High Court
Case Details
Heard, Mr.S.Dutta learned Amicus Curaie and, Mr.Z.Kamar learned Addl. PP CRL.A(J) 5/2011 BEFORE HON’BLE DR.(MRS.) JUSTICE I SHAH This appeal is preferred against the judgment dated 03.11.2010 passed by the lea rned Session Judge, Dhemaji, in Session case No. 10(DH)/2010, convicting the ap pellant under section 448 and 376(1) IPC and sentencing him thereby to pay a fi ne of Rs. 200/ in default simple imprisonment of 15 days for his conviction und er section 448 IPC and to rigorous imprisonment for 7 years with a fine of Rs. 1,000/ in the default of payment of fine for the simple imprisonment for 3 mont hs for his conviction under section 376(1) IPC. 2. ., Assam, appearing on behalf of State of Assam. 3. The victim in this case is a distressed child who lost her parents and w as residing with her elder brother. On 04.08.2008, while she was alone in the ho use at about 2 pm, the accused to whom, she used to call Mama came to her house. Seeing her alone, he closed the door from inside and dragged her on a bed. Ther eafter, he committed rape on her. While, the accused was committing the rape, PW -3(Rupa Gurung) came to return back the Kerosene, which she had borrowed from th e victim. She called the victim from outside the house, when the door was not op ened she pushed the door and entered into the house. She saw the accused and the victim lying naked. The accused immediately run away. The victim told her (PW-3 ) that the accused committed rape on her. After, 3 or 4 days of the incident, wh en the elder sister of the victim came to their house, PW-3 reported the inciden t to the elder sister of the victim and then the husband of elder sister of the victim lodged the FIR. On receipt of the FIR, the Officer-in-Charge of Dhemaji P olice Station registered Dhemaji P.S. Case No. 363/2008 under section 376 IPC. 4. The victim was medically examined and her statement under section 164 Cr .P.C. was also recorded. On completion of investigation police submitted the cha rge sheet under section 376 against the accused. 5. During the trial, charges under section 448/376(2) (f) were framed again st the accused. The accused pleaded not guilty to the charges and claimed to be tried. Altogether 7 witnesses were examined by the prosecution. The accused in 6. his statement recorded under section 313 Cr. P.C. denied the allegations leveled against him and pleaded that he is innocent. No defence evidence was adduced by the accused.
Legal Reasoning
PW-1, the victim, deposed that on the day of occurrence, while she was 7. alone in the house, the accused Dambaru Kalita, to whom she called Mama entered into the house and committed rape on her. He gagged her mouth by means of a clot h and while he was committing rape, Rupa Gurung(PW-3) came and called her from o utside the house. When the victim could not open the door of the house Rupa Guru ng pushed the door and entered into the house. She (PW-3) saw the accused and t he victim and seeing her the accused fled away from back door. Rupa Gurung slapp ed her on her cheek. The victim narrated the incident to PW-3. She further, stat ed that while leaving the house, the accused took with him a gamosha, which he u sed to gagged her mouth. After a week there was a meeting in the village with re gard to the incident of rape. She stated that out of fear, she did not report th e incident to her elder brother. When elder sister and brother-in-law visited h er house then Rupa Gurung told them about the incident. Thereafter, her brother- in-law lodged the FIR. 8. PW-2, is the brother-in-law of the victim. He deposed that his wife, w ho is the elder sister of the victim, told him about the incident only 10.08.200 8. His wife came to know about the incident from Rupa Gurung(PW-3). When he visi ted the house of the victim, he saw the gathering of VDP President, secretary an d others. He found that they were conducting enquiry about the incident from Rup a Gurung and the victim, and as per advise of VDP members, PW-2 lodged the FIR. 9. PW-3, corroborating the evidence of the victim stated that she herself w itnessed the incident. She is the neighbour of the victim and when she entered i nto the room of the victim, she found the accused lying naked with the victim on the bed. Seeing her, the accused after wearing his clothes immediately ran away . She deposed that she untied his gamosha, by which the mouth of the victim was gagged. However, the victim stated that the accused removed the gamosha and fled away. Execpt this contradiction there is no other contradiction to disbelieve t he evidence of victim or PW-3. 