High Court
Case Details
Crl.A. 2/2009 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mr. M. P. Choudhury, learned counsel for the petitioner an d Mr. D. Das, learned Additional Public Prosecutor, Assam for the respondent Sta te. This appeal is directed against the judgment and order dated 27. 2. 10.2008 passed by the learned Additional Sessions Judge (FTC) No. 2, Kamrup, Guw ahati in Sessions Case No. 277(K)/2005 convicting the appellant under Section 35 4 IPC and sentencing him to undergo Rigorous Imprisonment (RI) for 2 (two) years . 3.
Legal Reasoning
Facts of the case may be briefly noted. 4. On 02.07.2003 an ejahar was lodged by PW 1 alleging that on the night of 25.06.2003 at about 8:00 p.m. while she was alone at home and sleeping, accused (appellant herein) unauthorizedly entered into the house with a knife. Accused embraced her and committed rape on her. When she screamed, accused threa tened to kill her. Later on, when her parents returned home, she told them about the incident. Her parents informed the villagers about the incident, who assure d to settle the matter. But as nothing came out, she had to file the ejahar befo re the Rangia police station. The first information was registered as FIR and on the basis of the same, Rangia Police Station Case No. 248/2003 was registered u nder Section 448/376/506 IPC. 5. Police investigated the case. The victim girl was medically exam ined and her statement was also recorded under Section 164 Cr.PC. On conclusion of investigation, charge-sheet was submitted against the accused under Section 4 48/376/506 IPC. 6. Case was committed to the Court of Sessions for trial as it was a sessions triable case. Charge under Section 376 IPC was framed against the acc used and when it was read over and explained to him, he pleaded not guilty and c laimed to be tried. To prove the charge against the accused, prosecution examine d as many as seven witnesses. Defence also examined two witnesses. Defence plea was that brother of the victim girl had borrowed an amount of Rs.7000/- from the accused. Because the accused was insisting for repayment of the said amount, in formant falsely implicated the accused. Accused was also examined under Section 313 Cr.PC. The learned trial Court on perusal of the materials on record fo 7. und that there were no materials to hold the accused guilty for commission of an offence of rape under Section 376 IPC. But the materials on record conclusively proved commission of an offence under Section 354 IPC by the accused. He was ac cordingly convicted and sentenced as indicated above.
Legal Reasoning
8. Learned counsel for the appellant submits that the question of f alse implication of the accused by the informant was not considered by the learn ed trial Court in the proper prospective which has resulted in the conviction of the appellant. He also submits that the plea of alibi raised by the defence was also not gone into by the learned trial Court adequately. He submits that there was considerable delay in lodging of the ejahar, which indicates that there wer e other factors at play, which were not given due consideration by the learned t rial Court. In support of his submissions, learned counsel for the appellant has placed reliance on the following decisions:- 1. 2. (2005) 9 SCC 45 (Pandurang Sitaram Bhagwat Vs. State of Maharashtra). (2007) 2 SCC 170 (Ramdas and Ors. Vs. State of Maharashtra). 3. 2012 (2) GLT 1014 (Abdul Aziz Vs. State of Assam). Opposing the submissions made by the learned counsel for the app 9. ellant, Mr. Das learned Addl. PP submits that there is no reason to disbelieve t he statement of the prosecutrix. In her evidence, she had clearly stated that th e accused attempted to molest her and when she raised hue and cry the accused ra n away. The matter was taken to village (cid:28)Mel (cid:29) but as nothing came out of it, she lodged the ejahar. He submits that the learned trial Court found no difficulty in accepting the prosecution version. He, therefore, prays for dismissal of the appeal. 10. 11. Submissions made have been considered. Before proceeding further, the evidence adduced by the witnesses may be briefly examined. 12. PW 1 is the victim girl. She stated that on 25.06.2003 at about 8:00 p.m. she was sleeping in her parental home while her parents were absent. A ccused entered into their house and embraced her while she was sleeping. He atte mpted to molest her. When she screamed, the accused ran away. Her sister-in-law, who was present in the house at that time was cooking. She came out when she he ard PW1 screaming. When her parents returned home, PW1 informed them about the i ncident. Her parents informed the villagers, who convened a meeting, locally cal led village (cid:28)Mel (cid:29). As nothing fruitful came out of it, PW1 as the informant lodg ed the ejahar. In her cross-examination, she stated that the accused was not suc cessful in having intercourse with her. She also denied the suggestion put forwa rd by the defence that as the accused was insisting on repayment of the loan tak en by her brother, she had falsely implicated the accused. 13. PW2 is the mother of PW1. She stated that she and her husband we re not present at home at the time of occurrence. When they returned home, they found their daughter (PW1) weeping and told them about the incident. PW2 also st ated about the village (cid:28)Mel (cid:29). As the accused did not attend the village (cid:28)Mel (cid:29), t he village people advised them to lodge the FIR. Accordingly, PW1 lodged the FIR . In her cross-examination, she stated that the accused used to visit their hous e. 14. PW 3 is the sister-in-law of PW1. She stated that on the day of occurrence, PW1 and herself were present in the house and there was no male memb er. She stated that her in laws were not present at the time of occurrence. She was busy cooking when she heard PW1 screaming. When she came out and met her, PW 1 told her that accused had committed rape on her. After the parents returned ho me, they were informed about the incident and thereafter the matter was taken to the village (cid:28)Mel (cid:29). But as the villagers could not do anything, PW1 lodged the e jahar. 