High Court
Case Details
Crl.A. 24/2012 BEFORE HON’BLE MR. JUSTICE P.K.SAIKIA This appeal is directed against the judgment dated 24/06/2011, passed by lear ned Asstt. Sessions Judge, Tinsukia, in Sessions Case No. 61(M)/2009, acquitting the accused-respondent No. 2 from the charge u/s 376 IPC and setting him at lib erty forthwith. 2. Being aggrieved and dissatisfied by the aforesaid judgment, the victim g irl has preferred this appeal citing several infirmities in the judgment impugne d in this appeal. 3. I have heard Mr. P. Kataki assisted by Ms. R. Begum, learned counsel for the appellant and Ms. B.Bhuyan, learned Addl. P.P., Assam as well as Mr. K. Bar uah, learned counsel for the respondents No. 1 and 2 respectively.
Legal Reasoning
The brief facts necessary for disposal of the present proceeding are tha 4. t the prosecutrix was a student of Class IX of Balijan Borjan Higher Secondary S chool and was prosecuting her studies .by staying at the residence of her brothe r-in-law. One Lohit Das was the younger brother of the husband of her sister. On the fateful day, she was alone in the house of her sister.
Legal Reasoning
5. Taking advantage of her loneliness, Sri Lohit Das, hereinafter referred to as an accused person, came there and had sex with her against her will subjec ting her to threat to her life. On the same day, when the mother-in-law of he r sister came home, she disclosed all those episodes to the mother of the accus ed person and other family members. The mother of the accused person, however, t hreatened her with dire consequences if she divulged such episodes to others. 6. In the meantime, the accused promised that he would marry her for whic h she eloped with the accused person and proceeded with him to his place of post ing. However, instead of taking her to his place of posting, the accused abandon ed her mid way. Having found no other way out, she returned to her parental h ouse and reported the matter to the family members as well as to the co-villager s of the accused person. Situation being such, the victim lodged an FIR with the O.C., Digboi Pol 7. ice Station on 18.08.2008. On receipt of the FIR, police registered a case vide Digboi PS Case No. 114/2008 under Sections 493/420 IPC and ordered one Shri Gha na Kanta Gogoi, to investigate the matter. Being entrusted with the investigatio n, Shri Gogoi visited the P.O., recorded the statement of the witnesses and arre sted the accused person and did the other needful and on completion of investiga tion submitted charge-sheet u/s 420/376 IPC against the accused person. 8. The Magistrate before whom the charge-sheet was so laid committed the ca se to the court of Sessions since the offence u/s 376 IPC is exclusively triable by the court of Sessions. The learned Sessions Judge, on receipt of the case on commitment and on hearing the parties, framed charge u/s 376 IPC against the ac cused person. 9. The charge, so framed, on being read over and explained to the accused per son, he pleaded not guilty and claimed to be tried. During trial, the prosecutio n has examined as many as 6 witnesses including the victim and the I.O. The sta tements of the accused person u/s 313 CrPC was recorded. 10. The plea of the accused was that of denial. He, however, did not adduce any evidence of his own. On conclusion of the trial, learned trial court on hearing the parties and considering the materials on record, acquitted the a ccused person of offence u/s 376 IPC setting him at liberty forthwith. It is tha t judgment which has been challenged in this appeal by the appellant citing seve ral infirmities. 11. Opening up arguments on behalf of the appellant, Mr. P. Kataki, learned counsel, has submitted that the judgment, rendered by the trial court, i s unsustainable in law since it suffers from several infirmities of extremely se rious nature. In this connection, it has been pointed out that the learned trial court has acquitted the accused of offence u/s 376 IPC on the ground that there was delay in lodging the FIR and the delay remained unexplained. 12. The other grounds on which learned trial court recorded the verdict of a cquittal in favour accused respondent are (i) that some vital witnesses who were well acquainted with the facts and circumstances of the case were not examined and that too, without, assigning any reason whatsoever and (ii) that the witness es, more particularly, the prosecutrix made huge improvement to her case whenev er she got opportunity to do so. 13. The learned counsel for the appellant has therefore, submitted that a ll those conclusions arrived at by the learned trial court have no basic foundat ion since the evidence on record clearly reveals that the delay in lodging the c ase has been properly explained, the prosecutrix is trustworthy and her evidence cannot be brushed aside easily. Moreover, there is nothing on record to show th at any material witness were left out from being examined as witness in the case under consideration. Therefore, the learned trial court was not justified in coming t 14. o the conclusion that the prosecution could not make out the charge brought agai nst the accused person. He therefore, urges this Court to set aside the judgment of acquittal and convict the accused/respondent No. 2 of offence under Section 376 IPC and punish him suitably. 