High Court
Case Details
Crl.A. 206/2007 BEFORE THE HON’BLE MR. JUSTICE B.K.SHARMA JUDGMENT AND ORDER (ORAL) This appeal is directed against the judgment of conviction dated 27.9.20 07 passed by the learned Addl. Sessions Judge No.1, Tinsukia in Sessions Case No .174-(T)-2005 arising out of G.R. Case No.72/2005 under Section 376 IPC. By the said judgment, while convicting the accused appellant under Section 376 IPC, he has been imposed with the sentence of 7 (seven) years rigorous imprisonment with fine of Rs.5,000/- and in default, to undergo rigorous imprisonment for another 6 (six) months. 2.
Legal Reasoning
The accused appellant was arrested pursuant to the F.I.R. lodged by the victim on 22.1.2005 with the allegation that on 20.1.2005 at about 12.30 A.M, h e trespassed into her bed room, dragged her to the veranda and committed rape. T hereafter, he fled away from the place of occurrence when the victim raised hue and cry. On receipt of the F.I.R, Kakopathar Police Station Case No.05/2005 was registered under Section 448/376 IPC. In due course, investigation was carried o ut and the charge sheet having been submitted, the learned trial Court proceeded with the matter with the framing of charge under Section 448/376 IPC. 3. During trial, the prosecution examined 9 witnesses. The Court also exam ined 4 witnesses as C.W.1, C.W.2, C.W.3 and C.W.4. The learned trial Court havi ng convicted the accused appellant, he has preferred the instant appeal. 4. c. Case No.3874/2007, the appellant is on bail. Be it stated here that pursuant to the order passed on 14.12.2007 in Mis
Legal Reasoning
5. . I have also heard Mr. Z. Kamar, learned Public Prosecutor, Assam. I have heard Mr. S. Barkataki, learned counsel for the accused appellant 6. Mr. Barkataki, learned counsel for the accused appellant has submitted t hat in view of the contradiction in the testimony of the witnesses, the accused appellant is entitled to the benefit of doubt. He also submits that as per own a dmission of the alleged victim, there was enmity between the victim and the accu sed and accordingly, the whole story was made out by her so as to teach a lesson to the accused appellant. Referring to the evidence on record, he submits that the learned trial Court committed manifest error of law and fact in convicting t he accused appellant. 7. On the other hand, Mr. Z. Kamar, learned Public Prosecutor, Assam submit s that when the victim has stated in her deposition that the accused appellant h ad forcefully entered into her house towards commission of the offence and in fa ct, had committed the offence, there is nothing to disbelieve her evidence. Acco rding to him, the impugned judgment of conviction requires no interference. 8. nsel for the parties and also perused the evidence on record. I have very carefully considered the submissions made by the learned cou 9. As stated above, the prosecution examined 9 witnesses including the doct or and the Investigating Officers. In addition, the Court also examined 4 witnes ses i.e. C.W.1, C.W.2, C.W.3 and C.W.4. The defence did not adduce any evidence, but the statement of the accused was recorded under Section 313 CrPC. The docum ents exhibited are the Medical Report (Ext.4), the Radiological Report, (Ext.2), the F.I.R. (Ext.3), the statement recorded under Section 164 CrPC (Ext.4) and t he Sketch Map (Ext.5). 10. P.W.1 is the doctor, who had examined the victim, who in his medical re port had stated that the injury referred to in his report may or may not be due to sexual assault. Thus, there is no conclusive evidence that there was sexual a ssault on the victim. 11. P.W.2 is the victim, who in her deposition, while narrating the incident allegedly occurred on 20.1.2005 at about 12.30 A.M, stated that she in her hous e was sleeping with her sister-in-law, her son and daughter and two other girls. While she was sleeping after closing the doors, the accused appellant entered i nto the bed room, gagged her mouth and forcefully dragged her to the verandah of the house. According to her statement, on way to the verandah from the room, t he accused appellant raped her. According to her statement, her husband was not at home and after the incident, her sister in law, son and domestic aid, lifted her from the verandah. Seeing them, the accused fled away from the scene. 12. In the cross examination, she categorically admitted that there was enmi ty between the parties i.e. the victim and the accused appellant. At times, the accused tried to kill her. She also stated that the quarrel between them often took place, but she used to excuse him as he was a neighbour. She in the cross e xamination further stated that when the accused appellant removed his hand from her mouth, she did not shout for any help. She also did not inform her sister-in -law but she came to know about the incident later on. She stated that when her sister-in-law called for the domestic help, the accused left the place. 13. P.W.3 is the sister-in-law of the victim, who in her deposition, stated that she was sleeping on the same bed, in which the victim was sleeping along w ith her two sons. She in her deposition, has stated that someone had taken out t he victim from the bed and she could see the door being forcefully opened. She f urther stated that the victim had shouted only for once. Thereafter, she came o ut of the room and found the victim in the verandah. In the cross examination, s he stated that when the victim was lifted from the bed forcefully, she could com e to know but did not resist out of fear of the person who trespassed into the b ed room. In the cross examination, she stated that she could not recognize the accused person. 