High Court
Case Details
Crl.A. 115/2011 BEFORE HON’BLE MR.JUSTICE A.C. UPADHYAY JUDGMENT AND ORDER The appellant was convicted under Section 376 IPC and sentenced to under go rigorous imprisonment of 7 years and to pay a fine of Rs.2,000/- in default t o undergo further imprisonment of 2 months. 2. . B.B. Gopgoi, learned Addl. P.P. appearing for the State of Assam. Heard Mr. P. Mahanta, learned counsel appearing for the appellant and Mr
Legal Reasoning
3. The prosecution case in brief is that on 4.5.2010, an FIR was lodged by Sri Akon Bora alleging therein that on 30.4.2010 at about 3 p.m. his niece Miss X, aged about 14 years, who was working as maid servant in the house of one Lil a Senapati (house owner) was forcibly raped by the son of the house owner, accus ed above named, taking advantage of having no other members present in the house . The accused after commission of rape threatened her with dire consequences, if she dared to divulge the occurrence to any other persons. 4. On receipt of the FIR as aforesaid, a case was registered and investigat ion was launched. In the course of the investigation, the I.O. also got the stat ement of the victim recorded in terms of the provision of Section 164 CrPC and a lso got victim medically examined by a medical practitioner. On conclusion of th e investigation, charge sheet was submitted under Section 376 IPC against the ac cused. 5. The case was committed to the Court of Session for trial. The le arned Sessions Judge, Jorhat, framed a formal charge under Section 376 IPC again st the accused. On reading over and explaining the charge, the accused pleaded not guilty and claimed to be tried. During trial, the prosecution examined as many as eight (8) witn 6. esses including the Investigating Officer ( I.O. )and Medical Officer (M.O.). On conclusion of the prosecution evidence, the statement of the accused under Sect ion 313 CrPC was recorded. The accused in his defence statement took the stand o f total denial and declined to adduce evidence in defence. 7. ed the accused appellant as aforesaid giving rise to this appeal. Learned Sessions Judge, Jorhat, on conclusion of the trial convict
Legal Reasoning
Mr. P. Mahanta, learned counsel appearing for the appellant vehemently s 8. ubmitted that there is no substantial and corroborating evidence on behalf of th e prosecution to convict the appellant for the commission of the offence alleged . Mr. Mahanta, learned counsel, also pointed out that there was no medical evide nce worth the name regarding commission of rape on the victim. Learned counsel f urther pointed out that the age of the victim was below 18 years as per the medi cal report, therefore it has to be construed that the victim was above the conse nting age of 16 years. Mr. Mahanta, learned counsel also added that in order to pressurize the accused to get married with the victim, this false case was filed on behalf of the victim. 8. However, Mr. B.B. Gogoi, learned Addl. P.P. submitted that a poor helpin g maid working with the house owner would not have dared to initiate a false cas e against an innocent person. Mr. Gogoi learned Addl.P.P. submitted that the seq uence of events as well as the statement of the victim inspires full assurance o n her testimony and the conviction and sentence recorded by the trial Court, on the basis of the prosecution case do not call for any interference in this app eal. 9. In order to appreciate the arguments advanced by the learned counsel for the parties, I would like to project the core of the prosecution evidence. 10. PW-1, Akon Bora, uncle of the victim stated that the father of the victi m already expired and the pecuniary situation of the victim’s family was very po or, for which she had to leave the school at early age . The mother of the vict im someway succeeded to continue their family by undertaking house to house work as helping maid. So, the victim had to work as maid servant in the house of the accused. According to PW-1, after the occurrence had taken place, the victim came to the house of her mother and reported the occurrence to her and her co usin Bornali, who, ultimately communicated the same to P.W. 1 and the village h eadman. He further stated that he had lodged the ejahar marked Ext-1 in the po lice station. P.W.1 in his cross-examination, confirmed that the victim reported him directly to the effect that accused person taking advantage of having no ot her members in the house, had committed rape on her on 30.4.2010 at 3 p.m. and a t the time of commission of rape, accused gagged her mouth, for which she was un able to raise alarm. P.W.1 stated that on receiving information about the inci dent, he accompanied by the mother of the victim as well as the village headman had gone to the house of accused, but the accused drove them out from their hous e by abusing with ill-behaviour. 