High Court
Case Details
Crl.A. 38/2010 BEFORE HON’BLE MR JUSTICE P. K. SAIKIA This appeal is directed against the judgment and order dated 22.12.2009 passed b y Addl. Sessions Judge FTC in Sessions case No. 223(N) 07 convicting one Dhan De ka under Section 376 IPC and sentencing him to rigorous imprisonment for 10 year s and also to pay a fine of Rs. 5,000/- in default to under R.I for 6 months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the ac cused appellant namely, Dhan Deka has preferred this appeal citing several infir mities in the judgment, rendered by the trial court. Shree Dhan Deka would be re ferred to hereinafter as the accused person. 3. The brief facts necessary for disposal of the present appeal are that t he accused appellant herein had sexual intercourse with the prosecutrix on the p romise of marrying her later. Due to such cohabitation, the prosecutrix became p regnant. When the matter was reported to the accused person, he advised her to have her pregnancy terminated so that he could marry her without any difficulty . Thereafter, the accused got her pregnancy terminated at Nagaon Civil Hospital but against her will with the help of one Shri Paritosh Ghosh.
Legal Reasoning
4. However the accused person went back from his promise subsequently and r efused to marry her. For such a treacherous conduct on the part of accused perso n, a bichar was held . However, the said bichar could not resolve the conflict b etween the parties and as such, the people who sit in judgment in that bichar ad vised the prosecutrix to take the help of law. On the advice of the villagers, t he prosecutrix filed a complain petition before the sub-divisional Judicial Mag istrate SDJM, Sankardev Nagar,Hojai, alleging as aforesaid. On the receipt of th e complain, the learned SDJM, Sankardev Nagar sent the complain to the police to do the needful in accordance with law. 5. On the receipt of the complaint, the O/C, Hojai Police Station, registe red the case on such complain treating the same as FIR and ordered a competent p olice officer to investigate the case. The I.O who was so entrusted to investiga te the case, visited the place of occurrence, examined the witnesses did other n eedful including the examination of victim by the doctor and on the conclusion o f investigation submitted charge-sheet under Section 493/376/330/490/506 IPC aga inst the accused Dhan Deka. On the other hand, the police submitted charge-sheet under Section 313 IPC against the accused Paritosh Ghosh. 6. The learned Magistrate before whom the charge-sheet was so laid, commit ted the case to the court of Sessions Judge since the offence under Section 376 & 313 IPC are exclusively triable by the court of sessions. In due course, the learned Sessions Judge, transferred the case to the file of the Addl. Sessions J udge for disposal in accordance with law. The learned Addl .Sessions Judge, on the receipt of the case on transfer and on hearing the parties, framed charge u nder Section 376 against the accused Dhan Deka and under Section 120B/330 IPC against the accused Paritosh Ghose. When the charges so framed, on being read over and explained to the accu 7. sed persons, they pleaded not guilty and claimed to be tried. During the trial, prosecution had examined as many as 12 witnesses including the victim, the Medi cal Officer and the Investigating Officer who conducted the investigation of the under consideration. The statements of the accused persons under Section 313 Cr PC were recorded. The accused plea was totally denial. They however, declined t o adduce any evidence of their own. The learned trial court on conclusion of the trial and on hearing the ar 8. guments, advanced by learned counsel for the parties, acquitted the accused P aritosh Ghosh of offence under Section 120B /330 IPC whereas the trial court con victed the accused Dhan Deka of an offence under Section 376 IPC and sentenced h im punishment as aforesaid. It is the judgment which has been assailed in the pr esent appeal on grounds more than one. 9. Opening up the argument on behalf of the accused appellant, the learned counsel for the appellant has contended that the judgment rendered by trial cour t is unsustainable in law for several reasons. In the first place, it has been p ointed out that though the learned trial court concluded that at the time of inc ident, the prosecutrix was a girl of about 15 years of age, yet, such findings is not backed by the evidence on record. According to the learned counsel for th e appellant, on date of incident she was far above 15 years of age. 10. It has also been contended that the evidence of the prosecutrix is incon sistent, incoherent and incompatible with her statements she rendered at differ ent point of time in connection with the case under consideration. In that conte xt, it has been pointed out that her statement, made in her FIR (Ext. 1) as wel l as the statement are rendered before the magistrate during the course of inves tigation which was proved as Ext. 4 are diametrically opposite. 11. In that connection in has also been argued that if one believes the clai ms of the prosecutrix which she rendered before the court during trial, she was at first brought to the chamber of the accused persons where the accused had sex with her against her will. However, in her statement which she rendered before the Magistrate during the course of Investigation she claims that she was subje cted to sexual intercourse under the promise that accused would marry her one da y. However still different was the version that she rendered in the FIR. All t hese do not augur well to advance the cause of the prosecution which it incorpor ated in the case under consideration. 12. It has also been pointed out that the pregnancy, which the prosecutrix h ad, was terminated by doctor at Civil Hospital Nagaon, Assam. She was subjected to medical examination soon thereafter. But the doctor who examined her soon aft er the termination of her pregnancy did not find any mark of injury on her priva te part. This raises a serious doubt about her being pregnant due to alleged s exual intercourse with the accused person.
