High Court
Case Details
Crl.A. 46/2009 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY This appeal is directed against the Judgment and Order dated 21.2.2009 p assed by the learned Addl. Sessions Judge, FTC, Kamrup, Guwahati, in Sessions Ca se No.166(K)/2006, whereby the appellant was convicted under Section 376 of IPC and was sentenced to undergo R.I. for 7 years and also to pay fine of Rs.500/-, in default, to undergo further R.I. for 6 months. 2) lows:
Legal Reasoning
Brief facts leading to filing this appeal, may be stated, as fol The first informant, on 21.09.05, lodged an FIR before the Officer-in-Ch arge, Hajo Police Station alleging that on 15.9.05 at about 11-30 AM, taking adv antage of absence of other family members in the house, accused-appellant came t o the house and forcibly dragged her deaf and dumb daughter, the victim, out of the house and had sexual intercourse with her against her consent. The victim i nformed the incident to her mother when she came back. An effort was made for se ttlement of the matter in village ’Bihchar’, for which there was delay in lodgin g the ejahar. 3) The FIR having been registered, investigation was launched and on completion of the investigation, chargesheet was submitted by the I.O. of the case, against the accused-appellant. The case was committed to the Court of Se ssions for trial, wherein the learned Sessions Judge framed charge u/s 376 of IP C against the accused-appellant. On reading over and explaining the charge, the accused pleaded not guilty and claimed to be tried. The trial commenced and as many as 7 witnesses were examined by the prosecution. 4) On completion of the recording of the prosecution witnesses, the statement of the accused under Section 313 of CrPC, was recorded. The accused took the plea of total denial. It is deposed by the accused that he had a land dispute with the maternal uncle of the victim and as such he was falsely implica ted and the case was filed against him for taking revenge. 5)
Legal Reasoning
I have heard Mr. SKN Mohammad, learned counsel for the appellant and Mr. D. Das, learned Addl. PP for the State. 6) Learned counsel for the appellant submitted that in the instant case the prosecution has miserably failed to proof the charge against the appell ant and the appellant was falsely implicated in the offence for personal grudge. Accordingly, the appellant is entitled to acquittal from the charge in the case . 7) On the other hand, learned Addl. Public Prosecutor for the respo ndent/State has vehemently submitted that the prosecution has proved the charge against the accused-appellant beyond all reasonable doubt and the impugned Judgm ent and Order of the learned trial Court warrants no interference of this Court. 8) In order to appreciate the submissions made on behalf of the bot h the parties, I would like to extract the core of the prosecution evidence here -in-below: 9) The victim, PW.3, in her statement before the Court (through exp ert interpreter being a deaf and dumb person) deposed that on the date of occurr ence, when she went to nearby hill to collect fire-wood, the accused forcibly dr agged her to a place under a tree and undressed her by gagging her mouth and rap ed on her. However, PW.3 admitted in her deposition that there was no eye-witne ss to the occurrence. 10) The informant, PW.1, deposed that one day she found her daughter (the victim) weeping in the house, on query, victim narrated her through signs and gestures, about the story of commission of rape upon her by the accused. The victim also showed signs of blood and mud over her cloth to PW.1. PW.1 stated that thereafter, she along with the victim and PW.4 went the house of the accuse d but the accused was not present and the matter was reported to the parents of the accused. 11) PW.4, Afia Begum, deposed that on her query, the victim reported her through signs and gestures about the commission of rape on her by the accus ed. The victim by pointing to her private parts told that she was raped and impl icated the accused for the commission of rape. There was no evidence of enmity of this witness with the accused. 12) PW.5, deposed that on the relevant day, at about 8-00 PM, when h e came to know that he was called twice to attend a ’Bichar’, he rushed there fo und that the meeting had concluded. PW.5 stated about the admission of the accus ed in the ’Bichar’ for the alleged commission of offence. It is clear from the evidence of PW.5 that there was a ’Bichar’ on the allegation of commission of ra pe against the accused. 13. In the trial, the defence relied on the decisions of Devinder Si ngh v. State of Himachal Pradesh, reported in (2003) 11 SCC 488, Yerumalla Latc haiah v. State of A.P. reported in (2006) 9 SCC 713 and Sadashive Ramrao Hadbe v. State of Maharasthra reported in (2006) 10 SCC 92. The Devinder Singh (supra) dealt with non-holding of TIP in a rape case. Admittedly, in the present case the parties were known to each other and the alleged occurrence took place durin g day time. The Yreumalla (supra) was a case of rape upon an 8 year girl and th e doctor, who examined the victim immediately after the alleged occurrence, did not find any sign of rape. Sadashive Ramrao (supra), was a case of rape in a cli nic by a doctor. The facts and circumstance of none of the above three cases we re, in no way, related to the present case. 14. The accused was evading arrest for quite some time. This conduc t of the accused was a relevant fact as per Section 8 of the Evidence Act. Whil e disposing before the Court, the Investigating Officer (PW.7) stated that he co uld not arrest the accused, till the time investigation of the case was proceedi ng. This part of the evidence of PW.7, remained completely unchallenged. 15. Another point was the question of consent of the victim for sexu al intercourse. To constitute rape, a sexual intercourse had to be against the c onsent of the prosecutrix. There was no indication on record that the victim ev er consented for the alleged sexual intercourse. It has also to be born in mind that after the enactment of Section 114A of the Evidence Act, there was substan tial change in the requirement of proof in a trial of offence of rape, so far as the absence of consent is concerned. The description of the incident given by t he victim was a clear-cut pointer to the fact that she did not given consent for sexual intercourse. Once, the absence of consent was presumed under Section 11 4 A of the Evidence Act, the burden shifted upon the defence to show that there was consent on the part of the victim. No such element was sought to be proved by the defence nor there was anything on record to suggest that the victim ever consented for the sexual intercourse with the accused. 16) During his examination u/s 313 of CrPC, the accused stated that because of his land dispute with the maternal uncle of the victim, the FIR was f alsely instituted implicating the petitioner for the commission of the offence o f rape. In consideration of total absence of any evidence in that regard, this plea of the defence, did not appear to deserve any consideration of this Court. 17) After a careful analysis of the evidence on record and upon hear ing learned counsel for the parties, I do not find that the Judgment and Order d ated 21.2.2009 passed by the learned Addl. District and Sessions Judge, FTC, Ka mrup, Guwahati, warrants any interference in this appeal. 18) s dismissed. Consequently, this appeal filed on behalf of the appellant stand 19) Send back the LCR forthwith.