanted to escape by the back door but found that t he rear door entry earlier blocked by the accused with a wooden plunk. In her ev idence, the prosecutrix stated that although she was crying all the time, she di d not disclose about the incident on the same day as because, the accused threat ened her with dire consequence. In her cross-examination, the prosecutrix admitted that she was helped by PW.2 a s to her testimony in the Court. During her testimony, her master Munindra Nath Sarmah, who is an Advocate in Rangia Court was present. The witness stated that the soiled bed sheet and the panty of the prosecutrix we re seized by the police. Additionally the police also seized the Churidar used a s the gagging cloth by the accused. 8. PW.5 is Mr. Dipak Changkakoti is the Magistrate who proved the statement of (Exhbt.2), the prosecutrix gave under Section 164 of the CrPC. PW.6 is Chakradhar Kalita who was another tenant of the accused. But he PW.7 Purna Ram Kakoti did not kn 9. had no knowledge about the incident. Similarly ow anything about the incident. 10. PW.8 Dimbeswar Thakuria is the I.O. of the case. He arranged for medical examination of the victim and got her statement recorded before the Magistrate. 11. PW.9 is Dr. B. C. Roy Medhi who testified about the medical examination of the prosecutrix by Dr. P C Sarmah, the Head of the Department of Forensic Med icines, GMCH. The victim was examined at about 1:45 P.M. on 19.5.2002 and accord ing the medical evidence (Exhbt.4), old hymen tears were present at 3, 5 & 9 O’c lock position but there was no injury on the body or on private parts of the pro secutrix. The vaginal smear examination did not show presence of spermatozoa or gonococci. As per the opinion of the Doctor, there was no sign of recent sexual intercourse but the prosecutrix was habituated to sexual act. The victim was abo ve 16 years and below 18 years, on the date of examination. Mr. B M Choudhury, learned counsel on behalf of the accused (appellant) 12.1. submits that the prosecutrix was found to be aged between 16 to 18 years when sh e was medically examined on 19.5.2002. Exhbt.4 show that she was habituated to s exual acts. The counsel refers to the victim’s statement (Ext.2) recorded under Section 164 of the CrPC to show that earlier to the incident on 15.5.2002, in th e month of ’Bohag’, the victim and the accused had 2 sexual encounters. 12.2. The appellant refers to the cross-evidence of PW.7 Purna Ram Kakoti, a n eighbouring witness to project that PW.7 heard quarrel between the accused (land lord) and the tenant (PW.1) on the issued of rental rate of the tenanted premise s. On this basis, Mr. Choudhury submits that PW.1 being a Govt. Advocate has foi sted a false case on the accused, who was the landlord of PW.1 & PW.2. 12.3. Referring to the testimony of the prosecutrix, the counsel argues that the PW.1 & PW.2 were present in Court during the evidence of the prosecutrix and therefor e her testimony is that of a tutored witness and should not be treated as reliab le evidence. 12.4. The absence of any injury on the victim’s body and her private part is p rojected by the appellant to discredit the prosecution story of forcible sexual assault on 15.5.2002 and it is submitted that since the victim was habituated to sexual act and had not disclosed the two earlier encounters with the accused in the month of Bohag, her evidence is not creditworthy to sustain the conviction. 12.5. Withholding of Punyadhar Kakoti at whose prompting the prosecutrix discl osed the incident 3 days after the occurrence, is projected by Mr. Choudhury to cast doubt on the prosecution story. In response, Mr. D Das, the learned Addl. Public Prosecutor submits tha 13. t the background of the victim must be kept in mind while weighing the minor dis crepancies in her testimony. The State points out that the victim was an illiter ate and rustic village girl who was employed as a maidservant in the residence o f PW.1 and PW.2 and her vulnerable position must be taken into account, while we ighing the evidence in the case. 14. On the medical evidence about the prosecutrix being habituated to sexual act, the Public Prosecutor argues that the past conduct of the prosecutrix can have no bearing on the occurrence on 15.5.2002 and what is relevant to examine w hether the occurrence on 15.5.2002 was a consensual encounter, between the victi m with the accused. 15. Having regard to the above, the Court has now to weigh the evidence. In cases of rape, conviction can be based on the sole evidence of the prosecutrix a nd therefore it is necessary to subject her testimony to close scrutiny. It was stated by the prosecutrix that the occurrence took place during noon time on 15. 5.2002 when she was alone in the house. She testified about how she tried to esc ape but was prevented from doing so as because, the rear exit door was previousl y blocked with a wooden beam by the accused. She also stated that she could not shout since the accused had gagged her mouth with great force. According to the prosecutrix, she was suffering great dilemma about disclosing the incident to he r master/mistress and confronted with this heavy burden she was constantly cryin g on all the days after 15.5.2002 till 18.5.2002, when she eventually disclosed about the occurrence to her master (PW.1). The evidence of the prosecutrix could not be disturbed through cross-examination and she also denied the suggestion t hat a false case was planted against the accused because of a rental dispute, be tween her master and the accused. 