Legal Reasoning
It is also the contention of the learned counsel for the appellant that 13. evidence of witnesses, the principal prosecution witnesses in particular, are al so not reliable for their being inconsistent and incoherent in describing the fu ndamental aspects of the prosecution case. He, therefore, urges this Court to se t aside the judgment under challenge and to acquit the accused person of the off ence aforesaid. 14. Countering the above submissions, advanced from the side of learned cou nsel for the appellant, it has been stated that the judgment, rendered by the t rial court, is based on evidence on record which are found to be consistent, cog ent and clear on all material points and such evidence can not simply be brushed aside as sought for by learned counsel for the appellant. What is important to note is that as per medical report, the prosecutrix was minor girl. Such eviden ce finds support from other materials on record. 15. Being so, at a time relevant, the prosecutrix was a minor girl and as su ch, even if it is found that the accused had sex with her with consent, that wou ld not materially change the complexion of allegations levelled against the accu sed person. In the face of above, the learned Addl. PP submit this Court to dism iss the appeal on affirming the judgment rendered by trial court which is impugn ed in this appeal. 16. I have considered the arguments, advanced by learned counsel for the parties having regard to the evidence on record. However, to appreciate the argu ments before this Court, I find necessary to have a brief overview of evidence o n record and the evidence of prosecutrix is first taken up for consideration. Th e Prosecutrix was examined as PW 1. According to her, the incident in question t ook place in 2004-2005. During that time, she was working as a labourer in a nea rby store crushing mill. The accused was the manager thereof. 17. At that point of time, one day while she was working in the factory, th e accused came to her and took the prosecutrix to his room. Once she reached the room of the accused person, the accused threw her on the bed in his chamber and had sexual intercourse with her against her will. When she tried to make hue and cry the accused gagged her mouth and was prevented from rising any hue and cry. Thereafter, the accused had sex with her on several occasions. 18. As the accused person continued to have sex with her, one day she enquir ed him as to why he was having sex with her. Due to such enquiry from her side, he promised to marry her one day. Owing to such sexual encounters, she became pr egnant. The fact that she was pregnant was communicated to the accused person. Coming to know about her pregnancy, the accused told her to have her pregnancy t erminated since it would help him to marry her without any difficulty. Thereafte r, he sent her to Nagaon Civil Hospital, along with one Pristosh Ghosh where her pregnancy was terminated by the doctor. However, her pregnancy was terminated against her will. 19. Shri Paritosh Ghosh thereafter, reported the termination of her pregnan cy to the people of their village. Her mother too came to know about such termin ation of pregnancy from the village people. On coming to know about the aforesai d affairs, her mother took the prosecutrix to the house of the accused person an d insisted him to keep the prosecutrix as his wife. However, the accused refused to do so. He even denied his involvement in making the prosecutrix pregnant. Du e to such development, a Mel was convened but the Mel could not resolve the dis pute between the parties and advised them to take recourse to the law. According ly, a case was filed. 20. In her cross-examination, she has stated that during the period under c onsideration, on several occasions, the accused had sex with her but she never r eported such matter to any one including her mother. It is also in her evidence which she rendered in her cross-examination that accused had sex with her whenev er he got the opportunity to do so and that in Ext A, the affidavit, she claims herself to be a girl of about 18 years of age and that she had no objection if bail was granted to the accused person when he was detained in custody in connec tion with the case lodged by her. 21. PW 2 Smt. Dosmotia Satnami is the mother of the prosecutrix. According t o her, on 6th of May 2008, when she rendered evidence before the court, the ag e of her daughter (PW 1) was about 12-13 years. During the relevant time, her d aughter worked in a factory where the accused worked as a manager. One day, she came to know from the villagers that her daughter was raped by accused person f or which he became pregnant. She also came to know that one Paritosh Ghosh had h er pregnancy terminated in