High Court
Case Details
Crl.A. 151/2010 BEFORE HON’BLE MR JUSTICE P.K.MUSAHARY JUDGMENT & ORDER (ORAL)
Legal Reasoning
Heard Mr. A.K.Talukdar, learned counsel for the appellant. Also heard Mr .K.A.Mazumdar, learned Addl.P.P., Assam. 2. This appeal has been preferred against the judgment and order dated 11.5 .2010 passed by the learned Additional Sessions Judge (FTC), Karimganj in Sessio ns Case No. 82/2008, corresponding to G.R.Case No.993/2007 convicting the accuse d appellant u/s 448/376 IPC and sentencing him to undergo rigorous imprisonment for six months u/s 448 IPC and rigorous imprisonment for 5 years with fine of Rs .1,000/- in default rigorous imprisonment for two months u/s 376 IPC. The senten ces are directed to run concurrently. The prosecution case, in nutshell, is that, in the night of 15.10.2007 3. at about 12/12-30 AM(night), taking opportunity of absence of the victim’s husb and at home, the appellant trespassed into the house and committed rape on her after gagging her mouth and thereafter, fled away when her child started cryi ng. The victim could recognise the appellant in the light of the lamp. In the ne xt morning between 6-30 AM and 9 AM she informed and disclosed about the inciden t before some villagers and elderly persons. She also disclosed to her husband w hen he returned home at 11 AM. She then filed the FIR at 4.30 PM. The police, af ter receiving the said FIR, registered a case being, Badarpur P.S.Case No. 134/2 007 u/s 376 IPC. The police visited the place of occurrence and recorded the sta tement of some witnesses. The police also recorded the statement of the victim w oman and produced her before the medical officer for medical examination. She wa s also produced before the Magistrate and her statement was recorded u/s 164 Cr. P.C. After completion of investigation, the police submitted charge-sheet again st the appellant u/s 376 IPC. The Magistrate concerned committed the case to the Court of Sessions for trial and accordingly, the learned Sessions Judge, made o ver the case to the Addl. Sessions Judge(FTC), Karimganj who framed charges u/s 448/376 IPC. The charges were read over and explained to the appellant. The appe llant denied the said charge pleading not guilty and demanded trial. During the trial, the prosecution examined 10 witnesses including medical officer, victim w oman and Investigating Officer to establish the charges. After examination of th e appellant u/s 313 Cr.P.C., the appellant was given chance to adduce evidence b ut he declined to examine any witness, in his defence. Learned trial Court, on t he basis of materials and evidence on record and after hearing the parties, pass ed the aforesaid judgment and order convicting and sentencing the appellant, as stated earlier. 4. As usual there is no eyewitness in this case. The prosecutrix is the inf ormant and she was examined as PW 1. Her specific evidence is that she was sleep ing on the night of occurrence with her two minor children and her husband was a way. The appellant by breaking the door entered the room and committed rape on h er 2/3 times. She was gagged for which she could not make any hulla to attract the people. Thereafter she informed some of the villagers in the morning at abou t 9 AM but nobody came to her house. At about 11 AM her husband returned home an d she narrated the incident to her husband. She filed the FIR, Ext.1. She proved the said FIR. and her signature thereon. In the FIR she stated that she was ra ped by the appellant 2/3 times and there was a scuffle resisting the act of the appellant. In her cross-examination, she, however, stated that the appellant com mitted rape only once. She has admitted in cross-examination that there was land dispute between her husband and the appellant inasmuch as the husband of the pr osecutrix was not given any plot of land by the father of the appellant and ther e was some criminal case pending at the relevant point of time between the parti es regarding the said land dispute. She has also admitted that an assurance was given to the effect that the criminal case filed against the mother and maternal uncle of the appellant including the present case would be withdrawn, if one bi gha of land is given to her by executing sale deed. Interestingly she has denied the suggestion that there was no land dispute. 5. The husband of the prosecutrix Abdul Hamid was examined as PW 2. In his evidence he corroborated that he was not present at home on the night of occurr ence. He returned home at about 11 AM and her wife narrated the incident to him. He also stated that he accompanied his prosecutrix wife and filed the Ejahar bu t no where the prosecutrix mentioned that her husband accompanied her to the pol ice station for filing the Ejahar. PW 2 has also admitted that there was a land dispute between the parties. The medical officer was examined as PW 7. He testified that on police re 6. quisition he examined the prosecutrix. He proved the medical report,Ext.4 and hi s signature, Ext.4(1). He clearly stated that he did not find any mark of violen ce but hymen was found absent. He also stated that no sign of recent intercourse was detected. As per his evidence no external injury was found on the person of the victim. 7. I do not want to proceed further to appreciate the evidence of other wit nesses inasmuch as, in a rape case it is sufficient to take into account the evi dence of prosecutrix and the medical evidence to pass an order of conviction and sentence against a accused person if the evidence of the prosecutrix is found to be cogent ,consistent and trustworthy gaining the confidence of the Court. 8. The evidence so far found on record is that she has contradicted by sayi ng in the FIR and examination-in-chief that she was raped 2/3 times by the app ellant. But in the cross-examination she stated that she was raped only once. Sh e also contradicted while saying that she informed some villagers in the morning at 9 AM. She also contradicted by saying that she proceeded to police station a lone for filing the FIR, but her husband PW 2 stated that he accompanied with he r wife while filing the FIR. 9. What was found most unusual is that no injury on her person, not to spea k on her private parts was found in the medical examination conducted by the med ical officer. This indicates that no scuffle took place between the appellant an d the prosecutrix. On the basis of medical evidence it can also be infered that the prosecutrix put up no resistance while the appellant tried to commit rape, i f at all such incident took place. The other unusual conduct of the prosecutrix is that she did not make any hue and cry after the appellant left her house aft er committing the alleged rape on her but waited till the next morning to info rm some villagers. Some of the villagers were examined as prosecution witness an d they categorically stated that they did not visit the prosecutrix house after being informed by her. The villagers also in their evidence stated that there wa s land dispute between the parties. 10. In view of the above contradictions and inconsistencies in her evidence and unusual conduct shown by her in not making any hue and cry at the time of or immediately after the appellant left the place after committing the alleged off ence, the prosecution story stands unbelievable. Besides this, existence of lan d dispute and the demand of the prosecutrix as found from the evidence that she would withdraw the case if one bigha of land is given to her by executing a re gistered sale deed. It appears that the FIR was lodged by the prosecutrix with some motive and out of personal vendetta. The evidence of prosecutrix is foun d to be untrustworthy and inconsistent on the basis of which passing of an ord er of conviction and sentence is not permissible under the law. Accordingly, i t is held that the charge against the appellant could not be proved beyond all r easonable doubt as required under the law. The appellant is acquitted on benefit of doubt 11. In view of above, the impugned judgment and order dated 11.5.2010 passed in Sessions Case No. 82/2008 is set aside and quashed. The appeal stands allowe d. It is stated at the Bar that the appellant is on bail. The bail bond shall st and discharged. 12. Return the LCR forthwith.