High Court
Case Details
Crl.A. 185/2007 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY Both the appeals noted above are directed against the judgment and order dated 30.04.2007 passed by learned Sessions Judge, Dhemaji, in Sessions Case No .2(DH)/2007, whereby the appellant was convicted under Section 376 (2)(f) of IPC and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1000/-,in d efault, RI for a further period of one month. 2) Facts leading to filing this appeal may be stated, in brief, as follows:
Legal Reasoning
On 30.9.2006 at about 8:00 AM, accused Babul Chutia committed rape on th e victim, aged about 8 years, in the backside of the (cid:28)Shiva (cid:29) temple, near Railwa y colony in the district of Dhemaji. Informant, mother of the victim (PW.1) lod ged an Ejahar at Dhemaji police station, whereby the Officer-in-Charge of Dhemaj i Police Station registered a case and endorsed the investigation to Sri Upendra Das, S.I. of Police (PW.5). The I.O. sent the victim for medical examination a nd launched the investigation. On completion of the investigation, after obtaini ng the medical report of the victim, I.O. submitted charge-sheet against the acc used-appellant. On submission of the charge-sheet, the case was committed to th e Court of Sessions. During trial, finding materials to frame charge under Section 376(2)(f) 3) of IPC, the learned Sessions Judge framed charge under the aforesaid section of law and read over and explained to the accused-appellant. The accused-appellant pleaded not guilty and claimed to be tried. 4) During trial, the prosecution examined as many as 5 witnesses and also p roduced 5 numbers of documents in support of the case. On conclusion of the reco rding of the prosecution evidence, statement of the accused under the provision of Section 313 of CrPC was also recorded. The accused denied his involvement, in the commission of offence alleged and also pleaded not guilty. The accused dec lined to adduce any defence evidence on his behalf. Upon hearing learned counsel for the parties, the learned Sessions Judge 5) , Dhemaji, convicted the accused-appellant under Section 376(2)(f) of IPC and se ntenced him as aforesaid, giving rise to this appeal. 6) BS Sinha, learned Addl. Public Prosecutor for the State. I have heard Mr. NN Upadhyay, learned counsel for the appellant and Mr. 7) Mr. Upadhyay by referring to the materials available and the evidence on record submitted that the impugned conviction is liable to be set aside and qua shed since the witness to the occurrence had no knowledge of the commission of o ffence of rape. Learned counsel for the appellant submitted that vital witness o f the prosecution, who was present at the time of occurrence was not examined by the prosecution. 8. Learned counsel further pointed out that when the victim being 8 years old was raped by the accused, it would have certainly caused extensive external as w ell as internal injury and blood would have oozed out from the vagina and semen would have also been found in the clothing of the victim girl, but there was no discovery of such facts in the evidence of the witnesses. 9) Learned counsel also submitted that witnesses have changed their stateme nts during trial and as such the accused cannot be convicted for the alleged off ence on a concocted and fabricated statement made by the witnesses. Learned coun sel further pointed out that 8 years old victim ought to have become senseless a fter the incident, rather in the instant case, the victim walked away from the p lace of occurrence towards the residence, as deposed by PW.1 and PW.2. Mr. Upadhyay, learned counsel for the appellant further submitted that t he medical evidence of the doctor is not admissible since the examination of the victim was not carried out by the doctor in terms of the provision of Section 1 64 A of CrPC. 10) In reply to the above submission, Mr. BS Sinha, learned Addl. PP submitt ed that there are no discrepancies in the evidence of the prosecutrix as well as her mother (PW.1) and therefore there is no reason to interfere with the findin gs of the learned trial Court. Mr. Sinha further pointed out that it is not nece ssary that the victim ought to have bled after the commission of offence and eve n a slightest penetration on the vagina of the victim is sufficient to constitut e the offence of rape and it is not necessary that there ought to be ejaculation of the semen of the accused. Mr. Sinha by indicating the medical report of th e victim recorded immediately after the occurrence has submitted that the eviden ce of the doctor clearly reveals that the victim was ravished by the accused-app ellant and such medical evidence finds corroboration with the evidence of the vi ctim girl. 11) In order to appreciate the submissions of the learned counsel for the appellant as well as the respondent, I would like to discuss the core of the pro secution witnesses. 12) PW.1, Smt. Anima Saikia, mother of the victim stated that on the day of occurrence when her daughter had gone to the Mandir situated nearby, to bring so me flowers. Younger daughter, Piya Saikia, who was with the victim came back hom e and reported her that the accused caught hold of the victim and laid her down on the ground. Getting the information, when she rushed to the place, she saw th e victim coming toward the residence. On query made by PW.1, the victim reporte d that the accused took her to the back side of the Mandir and laid her on the g round and committed rape on her by penetrating his penis into her vagina. She im mediately rushed to the police station along with the victim and lodged an ejaha r. In cross, PW.1 has denied the suggestion that the victim deposed the incident to her on being tortured by her and denied the suggestion that the accused did not penetrate his penis into the vagina of the victim. 