10. PW-4, Raju Hazarika, is a teacher by profession his evidence is hearsay. The incident was reported to him by the informant. According to X-Ray Report, her age is below 18 years of age. PW-5 Dr. Khanikar Gogoi examined the victim on 11.08.2008 on police req PW-6, Rajiv Saikia is a reported witness and PW-7 is the investigating o In the case of rape, it is a settled law that the conviction, may be rec Patient referred to X-Ray for age determination. No any sign of injury on her external part. On vaginal part, slight liquor seen around the vagina, but no any sign o 11. uisition and his findings are as follows- 1. 2. 3. f rape seen. 4. Patient examined after 7 days of the incident. 12. Although the Doctor did not find any mark of injury on any part of the bo dy of the victim. The victim was examined by the Doctor after 7 days of the inci dent. The fact that the victim was a minor has been corroborated by the medical evidence. It appears from his report that the Doctor failed to give proper findi ngs as regards to Sexual Assault on the victim. The Doctor failed to examined th e circumference of the hymen of the victim. Although, he found vaginal secretion , it was not obtained for microscopic examination, to ascertain the presence of human spermatozoa. 13. fficer. 14. orded on the sole testimony of the victim, if her evidence inspires confidence. 15. In the case of Sri. Gurmeet Singh-vs- State of Punjab 1996 2 SCC 384, it was held that the testimony of the prosecutrix must be appreciated in the backg round of the entire case. The victim in this case was aged about 9 to 10 years a t the time of occurrence. The accused was aged more than 60 years of age. Consid ering the age of the victim there cannot be any point of consideration of her c onsent to the alleged rape. The victim was 9 to 10 years old child, who lost her mother and was residing with her elder brother could not dare to disclose the i ncident to her family members after the incident. She has stated that she thoug ht she would be beaten by her brother and it was PW-3 Rupa Gurung, who witnesse d the incident, disclosed the incident to the elder sister of the victim who in turn disclosed it to the informant and then the FIR was lodged. 16. 01) 6 SCC 71, it was held- (cid:28)Delay in lodging the FIR cannot be used as a ritualistic formula for doubting t he prosecution case and discarding the same solely on the ground of delay in lod ging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if of fered, whether it is satisfactory or not. If the prosecution fails to satisfacto rily explain the delay and there is a possibility of embellishment in the prosec ution version on account of such delay, the delay would be fatal to the prosecut ion. However, if the delay is explained to the satisfaction of the court, the de lay cannot be itself be a ground of disbelieving and discarding the entire pros ecution case (cid:29). Delay in this case was satisfactorily explained. 17. The medical officer who examined the victim failed to give a definite op inion that the victim was raped. However, the victim categorically narrated that she was raped, she has given vivid description how the accused committed rape o n her. It is settled law that mere vulval penetration without any vaginal penetr ation is sufficient to constitute to rape within the meaning of 376 IPC. In the reported case of a State of Himachal Pradesh-vs- Gianyanchand (20 18. This court, in the case of Nani gopal sar-vs- State of Tripura 2 001 GLT 69 has observed that rape is not a medical diagnosis, it is a legal def inition. Even where the opinion of a medical officer is that no rape appears t o have been committed, the court can hold otherwise where the other evidence sp ecially of the prosecutrix is cogent and trusthworthy. 19. Here, in this case the evidence of victim has been corroborate d by eye witness account of PW-3. Moreover, the findings of the Doctor as regard s presence of slight liquor around vaginal part also suggests that the victim wa s subjected to sexual assault. 20. The trial court rightly came to the finding that the accused co mmitted rape on the victim and that the accused wrongfully entered into the hous e of the victim with an intention to commit rape. 21. In view of above discussion, I find that the appeal is without a ny merit and therefore it stands dismissed. 22. The legal services authorities, Assam, is directed to pay Rs. 5, 000/ to the Amicus Curaie for valuable assistance rendered by him. 23. The state government in interim till any scheme is formulated as per the provision of section 357 (A) is directed to pay a compensation of Rs. 5 0,000/ in favour of the victim. The State Government shall deposit the aforesai d amount within 2 months with effect from the receipt of the copy of the judgmen t with District Legal Services Authority, Dhemaji and the District Legal Service s Authority shall release the amount to victim. 24. Let a copy of this judgment and order furnish to the Chief Secretary, Go vt. of Assam, Member Secretary, Assam Legal Services Authority and District Lega l Services Authority for information and necessary action.