11. Likewise, PW-2, Bornali Bora stated that immediately after the occurrenc e had taken place, victim came to her house and reported her about the fact of c ommission of rape on her by the accused by taking advantage of having no other m embers in the house. PW-3, Arun Bora stated that the victim reported about the factum of accu 12. sed having committed rape on her by taking advantage of having no other members in the house, by gagging her mouth. PW-3 ,also stated that it was conveyed to h im by the victim that the accused person committed rape on her by force. P.W1 and P.W.3 who is close relation of the victim told that vict im was 14 years old at the time of occurrence. Thus likewise the mother of the v ictim,P.W.5 categorically stated the age of the victim to be 14 years . The age of the victim was never questioned by the defence. 13. PW-5 Smti. Annada Barua, mother of the victim stated that after the occ urrence took place, the victim came to her house and reported that the accused, taking advantage of having no other members in the house, committed rape on her. Victim also told P.W.5 that immediately after the occurrence, she reported th e occurrence to the mother of the accused, who requested her not to reveal the i ncident to any other individual and sent her back home. PW-5 revealed that the v ictim reported the occurrence to her and Akon Bora. P.W.5 came to know from the victim that at the relevant time o f occurrence no other members except the victim and the accused were present in the house and the mother of accused had gone out to the pond located at the bac kside of their house. PW-4 ,Utpal Senapati revealed of being a hearsay witness since he ca 14. me to know from the public that accused person committed rape on the victim on 3 0.4.2010, while the victim was working as maid servant in the house of the accus ed. 15. PW-6 Dr. Kabita Bhuyan stated that on 4.5.2010, the victim was produced before her for medical examination by police in connection with G.D. Entry No.54 . On examination of the victim, she found no signs of recent sexual intercourse within 72 hours and no mark of violence on her body as well as on her private pa rt, ostensibly so, because admittedly the victim was examined by the doctor bela tedly, due to delayed filing of the F.I.R. P.W.6 opined that the age of the vi ctim was below 18 years. P.W.6 opined that vagina admit 1 finger which implied that the victim was either habituated to sexual intercourse or she was raped as alleged 16. The informant very well explained the delay caused in filing the F .I.R. The delay was occasioned by the treatment required to be given to the vict im and minimum consultation with the members of the family. More than that was t he threat given by the accused to the members of the family. 17. Liyakot Bora ,PW-8, is the I.O .P.W. 8 stated that on 4.5.2010, he rece ived one ejahar from the informant Akon Bora and on receiving the ejahar, he m ade a G.D. Entry No.54 and forwarded the same to Teok P.S., for registration of a formal case . In the mean time, he initiated the investigation. The O/C of Te ok P.S. registered a case under Section 376 IPC and endorsed it to P.W.8 to comp lete the investigation. P.W.8 described the steps taken by him in the sequence o f investigation and on completion of the investigation, PW 8 placed charge sheet Ext-5 against the accused. P.W.8 was cross examined by the defence. In course o f his cross-examination, he confirmed that the occurrence took place on 30.4.201 0 and he sent the victim girl for medical examination on the very day of receivi ng the ejahar i.e. on 4.05.2010 and also visited the place of occurrence. The ev idence of PW-6 and PW-8 are found to be formal in nature. 18. The prosecution witnesses were duly cross examined by the defence, but their evidence endured the defence thrashing and remained un-assailed to the e ffect that at the time of occurrence, the victim was about 14 years old and had not attained the consenting age and was working in the house of the accused on b eing employed by the mother of the accused about 3/4 months back. The defence co uld not invalidate prosecution evidence in respect of the alleged rape committed on the victim on 30.4.2010, while she was working as maid servant in the house of the accused. 