13) f the victim, opined as follows: PW.4, is the Dr. Khanikar Gogoi, who conducted the medical examination o (cid:28)1. During investigation, the patient was found very fearful and was painful on the chest. 2. Sticky liquor spot on her panty, painful on the vagina. But no any blood steamer. 3. Externally no any injury mark. 4. She was forcefully raped. 5. Inflammation on her vagina found. The doctor also opined that the age of the injury is 8 hours. (cid:29) PW.5, Upendra Das, S.I. of Dhemaji Police Station is the investigating o 14) fficer of the case. PW.5 deposed that after being endorsed with the investigati on of the case arising out of the ejahar filed by the mother of the victim, he s ent the victim for medical examination, and thereafter interrogated and recorded the statements of the witnesses. Thereafter, PW.5 prepared the sketch map and collected the medical report of the victim and submitted charge-sheet against th e accused under Section 376(2)(f) of IPC. 15) PW.2, is the victim, who clearly deposed that on 30.9.2006 at about 7-8: 00 AM, when she went to the Mandir, accused met her and took her to the backside of the Mandir, laid her down on the ground, undressed her and committed rape on her by penetrating his penis into her vagina forcefully and for which she felt pain in her vagina. PW.2, the victim, has been fully cross examined by the defe nce, but her evidence could not be shaken during such cross-examination. 16) Perusal of the evidence of the victim, reveal that that her evidence is very natural and there is no materials to reflect that she was tortured by anybo dy to depose against the accused. There is nothing in her evidence, to show tha t the young child would have spoken falsely to implicate the accused with the c ommission of rape on her. The evidence of PW.2 appears to be trustworthy and rel iable and her evidence undoubtedly inspires confidence, which is sufficient to c onvict the accused for the offence committed by him. Form the evidence of PW.2, the victim, it appears that she felt pain while committing rape on her for pene tration of penis into her vagina, which is corroborated by the medical evidence of the doctor, PW.4. On medical examination of the victim, the doctor found hav ing pain and inflammation in her vagina and opined that the victim was forcefull y raped. Above facts go to establish that accused forced his penis into the vag ina of the victim which caused inflammation of the vagina. 17) Mr. NN Upadhyay, learned counsel for the appellant by referring to a dec ision reported in AIR 1972 SC 468 (Ram Kishan Sinah v. Harmit Kaur and another) submitted that a statement of the witness recorded under Section 164 of CrPC, th ough not a substantive evidence, it can be used to contradict as well as corrobo rate the statement of the witnesses. He further submits that the Court is requir ed to consider the credibility of the prosecution witnesses on the basis of the statement recorded under Section 164 of CrPC. The relevant observation is quoted bellow: (cid:28)8. A statement under Section 164 of the Code of Criminal Procedure is not subst antive evidence. It can be used to corroborate the statement of a witness. It ca n be used to contradict a witness. The first information report was considered b y the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Code of Criminal Procedure could not have produced a d ifferent result by reason of the conclusions of the Sessions Judge as to rejecti ng the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworthy of credence. 9. It is true that the High Court as an appellate court can set aside an order o f acquittal. In doing so, the High Court has to review the evidence upon which t he order of acquittal is founded. The High Court is to consider the views of the trial Judge as to the credibility of the witnesses. The High Court is also to k eep in view the presumption of innocence in favour of the accused and the right of the accused to the benefit of doubt. Finally the High Court is to give reason s that the acquittal was not justified. The acquittal by the Sessions Judge cann ot be said to be against the evidence or in disregard of evidence. Nor can the a cquittal be said to be in violation of the principles of criminal jurisdiction. 10. The High Court in setting aside the acquittal said that the result would hav e been different if the Sessions Judge had taken into consideration the statemen t of Hazura Singh Exhibit P-4 with which Hazura Singh had been confronted. In cr oss-examination Hazura Singh said that the statement before the Magistrate Exhib it P-4 was made under threat and was a wrong statement. The Sessions Judge foun d that Hazura Singh made the same statement disowning the first information repo rt. Hazura Singh was torn in his conscience between emotion for his son the appe llant on the one hand and his wife Nihal Kaur and the deceased son Bharpur Singh on the other. (cid:29) However, on careful reading of the evidence of the victim and her statem 18) ent recorded under Section 164 of CrPC, I do not find major discrepancies in the evidence of the victim on the fact of rape, upon her by the accused. The victi m had categorically stated in her evidence in the Court as well as before the Ma gistrate while giving her statement under Section 164 of CrPC that the accused p enetrated his penis into her vagina. 