High Court
Case Details
Crl.A. 167/2012 BEFORE THE HON’BLE DR (MRS) JUSTICE I. SHAH JUDGMENT & ORDER 1. The judgment and order dated 28.06.2012, passed by the lear ned Additional Sessions Judge (FTC), Bongaigaon in Sessions Case No. 16(S)/2009, convicting the appellant u/s 376 IPC and sentencing him thereby to undergo rigo rous imprisonment for 07(seven) years and also to pay a fine of ‘ 2000/-, in de fault, simple imprisonment for another 02(two) months, has been assailed in this appeal.
Legal Reasoning
The prosecution story, in brief, is that the victim went to the 2. house of one of her relative to attend a marriage ceremony. On 17.12.2002 at ab out 10.00 p.m., the accused who is relative of the victim, took her on his bi-cy cle on the pretext that he will drop her in her house. On the way to her house, the accused committed rape on her taking advantage of the dark night. He left th e place leaving the victim alone at the site of occurrence. FIR being lodged by the father of the victim, Sidli P.S case No. 31/2002 u/s 376 IPC was registered. On completion of investigation, police submitted charge sheet u/s 354 IPC again st the accused. The particulars of offence u/s 354 IPC was explained to the accu sed, to which he pleaded not guilty and claimed to be tried. Thereafter, evidenc e of prosecution witnesses were recorded by the Additional Chief Judicial Magist rate. At the stage of examination of accused u/s 313 Cr.P.C, learned Additional Chief Judicial Magistrate observed that there are material u/s 376 IPC against t he accused and then he committed the case to the Court of Sessions for trial. Th ereafter, a charge u/s 376 IPC was framed by the Additional Sessions Judge (FTC) . The charge being read over and explained to the accused, he pleaded not guilty and claimed to be tried. Altogether eight witnesses were examined by the prosec ution. The accused in his statement recorded u/s 313 Cr.P.C denied the allegatio ns leveled against him. However, he declined to adduce any evidence. 3. Heard Mr. M.U. Mahmud, learned counsel appearing on behalf of th e appellant as well as Mr. B.J. Dutta, learned Additional Public Prosecutor, rep resenting the State of Assam. 4. PW-5 is the victim. It appears from her evidence that she was ag ed about 13 years of age at the time of incident. She deposed that she went to t he house of her maternal aunt who was recently married, to bring her to her pare ntal house. While returning from her house (her aunt’s house), the accused took her on his bi-cycle. The accused was her uncle in the relation. On the way, the accused stopped the bi-cycle and pulled her to a nearby jungle. He removed her c lothes as well as his own wearing garments and thereafter gagged her mouth, stre tched her on the ground and committed rape on her. He then took her to her villa ge on the same bi-cycle, but leaving her on the way, he went away to his own hou se. She came back to her house and reported the incident to her grandmother Kodb hanu. She further stated that there was a village meeting and in the village mee ting, the accused agreed to marry her, but as he did not marry her, then FIR was lodged. She further stated that she was aged about only 08 years at the time of incident. It appears from her cross-examination that the defence case was that she was a consenting party and therefore, on the way when the accused behaved in decently she did not raise any alarm or did not report the incident to anybody. She admitted that in the village meeting, the accused paid an amount of ‘ 6000/- for his indecent behavior and that amount was accepted by her elder brother. 5. aigaon Civil Hospital and his findings are as follows:- PW-6 Dr. Paresh Kr Roy examined the victim on 20.12.2002 at Bong Pubic hair Axillary hair Breast No sign and symptoms of any injury on - -absent not well developed. absent - her person. Vaginal examination- No sign and symptoms of injury. No stain. Vaginal speculum Examination - No tear. Hymen - Nil. (absent) Lower end of epiphysis of both the radius and ulna appea X-ray reports shows:- 1. Right Elbow Joint- Epiphysis of upper and of right radius and epiphysis of al ecranenor process appeared but not united. 2. Right Wrist Joint- red but united. 3. Epiphysis of right illiae chest - Not yet appeared. Impression y. Overall impression:- 6. PW-1 is the informant and grandfather of the victim. He deposed that the victim was aged about 11/12 years of age at the relevant time. The vict im when reached home, narrated the incident to her grandmother i.e wife of PW-1 and her grandmother reported the incident to PW-1 and on next date PW-1 lodged t he FIR. 7. Pw-2 Md. Nurul Islam turned hostile to the prosecution. He state d that he heard that there was quarrel between the victim and the accused on the -Age is below 18 years as stated by Radiologist Dr. H. Adhikar No sign and symptoms of recent sexual intercourse. way to their house. He was not cross examined by the defence. 