High Court
Case Details
Crl.A. 236/2007 BEFORE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH The judgment and order dated 18th August, 2007 passed by the Learned Additional Sessions Judge (FTC) No.5, Kamrup, convicting the appellant under section 376 IP C and sentencing him thereby to undergo rigorous imprisonment for 7 years and al so to pay a fine of Rs. 1,000 in default. Further, rigorous imprisonment for 6 months has been challenged. 2. r. BJ Dutta, learned Addl. PP.
Legal Reasoning
Heard Mr. BM Choudhury, learned counsel for the petitioner and M 3. The prosecution case, in brief, is that the accused Gobinda Pato wary kidnapped the victim, a 12 year old girl. From 1st September, 2005, the victim went missing. After 15 days she was left near the saraighat bridge where from she came back home and she narrated that the accused in absence of any oth er family members in the house came and offered her a pouch of sikhar (a kind of tobacco). Consuming that she became unconscious and then the accused committed rape on her. Thereafter, the accused asked her to go with him. Initially, she refused but, when the accused assured her that he will marry her and as she has already been raped she must go with him. The accused took her to the house of his elder sister at Barhampur where she was kept for one night. There from she was taken to another house at Maligaon where she spent one week. She also stat ed that during all these days she was subjected to rape by the accused. The fa ther and the elder brother of the accused took both of them to their house where she was kept for one month and then the accused brought her to Saraighat bridge and abandoned her and she then came back to her own house. The mother of the v ictim (PW-1) lodged an FIR. On the basis of her FIR, Kamalpur P.S Case No.19/20 06 was registered under Section 366-A/376 IPC. During the investigation the vic tim was subjected to medical examination. On completion of the investigation, t he police submitted the charge-sheet under Section 366/376 IPC. 4. The accused pleaded not guilty of the charges framed against him under Section 366/376 IPC and claimed to be tried. 5. In order to prove this case, the prosecution examined altogether 9 witnesses. The accused was then examined under Section 313 Cr.P.C. In his s tatement, the accused stated that he had worked under the father of the victim i n his shop. He left the job as he was not paid and thereafter asked the victim’ s father to pay him his dues which was amounted to Rs. 11,000. The victim’s fat her did not pay the amount and he was implicated in the false case. He, however , did not adduce any defence witness. Dr. Putul Mahanta examined the victim on 23rd October, 2006 and his findings are as below: Height 147 cm Chest girth (at nipple line) 89 cm Abdominal girth (umbilicus) 74 cm Teeth 14/14, all are permanent. Space for 3rd molar teeth: present in the upper quadrants Heirs: scalp heirs: black, straight and 37 cm long Auxiliary heirs: black, 1-1.5 cm scanty in distribution Public hairs: black, 2-3 cm long, average distribution matted. Brest: developed, pendulous in shape, soft in consistency or discharge present. History of puberty: Menarche: about one year back. Menstrual cycle: regular, monthly and 4 to 5 days in duration. Last menstrual period: about 10 to 12 days back. Genital examination: Genital organs: healthy, developed. Vulva: both labia majora and minora are separated on abduction. Mymen: old tears present at 1 o’clock, 3 o’clock, 5 o’clock & 9 o’clock position . Hymenal office admits tip of two fingers. Vulva: healthy, developed Cervix: healthy Uterus: clinically not palpable. Evidence of venereal disease: clinically not detected. Evidence of injury on her body or private parts: not detected. Veginal smers taken on glass slides for laboratory investigation from the poster ior fornix of vagina and tip of cervix. Evidence of struggle or strain on wearing clothes: not detected. Mental condition: nothing abnormality detected. She was co-operative and her beh avior was good. Intelligence and memory: average Gait: normal Radiological investigation: Skiagram No. R-223: X-ray of wrist joint: Epiphiseal union of bones around the wrist joint n X-ray of elbow joint: Epiphiseal union of bones around the elbow join X-ray of shoulder joint: epiphyseal union of bones around the shoulder j 1. ot completed yet. 2. t not completed. 3. oint not completed yet. 4. X-ray of pelvic bones: epiphyseal union of the iliac crest not completed yet. Result of laboratory investigation: veginal smears aid not shows spermatozo and gonococie. 6. In the opinion of the doctor, the victim was above 14 years and below 16 years. There was no sign of sexual intercourse although she was habitu ated to sex act. The, findings of the doctor as regards the age of the victim as well as the fact that the victim was habituated to sex act were disputed during his cross-examination. The victim was examined as PW-1 and she narrated how she was ind 7. uced by the accused to go with him. She deposed that in the absence of her fami ly members, the accused came to her house and committed rape on her. She disclo sed that her age was 12 years at the time of occurrence. According to the accus ed, he induced her to go with him as she was already been raped. She was taken to the house of Praneshwar Malakar (PW-5) from the house of the elder sister of the accused at Baramhampur. PW-5, corroborating the evidence of the victim stat ed that the accused accompanied by the victim came to his house and stayed there for one night. Next day they left his house. He further stated that the accus ed and the victim were sleeping in the same room in his house. Lending support to the evidence of PW-6, Mantu Malakar, brother of PW-5 also stated that the acc used along with the victim came to his house at Maligaon and on being asked the accused and the victim told them that, as they were in love with each other, the y have came to his house. PW-7 Chandan Das had seen the accused and the victim at Maligaon. The accused told him that the victim was staying with him in the h ouse of Praneshwar Malakar. 8. PW-1, the mother of the victim stated that the accused who is re lated to her used to visit her house. On the date of occurrence, while the vict im was alone in the house, she and PW-1 has gone to Namghar. When she came back she did not find her daughter. Next day she came to know that the accused had taken her daughter in an Autorikshaw. She accordingly informed the police when the victim came back home, on being left by the accused she filed a complaint be fore the Chief Judicial Magistrate. PW-4 is the father of the victim. He also deposed that when his daughter went on missing he informed the matter to the pol ice. After some days he came to know that the accused has left his daughter on the bank of river. 9. Thus, from the aforesaid evidence, it transpires that the eviden ce of the victim and her family members were corroborated by the independent wit lessness i.e., PW-5 and 6. There is nothing to disbelieve the evidence of PW-5 and 6. The defence plea that the accused was implicated falsely as he claimed h is salary from the victim’s father, was not admitted by any of the prosecution w itnesses. The accused also did not adduce any defence evidence. The prosecutio n case is further substantiated by the medical evidence. 10. The learned Trial Court has rightly held the accused guilty und er section 376 IPC. Therefore, the judgment passed by the Trial Court is hereby upheld. 11. 12. This appeal is dismissed. Send back the LCR along with the copy of the judgment.