High Court
Case Details
Crl.A. 53/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN This criminal appeal is directed against judgment and order date d 19.01.2012 passed by the learned Addl. Sessions Judge, Dibrugarh in Sessions C ase No. 65/2009 convicting the appellant/accused (accused hereinafter) under Sec tion 376(1) IPC and sentencing him to undergo Rigorous Imprisonment (R.I.) for 7 years with fine of Rs. 1000/-, in default, to undergo Simple Imprisonment (S.I.
Legal Reasoning
) for 6 months. Facts of the case may be briefly noted. [2]. One Smt. Parashmoni Kurmi (PW2) lodged a first information befor [3]. e the Borbari Police Outpost on 10.03.2009 alleging that in the month of Novembe r while she was undergoing treatment at Maijan Tea Estate Hospital as an indoor patient, her minor daughter aged about 13 years was staying alone at home. Durin g that time, her nephew Shri Sankar Bhuyan used to visit her residence and by al luring her daughter, committed sexual intercourse with her. As a result, her dau ghter was 4 months pregnant but Shri Sankar Bhuyan denied his involvement. On re ceipt of the first information, a G.D. entry was made at the Police Outpost wher eafter it was forwarded to the Dibrugarh Police Station. A case was then registe red as Dibrugarh P.S. Case No. 123/2009 under Section 376 IPC. [4]. Police investigated the case. During investigation, statement of the victim girl was recorded under Section 164 Cr.P.C. She was also medically e xamined. On conclusion of investigation, police submitted charge sheet under Sec tion 376 IPC against the accused. [5]. As the case was exclusively triable by a Court of Session, learn ed Chief Judicial Magistrate, Dibrugarh committed the case to the Court of Sessi ons, Dibrugarh, who thereafter assigned the case to the trial Court for trial. Learned trial Court framed charge against the accused under Sect [6]. ion 376 IPC. When the charge was read over and explained to the accused, he plea ded not guilty and claimed to be tried. [7]. In the trial, prosecution examined as many as 9 witnesses to pro ve the charge against the accused. The accused was thereafter examined under Sec tion 313 Cr.P.C. Stand taken by the accused was of total denial. Thereafter, the defence adduced one witness.
Legal Reasoning
Aggrieved, accused has filed the present appeal. Heard Mr. P.J. Saikia, learned counsel for the accused and Ms. S [8]. Learned trial Court, after considering the evidence adduced and other materials on record, came to the conclusion that the victim girl was below 16 years of age and that accused indulged in sexual intercourse with her. Since victim girl was minor, question of consent did not arise. It was further held that the accused is the father of the child delivered by the victim girl. Accord ingly, the learned trial Court convicted the accused under Section 376 (1) IPC a nd sentenced him as indicated above. [9]. [10]. . Jahan, learned Addl. Public Prosecutor, Assam for the respondent State. Mr. Saikia, learned counsel for the accused submits that impugne [11]. d conviction and sentence is based on surmises and conjectures. There was no con clusive evidence to come to a definite finding that accused had indulged in sexu al intercourse with the victim. Family of accused and family of victim are close relations and because of family dispute, accused was wrongly implicated in the case. This aspect was not properly considered by the learned trial Court. Moreov er, FIR was filed belatedly. There was no explanation for such delay. Further, t here were material contradictions in the evidence adduced by the prosecution wit nesses regarding the stage of pregnancy of the victim girl, which cast grave dou bts on the truthfulness of the prosecution case. Without any medical evidence, l earned trial Court held the accused to be the father of the child born to the vi ctim girl. He submits that the present is a case of no evidence and, therefore, the impugned conviction and sentence should be set aside and quashed. [12]. On the other hand, Ms. S. Jahan, learned Addl. Public Prosecutor submits that a conjoint reading of the evidence of the victim girl (PW1) and he Submissions made have been considered. Also perused the case rec Before proceeding further, the evidence of the witnesses may be r statement recorded under Section 164 Cr.P.C. would clearly substantiate the ch arge against the accused. Based on such evidence, conviction can be sustained. L earned trial Court, therefore, rightly convicted the accused and no case for int erference is made out. [13]. ord. [14]. briefly noticed. [15]. PW1 is the victim girl. She gave her evidence on 6.8.2009. She stated that mother of the accused was her father’s sister. She has a 6 months ol d baby. About 1 year back, her mother was admitted in the Tea Estate Hospital fo r treatment of wound on her legs. While she was in hospital, the accused used to visit her residence regularly. Her father used to roam around and used to come back home at night. Accused used to come home for cutting wood, etc. She stated that on many occasions, accused used to commit evil deeds by assuring her that n othing would happen. She did not inform this to others