19) By referring to another decision reported in (2001)9 SCC 452 (Dilip and another v. State of MP), learned counsel for the appellant submitted that the so le testimony of the prosecutrix suffering from infirmity may not be acted upon a nd made the basis of conviction without corroboration on the material particular s and the rule about the admissibility of the corroboration should not be ignore d in sexual offences. Learned counsel for the appellant submitted that the evid ence of the victim suffers from infirmity, therefore, the prosecution case which solely rests on the testimony of the prosecutrix and the medical evidence, dese rves to be interfered with. Hon’ble Supreme Court in Dilip and another Vs. Stat e of M.P. (Supra) observed as follows: (cid:28)12. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon a nd made the basis of conviction unless corroborated in material particulars. How ever, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gian Chand1 on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on t he sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is fo und to be natural, trustworthy and worth being relied on. This Court relied upon the following statement of law from State of Punjab v. Gurmit Singh2 SCC (para 21): (cid:28)If evidence of the prosecutrix inspires confidence, it must be relied upon with out seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of co rroboration required in the case of an accomplice. The testimony of the prosecut rix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases i nvolving sexual molestations.... (cid:29) 13. In Madan Gopal Kakkad v. Naval Dubey3 this Court has held (vide para 23) tha t lack of oral corroboration to that of a prosecutrix does not come in the way o f a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the (cid:28)probabilities factor (cid:29) does not render it unworthy of credence, and that as a general rule, corroboration cannot be ins isted upon, except from the medical evidence, where, having regard to the circum stances of the case, medical evidence can be expected to be forthcoming. 14. The age of the prosecutrix was around 16 years, maybe a little more. The fac t remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing the truthfulness of the explanation offered by the prosecutrix that because of being overawed by the two accused persons, she was not able to resis t, the fact remains that the (cid:28)probabilities factor (cid:29) operates against the prosecu trix. The gang rape is alleged to have been committed at about 2 p.m., in her ow n house, situated in a populated village by the side of the main road where peop le were moving on account of Holi festival. The prosecutrix did raise a hue and cry to the extent she could and yet none was attracted to the place of the incid ent. The prosecutrix is said to have sustained injuries, also bleeded from her p rivate parts staining her body as also the clothes which she was wearing. This p art of the story, is not only not corroborated by the medical evidence, is rathe r belied thereby. The presence of bloodstains is not confirmed by the Forensic S cience Laboratory or by the doctors who examined the prosecutrix. Her own matern al aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as giv en in the court. The learned counsel for the State relied on Section 114-A of th e Evidence Act, 1872 which provides that in a trial on a charge under Section 37 6(2)(g) IPC on the prosecutrix stating that she was not a consenting party, the court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not be misunderstood as recording a finding that the prosecutrix was a willing party to the sexual intercourse by the accus ed persons. The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on h er in view of the fact that her narration of the incident becomes basically infi rm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory. The defence has giv en suggestion in cross-examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessa ry for us to dwell upon further to find out the probability of truth contained i n the suggestions because we are not satisfied generally of the correctness of t he story as told by the prosecutrix. We find it difficult to hold the prosecutri x in the case as one on whose testimony an implicit reliance can be placed. (cid:29) In the instant case, contrary to what has been submitted, the victim’s t estimony is not at all attended by infirmities, warranting outright rejection. T he decision noted above cannot be pressed into service in the instant case. 20) By referring another decision of this Court reported in 2010(1) GLT 731 (Diganta Mazumdar v. State of Assam), learned counsel for the appellant submitte d that since the evidence of the victim does not inspire confidence, conviction and sentence is liable to be set aside. The relevant extract of the aforesaid decision is extracted bellow: (cid:28)( 23 ) In the present case in hand, the evidence of the victim does not inspire confidence of the Court for the fact as mentioned hereinabove. She herself stat ed that she knew the accused from before. She was forcibly