15. PW 4 is a person from the village where both PW1 and the accused resided. He deposed that he knew both PW1 and the accused. Though the village (cid:28) Mel (cid:29) took place regarding the incident, the matter could not be settled. Even af ter filing of the case, there was another village (cid:28)Mel (cid:29) in which accused agreed to abide by the decision of the (cid:28)Mel (cid:29) and he agreed to bear the cost of marriage of PW1. On cross-examination, he stated that accused is his nephew. 16. as PW 5 is the police officer, who submitted the charge sheet. PW 7 is the police officer, who had investigated the case, where Dr. B. C. Roymedhi, the medical expert deposed as PW6. As per me 17. dical evidence, there was no evidence of recent sexual intercourse. There was al so no evidence of any violence or injury mark on the private parts of the victim girl. 18. The two defence witnesses i.e. DW1 and DW2 stated that Chand Mah ammad, (brother of PW 1) was to re-pay an amount of Rs. 7000/- to the accused an d in this connection an altercation took place on the date of occurrence at abou t 4.00 p.m. Thereafter, accused went to Rangia from where he left for Dhekiajuli . 19. From a conjoint reading of the evidence on record it transpires that after the occurrence, the family of PW 1 took the matter to the local villa gers. Village (cid:28)Mel (cid:29) (meeting of villagers) was held to decide the matter. This i s a normal practice in the villages. When it became clear that no positive outco me was possible, the family members decided to lodge the ejahar. It was thereaft er that PW1 as the informant lodged the ejahar. The date of occurrence is 25.06. 2003 and the date of filing of the FIR is 02.07.2003. Thus there was a delay of eight days. The fact that a village meeting was held has come on record through all the witnesses. Because of low literacy levels and people being generally un informed of the legal procedure, it is a common practice in the villages that su ch matters are taken first to the village elders for a decision. This was done i n the present case also. This is a normal course of conduct. 20. Delay in lodging of first information is not necessarily fatal i n all cases as pointed out by the Apex Court in Ramdas and Ors. (supra). It has to be considered in the given facts and circumstances of each case. It is a matt er of appreciation of evidence. The Apex Court observed that in a case relating to sexual offence, there is a further consideration which may weigh in the mind of the Court i.e. initial hesitation of the victim to report the matter to the p olice which may affect her own as well as her family’s reputation. Therefore, de lay in lodging of first information by itself may not be fatal to the case of th e prosecution. As already noticed above, in the present case, the family members of the victim girl had taken the matter to the village (cid:28)Mel (cid:29) at the first insta nce and only after finding that no useful purpose was coming out of it, the ejah ar was lodged. 21. Therefore, the Court is of the view that the delay in lodging th e ejahar in the present case has been explained and it does not affect the prose cution case in any material manner. 22. Coming to the question of alibi, the learned trial Court had rej ected the said plea on the ground that it was raised for the first time at the t ime of defence evidence. Regarding the plea of false implication, learned trial Court on a perusal of the evidence on record came to the conclusion that evidenc e of both DW1 and DW2 are contradictory and it was not believable that a young w oman of 20 years would concoct such a story against the accused to expose hersel f to public humiliation. 23. PW1 in her own evidence clearly stated that while she was asleep , the accused attempted to molest her. There is no exaggeration in her evidence. She deposed that she had informed her parents when they came back home and ther eafter also the villagers in the village (cid:28)Mel (cid:29). PW 4, who is the uncle of the ac cused, also deposed that there were two rounds of village (cid:28)Mel (cid:29), the second one after lodging of the FIR. He was categorical in his statement that accused had s tated that he would abide by the decision of the village (cid:28)Mel (cid:29) and agreed to bea r the cost of marriage of PW 1. 24. There is no reason to disbelieve the evidence of PW1. Though the re are some discrepancies in the evidence of the prosecution witnesses, the Cour t is of the view that such discrepancies are only natural and do not strike at t he root of the prosecution case. As the learned trial Court has rightly pointed out, it is unbelievable that a young woman of 20 years will repeatedly tell a li e, first to her parents and then to the whole village that accused had outraged her modesty. In such circumstances, this Court finds no good ground to interfere with the conviction of the accused under Section 354 IPC, which is accordingly upheld. 25. Coming to the sentence imposed on the accused, Section 354 IPC p rovides that whoever assaults or use criminal force on any woman with intent to outrage her modesty, he shall be punished with imprisonment of either descriptio n for a term which may extend to two years or with fine or with both. 26. It is seen that the accused was a young man of 28 years at the t ime of occurrence and was quite well known to the family of PW1. The record also does not indicate any past instance of involvement of the accused in any crimin al activity. The record further discloses that the accused was in custody for a period of 49 days from 08.08.2005 to 06.10.2005. Learned trial Court had impose d the maximum sentence of two years as provided by the statute but did not impos e any fine. Considering the above, the Court is of the view that it will meet th e ends of justice if the sentence of imprisonment imposed on the appellant is mo dified to the period already undergone and if additionally, fine is imposed. Therefore, on a totality of the facts and circumstances of the c 27. ase, this Court while upholding the conviction of the accused under Section 354 IPC, modifies the sentence imposed to the period already undergone with impositi on of fine of Rs.2000/-, failing which appellant shall suffer further RI for 15 (fifteen) days. 28. 29. 30.
Decision
Appeal is accordingly disposed of. No cost. Registry to send down the LCR forthwith.