16.1. The 3 days delay by the prosecutrix to disclose the occurrence to her ma ster (PW.1) can be looked at in two ways. Firstly it can be seen as piecing toge ther a set of false allegation to subject the accused to malicious prosecution. Alternately, it can be taken as timidity and vulnerability of a rustic maidserva nt to disclose about the sexual assault on her person by the landlord of her mas ter’s house, in the backdrop of the threat of the accused. Having regards to the social strata to which the prosecutrix belongs, it can’t be ruled out that she needed to overcome a lot of barriers to disclose about the sexual assault to her own master/mistress particularly when she couldn’t confide to her parents and o ther relatives as they were residing in their village home. 16.2. The earlier sexual encounter of the prosecutrix with the accused in the month of Bohag as stated by her in her statement under Section 164 of the CrPC i s also a factor, which might have made the prosecutrix hesitant about disclosing immediately the forced assault on 15.5.2002. Eventually, only on prompting of o ne Punyadhar Kakoti to whom the prosecutrix might have confided about the incide nt, the prosecutrix narrated the incident to her master/mistress on 18.5.2002 an d this led to the lodging of the FIR, 3 days after the occurrence. 17. PW.2, the mistress of the prosecutrix in her testimony stated that her b rother who brought the prosecutrix as a maid servant had informed earlier about the evil intention of the accused towards the prosecutrix, since she confided wi th her elder sister about the earlier bad intent and utterances of the accused. The medical evidence show that the prosecutrix was accustomed to sexual 18. intercourse but that by itself is not enough to confirm her consent on the day o f occurrence i.e. 15.5.2002. Even if the prosecutrix had consensual sex with the accused on earlier occasion, she has a right to refuse to submit herself to the accused or to anyone else. Therefore having regard to the ratio of the decision in State of Uttar Pradesh vs. Pappu @ Yunus reported in (2005) 3 SCC 594, I am of the view that past promiscuous conduct of the prosecutrix is immaterial and w hat is relevant is to examine whether there was any consent of the prosecutrix t o the encounter on 15.5.2002. 19. The prosecutrix was a maid servant and the encounter took place when she was engaged in the house of PW.1 and PW.2. The residence of the prosecutrix and her parents was in village and she had to travel from her village home to testi fy in the Court. As a rustic victim, the prosecutrix stated that she was brought to the Court by her master/mistress and was also assisted by her master in givi ng testimony in Court. But having regard to her social background and her timidi ty and vulnerability, which initially prevented the prosecutrix from disclosing the occurrence for 3 days to her master/mistress, suggest that the assistance of PW.1 & PW.2 (master & mistress) was not in the nature of tutoring the witness, but to provide her confidence in giving evidence, in an obviously intimidating C ourt’s atmosphere. 20. As regards the evidence of PW.7 Purna Ram Kakoti, who heard about a rent al quarrel between the accused and the tenant (PW.1), it must be borne in mind t hat the quarrel if any, was between the tenant and the accused (landlord) and th e prosecutrix had no part in that quarrel. Assuming that there was a dispute per taining to demand for increase of rent, it is difficult to believe that the pros ecutrix will go to the extent of sullying her reputation to bring false charge o f sexual assault against the accused. The fact that she did not disclose about t he earlier sexual encounter in the month of Bohag with the accused shows that th e earlier encounter may have been consensual but from the consistent narration o f occurrence of 15.5.2002, it is apparent that the occurrence on that day was no t a consensual encounter and the prosecutrix was subjected to forcible sexual as sault without her consent. This is recorded since it is projected that, the pros ecutrix was aged between 16 to 18 years on the date when the sexual assault took place. 21. On the absence of any injury on the body and private part of the victim, it can’t be overlooked that the victim was medically examined only on 19.5.2002 , while the assault took place on 15.5.2002 and considering the belated medical examination after 4 days, the absence of injury on the victim, may not discredit her testimony, to warrant interference with the conviction. Bearing in mind the consistent evidence of the prosecutrix, non-examination of Punyadhar Kakoti as a witness, in my view is not fatal for the prosecution. 21. Consequently after weighing the evidence and taking note of the un-contr overted testimony of the prosecutrix, which I found to be cogent and trustworthy , I find no reason to disturb the conclusion of the learned trial Court. Consequ entially the Appeal is dismissed. 22. As the accused was granted bail by this Court on 27.7.2012, he will imme diately surrender before the trial Court to serve out the remainder of the sente nce. 23. The L.C.R. be returned immediately.