High Court
Case Details
Crl.A. 120/2009 BEFORE HON’BLE MR JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER (ORAL) 1. Heard Mr. H. Baruah, learned counsel appearing for the appellant as well as Mrs. B.Saikia, learned Additional Public Prosecutor, Assam for the S tate respondent. 2. This appeal is directed against the judgment dated 29.11.2008 passed by the learned Assistant Sessions Judge, Jorhat in Sessions Case No.6/08 convicting the appellant U/s. 376(2)(f) of the IPC and sentencing him to under go rigorous imprisonment for 10 years with a fine of Rs. 10,000/-.
Legal Reasoning
3. The prosecution case, in nutshell, is that on 15.8.07 at about 1 0 p.m. while the victim girl was watching T.V. along with other children in the house of one Mohendra Patnayak, the appellant came and took her to his nearby ho use where a T.V. set was on. The appellant took her in his room and committed ra pe on her. She suffered pain and bleeding from her private part. She reported t he matter to her mother whereupon an FIR was lodged against the appellant. The p olice registered a case and investigated into the matter and submitted charge sh eet against the appellant U/s. 376(2)(f) IPC. 4. During investigation, the I.O. examined several witnesses includ ing the victim girl who was taken to Jorhat Civil Hospital for medical examinati on. The case was committed to the Court of Sessions, Jorhat who on consideration of the materials on record framed charge against the appellant under the afores aid section of law. The appellant denied the charge and claimed to be tried. 5. During trial, the prosecution, in order to establish the charge examined six witnesses including the victim girl and the Medical Officer. The a ppellant adduced no evidence in his defence. He maintained a plea of complete de nial of the charge. The learned trial court on consideration of the materials an d evidence on record passed the impugned judgment convicting and sentencing the appellant as stated earlier. I have scanned the record and the evidence of the prosecution wi 6. tnesses. The victim girl was examined as PW 1. No oath was administered on her. The learned trial court put some questions to test as to whether the victim girl could follow the questions put to her. The learned trial court certified that the victim girl could understand the questions and gave reasonable answers. In her cross examination in chief she stated that the appellant took her to his hou se to watch T.V. On the day of occurrence, she was wearing panty. The appellant stripped her and committed ’bad’ act with her. She was threatened by the appel lant that if she makes halla, she would be thrown into the river.
Legal Reasoning
7. She returned home and reported the matter to her mother. There w as bleeding from her private part. Her father also came to know about the same a nd he reported the matter to the police. On the next day, she was examined by a doctor. She also made statement before the learned Magistrate about the said inc ident. The learned Magistrate recorded the statement of the victim girl. The vi ctim girl in her cross examination stated as under:- (cid:28)My name is (name withheld). I read at Kathalguri L.P.School. I read in Class-I. My father’s name is Sri Mohon Patnayak. I have come here with my parents . I us ed to call Sushil (appellant) as grand pa. I used to visit his house on earlier occasions. Grand pa used to love me. On the date of occurrence Sushil loved me. On the date of occurrence Sushil did not commit any ’bad’ deed. He embraced me out of love. Except this, Grand pa did not do bad deed. (cid:29) 8. The Medical Officer who examined the victim girl was examined as PW 5. She testified that she examined the victim girl on police requisition and prepared a medical report, Ext.2. She also proved her signature, Ext. 2(I). As per the aforesaid medical report, her findings are as follows: (cid:28)Height : 110 C.M. Weight Build : 19 K.G. : Average Identification mark : Black mole in the left forearm. No secondary sex characters Teeth 13/13 Eruption of one incison parment teeth Abdomen Vagina : No signs of violence seen. : No signs of violence seen. Hymen In tact. Vaginal smear X-Ray (Y-90) : Shows no spermatozoa : A.P. and lateral view of left wrist on d Opinion And elbow joint shows ossificati Is not completed the bones aroun Left wrist and elbow Joint. From the physical and radiological findings, the age of the girl is below 16 years. Regarding rape there is no evidence of intercourse. I examined the girl on 16.8.07 at 12-30 P.M. If after such a sexual intercourse the victim girl passes urine or takes and bath (cid:29). 9. The Medical Officer, PW 5, confirmed her aforesaid findings. The victim girl, according to the medical report,is below 16 years. She found no si gn of violence on abdomen of the girl. She also found the hymen of the girl inta ct. This medical report confirms the statement of the victim girl in cross exami nation that the appellant did not commit rape on her. 10. In view of the above evidence on record, I do not agree with the findings of the learned trial court that the appellant committed rape on the vi ctim girl. The learned trial court failed to appreciate properly the evidence o f the victim girl who herself clearly stated in her cross examination that no ba d deed was committed by the appellant. 11.
Decision
In view of the above, the judgment and order awarding conviction and sentence is liable to be set aside and quashed. It is accordingly set aside and quashed. The appellant stands acquitted. He be set at liberty forthwith, if his further detention is not required in connection with any other case. 12. of. 13. The criminal appeal is accordingly stands allowed and disposed Send down the LCR forthwith.