High Court
Case Details
The case against the accused appellant in the trial, may Heard Mr. S. Dutta, learned Amicus Curaie and Mr. K.Muni
Legal Reasoning
CRL.A(J) 4/2011 BEFORE HON’BLE DR.(MRS.) JUSTICE I SHAH This is an appeal against the judgment and order dated 25.11.2010 passed by the Session Judge, Dhemaji, in Session Case No. 21(DH)/2003, convicting the appellan t under section 376(1) IPC and sentencing him thereby to undergo rigorous impris onment for 7 years and also to pay a fine of Rs. 1,000/ in the default of paymen t of fine,further rigorous imprisonment for 3 months. 2. r, learned Addl. PP, Assam, appearing on behalf of the State. 3. , in brief, be stated as follows- 4. The victim is a widow. After the lapse of 1 months of death of h er husband, on 29.01.2003,while she was alone in the house at about 2 pm, the ac cused entered into her house gagged her mouth and committed rape on her. The vic tim raised alarm but as nobody was available in the vicinity came in her rescue, she immediately reported the incident to Nizara Boruah (PW-3), Aparupa Saikia ( PW-2), Anita Gogoi (PW-4), Upen Gogoi(PW-5), and Geetamoni Boruah (PW-6). Therea fter, on 02.02.2003 she lodged an FIR at the Dhemaji, Police Station. The Office r-in-Charge of Dhemaji, Police Station registered a case as Dhemaji Police Stati on Case No. 28/2003 under section 448/376 IPC. The victim was medically examined and her statement under section 164 Cr.P.C. was recorded during the investigati on. On completion of investigation, police laid the charge sheet against the acc used under section 448/376 IPC. 5. During the trial, initially when a charge under section 376 IPC was framed and read over to the accused, he pleaded not guilty and sub sequently, the charge was amended and a charge under section 376(1) was framed. The accused pleaded not guilty to subsequent charge also. In support of their case, the prosecution examined all together 6. 8 witnesses. The accused was then examined under section 313 Cr.P.C. his stateme nt the accused denied the allegation leveled against him, the case of the defenc e being total denial. He however, did not adduce any defence evidence. The victim, who was examined as (PW-1) deposed that her 7. 2(two) children were away from the house when the accused entered into her house . Taking advantage of the situation, the accused gagged her mouth and dragged her to a bed. She tried her best to resist him but the accused committed rape on her and after commission of the offence he fled away. She, further, deposed t hat she cried but there was none to rescue her. Thereafter, she rushed to the ho use of Ganesh Boruah. She met the daughter-in-law of Ganesh Boruah i.e. wife of Pradip and wife of Guna Boruah and reported the incident to them. As per their advice, she disclosed the incident to the villagers and women society. The women society advised her to lodge FIR at police station. Thereafter, she lodged the FIR. She was medically examined. On police requisition. Her statement was also r ecorded by a Magistrate. In her cross-examination she denied that she used to ma nufacture country liquor, and that the accused came to her house to consume cou ntry liquor. There was no body in the vicinity of her house at the relevant time . 8. PW-2 Aparupa Saikia’s house is near the house of the victim. She heard the hue and cry of the victim in the house of Ganesh Boruah, she went the re and saw the gathering of women in the house of Ganesh Boruah. The blouse of t he victim she saw as torned, the victim reported her about the incident. A meet ing was called at Namghar where the accused was also summoned but he did not com e to attend the meeting. Thereafter, the victim was advised to lodge an FIR. 9. PW-3 Nizara Boruah deposed that the victim came to her house and she was crying. She (victim) told her that the accused committed rape on her. T he incident was reported to women society and ultimately victim was told by the women society to lodged an FIR. In her cross-exmination she denied that the vic tim used to manufacture country liquor. 10. PW-4 Anita Gogoi came to the house PW-3 hearing the hue and cry. Her evidence is similar to that of the evidence of PW-2. 11. PW-5 Upen Gogoi, then Chief Judicial Magistrate recorded the sta tement of the victim under section 164 Cr.P.C. He was not cross-examined. The e vidence of PW-6 Geetamoni Boruah is in the line of evidence adduced by PW-3. 12. PW-7 Dr. Sadagar Deori examined the victim on 03.02.2003 and his findings are as follows- 1. 2. 1. No injury seen over private parts. History of alleged rape - 6 days old. Laboratory test: Urine test sent for pregnancy test-result negative. Impression: No clinical evidence of rape. 1. Laboratory test did not reveal pregnancy. 