15. This contention was, however, objected to by the learned counsel for the respondent. The learned counsel for the respondent No. 2 has submitted that the trial court while acquitting the accused person has assigned convincing reason as to why the court needs to acquit the accused persons of offence u/s 376 IPC. In view of the above, learned trial court was justified in acquitting the accuse d person of offence u/s 376 IPC. 16. I have considered the rival submissions having regard to the evi dence on record as well as the judgment impugned. Before I proceed, let us have a brief review of the evidence on record. The victim girl is examined as PW 4. A ccording to her, the accused was the younger brother of the victim’s brother-in- law. 17. On 2.5.2008, at about 2 PM when her family members were all away from their house and when the prosecutrix was alone there, the accused entered into her room with a dao in his hand and putting her under the threat to her lif e ,he laid down on the bed and raped her. At about 4 P.M., the mother of the ac cused came home when she reported the matter to her. However, instead of responding to her request in a positive manner, the 18. mother of the accused warned the victim not to divulge the matter to anyone. On 29.06.2008, the accused forcibly took the prosecutrix to his working place with the intent to marry her. However, the accused abandoned her midway and proceede d to an unknown destination. Having found no other way out, she came to the resi dence of one Chandama, her friend. 19. Thereafter, from such place, she went to her own house with one Basanta Das. After about a week, she went to the house of the accused person but she was not allowed to enter their house. On the following day, the mother of the accus ed administered the victim some medicines and after consuming the same, she lost her consciousness. Thereafter, she went home and reported the matter to one Mal ati Das and some members of Mahila Samity who assured her to settle the dispute but they could not. 20. In her cross-examination, she denied the suggestion that she did no t report the matter to any woman organization. She also denied the following sug gestions - (i) she did not state before the police that the accused committed ra pe on her having subjected her to threat by holding a dao in his hand ; (ii) the accused did not gag her mouth and commit rape on her; (iii) she did not tell t he police that the accused embraced her from behind and committed rape on her ha ving laid her down on the floor of the house and (iv) on 29.06.2008, she was no t abandoned by the accused at Digboi Bus Station. 21. Smti. Malati Das and Smti. Minoti Baruah were examined as PW 1 a nd PW 2. They have stated that the alleged incident occurred a year ago. However , it is seen from their evidence that they had no personal knowledge about th e incident under consideration and as such, their evidence became more or less h earsay one on which no court of law could place any reliance. 22. PW 3 is Dr. Sonali Chetia. According to her, on 21.08.2008, she was posted as Medical & Health Officer-I. On that day, in connection with Digboi PS Case No. 114/08, she examined the prosecutrix and found the following:- (cid:28)Brief history with menstrual history as stated :- Alleged rape on 2.5.0 8. Her L.M.P. was 14th Jeth, 08. General configuration and development :- Normal. Mental state :- Normal. Height :- 5’3 (cid:29). Weight :- 45 kg. Teeth :- 28(Per manent). Abdomen :- No abnormality detected.. Uterus not palpable. Breasts :- Developed. Areola - Normal. Nipples, scalp hair, pubic hair, axillary hair :- Normal. Labla majora and labia minora :- Normal and no external injury seen. Hym en :- Absent. Vagina :- Normal, no injury seen, Uterus :- Normal. Vaginal discharge/bleeding :- Not seen. Injuries on the body other than genitals :- Absent. Radiological Examination :- X-ray of right elbow :- Classification centres of medical and lateral ossificati on of epicondyles were fusing with condyles. Age - 18 years. X-ray of right wrist :- Epiphysis of lower end of radius and ulna were not fusin g with shaft. Age - below 20 years. X-ray of right iliac crest :- Ossification centres of right iliac crest was appe aring, but not fusing with shaft. Age - below 20 years. So, age is above 18 year s and below 20 years. (Report from Tinsukia Civil Hospital). Ultrasound of pelvic organ :- Normal and adnexae. (Apollo Clinic) Urine :- Nothing abnormality detected. Urine pregnancy test :- Negative (Apollo Clinic). (cid:29) PW 5 is Smti Duluprava Saikia. According to her, she has been wo 23. rking as Headmistress of Borjan High School since November, 2008. The prosecutri x was a student of said school and as per admission register (Ext. 3), the date of birth of the victim was shown as 29.12.1993. In her cross-examination, she ad mitted that she did not know if any birth certificate is required to get admissi on in the primary school. 24. In her cross-examination, she further deposes that the aforesaid age of the victim girl was recorded in the school register on the basis of the transfer certificate issued by another school. She further admitted that she did not know that if the date, so recorded in the school register, is correct or no t. 25. PW 6, Shri Ghana Kanta Gogoi, is the I.O. of this case. Accordin g to him, on 18.08.2008, he was posted as ASI, Digboi Police Station. On that da y, he was entrusted to conduct the investigation of the case initiated on the ba sis of an FIR lodged by prosecutrix. During the course of investigation, he seiz ed a letter said to have been written by the accused person on the strength of s eizure list, Ext. 1. He also recorded the statement of the witnesses and also go t the statement of the victim recorded by the Magistrate. 26. On the completion of investigation, the I.O. handed over the cas e dairy to the O.C. for doing the further needful. In his cross-examination, he stated that PW 4 did not tell him (i) she reported the matter to a woman organiz ation; (ii) she was subjected to threat by the accused by taking a dao in his ha nd; (iii) she was having bleeding wounds on her private parts due to sexual assa ult committed on her by the accused person 27 However, she stated before him that the accused had committed se xual intercourse with her by laying her down on the floor of the room and that h e did not make any enquiry to ascertain the age of the victim. Above being the e vidence on record, let us see how far the evidence of the prosecution makes out the allegation brought against the accused person. 