out of fear as accused ha d threatened her that he would assault her if she disclosed this to others. When her mother returned home from hospital, she noticed the enlarged belly of the v ictim and took her to a doctor, who gave her medicine for worm. She vomited afte r having the medicine whereafter she was taken to a nurse, who after examining h er, disclosed that the victim was pregnant. When her mother confronted her, PW1 informed her mother about the act committed by accused. Mother informed the chow kidar and Secretary of the Tea Estate. Though she searched for the accused, he f led away. Thereafter, her mother lodged the first information. PW1 was cross-ex amined by the defence. In her cross-examination, she stated that her mother retu rned home from hospital between Lakshmi Puja and Diwali. She further stated that even when her mother was at home, accused used to come to their residence. Her further statement was that accused had taken her to his residence much prior to hospitalization of her mother and committed evil deed with her. However, she adm itted that she did not disclose this fact to anyone including the police. She al so stated that after her mother returned from hospital, there was some dispute b etween her mother and her aunt (mother of the accused) regarding pension of her grandfather. [16]. Mother of PW1 Smt. Parashmoni Kurmi deposed as PW2. She was also the informant. She stated that during Durga Puja of last year (2008), she was h ospitalized for about a month. Her husband and daughter (PW1) were at home. Accu sed was the son of her sister-in-law. He used to visit their residence. When she returned home from hospital, PW1 complained of stomach ache. She took her to th e doctor of the Tea Estate who gave her medicine for worm. After taking the medi cine, PW1 vomited and she did not get any relief from stomach ache. PW2 then too k her to a nurse who massaged her stomach. After massaging her stomach, the nurs e told PW2 that PW1 was pregnant. When she asked her daughter, PW1 stated while PW2 was in the hospital, she committed evil work with the accused, who used to c ome any time. As the accused had threatened her not to disclose before anybody, PW1 out of fear did not disclose this fact to anyone. PW2 stated that she inform ed about the incident to the Secretary of the Tea Estate as well as to the Presi dent. She thereafter went to the residence of the accused but he was not availab le. His parents created a scene by stating that accused was falsely implicated. She also stated that her father-in-law had kept bank papers in the residence of the accused but after filing of FIR, they had concealed the papers. She was also cross-examined by the defence. [17]. PW3 Shri Lalbabu Naik only stated that both accused and PW1 were his relatives. He also stated that PW1 gave birth to a baby but could not say a s to who was the father of the baby. He also did not ask anything about this. [18]. PW4 is the doctor who examined PW1 on 17.03.2009 in the Assam Me dical College and Hospital, Dibrugarh and gave medical examination report. He op ined that age of PW1 was above 14 years but below 16 years. As per medical evide nce, there was no sign of recent sexual intercourse though she was used to sex. Evidence of injury on her body could not be detected. Most crucially, it was sta ted that PW1 was 32 weeks pregnant at the time of medical examination. The Judicial Magistrate, who had recorded the statement of the v [19]. PW5 and PW6 are neighbours. Though they had stated that PW1 had a male baby, they could not say who was the father of the baby. However, accordi ng to PW6, father of PW1 stated that accused was the father. [20]. PW7 is the Investigating Officer (I.O.). As per his evidence, he was the attached officer of the Borbari Police Outpost on 10.03.2009 when a wri tten first information was submitted by PW2. On registration of the police case , he was entrusted with the investigation of the case. Accordingly, he investiga ted the case. He had sent the victim girl for medical examination and her statem ent was also recorded under Section 164 Cr.P.C. During investigation, he had arr ested the accused and forwarded him to the Court. On completion of investigation , he submitted charge sheet against the accused under Section 376 IPC. [21]. ictim girl under Section 164 Cr.P.C., was examined as PW8. [22]. s per instruction of PW2. [23]. In his examination under Section 313 Cr.P.C., accused stated tha t the accusation against him was false. He was innocent and was falsely implicat ed. He further stated that PW2 had falsely implicated him with a view to obtain money from his grandmother. [24]. Grandfather of the accused, who was also the grandfather of the victim, deposed as DW1. He stated that accused was the son of his daughter. He f urther stated that PW1 was the daughter of his eldest son. As per his version, h is wife had worked in Maijan Tea Estate. When she retired, PW2 got the job. Thou gh his wife had received about one and half lakh to two lakh rupees on her retir ement, the money was given to the father of the accused as he used to look after them. No money was given to his son, father of PW1 and husband of