High Court
Case Details
Crl.A. 207/2009 BEFORE HON’BLE MR JUSTICE P.K. SAIKIA This appeal is directed against the judgment and order dated 29.08.2009 passed b y District & Sessions Judge Barpeta, in Sessions case No. 173/207 convicting the accused appellant under Section 457 /376 I.P.C. and sentencing him to suffer R. I. for six years and a fine of Rs. 5,000/- in default S.I for six months; senten cing him to suffer R.I. for 3 years and a fine of 1,000/- in default SI for one month for offence under Section 376/457 IPC respectively. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the Sh ri Bhabesh Kalita, accused appellant, who would be referred to hereinafter as ac cused person, has preferred this appeal on the grounds, stated in the memo of ap peal.
Legal Reasoning
3. The brief facts necessary for disposal of the present proceeding are tha t on 18.06.2007, one Dhruba Kalita, said to be the husband of the victim herein, went to Patacharkuchi Police Station and lodged an FIR to the fact that on 07.0 6.2007 at about 11.30 P.M the accused Bhabesh Kalita taking advantage of the abs ence of the informant and other adult family members in his house, entered there into by breaking open the doors of his house and had sex with his wife against her will. 4. It has been stated that the prosecutrix is said to be a dumb woman. Afte r some days, when her husband came home, she reported the matter to her husband. On being so informed about the incident aforesaid, the husband of the prosecutr ix lodged the FIR as stated above to the police on 18.06.2007. On the receipt of the FIR, police registered a case vide Patacharkuchi P 5. .S. Case No. 124/07 and ordered investigation. The officer who was asked to inve stigate the case examined the witnesses, had the victim examined by doctor, did other needful and on the closure of the investigation, he submitted a charge-she et under Section 457/376 IPC against the accused person and forwarded him to the Court to stand his trial for the offence aforesaid. 6. The Magistrate before whom the charge-sheet was so laid, committed the c ase to the Court of Sessions, Barpeta since the offence under Section 376 IPC is exclusively triable by the Court of Sessions. When the accused was produced bef ore the Court, learned Sessions Judge, upon hearing both the sides and on the pe rusal of record, framed charges U/S 457/376 I.P.C against the accused person an d the charges, so framed, on being read over and explained to the accused person , he pleaded not guilty and claimed to be tried 7. During trial, the prosecution side has examined as many as 11 witnesses including the prosecutrix, Medical Officer as well as the victim. The statement of the accused person under Section 313 CrPC was recorded. The accused plea was of total denial. On completion of the trial and on hearing the arguments, advan ced by the learned counsel for the parties, the learned Sessions Judge convicted the accused of offence under Section 376/457 IPC and sentenced him to punishmen t as aforesaid. It is that judgment which has been assailed in the present appea l on grounds more than one. 8. Opening up argument on behalf of the accused/appellant, learned counsel for the appellant, it has also been stated that the judgment rendered by trial C ourt is unsustainable in law since it is riddled with very many serious infirm ities. According to him, there was several days delay in lodging the case and su ch delay remained totally unexplained. 9. Secondly, the evidence of the prosecutrix cannot be acted upon since her behaviour during the time under consideration is found to be extremely unnatura l and it ran counter to the normal human behaviour. There is evidence on record that on the night in question her sons were also sleeping with her when the accu sed allegedly committed rape on her. How, the accused could commit rape on her d espite her sons being with her remains totally unexplained. This casts a doubt o n the entire prosecution case. 10. It has been pointed out that it is extremely doubtful if on the night in question the prosecutrix could identify the miscreant who reportedly committed rape on her. Though the learned trial Court has placed enormous reliance on the testimony of the mother-in-law of the prosecutrix who was examined as PW 2 yet h er evidence which she rendered in her cross-examination clearly reveals that she is not at all reliable witness. 11. It has also been stated that on the very vital evidence namely, Smti. Hi mani Kalita, a resident of the locality in which both the accused and prosecu trix reside was not examined although the testimony of PW9 reveals that she had communicated very well with the sign language of the prosecutrix just after the alleged incident. So, she could have thrown enough light on the matter of the co nsideration. But said witness was not examined. Nor any reason was assigned for her non-examination. 12. Another allegation against the prosecution case was that seized wearing apparels of the prosecutrix which had enormous implications on the matter under consideration, were not identified through the prosecutrix. Rather it was identi fied through one PW6 who cannot have any important information on those seized a rticles.