28. A bare perusal of the evidence on record reveals that the prosec ution side has projected two pictures regarding the age of the victim girl. As p er the doctor at the time, relevant, the victim was above 18 years of age but le ss than 20 years. On the other hand, PW 5, headmistress of the school where the prosecutrix was reading at the time, relevant, the date of birth of the prosecut rix was 29.12.1993 which shows that on the date of incident, the prosecutrix was less than 16 years of age. 29. Coming to the evidence of PW 5, we have found that the admission register was produced before the court for the first time during the trial. Pol ice did not seize the said register during the course of investigation. No reaso n was assigned as to why such a vital document was not seized by the I.O. during the course of investigation. This casts a serious doubt on the veracity of the statements made in Ext. 3, qua the age of the victim. 30. This apart, PW 5 in her evidence categorically admitted that she did not know the source of certificate which was given to her school showing th e date of birth of the prosecutrix as 29.12.1993. She also did not know if the d ate of birth so recorded in Ext. 3 is correct or not. In the teeth of above reve lations one would be justified in not accepting the averments made in Ext. 3 whi le upholding the evidence of doctor vis-à-vis the age of the victim. I may note here that where two views are possible, the views whi 31. ch supports the accused needs to be accepted. This is accepted principles of cri minal jurisprudence. Since the views rendered by doctor supports the accused per son and since the views rendered by doctor found to be based on well established facts, I have no hesitation in coming to a conclusion that at the time, relevan t, prosecutrix was a major girl. So situated, let us see whether on the fateful day, the accused had sex 32. with the prosecutrix and if so, it was against her will. To get an answer to tho se queries, I have scrutinized very carefully the evidence rendered by the prose cutrix in the light of other evidence on record. On a very careful examination o f the evidence, it is found that the prosecutrix has gone on giving diverse vers ions regarding the incident in question at different stage of the case under con sideration. 33. In the FIR, she stated that on the fateful day, the accused came to her ho use and had sexual intercourse. However, in her statement before the Magistrate, she had stated that on the fateful day, the accused came to her room stealthily and had sexual intercourse with her putting her under threat to her life. Howev er, during trial, the victim has given a new twist to her story since now she c laims that on the fateful day, the accused committed rape on her by subjecting her to threat to her life holding a dao in his hand. 34. Again during trial, she has stated that she reported the matter to the woman organization. She has also stated that the rape which was inflicted upon her caused her bleeding wounds on her private parts. These vital statement s were never stated before the I.O. when she was examined u/s 161 CrPC. Neither was such statement tendered before the Magistrate while she was examined as per the provision of S. 164 CrPC. 35. The prosecutrix has stated before the I/O that on the fateful da y accused came to her house and embraced her from behind and gagged her mouth an d then committed rape on her by laying her on the ground. However, this story ha d undergone sea change once her case reached the trial stage. In such a scenario , one needs to hold that the prosecutrix has made drastic improvement to her cas e whenever she found the scope to do so. 36. Regarding delay, I have found that the alleged incident had occu rred on 05.08.2008 and the FIR was lodged on 18.08.2008. Though she has stated t hat the delay has been properly explained but such explanations are found to be not reliable and as such, it cannot be said that the delay was properly explaine d. 37. On the perusal of the record, more and more, I have found that some very vital witnesses who are supposed to be conversant with the facts and circumstan ces of the case were not examined. Those witnesses are the own sister of the vic tim as well as her friend Basanti Das, apart from many other persons who she app roached seeking their service in solving her own predicament with the accused pe rson. 38. On basis of the above, I am of the considered view that the deci sion of the learned trial court that the prosecutrix has made fundamental improv ements of her case, that prosecution did not examine all the material witnesses and that there was unexplained delay in lodging the case under consideration ca nnot be said to be without any basis. 39. e is accordingly dismissed. Resultantly, I have found no merit in the present appeal and sam 40. It may be stated here that though the prosecution could not make out the allegation against the accused person yet considering the matter in its entirety and in the interest of justice, the respondent No. 1, is directed to p ay a compensation to the tune of Rs. 30,000/- to the informant/victim as a compe nsation payable under Section 357 (A) of the CrPC. 41. The amount is to be paid to the District Legal Service Authority and the District Legal Service Authority on proper verification shall deliver the amount to the aforesaid victim girl within a period of 3 (three) months from the date of receipt of a copy of this judgment by the Chief Secretary to the Go vt. of Assam. 42. to the Govt. of Assam to do the needful as indicated above. Let a copy of this judgment be furnished to the Chief Secretary 43. Return the LCR forthwith.