High Court
Case Details
Crl.A. 45/2012 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH This is an appeal against the judgment and order, dated 23.12.2011, pass ed, in Sessions Case No. 104/2009, by the learned Sessions Judge, Morigaon, conv icting the accused-appellant under Section 376 IPC and sentencing him thereby to undergo rigorous imprisonment for a period of 3 (three) years 6 (six) months an d also to pay a fine of Rs. 1,000/-, in default of payment of fine, rigorous imp risonment for a further period of 2 (two) months. 2. The case of the prosecution, in brief, may be described as under: (i) On 05.07.2009, at around 8 PM, the accused entered into the house of the vic tim and forcibly took her to the back side of his own house where there is a roo m for keeping thatches, where he gagged her mouth and committed rape on her seve ral times. At 3 AM, when she was released by the accused, she came back to her house and reported the incident to her mother. Next day morning, i.e., on 06.07 .2009, FIR was lodged by the victim herself and then she was subjected to medica l examination. Her statement under Section 164 Cr.PC was also recorded. On comp letion of investigation, police submitted the charge sheet under Section 376 IPC against the accused. In support of their case, prosecution examined altogether 9 (nine) witne During the trial, charge under Section 376 IPC was framed against the ac
Legal Reasoning
3. cused to which the accused pleaded not guilty and claimed to be tried. 4. I have heard Mr. A. K. Hussain, learned counsel, appearing for the accus ed-appellant. I have also heard Mr. B. J. Dutta, learned Addl. Public Prosecutor , Assam. 5. sses. 6. is the victim, she deposed that on 05.07.2009, at about 8 PM, wh ile she was at her courtyard, the accused came to her house, gagged her mouth an d dragged her to the back side of his house. There was a room where thatches wer e kept. When she attempted to shout, the accused threatened her pointing a dagg er. Till 3 AM he had sexual intercourse twice with her. She, thereafter, lodge d the FIR. In cross-examination, she stated that the accused had sex with her pr omising to marry her. She admitted that in between the house of the accused and her own house, there is a hospital, weekly market and house of one Lakhi Bora. She also stated that they used to prepare alcohol in their house. PW4 7. PW5 is the mother of the victim, she deposed that in the night of the oc currence, at around 8 PM, she went out of her house in search of duck, while she was away from her house, the accused entered her house and forcibly took away h er daughter and when her daughter came back she reported that the accused commit ted rape on her. She, further, stated that when she came back she did not find her daughter and thereafter she went out again, but she could not trace her out. She admitted that alcohol was sold from her house. 8. PW3 is the sister-in-law of the victim, according to her, in the night o f the occurrence, her mother-in-law and two sisters-in-law went out in search of duck up to the house of the accused, but they could not trace out of the duck. Her husband and brother-in-law (PW1 and PW2) came to their house and they had d inner, thereafter, all other family members after dinner went to the bed. At 3 AM, her mother-in-law could come to know that victim was not in her bed, thereaf ter they started searching her. Contradicting her own evidence that her mother- in-law and two sisters-in-law had their dinner together and, thereafter, they we nt to bed, she further stated that from 8 PM the victim had gone missing. She a lso stated that knowing fully well that she was missing they did not search her and when the victim came back at 3 PM she informed that the accused forcibly too k her to his house and committed rape on her. 9. PW1 is the brother of the victim, according to him, in the morning, his mother reported him that the victim was taken by the accused at around 6/7 PM an d at around 3 AM, she came back home. He was not informed about the missing of the victim during the whole night. 10. PW2 is another brother of the victim, when he returned home at about 10 PM, his mother informed him that his sister was not found. He, further, stated that he also started searching and later he could learn that the accused had ki dnapped his sister. At about 3.30 PM, his sister came back and thereafter FIR w as lodged. 11. PW6 is the uncle of the accused he has not deposed anything in favour of the prosecution. 12. PW7 is the cousin of the victim. He deposed that in the evening, the mo ther of the victim came to his house and inquired about the victim. PW7 then we nt to the house of the accused in search of the accused but he did not find him (accused) at his residence. 13. 14. PW8 is the Investigating Officer. Dr. Dhiren Ch. Nath (PW9), examined the victim on 06.07.2009 at 1 PM and he found as follows:- (a) There is a history of sexual assault a few days back. (b) (c) (d) (e) (f) Hymen - absent with sign of injuries in healed condition at the margin o No. of teeth - 28 Auxillary hair - 1 (cid:29) long Breasts - developed Pubic hair Vulga - developed (g) f the hymen. Vagina - Non-patolous (h) Uterus - normal size (i) 15. In the opinion of the doctor, no external mark of violence seen on the p erson of the victim. The age of the victim was above 19 years. There was evide nce of injuries in healed condition at the margin of hymen seen, but no sperm wa s detected on examination of vaginal swab. 16. In this case, the victim alleged that till 3 PM she was subjected to rap e by the accused twice. After 10 hours counting from 3 AM, she was examined by the doctor, who found healed condition injury at the margin of hymen. There was no other mark of violence was seen on the person of the victim. 17. That apart, the evidence of prosecution witness, as discussed above, is contradictory to each other. According to the victim, the accused forcibly took her away to the back side of his house. PW3 stated that the victim along with her sister and mother went out in search of a duck. The victim with her mother and sister had dinner in the house and she was found missing since 3 AM. PW2 st ated that when he returned home at 10 PM, his mother informed that his sister wa s missing. The entire episode of missing of the victim was not informed to PW1, only on next day morning he was told that the victim had gone missing. The mot her of the victim stated that when she came back home after search of duck, she found the victim absent and thereafter she along with others went out in search of the victim, but could not trace her out. PW7 stated that the mother of the v ictim asked to search the victim in the house of the accused as if she was aware that the victim had gone to the house of the accused. In the case of Lalliram and another -VS- State of Madhya Pradesh, report 18. ed in 2008 10 SCC 69, it was observed as follows:- (cid:28)12. As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases th e question of a precedent particularly relating to appreciation of evidence is r eally of no consequence. In Aman Kumar case, it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corrobo ration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the f ormer both physical as well as psychological and emotional. However, if the cour t finds it difficult to accept the version of a prosecutrix on the face value, i t may search for evidence direct or circumstantial (cid:29). No doubt, a person can be convicted on the basis of sole testimony of th 19. e victim without looking for corroboration in a case of rape, but the evidence o f the victim must be cogent, reliable and trustworthy. Herein, this case, the e vidence of the victim that she was subjected to rape twice from 8 PM to 3 AM, is contradictory to the medical report. She (victim) was dragged by the accused o n a road by the side of which there are hospital, market and the house of one La khi Bora situated. The said Lakhi Bora, who resides adjacent to the place of oc currence, was not examined by the prosecution. The witnesses examined are not o nly interest witness, but their evidence is contradictory to each other on mater ial particulars. The victim was grown up lady and she also alleged that the acc used had sex with her with promise to marry her. The conviction of the accused, in view of the circumstances, under Section 376 IPC is not sustainable. Accord ingly the conviction and sentence passed against the accused-appellant are hereb y set aside. The accused is entitled to get acquittal and he is acquitted and s et at liberty forthwith. 20. 21. of. Send back the LCR along with the copy of this judgment and order. With the above observations and directions, this appeal stands disposed