High Court
Case Details
Crl.A. 62/2007 BEFORE HON’BLE MR JUSTICE P K MUSAHARY JUDGMENT AND ORDER (Oral)
Legal Reasoning
Heard Mr.A.K.Bhattacharyya, learned senior counsel assisted by M r. B M Choudhury, learned counsel for the appellant. Also heard Mr. D.Das, learn ed Addl. Public Prosecutor, Assam, for the Respondent State. 2. This appeal has been preferred against the judgment and order da ted 5.3.2007 rendered by the learned Sessions Judge, Tinsukia in Sessions case N o.147/(M)/05 convicting the appellant under Section 376 IPC and sentencing him t o undergo rigorous imprisonment for 7(seven) years and to pay fine of Rs.5000/- only and in default payment of fine to undergo rigorous imprisonment for another one year. 3. The prosecution story as unfolded from the FIR is that the infor mant who was serving as domestic aide in the house of the appellant was raped by him on 26.9.04 at about 11 PM in the night while she was sleeping in the kitch en. The victim girl lodged an FIR which was received and registered as Margherit a P.S.Case No.166/04 under Section 376 IPC. The IO on completion of the investig ation and after collection of the medical report laid the charge sheet against the present appellant under Section 376 IPC. The case was committed to the lea rned court of Sessions, Tinsukia and the aforesaid Sessions case was registered for trial. The learned Sessions Judge framed the charge against the appellant un der Section 376 IPC and when the same was read over and explained, the appellant pleaded not guilty and claimed to be tried. Accordingly, the appellant stood t he trial. 4. The prosecution examined as many as six witnesses including the victim girl and the medical officer. In his defence the appellant also examined 4 (four) witnesses including his wife and the other maid servant. On considerati on of the material and evidence on record, the learned trial court passed the im pugned judgment and order convicting and sentencing the appellant as stated earl ier. 5. I have perused the FIR, Ext.2, which was filed by the victim gir l herself. I have also perused her statement recorded by a Magistrate under Sec tion 164 Cr.P.C. In the FIR, she did not mention the name of the appellant as she did not know the name of her master who allegedly committed rape on her. In the statement under Section 164 Cr.P.C. she has come out with the name of the a ppellant with more details. She stated, amongst others, that the appellant enter ed into the kitchen, where she was sleeping , at about 11 PM (night) and commit ted rape by force and it continued for 10 minutes. Due to such forceful rape there was bleeding from her private parts and her wearing apparels were soaked with the blood and semen. In the next morning she reported the incident to her elder sister who was also serving as domestic aide in the house of one Khema Sonowal, whose house situat ed at about 200 meters away from the appellant’s house. The victim, who was exa mined as PW-3, in addition to above, stated that she washed her blood and seme n soaked wearing apparels in the morning as per direction of the appellant’s w ife. She also took bath and completed her daily morning works. All these facts are not mentioned neither in the FIR nor in her statement under Section 164 Cr. P.C. 6. Next I come to the medical evidence. Ext.1 is the medical report . The medical officer concerned was examined as PW-1. He testified that he medi cally examined the victim girl on 27.9.2004 i.e. on the next day of the occurren ce. He proved the aforesaid medical report marked as Ext.1. 7. relevant portion of the medical report is quoted hereunder: I have carefully gone through the aforesaid medical report. The (cid:28)(i)A healthy teenaged girl of about 13/14 years of age. (ii)Nutritional status was average. (iii)Secondary sexual character found to be well developed. (iv)Public hair was plenty and dry (v)Vulva was healthy and dry. (vi)I did not find any sign of injury around vulva. (vii)Posterior fourchette was healthy. (viii)Introitus did not admit one finger. (ix)As per radiological evidence, the girl was found to be about 16 years but be low 17 years. (cid:29) 8. It appears that radiological test was conducted on the victim an d on the basis of the radiological test, doctor opined that the victim was above 16 years but below 17 years. It means that she was below 17 years and above 16 years at the time of occurrence. Significantly the medical officer found no sig n of injury on any part of her body including the vulba. The medical officer di d not find any sign of forceful sexual intercourse. As per medical evidence the victim girl was not subjected to rape. 9. What is most important to be noted in this case is that another maid servant namely Ms. Padma Das was sleeping with the victim girl in the sam e kitchen on the date of occurrence on the night of the occurrence. I have gone through the evidence of Padma Das who was examined as DW-2. This witness, as per her own deposition, was aged about 30 years at the time of making the depositio n before the court. She deposed that she was serving as maid servant in the hous e of the appellant since about last 4 years. She further stated that on the ver y night of the occurrence she was sleeping with the victim girl in the kitchen o f the house of the appellant. The victim girl went to sleep in the kitchen and a fter half an hour she entered into the kitchen to sleep. She closed the door o f the kitchen and bolted the door from inside. She got up at about 5 AM in the m orning and opened the door. She also stated that the victim got up after half an hour and the victim girl was at the appellant’s house till 9.30 AM. The learne d public prosecutor did not cross-examine this witness. He only put some suggest ions. This witness denied the suggestion that she was not working in the house of the appellant on the day of occurrence and she was not sleeping with the vic tim together in the kitchen. She also denied the suggestion that she was tutored and deposed falsely. The evidence of this DW-2, particularly to the effect, tha t she was sleeping with the victim girl on the night of the occurrence in the sa me kitchen and that she closed the door from inside could not be demolished. No attempt was made by the prosecution to impeach this piece of solid evidence of t he defence. 