8. PW-3 Kodbhanu Begum is the grandmother of the victim. The victim reported the incident to PW-3. She stated that the victim had gone to bring new ly married bride to her parents’ house. When she came back home, she(victim) was crying. She told PW-3 that while she was coming back home along with the accuse d, the accused committed rape on her. In cross examination, she stated that the wearing clothes of the victim were torn. The torn clothes were seen by the Inves tigating Officer, but it was not seized. She admitted that there was a village m eeting, but she could not say whether the accused paid anything to settle the ma tter. 9. PW-4 Habibur Rahman deposed that he also went to the house of br idegroom on the date of occurrence. All the members of marriage party had gone t here on their respective bi-cycle and while returning they carried a girl of the marriage party. Corroborating the evidence of victim, he stated that the victim was carried by the accused on his bi-cycle. He further stated that the accused intentionally left other bi-cycle riders and moved faster. On the same day in th e evening, PW-4 heard that the accused committed rape on the victim on the way. He also stated that in this connection a village meeting was held and although h e was not present in the meeting, he came to know that the accused paid an amoun t of ‘10,000/- as compensation. PW-7 and PW-8 are the Investigating Officers. PW-7 S.I. Pankaj K 10. alita simply submitted the charge sheet against the accused on the completion of investigation. In fact PW-8 actually completed the investigation. He visited th e place of occurrence, recorded the statement of witnesses and drew sketch map o f the site of occurrence. PW-8 stated that the accused was absconding after the incident. The victim was medically examined and her statement was recorded by th e Magistrate u/s 164 Cr.P.C. On completion of investigation, he submitted the ca se diary. He admitted that he did not collect the birth certificate or school ce rtificate of the victim to ascertain her age. However, he stated that the victim was illiterate. She had not attended any school. He did not seize the wearing g arments of the accused or the victim. 11. It is submitted by the learned counsel for the appellant that th e doctor did not detect any sign of recent rape. No injury was detected on the b ody of the victim. Initially the Investigating Officer submitted the charge shee t u/s 354 IPC. The learned Trial Court wrongly held that the accused committed r ape on the victim. It is further submitted by the learned counsel that the age o f the victim could not be proved. As per medical evidence, the victim was below 18 years of age. Therefore, there may be variation of two years on either side. However, the victim appears to be a consenting party. While she was carried away by the accused, she did not protest although the accused behaved indecently. Th e FIR was lodged only because the accused refused to marry the victim and this f act has been admitted by the victim in her evidence. After the alleged incident of rape, the victim again rided on the bi-cycle of the accused and proceeded tow ards home without raising any protest. 12. Here in this case, the incident occurred on 17.12.2002, the FIR was lodged on 19.12.2002 and the victim was examined by doctor on 20.12.2002 i.e . after three days of the incident. There might not be any sign or symptom of th e sexual intercourse if the victim is examined after three days of the incident. But, if the victim was minor and if she was forcefully raped, then there must h ave been some mark of injury on her body. But no such sign or symptom of injury was detected by the doctor. Although the doctor found hymen was absent, but ther e may be number of grounds for the absence of hymen. 13. The informant as well as grandfather of the victim stated that t he victim was 8 to 10 years of age. While adducing evidence on 13.04.2011, the v ictim disclosed that she was 20 years of age. The incident happened in the month of December 2002. Therefore, she must have been 11/12 years of age when the inc ident occurred. Whereas she has stated that she was aged about 8 years at the ti me of incident. Therefore, the evidence of the victim and her family members are inconsistent with regard to her actual age at the time of occurrence. As per th e doctor, the victim was below 18 years of age when the incident took place. Ini tially, the case was charge sheeted and tried u/s 354 IPC. However, improvements were made by the witnesses at the time of adducing their evidence. Therefore, t he case was committed to the Court of Sessions for re-trial after re appreciatio n of the evidence. The conviction of the accused u/s 376 IPC on the basis of imp rovement in the testimony of the witnesses is risky. It is difficult to place re liance on the evidence of the victim that she was actually subjected to rape by the accused or the accused was behaved indecently and thereby committed offence u/s 354 IPC. In view of the above, the conviction of the accused u/s 376 IPC 14. is hereby set aside. The accused/appellant is hereby convicted u/s 354 IPC and s entenced him to undergo simple imprisonment for 01(one) year. 15. With this modification, the appeal is partly allowed. The convic tion and sentence of the accused u/s 376 IPC is set aside. However, he is convic ted and sentenced as stated above. 16. Send back the LCR with a copy of this judgment.