the hospital. She however admitted that at no point o f time, her daughter herself told such episode to her. 22. On coming to know about such incident, she took her daughter to the res idence of accused person and requested him to take the charge of her daughter. B ut the accused refused to accept such proposal. He even denied his involvemen t which made her daughter pregnant. In her cross-examination, she admitted that when she rendered evidence before the court her age was about 60-65 years, that her husband died about 20 years before, that she lived with her husband for abou t 10-15 years and that prosecutrix is her second child and she came to their lif e after about 4 years of her marriage with her husband. 23. PW 3, is Dr. L.P Sarmah. According to him on 28.06.2005, he was posted a t Nagaon Civil Hospital and on that day, he examined the prosecutrix in connecti onwith Dabaka P.S. Case No. 30/2005 and came to the following findings on the ba sis of his physical, clinical nad laboratory examination. Her age was 14-15 years of age. There was no evidence of sexual intercourse, no mark of injury was found on the private part of the prosecutrix. In that conne ction, he has prepared a report which was proved as Ext 1. 24. In their evidence, PW 4, PW 5, PW 6, PW 7, PW 8 and PW9 Bijuli Satnami, Bhanu Satnami, Lakhindar Satnami, Batia Satnami, Sri Banamali Gour and Ganga S atnami respectively have stated that they could not say anything about the inc ident under consideration. On the other hand, Debo Kumar Das, Judicial Magistrat e, has stated that he recorded the statement of the victim during the course of investigation as per provision of 164 CrPC. He proved the same as Ext 4. 25. PW 10 is the I.O. who conducted the major part of the investigation of the case under consideration. According to him, on 28.06.2005, he was posted as S.I of police at Dobaka Police station. On that day, he was ordered to investig ate the case which was initiated on the basis of compliant forwarded by SDJM, Ho jai Sankardev Nagar. During the course of investigation, he recorded the stateme nt of the victim girl, got her examined by doctor prepared a sketch map of the p lace of occurrence vide Ext 2, examine the witnesses. 26. However, before he could complete the investigation, he was transferred and as such he handed over the case diary to the O/C concerned for doing needful . PW 12, Shri Ashok Kumar Dutta, has stated that on the direction of the then O. C, Daboka P.S, he have completed the unfinished work pertaining to Daboka Poli ce Station Case No. 30/2005 and thereafter, submitted the charge-sheet to the co urt for doing needful in course of law. 27. Above being the evidence of record, let us see how far such evidence mak es out the charge, brought against the accused/ appellant. Before we proceed fu rther let me see what was the age of prosecutrix during the time under considera tion. 28. In this connection, it may be stated that in her evidence, the prosecut rix claims that on the day when she rendered evidence before the court she was a girl of about 18 years of age. Her evidence was recorded in the court on 27.05 .2008. Therefore, it can be assume from her evidence that at a time relevant, sh e was a girl of about 15 years of age. On the hand, the mother of the prosecutri x has stated that at the time of consideration, the age of her daughter was abou t 12-13 years. But then, the doctor opined that the girl was about 15 years of a ge when he examined her on 28.06.2005. However, the learned counsel for the appellant has urged this Court not to rely on such testimony of PWs particularly in view of evidence rendered by the mother of the prosecutrix in her cross-examination. In her cross-examination, the moth er of the prosecutrix has stated that her husband died about 20 years before her rendering evidence in the court in 2008. It is also in her evidence that the pr osecutrix was her second child and she came to their life after above 4 years of her marriage with the father of the prosecutrix. It is also in her evidence t hat she lived with her husband for about 10-15 years. 29. The above evidence that comes from a person none other than mother of t he prosecutrix clearly reveals that at a time relevant, the prosecutrix was well above the age of 16 years. By any standard she was a girl of above 18-20 years of age at a time of alleged incident. Such a fact finds corroboration from the a verments made in the affidavit Ext A sworn by the prosecutrix in connection with supporting a bail application submitted by accused herein. 