High Court
Case Details
CRL.A(J) 4/2008 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R(ORAL)
Legal Reasoning
Heard Ms. A. Ajitsaria, learned Amicus Curiae and Mr. D.Das, learned A ddl. Public Prosecutor appearing for the respondent State. 2. This appeal from jail has been preferred against judgment and order date d 7.11.2007 passed by the learned Additional Sessions Judge( FTC), Dibrugarh in Sessions Case No.244/2006 under Section 376(2)(f) IPC and sentencing the appella nt to undergo rigorous imprisonment (RI) for 10 years and to pay fine of Rs.2,00 0/- , in default, to undergo further R.I. for one month. Prosecution case in brief is that one Sri Budhu Munda , son of Late Bir 3. uwa Munda of Dilli Tea Estate lodged an FIR before Namrup Police Station on 3 .3.2005 alleging that in the evening of 23.2.2005, while his daughter (PW 2), aged about 7 years, went for tuition to the residence of the accused, he commit ted rape on her. On the basis of the said FIR, Namrup P.S.Case No.20/2005 under Section 376(2)(f) IPC was registered. Appellant, who was named as an accused, w as arrested on 4.3.2005. Police investigated the case and after completion of investigation submitted charge-sheet against the accused under the aforesaid pro vision of law. Case being Sessions triable, it was committed to the Court of S essions. Learned trial Court framed charge against the accused under Section 376 (2)(f) IPC. When the same was read over and explained to the accused, he pleaded not guilty and claimed to be tried. 4. To prove the charge against the accused, prosecution examined as many as six witnesses, including the prosecutrix. Though the defence did not adduce any evidence, statement of the accused was recorded under Section 313 Cr.P.C. Defe nce plea was of total denial. 5. At the end of the trial, learned Court below came to the conclusion that at the time of occurrence, prosecutrix was below 12 years of age. After consi dering the evidence and other materials on record, learned Court below held that prosecution was successful in proving the case against the accused under Sect ion 376(2)(f) IPC and convicted the accused accordingly. Learned Court below se ntenced the accused for the period as indicated above. Ms. A.Ajitsaria, learned Amicus Curiae fairly submits that in view of ev 6. idence of both the prosecutrix and that of the doctor who examined her, findin g of the learned Court below appears to be justified. 7. Mr. Das, learned Addl. Public Prosecutor submits that the evidence on record clearly establishes the guilt of the accused. The victim being less tha n 12 years of age, the offence is covered under section 376(2)(f) IPC and, accor dingly, would attract the minimum sentence of 10 years, which has been imposed in the present case. 8. been requisitioned, have also been perused. Submissions made have been considered. The original records, which have 9. PW 2, who is the victim clearly stated that she was a student of Class II. Accused was known to her as he was the neighbour. She used to visit the r esidence of the accused as he used to help her in her studies. On the fateful night, accused told her to stay back. Being a neighbour and having known him fo r quite some time, prosecutrix on good faith stayed back. She stated that accus ed had sexual intercourse with her and when she resisted and raised hue and cr y, her mouth was gagged. In the morning, she came back to her house and went t o school where she felt pain in her private parts. After taking leave from the school authority, she came back home and told her mother about the incident. 10. pital where she was medically examined. Mother of prosecutrix is PW 3. She had taken the prosecutrix to the hos 11. PW 1 is the father of the victim who lodged the FIR. 12. PW 6 is the doctor who had examined the victim. Following medical examin ation, he gave his opinion that though there was no evidence of recent sexual i ntercourse, but examination of the genital of the victim suggested forceful vagi nal penetration. As per medical opinion, age of the victim was between 6 to 8 ye ars. 13. Thus, it can be seen that the testimony of the victim was corroborated by the medical evidence though strictly speaking, no such corroboration is requ ired if the Court finds testimony of the victim to be reliable and inspires t he confidence of the Court. 14. In the present case, victim was a child of less than 12 years of age. At such a tender age, there is no reason to believe that a child will falsely im plicate a person. A perusal of her evidence would indicate that the victim dep osed truly and there is no reason to disbelieve her evidence, more so, in the li ght of the medical evidence. In such circumstances, the Court finds no good gr ound to interfere with the finding of the learned trial Court convicting the app ellant under Section 376(2)(f) IPC. Section 376(2)(f) provides that whoever commits rape on a women when s 15. he is under 12 years of age, shall be punished with RI for a term which shall n ot be less than ten years but which may be for life and shall also be liable fo r fine. However, Court may for adequate and special reasons to be mentioned in the judgment , impose a lesser sentence. 16. In the facts of the present case, the Court finds no adequate and specia l reason to impose a sentence lesser than the minimum sentence which has been i mposed on the appellant. 17. For all the aforesaid reasons, the Court finds no merit in the appeal, wh ich is accordingly dismissed. 18. Registry to send down the LCR. 18. Before parting with the record, the Court would like to place on record its appreciation for the assistance rendered by the learned Amicus Curiae, who shall be paid fee as per the standing guidelines.