10. On the face of the aforesaid evidence of DW-2 it has been proved that the victim was not alone in the kitchen on the night of the occurrence and no body entered the kitchen inasmuch as the door was bolted from inside. The c ircumstance was such that the appellant who was the master of the victim girl co uld not enter the kitchen where the victim was sleeping along with the other mai d servant and if it was not possible on his part to physically enter into the ki tchen, the story of the victim girl that the appellant entered and committed r ape upon her, cannot at all be believed. 11. In cross examination, the prosecutrix herself disclosed that the appellant has two daughters, one of them is a college going student. They have one study room attached to kitchen. Two more bed rooms also exist in the appella nt’s house. She also stated that she kept the electric light in the kitchen on. As per her evidence she neither informed the land lady (wife of the appellant) o n the night of occurrence nor in the next early morning. She reported the land lady about the alleged incident at 10 AM and told her that she would not work i n their house. She admitted that the land lady advised her to meet her sister. F rom this evidence of the prosecutrix, it is found that the appellant has two gro wn up daughters and their study room is attached to the kitchen. Both the daught ers and the wife of the appellant were present at home on the night of occurrenc e, yet the prosecutrix did not report the matter to any female member of the fa mily. She awaited till 10 AM to receive advice from the land lady, who advised t o wash her blood and semen stained wearing apparels and bed-sheet to remove the proof of commission of rape on her. 12. From the evidence of the prosecutrix, one can find her story ful l of improbabilities. No body would make even an attempt to commit rape on a gir l in a kitchen while his own grown up daughters are present in the other room a ttached to the kitchen where the rape was allegedly committed by the appellant. It is unbelievable that no member of the family heard the commotion that was cr eated by the prosecutrix in her bid to resist the appellant. Significantly, the prosecutrix in cross examination, stated that her mouth was gagged only for ’lit tle time’. As against this she also stated in her examination in chief that the sexual intercourse continued for about ten minutes. If it is to be believed that the appellant committed rape on the prosecutrix, the court has also to take int o consideration the above evidence of the prosecutrix and come to a conclusion t hat she did not put sustained and effective resistance against sexual advance o f the appellant and she silently participated in the sexual intercourse ’for abo ut 10 minutes’. From this conduct , the court can draw an inference that she was a consenting party and there was no force used for indulging in sexual intercou rse with her. This is an other view that could possibly be taken by the court in favour of the appellant in view of the settled position of law that where two v iews are possible, the one favouring accused’s innocence should be adopted. In this regard, amongst the catena of decisions, I would refer to Vikramjit Singh, alias Vicky -vs- State of Punjab; reported in (2006) 12 SCC 306. I have also mentioned about the medical evidence. The said medic 13. al evidence belies the allegation or the prosecution case that she was forcibly raped by the appellant inasmuch as no injury was found on her person, including her private parts. The victim’s case is that she was forcibly raped. If it is to be believed that she was forcefully raped she must have resisted the appellant and in the process of resistant, she must have received some injuries, may be, simple, on her person but nothing of this sort has been found in the medical ex amination. It is no doubt the settled law that an accused charged with off 14. ence under Section 376 IPC could be convicted and punished on the sole evidence of the prosecutrix but her evidence must be cogent, consistent, trustworthy and sterling gaining confidence of the court. In the present case, I have found that the prosecutrix is not at all consistent and trustworthy inasmuch as, rig ht from the filing of the FIR, she has stated something which are contradicto ry to each other besides being unsupported by the medical evidence and unbelie vable improbabilities and circumstances. 15.
Decision
I do not want to indulge in further discussion on evidence of other prosecution witnesses on record. With the aforesaid evidence on record, it is enough for coming to a conclusion that the prosecution failed to establish the charge against the appellant beyond all reasonable doubt. The appellant is entitled to acquittal on benefit of doubt. The impugned judgment and order convi cting and sentencing the appellant is liable to be quashed and set a side. Accor dingly the same is quashed and set aside. The appellant stands acquitted on bene fit of doubt. 16. ail bond shall stand discharged. The appeal is allowed. It is sated at the Bar that the appellant is on bail. So, the b Return the LCRs.