30. Furthermore, the evidence of doctor is found to be unreliable since the re was overwriting in the medical certificate vide Ext 1 and such over writing w as not authenticated in accordance with procedure. These apart, the testimony of PWs regarding the age of the prosecutrix at a time under consideration is found to be profoundly inconsistent which comes in the way accepting the claim of pro secution on the age of the prosecutrix as genuine and honest one. In view of abo ve I am constrained to hold that claim of prosecution that at a time under consi deration, the porsecutrix was a girl of 15-16 years of age can not be accepted a s truthful one. Rather by all accounts, she was found to be a girl of about 18-2 0 years of age at a time under consideration. 31. So situated, let the consider if the accused committed rape on the pros ecutrix during the time under consideration. It has been pointed out that the pr osecutrix has forwarded different stories at a different point of time. The stor y which is projected through her FIR was that during the time, relevant, the acc used Dhan Deka came to her and promised her to marry her one day and under tho se promises, he had sexual intercourse with her on occasions more than one. However, making a departure there-from, she, in her statement recorded u 32. nder Section 164 CrPC, claimed that during the time under consideration, the acc used came to her and advanced some lustful gesture to her. However sometime ther eafter, he proposed her to marry her. Being lured by such promises, she allowed the accused to have sexual intercourse with her for which she became pregnant. A perusal of Ext 4 makes it clear. 28. But in making a major deviation from the above stand, which the prosecutrix had taken in her FIR as well as in her statement before the Magistrate, in her e vidence before the Court, she claims that while she was working in the factory o f the accused was the manager, the accused called her to his room and had sexual intercourse with her against her will. he repeated such conduct on several othe r occasions as well. When she asked as to why he was having sexual intercourse w ith her again and again, the accused promised to marry her. 33. The above drastic variations in stories, told and retold by prosecutrix in the different stages of the case under consideration clearly demonstrates tha t prosecutrix very desperately tried to hide something from the notice of the Co urt. In fact, she did not tell what was actually going on between the accused an d the prosecutrix at a time relevant. This makes entire prosecution case extreme ly doubtful. 34. We have already found that prosecutrix did not divulge the story of her being subjected to rape by the accused persons over a very long period of time to any one even to her own mother. Her mother came to know about the alleged inc ident only from the villagers and that too when the prosecutrix get her alleged pregnancy terminated reported at the behest of the accused appellant. This added more and more suspicion to the prosecution case under consideration. 35. We have already found that, if we believed the version of prosecutrix t hat she rendered before the Court during trial, she was subjected sexual interco urse by the accused person forcibly. But in her FIR, she had stated that accused promised to marry her and under such promise he has establish sexual relationsh ip with the prosecutrix. On the other hand, in her statement before the Majistrate, the prosecutrix claim that during time under consideration, the accused used to advance lustful gestu res and thereafter he promised to marry her and under such promise he establishe d sexual relationship with her. the above drastically different versions on very fundamental aspect of the prosecution case does not augur well to advance the c ause of prosecution in the case under consideration. 36. It is worthwhile to note that the accused Paritosh Ghosh was also charge d with having committed offences under Section 120 B /330 IPC . on the perusal o f the evidence of record in the context of charges levelled against the accused Paritosh Ghosh, I have found that such finding was based on materials on record. It goes to show that learned trial court had already found the prosecutrix lyi ng as far as accused Paritosh Ghosh is concerned. Thus, in my opinion, prosecutr ix is found to be witness whose most of the claims are based basically on lies. As such she is totally unsafe for reliance. 37. in view of what I have discussed herein before and what have emerged the refrom, I am of the opinion , the prosecution could not prove the charge under S ection 376 IPC against the accused/ appellant and as such, I have found the jud gment, rendered by trial court is sustainable in law . 38. Resultantly, the appeal is allow and the judgment impugned is set aside, the accused be set at liberty forthwith if not required in any other case. 39. Return the LCR with the copy of the judgment.