13. In this case although the victim was sole eye witnesses to occur rence, in as much as, none of the witnesses deposed that any one had seen the ac cused either entering in the house of the prosecutrix or running away there from the entire case of the prosecution, therefore, depends on the veracity of the e vidence of the victim. While considering the veracity of the evidence of PW-1 it is important t o note that immediately after the incident the victim disclosed to the witnesses that the accused committed rape on her. The witnesses noticed that her wearing blouse was torn. From the suggestion given to the PW-1, during her cross-examina tion, it appears that the accused entered into the house of victim to consume co untry liquor. However, the defence failed to prove that the victim used to sale country liquor. The evidence of victim has been corroborated by PW-2, 3, 4.&6. The medical officer who examined the victim, however, did not fi 14. nd any external injury. He did not find any clinical evidence of recent sexual i ntercourse. The victim is a widow and mother of 4 children. She was examined by the Doctor on 03.02.2003. Therefore, the absence of external injury in this case may not be a decisive factor, when the victim was examined on the 6th day of th e occurrence. In a case of rape, it is a settled law that conviction may be recorded o n the sole testimony of the victim prosecutrix, if her evidence inspires confide nce. In the case of Gurmit Singh-vs- State of Punjab 1996 (2) SCC 384, the Ap ex court observed that the testimony of the prosecutrix must be appreciated in t he background of the entire case and the trial court must be alive to its respon sibility and be sensitive while dealing with the case of sexual molestation. The evidence of a victim of Sexual Assault stands almost at par with the evidence o f Injured witness and to an extent even more reliable. When the initial burden is discharged by the prosecution to prove its case it is for the accused is to destroy the basic foundations of the case and case of his failure, there is no w ay to escape from punishment of an accused insuch offence. 15. Mr. S. Dutta, learned counsel on behalf of the appellant has sub mitted that there is delay in lodging of FIR. The incident occurred on 29.01.200 3. Although the victim reported the incident to PW-2, 4 & 6 immediately after th e incident, she did not lodge the FIR immediately after the incident. A reasonab le suspicion therefore, arises as to authenticity of the prosecution case and a n adverse inference should be drawn against the prosecution. 16. Mr. K. Munir, learned Addl.PP, Assam, on the other hand had subm itted that the victim is a distressed lady, she was residing along with her mino r children after the death of her husband. She immediately informed the incident to her neighborers and the matter was also reported to Mahila Samittee. The me mbers of Mahila Samittee made an attempt to enquire about the incident and accor dingly they called the accused but the accused did not turn up and then victim w as told to lodge an FIR. 17. In the case of Karnel Singh-vs- State 1995 5 SCC 518 the apex co urt held that in such cases due to society’s attitude towards victim women, the y may be reluctant to go to police. The delay in lodging FIR in such case does n ot raise inference that complaint was false. In the case of Himachal Pradesh-vs- Gyan Chand 2001 6 SCC 71 were observed- (cid:28)Delay in lodging the FIR cannot be used as a ritualistic formul a for doubting prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay as the effect putting the c ourt on its guard to search if any explanation is offered for the delay, and if offered, whether it is satisfactory or not. (cid:29) 18. Here in this case, the incident occurred on 21.09.03 immediately thereafter, the victim rushed to the neighbors house to report about the incide nt. The witnesses i.e. PW-2, 3 & 4 saw the victim crying. They also noticed the blouse of the victim was torn. She disclosed the incident to the witnesses. The matter was brought to the women organization, who decided to call the accused t o enquire about the matter. It envisages that the accused did not turn up before the women organizat ion and then the village women advised the victim to lodge FIR and thereafter, F IR was lodged on 02.02.2003. The delay in lodging the FIR., therefore, in facts and circumstances of the case stands satisfactory explained. 19. There was no enmity and animosity between the victim and other w itnesses and that of accused to infer that the victim has roped the accused fals ely. 20. appeal therefore stands dismissed. In view of above discussion, I find no merit in the appeal. The 21. The victim in this case is a distressed lady who lost he r husband and was subjected to sexual assault. She not only deserves sympathy bu t also compensation as per provisions of Section 357(A) Cr.P.C.Therefore, as an interim relief, and without prejudice to the right of the victim to claim higher amount, this court directs the State Govt. to deposit an amount of Rs. 50,000/ with the District Legal Services Authority at Dhemaji within a period of two mon ths with effect from receipt of copy of this judgment and order.The District Leg al Services Authority, Dhemaji on receipt of the said amount shall release the a mount to the victim. Let a copy of this judgment and order be furnished to the Chief Secretar y to the Govt. of Assam, Member Secretary, State Legal Services Authority, Assam and to the District Legal Services Authority, Dhemaji, for information and nece ssary action Return the LCRs.