14. P.W.4 is the son of the victim, who in his deposition, stated that on he aring noise and coming out of the room, he saw the accused appellant. However, h e did not see the accused appellant committing any offence. 15. P.W.5 is the uncle of the victim, who in his deposition while narrating the incident stated that he was informed by the victim that she was raped by the accused appellant. He had accompanied her to the police station for lodging the F.I.R. In the cross examination, he admitted that he had not asked the victim a s to whether it was the accused appellant or some body else. He also admitted th at he did not know as to whether, in fact, the incident occurred or not. He also stated that he only heard it from the victim. P.W.6 in his deposition stated about the visit of the appellant to the r 16. esidence of the victim and heard about the incident. In cross examination, it wa s stated by him that he was not examined by the police. He also stated that he w as informed by P.W.2 about the incident. According to his testimony, the accuse d was inside the room from before. 17. is deposition stated about the investigation that was carried out. P.W.7 was declared hostile. P.W.8 is the Investigating Officer, who in h 18. P.W.9 is another Investigating Officer, who in his deposition stated abo ut further investigation carried out by him. In cross examination, he inter ali a, stated thus :- ’ (cid:29) & & & & &˝ have not seized any article in connection with the present case. I have not found any torn out clothes of the informant at the P.O.. The victim did not show me any injury mark on her person. P.W.2 Sukhowati Moran did not state befo re me that the boys & girls closed one door and left other door open. P.W.2 did not state to me that while she was sleeping with her sister-in-law (Nanad) she w as being dragged to the verandah of the house. P.W.2 did not state to me that sh e had bitten on the hands & mouth of the assailant at the time of occurrence.P.W .3 Smt. Abanti Moran stated before me that her sister in law Sukhowati after bus king the fire closed the door and slept and someone dragged her from the bed an d she raised alarm once only. & &. (cid:29) 19. d that in order to reach the place, one has to cross another room. P.W.9 was re-examined and on such re-examination, he categorically state 20. C.W.1 in her deposition stated that she had seen the accused appellant f leeing away from the verandah of the house of the victim. This witness did not state anything about commission of rape by the accused on the victim. 21. C.W.2 in her deposition while narrating the incident stated that the in mates of the house had come out and caught hold of the victim. According to he r statement, when the persons came out of the house, one person ran away, but sh e could not identify the said person. 22. C.W.3 in her deposition stated about her visit to the house of the vict im on the next day morning. According to her testimony, the victim had narrated the incident of the previous night to her. 23. C.W.4 in her deposition stated about her stay in the house of the victim as a guest. According to her, about 12 midnight, the victim raised hue and cry and hearing cries, she and other inmates got up from the bed and found the vict im in the verandah of the house. However, she did not put any question to her a s to the commission of rape by the accused. 24. It is on the basis of the aforesaid evidence, the learned trial Court ha s convicted the accused appellant under Section 448/376 IPC. On a proper scruti ny of the evidence, what is found is that there is inherent contradictions in th e statement made by the witnesses. It is in this context, Mr. Barkataki, learned counsel for the accused appellant has submitted that the story made out by the prosecution is highly improbable inasmuch as it was not possible on the part of the accused to cross over the room where the victim was sleeping along with 3 pe rsons and thereafter, drag her to the verandah and then, commit rape on her. It is in the evidence that there was enmity between the accused appellant and the a lleged victim. As has been discussed above, the victim in her cross examination categorically stated about the enmity between them and as to how the accused app ellant tried to kill her and that the quarrel often took place between them. 25. As stated above, some of the witnesses stated that they could not recogn ize as to who the person was. It is primarily on the basis of the evidence of t he prosecutrix, the learned trial Court has convicted the accused appellant. Her evidence have not been corroborated by the other witnesses and there are materi al contradictions in their statements on the basis of which the accused appellan t cannot be convicted under Section 376 IPC. However, the evidence is overwhelmi ng that he had trespassed into the house of the victim at night and accordingly, it is held that he is guilty of the offence under Section 448 IPC, maximum pena lty for which is one year. The accused appellant was in custody for 18 days duri ng trial and for 3 months after the impugned judgment. While convicting the accused appellant under Section 448 IPC and acquitt 26. ing him for the offence under Section 376 IPC, it is hereby provided that the pe riod which he has already undergone in custody shall be the sentence for the off ence under Section 448 IPC. 27.
Decision
In view of the above, the appeal is partly allowed. Registry shall send back the L.C.R. to the Court below immediately along with a copy of this judgme nt.