High Court
Case Details
Crl.A. 75/2011 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH The judgment and order dated 02.02.2011 passed by the learned Addl. Sessions Jud ge (FTC), Sivasagar in Sessions Case No. 126(S-C)/2009 convicting the appellant under Section 448/354/306 IPC and sentencing him to undergo RI for 3 (three) mon ths for his conviction under Section 448 IPC, RI for 1 (one) year for the convic tion under Section 354 IPC and further RI for 5 (five) years with fine of Rs. 2, 000/- in default SI for 2 (two) months for the offence committed by him under Se ction 306 IPC has been challenged in this appeal. 2. Heard Mr. S Borthakur, learned counsel for the appellant. Also heard Mr. BJ Dutta, learned Addl. Public Prosecutor, Assam
Legal Reasoning
3. The prosecution case in brief is that on 02.04.2006, the victim alongwit h her sister-in-law (PW2) was in her residential house. At around 10 a.m., while the PW2 went out of the house to wash clothes, the victim was alone in the hous e. In the meantime, the accused entered into her house and committed rape on her . When PW2 returned back she saw the victim was vomiting. On her query the victi m replied that she consumed poison as she was raped by the accused. 4. PW2 raised alarm and woman from the vicinity, namely, Renu, Asha Devi an d Mariam came. She was shifted to the hospital but on the same day she expired. FIR being lodged by Joseph Murah, brother of the victim, police registered a cas e as Sapekhati P.S. Case No. 20/2006 under Section 428/376/306 IPC. 5. jected to post mortem examination. As the doctor who conducted the post mortem examination could not ascert 6. ain the actual cause of death. Viscera was preserved and sent for examination to During the examination, inquest on the dead body was held and it was sub FSL. On completion of investigation police submitted the charge sheet under S The accused pleaded not guilty to the charges framed against him under S 7. The statement of PW2, Munmi Murah was recorded under Section 164 Cr.PC. As per the FSL report the stomach content 8 the viscera gave positive test of ph enol (carbolic acid). 8. ections 448/376/306 IPC. 9. ections 448/376/306 IPC. 10. Altogether 11 (eleven) witnesses were examined by the prosecution. There after, statement of the accused under Section 313 Cr.PC was recorded wherein he denied the allegation levelled against him and pleaded that he was innocent. No defence evidence was adduced. 11. Admittedly, in this case there is no eye witness to the incident. None o f the witnesses claimed that they saw the accused entering the house of the vict im. PW2, Munmi Murah (sister-in-law of the deceased) stated that she was wit 12. h the victim prior to the incident. At 10 a.m. she left the house to wash clothe s and when she came back she saw the victim vomiting. When she asked her what ha ppened the victim could not reply, PW2 then raised hue and cry and three women, namely, Renu, Asha Devi and Mariam came. On her query the victim told her that A jit Gogoi @ Adang (accused) committed rape on her. She further stated that she t ook the victim to hospital and Ajoy Kumar (PW1) also accompanied them. In the ho spital Ajoy Kumar interrogated the victim but she did not hear the reply given b y the victim. 13. From the Garden hospital they were advised to take the victim to Sapekha ti hospital where she expired. In cross-examination she admitted that as they ha d quarrel with the victim’s family she was residing separately for the last 4 (f our) years. 14. PW1, Ajoy Kumar saw the victim was taken by her mother and sister-in-law (PW2). When he asked them what happened, PW2 reported him that the victim was r aped by the accused. He accompanied them to the Garden hospital. In the hospital he offered a glass of water to the victim. On his query the victim told him tha t she was raped by the accused and therefore, she consumed medicine. However, in his cross-examination he admitted that while the victim was carried to the hosp ital she was unable to speak. 15. PW3, Joseph Murah (husband of PW2) on being informed went to the hospita l. He was reported by PW2 that the accused committed rape on the victim and she consumed some medicine. He also stated that the victim was unable to speak and t herefore, he could not ask her anything. 16. d Koiri are reported witnesses. PW7 is the scribe of the ejahar. PW9, Dr. Arun Ch. Mahanta alongwith a team of doctors, namely, Dr. S Ma 17. hanta, Dr. B Dutta and Dr. G Senapati had conducted the post mortem examination on the dead body of the deceased on 03.04.2006 and their findings are as follows :- (cid:28)EXTERNAL APPEARANCE :- PW4, Biren Tossa, PW5, Sahadev Dhanuwar, PW6, Pradip Tanti and PW7, Anga Healthy female dead body. Phigermertis present. No external injuries fou nd. CRANIUN AND SPINAL CANAL All organs are healthy. Thorax: Both lungs congested. Heart- Both chambers are full, filed with blood. Other organs healthy. Abdomen:- Stomach-Its contents were preserved for chemical analysis. Liver and kidneys are also preserved for chemical analysis. Hyman- Found intact and there was no evidence of injury on the genital organs. Uterus- Normal