Legal Reasoning
13. For all those reasons, the learned counsel for the appellant urges this Court to set aside the judgment under challenge and to acquit the accused/appell ant of the offence of which he was held guilty, convicted of and sentenced to pu nishment as aforesaid. On the other hand, Mrs A. Begum, the learned Addl. Public Prosecutor, As 14. sam has submitted that the learned trial Court has founded its judgment on clear , cogent and consistent evidence of PWs which inspires confidence and as such, t he judgment rendered on such evidence assigning grounds for acting on such evide nce cannot be interfered with as prayed for by the learned counsel for the appel lant. 15. The learned Addl. Public Prosecutor, Assam therefore, submits this Court to dismiss the appeal on affirming the judgment rendered by Trial Court. I have very carefully considered the arguments, advanced by the learned counsel for th e parties having regard to the evidence on record. 16. I have very carefully perused the evidence of witnesses, more particular ly PW 1, PW 2, PW 3, PW 4, PW 5 & PW 9. On a careful perusal of the evidence of those witnesses, I have found that incident in question occurred well inside the house of the prosecutrix on a night when husband of the prosecutrix and her mot her-in-law were not there in their house. It is also evident from the record tha t the prosecutrix is almost a dumb woman having huge difficulties in communicati ng with the people. On the night in question, a miscreant allegedly entered the house of the prosecutrix and had sex with her against her will having laid her o n the floor. 17. It is also in evidence that soon after the incident, a good number of th e people assembled at the place of occurrence and victim conveyed to them by ges ture and sign that one fat man had raped her in her house by entering her house by breaking open the doors thereof. But if we believe the testimony of the PW2 and PW4, then there were certain amounts of doubt about the identity of the misc reant as disclosed to the people gathered there by the victim through her sign l anguage. 18. In this context, it may be stated that that though enormous amount relia nce was placed on the testimony of the PW2 , mother in law of the prosecutrix , yet, such reliance is found not wholly justified, since, she , in her cross exam ination, had clearly stated that night in question was dark night ,that before her arrival at the place of occurrence , several other people had come thereto and that due to her old age , her eye sight had diminished to a great extent mak ing it difficult for her to recognise the thing at night , particularly on dark night. The evidence so rendered by the PW 2 becomes crucial since none of the pe ople gathered there after the incident in question uttered any word about their seeing the accused at the place of occurrence just after the alleged incident. 19. On scrutinising evidence more and more, I have found that the victim had close intimacy with one Smti Himani Kalita who came to the place of occurrence moments after alleged incident and had very intimate discussion with the victim through the sign language which former was well acquainted with. Said Himani Kal ita was believed to have fair knowledge as to miscreant who allegedly entered in to the house of the prosecutrix and reportedly committed rape on her. The eviden ce of the PW 5 has made that position clear. 20. In the face of above discussion, I am of the opinion that in order to th row more light on the identity of the miscreant who allegedly entered into house of the prosecutrix on the night on question, said Himani Kalita was to have bee n examined as court witness since neither the prosecution nor the defence had ex amined such a vital person as their witnesses. I, therefore, find it necessary t o set aside judgement of the trial court and to remand the case to the trial cou rt with a direction to call said Himani Kalita as court witness and examine her as above. 21. Resultantly, the appeal is allowed and the judgment, impugned in this ap peal, is set aside and case is remanded to the trial court with a direction to c all Smt. Himani Kalita of Kahar Para under Patcharkuchi Police Station as court witness and to examine her as above and thereafter, proceed with the case and di spose it in accordance with law. However, I make it clear that any observation made herein before should 22. not be considered as remark made on merit of the case. The learned trial Court, therefore, on the receipt of the case would proceed with the same in accordance with law without being influenced by any observations made herein before. 23. Return the LCR with the copy of the judgment.