19. It appears that the victim was a 14 years old girl ,employed in the house of the accused by her mother as maid servant about ¾ months prior to the d ate of occurrence. It is also apparent that while she was doing work as maid se rvant in the house of the accused, the accused committed rape on her on 30.4.201 0 by gagging her mouth and forcibly laying her on the bed taking advantage of th e absence of any other members in the house. The victim, in her cross-examinatio n confirmed that at the relevant period of occurrence the mother of the accuse d had gone out to the pond on the backside of their house. As rightly indicate d by the trial Court, in the sketch map prepared by the I.O., it is seen that th ere was a compound of trees and vegetable and a pond belonging to the accused’s family on the back side of the accused’s house. So, the possibility of the mothe r of the accused remaining pre-occupied in the pond, which was situated at a lit tle distance away from the house, where the occurrence took place seems to be re asonable. In her statement recorded under Section 164 CrPC marked Ext-1 and in h er evidence in court as well, the victim clearly stated that the accused person after commission of rape threatened her with dire consequences in the event of d ivulging the same to any other person. The victim firmly claimed that immediat e after the occurrence, when the mother of the accused returned home from the po nd, she conveyed the misdeeds of the accused to her, who, instead of taking an y action against the accused, counseled the victim not to disclose the occurrenc e to any other person. 20. The learned counsel for the accused submitted that except the victim , the evidence of other witnesses are reported witnesses and no independent witn ess was produced to corroborate the evidence of the victim. So, their evidence c annot be relied upon. However, the submission put forward by the learned couns el for the accused is not acceptable for the reason that corroboration is not a necessary requirement for a conviction in a case of rape. It is not possible to avail corroboration from independent witness. It is not also necessary that eve ry part of the evidence of the victim should be confirmed in every detail by som e independent witnesses. Such corroboration cannot be pursued from either direct or circumstantial evidence or from both, in crimes involving sex. Therefore, ev idence given by the victim has abundant value. 21. Unlike other offences, if a conviction under section 376 I.P.C. is based on evidence of the victim with no corroboration, it would not be illegal on that sole ground. Here, in the instant case, the prosecution case is fully ba sed on the evidence of the victim, who was serving as maid servant in the house of the accused at the relevant time of occurrence. The sequence of events after the occurrence is fully corroborated by the witnesses as well as the victim. Tho ugh a very high standard of proof is anticipated in a criminal trial, but the co urt also must take into account the fact that the crime like rape is generally c ommitted cleverly away from public view. Very occasionally conventional evidence of an eye witness other than the evidence of victim may be available. Learned counsel for the accused submitted that the doctor while exam 22. ining the victim did not find any signs of injury either on her body or on her p rivate part. Even the doctor found no signs of sexual intercourse. So, according to the learned counsel, absence of any injury on the person of victim and absen ce of signs of sexual intercourse, it can be concluded that the victim was not s ubjected to rape by the accused and as such the prosecution case must fail. Ho wever, as submitted by the learned counsel for the accused, absence of any injur y on the person of the victim may not by itself a cause to question the account of the victim. Just because she was helpless maid, she was by force prevented fr om offering serious physical resistance and more than that she was threatened wi th dire consequences, if she ever dared to divulge. There is no apparent reason to distrust and disbelieve the true and forthright account of the victim. Since the victim was a maid servant in the house of the accused it can be expected tha t she was stopped from putting up stern bodily resistance to the action of the a ccused. There was delay in lodging the F.I.R., which has been duly explained. Th e victim was examined by the doctor only on 4.5.2010, whereas the occurrence had taken place on 30.4.2010. Therefore, injury, if any, received by the victim eit her her private part or on her body might have healed up due to lapse of time, 23. In order to substantiate his arguments, learned counsel for the appellan t relied on the decision of this Court reported in James Moran Vs. State of Assa m (2012) 6 GLR 765 (Para 10), which is quoted as follows - 10. It appears that the learned trial court largely relied the case of State of H.P. Vs. Mango Ram (2000) 7 SCC 224. It was a case where the victim was above 16 years who was allegedly raped but on medical examination no mark of injury over vulva was found and hymen was found intact with a small laceration at 6.0 posit ion and as per the Medical Officer, it was difficult to say whether intercourse had taken place or not. The learned trial court in that case, upon consideration of evidence of the victim which was corroborated by the medical evidence, held that the accused committed rape on the victim and he was made liable for offence punishable under Section 376 IPC. It was also held