in size and empty. Microscopic Examination Vaginal smear did not show spermatozoa. The finding were antemortem in nature. X-ray was done of the left elbow joint and left wrist joint. The Skiagram of lef t elbow joint reveals complete fusion of epiphysis. Skiagram of the left wrist joints reveals incomplete fusion of epiphysis (cid:29). The doctors who performed the post mortem examination could not ascertai 18. n the cause of death of the deceased. Hence, viscera was preserved and was sent for chemical analysis. In cross-examination, PW9 admitted that no physical injur y was detected on the dead body of the deceased. PW8, Samudra Baishya was the Scientific Officer at FSL. On examination o 19. f the stomach, liver and kidney of the deceased he found that the Exhibits gave positive test of phenol. 20. PW10, is the Investigating Officer and PW11 was the Sub-divisional Judic ial Magistrate (SDJM) who recorded the statement of the witnesses under Section 164 Cr.PC. 21. The evidence of PW1 and PW2 that the victim before her death told them t hat she was raped by the accused has not been corroborated in the medical eviden ce. There is a clear cut finding of the team of doctors that neither there was a ny sign of sexual intercourse nor any kind of injury on the body of the victim. From the report of the FSL, it appears that the deceased consumed phenol and tha t may be the cause of death of the deceased. 22. A conviction can be maintained on the basis of the dying declaration but before that it must be proved that the deceased is physically and mentally fit to make the statement and there should be corroborating evidence. In the case of Laxmi (SMT) Vrs. Om Prakash and Others in (2001) 6 SCC 118 it was observed as u nder:- 29. A dying declaration not being a deposition in court, neither made on oath no r in the presence of the accused and therefore not tested by cross-examination i s yet admissible in evidence as an exception to the general rule against the adm issibility of hearsay. The admissibility is founded on the principle of necessit y. The weak points of a dying declaration serve to put the court on its guard wh ile testing its reliability and impose on the court an obligation to closely scr utinise all the relevant attendant circumstances (see Tapinder Singh v. State of Punjab). One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was i n a fit state of mind and capable of making a statement at the point of time whe n the dying declaration purports to have been made and/or recorded. The statemen t may be brief or longish. It is not the length of the statement but the fit sta te of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate t he facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in th e absence of corroborating evidence lending assurance to the contents of the dec laration refuse to act on it. In Bhagwan Das v. State of Rajasthan the learned S essions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholdi ng the finding of the learned Sessions Judge held the dying declaration by itsel f insufficient for sustaining a conviction on a charge of murder. In Kake Singh v. State of M.P. the dying declaration was refused to be acted upon when there w as no specific statement by the doctor that the deceased after being burnt was c onscious or could have made a coherent statement. In Darshan Singh v. State of P unjab5 this Court found that the deceased could not possibly have been in a posi tion to make any kind of intelligible statement and therefore said that the dyin g declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh v. State of Punjab the dying declaration was reco rded by the investigating officer. This Court excluded the same from considerati on for failure of the investigating officer to get the dying declaration atteste d by the doctor who was alleged to be present in the hospital or anyone else pre sent (cid:29). 23. In the case of circumstantial evidence, each circumstances must be prove d. Here in this case it appears from the evidence of PW1 that the victim was imm ediately taken to the hospital by her mother and PW2. The mother of the victim w as not examined by the prosecution. PW2 also stated that when she raised hue and cry, Renu, Asha Devi and Mariam came and in their presence the victim alleged t hat the accused committed rape on her. The aforesaid women Renu, Asha Devi and M ariam were also not examined by the prosecution. 24. That apart, the prosecution case that the victim was raped by the accuse d and for which she consumed poison has not been proved by the medical evidence as discussed earlier. Therefore, the chain of the circumstances against the accu sed was not completed. 25. The finding of the learned trial Court that the victim might have been s exually harassed is based on surmise and suspicion. It is well settled law that even on the basis of strong suspicion conviction cannot be maintained. 26. In the judgment passed by the learned trial Court conviction and sentenc e of the accused is hereby set aside. The accused is acquitted and set at libert y forthwith. 27. Return the LCR alongwith the copy of this judgment and order.