High Court
Case Details
Crl.A. 68/2010 BEFORE THE HON’BLE MR. JUSTICE S.C. DAS By this criminal appeal, the appellant challenged the judgment and order of conv iction and sentence, dated, 08.04.2010, passed by learned Sessions Judge, Hailak andi, in Sessions Case No.13 of 2007, whereunder learned Sessions Judge found th e accused-appellant guilty of committing offence punishable under Sections 366 a nd 376 of IPC and, accordingly, sentenced him to suffer RI for two years and to pay a fine of Rs.1,000/-(rupees one thousand), in default of payment of fine to suffer simple imprisonment for two months under Section 366 of IPC and also to s uffer RI for seven years and to pay a fine of Rs.5,000/-(rupees five thousand), in default of payment of fine to suffer simple imprisonment for three months und er Section 376 of IPC. Learned Sessions Judge directed that both the sentences shall ru
Legal Reasoning
roduced her before a Magistrate and she narrated the fact to the Magistrate. 6.1 There were only denials and suggestions put to her in cross-exam ination of the witness. No contradictions with her previous statement recorded. It has been specifically suggested in her cross-examination on behalf of the acc used that since four years before the occurrence she wrote love letters to the a ccused and she continued love affairs with the accused and that just before the date of occurrence she requested the accused by writing letter to remain present with a vehicle on way to Kanchanpur as she was going there to the house of her maternal uncle and, accordingly, the accused arrived at that place with an Indic a car and took her with him. She, however, denied that suggestion. It is settled law that suggestions denied is no evidence. Accused did not adduce any evidence in support of his contention that there was love affairs between him and the pr osecutrix and/or that she wrote any love letter to accused at any point of time. This Court in the case reported in AIR 1963 Assam 151 has held that mere sugges tion not supported by any specific statement made by the accused person and not supported by any defence evidence would have no evidentiary value. No importance could be attached to such suggestions made during cross examination. In the present case, neither any defence evidence adduced, nor a ccused made any statement during his examination under Section 313 of CrPC. Unde r such circumstances, the fact put to the victim in the form of suggestion, rath er amounts to admission of the allegation. 6.2 PW2, the mother of the prosecutrix, narrated the occurrence what had happened at Panchgram, where they got down from the vehicle. 6.3 PW4, Dr. Rehana Begum, is one of the three medical officers, who examined the prosecutrix and she proved the medical report, which is marked as Exbt.4. The medical officers in Exbt.4 observed that victim’s height and built w as average, breasts developed, no violent mark present over her body or private part, hymen not intact, vaginal swab was examined and no spermatozoa was found. Doctor opined that there was no recent evidence of rape. Since the medical examination was done after ten days, evidence of recent rape was naturally not available but in the facts and circumstances of the case where the evidence of the victim has not been shaken in any manner whe re the accused admitted that he had taken the victim with him to Dinonathpur and kept her confined there, I find nothing to draw an adverse inference to disbeli eve the version of the prosecutrix. It is amply proved that the prosecutrix was aged below sixteen years what is evident from the admit card of the prosecutrix, issued by the Board of Secondary Education, Assam, as stated hereinbefore. The charge that the prosecutrix was kidnapped by the accused and that she was raped while kept confined at Dinonathpuur, stands established in the oral evidence of the prosecutrix. 6.4 The contention of learned counsel, Mr. Barbhuiya that the prosec ution did not examine any witness from Dinonathpur or did not adduce any evidenc e in respect of recovery of the victim girl has become redundant since the accus ed himself admitted by putting suggestions that he had taken away the victim fro m Panchgram with him by a vehicle to Dinonathpur. The ratio of the decision refe rred by learned counsel, Mr. Barbhuiya in the case of Rakesh Kumar(supra) is abs olutely on a different context. 