High Court
Case Details
Crl.A. 231/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. B.S. Basumatary, learned counsel for the appellant. Also heard Ms. B. Saikia, learned APP, Assam. I have also perused the entire materials on record. 2. This appeal is directed against the judgement of conviction dated 17.8.2 006 passed by the learned Additional Sessions Judge (Adhoc), Hojai, Sankardev Na gar, in Sessions Case No. 250(N)/2005, by which the accused appellant has been c onvicted under Section 376 and 454 IPC and sentencing him to undergo RI for 7 ye ars with fine of Rs. 2,000/- for the offence under Section 376 IPC and SI for on e year with fine of Rs. 500/- for the offence under Section 454 IPC. In default, to pay the fine, the appellant is to undergo further RI for 30 days and SI for 15 days respectively.
Legal Reasoning
3. The criminal proceeding stood launched against the accused appellant wit h the lodging of the FIR on 19.3.2005 by the PW-1. The FIR was lodged with the H ojai Police Station to the effect that on 16.3.2005 (Wednesday) at about 11 AM, her cousin sister i.e. the victim girl was raped by the accused appellant, takin g advantage of absence of any other persons in the house. According to the FIR, the victim was sleeping at that point of time because of her illness and the acc used appellant entered into the house forcing open the door. As disclosed in th e FIR, the victim girl is a deaf and dumb girl and used to earn her livelihood b y doing household works. As regards the delay in lodging the FIR, it was stated that since the land-lord of the accused appellant had promised for settlement of the matter, there was some delay in lodging the FIR. 4. On the basis of the said FIR, Hojai PS case No. 84/2005 was registered u nder Section 454/376 IPC. In due course, investigation was carried out and the s tatement of the victim girl was recorded under Section 164 Cr.P.C. On conclusion of the investigation, police submitted charge sheet and thereafter the trial Co urt framed the charge under Section 454/376 IPC. During trial, the prosecution e xamined 5(five) witnesses including the victim girl. However, the IO could not b e examined as he was lying seriously ill. The statement of the accused-appellant was also recorded under Section 313 Cr.P.C. 5. The learned trial Court on the basis of the evidence on record, having c onvicted the accused-appellant, he has preferred the instant appeal. Be it state d here that pursuant to the order passed on 03.01.2007 in MC No. 3898/2006, the accused-appellant is on bail.
Legal Reasoning
6. Mr. B.S. Basumatary, learned counsel for the accused-appellant has submi tted that the victim girl being deaf and dumb, the conviction is not sustainable solely on the basis of her testimony. He further submits that there being enmit y between the first informant i.e. PW-1 and the accused-appellant, it will be un fair to convict the accused-appellant on the basis of her story made out in the FIR lodged by the PW-1. Pointing out the purported contradiction between the sta tement of the PW-1 and the PW-5 i.e. the victim girl, he submits that the testim ony of such witness is not sustainable in law. 7. Ms. B. Saikia, learned APP, Assam, on the other hand submits that there is nothing to disbelieve the testimony of the victim girl (PW-5). She submits th at merely because the prosecutrix is a deaf and dumb, her testimony cannot be br ushed aside, more particularly, when her statement was recorded with the help of recognized interpreter of Deaf and Dumb School. I have very carefully considered the submissions made by the learned cou 8. nsel for the parties and have also scrutinized the evidence on record. As stated above, the PW-1 is the first informant with whom the victim girl used to stay. She in her deposition stated that on the date of occurrence, the victim girl was alone in her house, as she had gone to another place for work. On her return to home at about 11 AM, she found the victim girl crying as the door of the house was in open condition and upon entering, she found the accused-appellant over th e victim girl, committing the offence under Section 376 IPC. She in her depositi on also stated that the accused-appellant had applied force on the victim girl. When she tried to get hold of him, he pushed her back and fled away. She further stated in her deposition that all the articles in the room were in scattered co ndition, suggesting that there was struggle between the accused-appellant and th e victim girl. PW-1 further stated in her deposition that the matter was sought to be resolved through village Mel but the same resulted in failure. 9. PW-2 is the co-villager, who in his deposition stated about the incident as was narrated to him by the PW-1. He in his deposition also stated that the v ictim had identified the accused-appellant in his Landlord’s house in his presen ce. PW-3 is the husband of the PW-1, who in his deposition stated about the inci dent as was narrated by PW-1 and the victim girl. PW-4 is the Doctor, who had ex amined the victim, who in his deposition stated that he could not detect any sig n of injury in the private parts of the victim nor on the other parts. Be it sta ted here that the victim was examined on 21.3.2005 i.e. after 5 (five) days of t he date of occurrence. The occurrence took place on 16.3.2005. PW-5 is the most vital witness, who in her deposition categorically stat 10. ed about the offence committed on her by the accused-appellant. As noted above, she was examined through an Interpreter. In her deposition, she stated as to how the accused-appellant forcibly entered into the house and got her cloths remove d towards committing the offence under Section 376 IPC. She in her deposition st ated about the injury she has sustained on her back due to such offence. 11. The learned trial Court on the basis of the aforesaid evidence has convi cted the accused appellant as aforesaid. On perusal of the evidence, what I find is that nothing contradictory could be brought out so as to disbelieve the test imony of PW-5, duly supported by other witnesses. There is nothing to show that there was any enmity between the victim girl and the accused-appellant. As regards the purported enmity between the PW-1 and the accused-appella 12. nt, there is nothing to suggest that the victim girl fell prey to such enmity, I hasten to add that no enmity could be established in the evidence adduced but o nly a suggestion was made to the effect that the whole story was made out becaus e of the alleged enmity. The victim being deaf and dumb girl and she having cate gorically stated about the offence committed on her, her testimony cannot be dis believed. As has been held by the Apex Court in Madhoram Vs. State of UP reporte d in AIR 1973 SC 469, conviction on a charge of rape, even on the un-corroborate d testimony of a prosecutrix is legally valid. 13. In the instant case, apart from the testimony of the victim girl, the sa me has been corroborated by the other witnesses. Above being the position, I do not find any merit in the appeal and it is dismissed. Accordingly, the impugned judgement of conviction stands sustained. The fine that has been imposed by the impugned judgement of conviction shall be paid to the victim girl. 14. The accused-appellant, who is presently on bail, shall now surrender bef ore the learned SDJM, Hojai to serve out the sentence. Needless to say that the sentence that has already been served shall be set off from the sentence to unde rgo. 15. The Registry shall send down the case records immediately along with the copy of the judgement and order. 16. Bail bond stands discharged.