that the submission of body under fear of terror does not amount to consent. The question is as to whether t here was resistance by the victim depends upon the relevant circumstances. In th e aforesaid cited case, the accused followed the victim and when she reached the cow-shed she was caught hold by the accused from behind and the victim tried to extricate herself from him but she was overpowered by the accused and made to l ie her on the floor of the cow-shed. The accused united the knot of her Chalowar and put in down and thereafter committed sexual intercourse. According to the v ictim she resisted the accused by scratching him with her nails. There was bleed ing from her private part. The facts and circumstances of the present case is va stly different from the aforesaid case. Present is the case where no evidence ha s been led by the victim to establish that she was forced by the accused-appella nt for sexual acts or she ever resisted the accused in committing the sexual act s. 24. In this case the victim was girl aged 14 years .Therefore, the questio n of her consent or no consent cannot be issue to be discussed. The case afore n oted, relied on by the learned counsel for the accused, is not relevant in the f acts and circumstances of the present case. Apparent, the victim submitted to ag gression of the accused under fear of terror, therefore question of consent cann ot be an issue. More so, when the victim was 14 years old lass, question of cons ent is a non-issue. 25. Learned counsel for the accused relying on the decision of Toran Singh - vs-State of M.P. reported in (2002) 6 SCC 494 submitted that apart from materi al contradictions and omissions in the statements of witnesses, these factors cl early indicate the serious infirmities and improbabilities of the prosecution ca se giving rise to grave doubts as to the involvement of the appellant in the com mission of the offence. However, the above case relied on by the appellant’s cou nsel is a murder case and the factors in question were certain circumstances ari sing in that case and not at all relevant in the present context. The situation here is different. We cannot correlate the facts of the present case with the f acts of murder case as cited herein above. Such being the position the above c ase cannot be pressed into service. The Hon’ble Supreme Court in the case of State of U.P. Vs. Pappu alias Y 26. unus and another reported in (2005) 3 SCC 594 observed that it is well settle d that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injur y on the physical form, while in the former it is both physical as well as psych ological and emotional. However, if the court of facts finds it difficult to acc ept the version of the prosecutrix on its face value, it may search for evidence , direct or circumstantial, which would lend assurance to her testimony. Assuran ce, short of corroboration as understood in the context of an accomplice, would do. 27. Hon’ble Supreme Court went on to hold that even assuming that the victi m was previously accustomed to sexual intercourse that is not a determinative qu estion. On the contrary, the question which was required to be adjudicated was d id the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the acc used who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. 28. The Supreme court in one of its recent judgments as reported in State o f Andhra Pradesh - Vs- Gangula Satya Murthy (1997) 1 SCC 272 has pointed out tha t the Courts are expected to show great responsibility, while trying an accused on charges of rape. The Courts should examine the wider probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allega tions of rape. This is all the more important because of late crime against wome n in general and rape in particular is on the increase. It is an irony that whil e we are celebrating women’s rights in all spheres we show little or no concern for her honour. It is a sad reflection and it must be emphasised that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in iso lation. 29. Upon careful analysis of the materials on record, I find that the evi dence of the victim is true and trust-worthy and there is no reason to disbeliev e her testimony. Though learned counsel for the appellant has submitted that the re may have sexual intercourse by the accused with the consent of the victim, bu t the facts remains that the victim as per her own statement, immediately after occurrence, reported the matter to the mother of the accused. However, the mothe r of the accused asked her to remain silent. Thereafter, she went home and repor ted the matter to her mother. Apparently, the victim after the occurrence did no t remain silent. 30. reason to interfere with the findings of the trial Court. On careful analysis of the entire evidence on record, I do not find any 31. 32. Accordingly, the appeal stands dismissed. Send back the L.C.R.