7. Punishment in a given case must commensurate to the gravity of t he offence. The Apex Court nowhere observed to compromise on it. His Lordship, H on’ble Justice Dr. Arijit Pasayat, while referring the cases of Sevaka Perumal v . State of T.N. reported in (1991) 3 SCC 471 and Dhananjoy Chatterjee v. State o f W.B. reported in (1994) 2 SCC 220 and several other cases, observed that a pun ishment commensurate to the gravity of the offence should be imposed as otherwis e society will lose its confidence in the criminal justice system. The Court has observed that imposition of sentence without considering its effect on the soci al order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral tu rpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any l iberal attitude by imposing meager sentences or taking too sympathetic view mere ly on account of lapse of time in respect of such offences will be result-wise c ounter productive in the long run and against societal interest which needs to b e cared for and strengthened by string of deterrence inbuilt in the sentencing s ystem. In the given facts of the case of Rakesh Kumar(supra), the vict im was aged less than sixteen years at the time of occurrence and it was an admi tted fact that the victim was in love affair with the accused and they had sexua l intercourse because of the love affair, which is not a fact in the present cas e. In that reported case, the father of the victim filed an affidavit before the High Court that since the victim was settled in life a liberal view may be take n in respect of punishment. But no such circumstance is available before us in t he present case. Here the victim flatly denied any love affairs with the accused . She was minor girl, below 16 years and was a related niece of the accused. Fur ther the accused was much older than the victim, aged about 28 years(as stated i n 313 CrPC stated). So, the case in hand, is quite different to that of the repo rted case and the ratio cannot be applied in this case. 8. In view of the discussions made above, I find no merit in the ap peal and there is no reason at all to interfere with the judgment and order of c onviction and sentence passed by learned Sessions Judge and, accordingly, the ap peal stands dismissed. 9. d order. Send back the L.C. records along with a copy of this judgment an
Arguments
Heard learned counsel, Mr. A.M. Barbhuiya for the appellant and Without unnecessary elaboration, the fact of the case, for dispo n concurrently. 2. learned Addl. P.P., Assam, Mr. D. Das for the State respondent. 3. sal of the present appeal, may be stated in a few lines: On 09.09.2006, at about 1230 hrs., the victim prosecutrix, ’Jinn 3.1 at’(actual name kept withheld)(PW1), alongwith her mother(PW2) Suratun Nessa and a minor brother, with a view to visit her maternal uncle’s house, got down from a bus vehicle at a place, named Mirarping Mukham(Panchgram) and while they were about to proceed towards the house of her maternal uncle, the accused appellant along with a few others, driving a Tata Sumo vehicle, arrived there and forcefu lly lifted the victim prosecutrix, ’Jinnat’ in the vehicle. When her mother trie d to resist she was kicked down. She(victim) was taken to Dinonathpur and was ke pt confined in a house for about eight days. At night, the accused appellant Bil al Ahmed forcefully committed rape on her. On the following day, she gave teleph one number of her parental home to a boy of that house and, thereafter, her pare nts and others were informed and she was recovered from that house of Dinonathpu r. She was a minor girl, aged about 15 years having her date of birth, August 31 , 1991, as per the Admit Card(Exbt.2) of the Board of Secondary Education, Assam , and she was kidnapped from the custody of her parents without their consent. 3.2 Mother of the victim, i.e. PW2 Suratun Nessa lodged the FIR with the O/C Algapur PS on 09.09.2006 itself and, accordingly Algapur PS Case No.159 of 2006 under Section 366A of IPC was registered and an investigation was taken up. 3.3 It is the case of the prosecution that O/C Katlicharra PS recove red the victim girl from her confinement at Dinonathpur and handed over her to t he police officer of Algapur PS and she was thereafter handed over to her parent s. In course of investigation, her statement was recorded under Section 164 of C rPC and she was produced before Hailakandi Civil Hospital for her medical examin ation and PW4, along with two other medical officers, examined her and submitted a medical report, marked as Exbt.4. Ossification test also was done and in Exbt .4 it has been mentioned that she was aged below eighteen years. Police on compl etion of investigation submitted charge sheet against the accused-appellant for commission of offence punishable under Sections 366 and 376 of IPC and, accordin gly cognizance was taken. 