High Court
Case Details
Crl.A. 5/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
Heard Mr. M. Choudhury, learned counsel for the accused-appellant. Also heard Mr. Z. Kamar, learned PP, Assam. I have also considered the entire materia ls on record. 2. This appeal is directed against the judgement and conviction dated 10.12 .2009 passed by the learned Sessions Judge, Sonitpur in Sessions Case No. 123/20 04, convicting the accused-appellant under Section 376(1) IPC and sentencing him to undergo RI for 7 years with fine of Rs. 3,000/- and in default to undergo RI for further 3 months. The accused-appellant has also been convicted under Secti on 457 IPC to undergo RI for 1 year with a fine of Rs. 1,000/- and default to fu rther undergo RI for one month. 3. Tezpur PS case No. 272/2004 was registered under Section 457/376/326 IPC on the basis of Ext.1 FIR lodged by the husband of the victim to the effect tha t on 5.5.2004, taking advantage of his absence in his house, the accused-appella nt broke open the door and by entering into the room in which his wife was sleep ing, tied her hands and committed rape and also made her to drink something like medicine, as a result of which she became senseless. In due course investigatio n was carried out by the police and charge sheet having been filed, the learned trial Court in consideration of the same, framed charge under Section 376 IPC ag ainst the accused-appellant. 4. During trial, the prosecution examined 9 witnesses including the IOs and the Medical Officer. It will be pertinent to mention here that while the FIR wa s lodged on 6.5.2004, the statement of the victim under Section 164 Cr.P.C. was recorded on 10.5.2004. In her 164 Cr.P.C. statement, the victim did not say anyt hing about the commission of the offence on her, punishable under Section 376 IP C. Her only statement was the accused-appellant entered into her house on 5.5.20 04 and gagging her mouth also tied her hands from behind. Thereafter, she was ma de to drink something and she became senseless. In her said testimony, she also stated that her wearing clothes were missing. Her children put the clothes back. In the said statement, she also stated about the surgery / operation on her bod y about few days back. 5. The learned Sessions Judge has convicted the accused-appellant on the ba sis of the evidence adduced by the victim as PW-4. In her testimony, contrary to what she had stated in her statement under Section 164 Cr.P.C., she deposed tha t the accused had entered into her residence by opening the bamboo door. At that time, she was taking dinner. She in her deposition stated that the accused-appe llant after entering into the house, muffled her mouth with his hands. Thereafte r with the help of the Saree she was wearing, tied her hands. She further narrat ed in her testimony that the accused poured some liquid from a bottle in her mou th and thereafter committed rape on her. Further statement of the victim is to t he effect that because of intake of liquid, she became senseless and in that sit uation the accused-appellant could commit rape on her. 5. PW-3 is the husband of the victim who had lodged the FIR. In his evidenc e, he stated about entering into their residence by the accused-appellant and co mmitting rape on his wife. In the cross examination, it was stated by him that t hey had 3 (three) children at the relevant point of time. Significantly, in his cross examination, he admitted about a fight with the accused-appellant in which he was given a blow on his nose by the appellant. Mr. Choudhury, learned counse l for the appellant submits that because of the said enmity, the FIR was lodged falsely to teach a lesson to the accused-appellant. 6. At this stage, it will be appropriate to refer to the cross examination of the respondent No.4, in which it was stated by her that her three children w ere present in the house and that the accused-appellant committed rape on her on the floor of the kitchen itself. Developing the story made out in the FIR ; und er Section 164 Cr.P.C. and also in the examination-in-chief, she in her cross ex amination stated that her children had raised hue and cry and that she could not shout because her mouth was closed by the accused-appellant with his hands. PW- 4 and 6 are two independent witnesses, who in their deposition stated that the v ictim was under severe intoxication of liquor and that the victim had disclosed before them that she took liquor with the accused-appellant in the previous nigh t in absence of her husband. They also stated that she did not disclose anything to them about the alleged offence committed by the accused-appellant. 7. PW-2 is the doctor who had examined the victim, who in his deposition pr oved the medical opinion rendered by him. As per the said medical opinion, there was no mark of violence on the private parts of the victim. As regards the inju ry sustained by her in her left elbow, it was opined that the injury could be du e to falling on hard substance. The Investigating Office i.e. PW-8 in his deposi tion generally stated about the investigation that was conducted. 8. It is on the basis of the aforesaid evidence, the accused appellant has been convicted under Section 376 IPC. As could be seen from the evidence discuss ed above, at the first instance in the FIR, it was alleged that the victim was r aped by the accused-appellant by breaking open the door. However, in her stateme nt under Section 164 Cr.P.C., victim did not say anything of this sort except st ating that the accused-appellant had entered into her house and tied her hands a nd also undressed her. On the other hand, in his deposition, she made further de velopment to the said story. However, in the cross examination, she admitted tha t her 3 children were with her and that at the time of occurrence, she was takin g dinner. There is no explanation as to why inspite of the hue and cry raised by her children, nobody came to her rescue. If the aforesaid evidence of the victi m is considered in reference to the evidence adduced by PW-5 and 6, what is seen is that the victim was under severe intoxication of liquor. As disclosed by he r, she took liquor along with the accused-appellant in absence of her husband. S he also did not disclose anything to them about the alleged incident. 9. In view of the above contradictions and in absence of any sound corrobor ating evidence to sustain the prosecution case so as to convict the accused appe llant under Section 376 IPC, I am of the considered opinion that the accused-app ellant is entitled to the benefit of doubt. In view of the above, appeal succeeds and the impugned judgement of conv 10. iction stands set aside and quashed, so far as the conviction of the accused app ellant under Section 376 is concerned. However, his conviction under Section 457 IPC shall remain. The accused-appellant being in custody since the date of the judgement dated 10.12.2009, he has already undergone sentence prescribed for the offence under Section 457 IPC, as has been awarded by the learned trial Court.
Decision
11. In view of the above, the appeal partly succeeds. The accused appellant shall be released forthwith if not required in connection with any other case. T he Registry shall send down the LCR immediately along with copy of this judgemen t and order.