PW2, as he us ed to sit idle at home consuming liquor. PW2 felt bad about this, because of whi ch relation was strained. He also spoke adversely about the reputation and chara cter of PW1. He specifically ruled out accused having committed evil deed on PW1 PW9 is a petition writer who had written the first information a as she was his sister. Having broadly noticed the evidence adduced before the learned t [25]. rial Court, the same may now be carefully analysed. From a reading of the FIR, it is clear that the allegation again [26]. st the accused was that when PW2, the informant, was in hospital in November, 20 08, accused used to visit her residence and committed sexual intercourse with he r minor daughter. As per the FIR, which was lodged on 10.03.2009, PW1 was 4 mont hs pregnant then. In her evidence, PW2 stated that after being released from hos pital, she joined her duty in the Tea Estate. When PW1 complained of stomach ach e, she took her to the doctor, who gave her medicine for worm. After having the medicine, PW1 vomited and as she did not get any relief from stomach pain, PW2 t ook her to a nurse. The nurse had massaged the stomach of PW1 and thereafter she told PW2 that her daughter (PW1) was pregnant. As already noticed above, the fi rst information was lodged on 10.03.2009 i.e. after about 4 months of release of PW2 from hospital. This delay in lodging the FIR has not been explained. Such unexplained delay in the backdrop of strained relationship between the parties a s stated by the grandfather (DW1) in his evidence, can have a fatal bearing on t he prosecution version. On the other hand, in her evidence, PW1 stated that when her mother returned home from the hospital, she noticed her enlarged belly wher eafter she was taken to a doctor who gave her medicine for worm. When she vomite d after taking the medicine, one nurse examined her and declared that PW1 was pr egnant. If the version of PW1 is to be believed, it would mean that in November, 2008, her pregnancy was quite visible, which in turn would mean that sexual int ercourse relatable to the pregnancy had taken place much earlier. Now, let us co me to the medical evidence. PW 4 i.e. the doctor, in his medical report categori cally opined that PW1 was 32 weeks pregnant at the time of her medical examinati on. PW1 was medically examined on 17.03.2009. If she was 32 weeks pregnant on th at day, it would mean commencement of pregnancy sometime in July, 2008. Thus, th ere are glaring contradictions in so far sexual intercourse relatable to the pre gnancy is concerned in the version given in the FIR, evidence of PW1, PW2 and th e medical evidence. As pointed out above, this discrepancy coupled with the unex plained delay in filing the FIR in the backdrop of strained relationship between the parties, who are otherwise close relatives, casts a deep shadow of doubt ov er the prosecution case. In addition to the above, no medical test or examination was car [27]. ried out for a scientific determination of paternity of the child. In fact, ther e is no medical evidence in this regard. However, learned trial Court came to th e conclusion that accused was the father of the victim’s child. This finding is based on no evidence. [28]. There is another aspect of the matter. From the evidence of both PW1 and PW2, it transpires that when PW2 was told by PW1 that accused had indul ged in sexual intercourse with her, PW2 first informed the Secretary and Preside nt of the tea garden (though according to PW1, PW2 had informed the Chowkidar an d the Secretary). Thus, the said two persons were the first persons before whom PW2 had confided about the alleged sexual intercourse by the accused with her da ughter. These two persons were, therefore, vital witnesses, whose testimony coul d have thrown considerable light on the veracity of the prosecution version. Mor eover, father of PW1, who is also the husband of PW2, was not examined as a witn ess. Failure to produce them as witnesses has considerably dented the prosecutio n case. [29]. From a careful examination of the evidence adduced, there is no doubt that a strong suspicion arises regarding involvement of the accused in hav ing sexual intercourse with PW1, who was admittedly below 16 years of age at tha t time and, therefore, consent being immaterial. But suspicion howsoever grave, cannot form the basis for conviction in a criminal trial. It is the cardinal pri nciple of criminal jurisprudence that the charge against the accused must be pro ved beyond all reasonable doubt so as to sustain a conviction. From a careful ex amination of the materials on record, I am of the considered opinion that it wou ld be difficult to come to any definite conclusion about the involvement of the accused in the commission of the offence beyond all reasonable doubt. In such ci rcumstances, the benefit of doubt has to go in favour of the accused. [30]. Accordingly, impugned conviction and sentence is set aside and q uashed. Accused Shri Sankar Bhuyan is acquitted and set at liberty. He shall be released from custody forthwith, if not required in any other case. [31]. cord immediately. Appeal is accordingly allowed. Registry to send down the case re