taken by the accused in a bicycle through a busy bazaar area, but when she cried nobody came for resc ue. In the night she slept with the mother of the accused, when police came she did not divulge anything to the police. In the next morning, instead of coming t o her house she came to her neighbour’s place and narrated the incident to one B hanu. From the evidence of other prosecution witnesses we have also seen the acc used when called upon by the mother of the victim, came to their house where fro m he was produced before the police and police arrested him which shows that the y were known to each other quite well. The doctor also found no sign of rape, no r any injury on the external or internal parts of the body of the victim. (cid:29) 21) Mr. BS Sinha, learned Addl. PP for the State by referring to a decision of the Apex Court reported in (2004) 3 SCC 602 (Koppula Vnkat Rao v. State of A. P.) submits that Sine quo non of offence of rape is penetration, and not ejacula tion and intercourse means sexual connection and slightest of the penetration wo uld constitute an offence of rape. By referring to the medical evidence of the doctor, learned Addl. Public Prosecutor submits that inflammation of the vagina go all way to spell out that there was an attempt to forcible insertion of peni s into the vagina, which resulted in inflammation on vagina of the victim. Mr. S inha further submitted that there was no history of any injury by any other obje ct on vagina of the victim, therefore, if the evidence of the victim is co-relat ed with the injury sustained by her in vagina, it can be very well be understood that the accused attempted to forcibly insert his penis into the vagina of the victim. The evidence of the victim re-affirms the act of insertion of the penis into her vergina by the appellant. 22) In the case of State of Chattisgarh v. Derha reported in (2004) 9 SCC 69 9, Hon’ble Supreme Court observed that conviction solely on the testimony of the victim without further corroboration is permissible if the Court is satisfied f rom the evidence of the victim, unless there is an element of false implication, since, the victim is not an accomplice in the crime of rape. 23) As submitted by the learned counsel for the appellant the victim’s swoll en vagina is not required to bleed from vaginal canals nor presence of spermatoz oa or semen is essential to establish a charge of rape against the accused. 24) Learned counsel for the petitioner submitted that the accused was 20 yea rs old boy/student at the time of occurrence and he is in custody since the date of conviction. Hon’ble Apex Court in the casa of State of Chattisgarh Vs. Derh a (supra) after having considered the materials on record reduced the sentence o f 10 years rigorous imprisonment to 7 years, considering the age of the accused. The relevant observation made by the Supreme Court is quoted bellow: 8. The question then arises, what should be the sentence that should be imposed on the accused? The trial court, as stated above, has sentenced the respondent f or an offence under Section 376(2)(f) to 10 years’ RI. We are told by learned co unsel for the respondent that he was hardly 18 years of age at the time of the i ncident in question and has already served about 6-1/2 years’ imprisonment conse quent to the sentence imposed on him by the trial court. It is also submitted th at he has since married and has a family. In such circumstances, we think a sent ence of 7 years’ RI would be appropriate in the facts and circumstances of the c ase. Hence while allowing the appeal of the State, setting aside the judgment of the High Court and restoring the conviction recorded by the trial court, we red uce the sentence to 7 years’ RI. We further direct that if the respondent has un dergone any part of the sentence as submitted by learned counsel, set-off shall be given for the said part of the sentence and he will also be entitled to any l egal remission permissible in law for having served 6-1/2 years’ imprisonment. (cid:29) Learned counsel for the appellant submitted that the Section 164 A(3) of the Code of Criminal Procedure Code was not complied with, since the rea sons for each conclusion was not made in the report. Though the doctor has adm itted not to have noted basis of finding of forceful rape written by him in the report, but on overall consideration of the entire report of the doctor vis a vi s the statement of the victim very well conclude that the victim was ravished . In the report of the doctor it appears all such features relevant for the purpo se were noted. 23) On overall consideration of the above discussions and upon carefully goi ng through the material available on record, this Court is of the view that accu sed-appellant, who was a student nearly 20 years of age at the time of incident and has already undergone imprisonment for 4 years, consequent to the sentence i mposed by the learned trial Court, a sentence of 7(seven) years imprisonment for the accused-appellant would be appropriate, in the instant case. 24) Therefore, while allowing the appeal in part, the sentence of imprisonme nt of the accused-appellant is reduced to a sentence of 7 (seven) Years. The ac cused-appellant be set at liberty forthwith, after undergoing the period of sent ence indicated above. 25) partly allowed to the extent as aforesaid. With the above observations and directions, this criminal appeal stands 26) Send back the LCR forthwith.