3.4 On commitment of the case to the Court of Sessions, learned Sess ions Judge framed charges against the accused for the offence punishable under S ections 366 and 376 of IPC to which he pleaded not guilty and claimed to be trie d. 3.5 To prove the charge, prosecution examined six witnesses and afte r closure of the prosecution evidence, the accused was examined under Section 31 3 of CrPC and, in his turn, the accused adduced no evidence. Defence case is nothing but a bare denial of the prosecution cas e. 4. Learned counsel, Mr. Barbhuiya appearing for the accused-appella nt has concentrated his argument that prosecution could not prove the fact that the prosecutrix was kidnapped by the accused from Panchgram and that her recover y from Dinonathpur also has not been proved since nobody from that house has bee n examined by the prosecution. He has further contended that the prosecutrix all eged that the accused committed rape on her in the house of Dinonathpur, where s he was kept confined but her contention has not been supported by the medical ev idence. The prosecutrix was examined by the medical officer on 20.09.2006 and th e doctor opined that there was no evidence of recent rape prior to the medical e xamination. According to learned counsel Mr. Barbhuiya, the finding of convictio n and sentence, recorded by learned Sessions Judge, was, therefore, absolutely w rong since the evidence is not enough to hold the charges. Learned Addl. P.P., Mr. Das, in contrast, has argued that the vi ctim’s evidence itself is sufficient to hold the charges framed against the accu sed-appellant. Her statement is cogent, confident and it inspires credibility. T here is no room to suspect her statement in any manner, rather in cross-examinat ion the accused by putting suggestions admitted that the accused had taken away the victim from Panchgram when she got down from the bus with her mother. PW2, m other of the victim, who has set the law in motion by lodging the FIR, fully cor roborated the prosecutrix. The statement of the prosecutrix that she was raped b y the accused in a house at Dinonathpur cannot be disbelieved based on the medic al evidence since the medical examination was done only after ten days and after ten days the evidence of rape may disappear. Under such circumstances, the oral evidence of the prosecutrix, where inspires confidence, cannot be thrown overbo ard in circumstances of the case. 5. Learned counsel, Mr. Barbhuiya has further contended that the ac cused was a young man and a related maternal uncle. He had love affair with the prosecutrix. The prosecutrix wrote love letters to the accused and insisted him by writing letters to take her with him. That might be the reason of the alleged occurrence. The allegation of rape is totally false since nobody has been exami ned from the house where the victim was kept confined as alleged. He has also co ntended that the victim girl has already been given in marriage, which she has a dmitted and, under such circumstances, a lenient view in respect of punishment m ay be taken. According to learned counsel, Mr. Barbhuiya, since the prosecutrix has already been settled in life, her marriage being solemnized with another per son and she is living now peacefully, and since the accused also a young man and has married in the meantime, in respect of punishment, a lenient view may be ta ken. Learned counsel, has referred, in support of his contention, the case of St ate of Punjab v. Rakesh Kumar reported in (2008) 12 SCC 33. 6. The prosecutrix in her deposition stated that the accused is rel ated to her as maternal uncle. The house of the accused is situated adjacent to her house. One day about eight months before, in the year 2006, at about 12 am, she was proceeding to the house of her maternal uncle with her mother Suratun Ne ssa and when they reached Panchgram Mukamkuti and after getting down from the bu s, started proceeding towards their maternal uncle’s house, the accused with a T ata Sumo vehicle arrived there and forcefully lifted her in the vehicle. She rai sed alarm and her mother tried to save her but the accused assaulted her mother and put her down. He took her away with the Tata Sumo vehicle. Three other perso ns were present in the vehicle but she could only identify the driver, whose nam e was Kalam. She became senseless in the vehicle and regained sense at Dinonathp ur. The accused removed her wearing apparels and performed sexual intercourse wi th her. The accused committed four/five times sexual intercourse with her in the said house keeping her there and thereafter, the accused left the house. After the accused left the house she met a boy of the house to whom she gave the telep hone number of her house and the boy informed her parents. On receipt of the tel ephonic information, her father, mother, maternal uncle, paternal uncle Farij an d Kutub went to that house at Dinonathpur and took her back to her house. At the relevant time she was studying in Class-X in Ratanpur Girls High School. Her mo ther lodged FIR with the police narrating the fact. Police took her to police st ation wherefrom she was sent to doctor for medical examination and police also p