High Court
Case Details
Crl.A. 198/2012 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER This appeal is directed against the judgment and order dated 11.04.2012 passed by the learned Sessions Judge (FTC) No.2, Tinsukia in Sessions Case No.76 (T)/2010 convicting the accused appellant under Section 376 IPC and sentencing h im to undergo rigorous imprisonment (RI for short) for 10 years with fine of Rs. 25,000/- (Rupees Twenty Five Thousand) only in default of payment of fine to und ergo further RI for another 1(one) year. 2. I have heard Mr. PJ Saikia, learned counsel appearing for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for the St ate respondent.
Legal Reasoning
The prosecution case in brief is that one Sri Manglu Bhuyan of No.1 Jeng 3. oni Gaon under Bardubi Police Station lodged an FIR on 11.02.2010 before the Off icer-in-Charge of Langkashi Police Outpost alleging inter alia that Sri Suresh L ohar of the same village with the pretext of marrying his daughter, aged about 1 8 years committed forcible rape on her and she is now pregnant of 2 months. Comi ng to know about the same, the informant arranged a village meeting and the vict im girl was handed over to the accused but he refused to accept her and hence th e informant has taken shelter of law by lodging the FIR. Upon receipt of the said FIR, Bardubi Police Station Case No.9/2010 was 4. registered under Sections 493/376 IPC. After completion of the investigation, th e Investigating Officer submitted charge sheet against the accused appellant und er Sections 376/493 IPC. 5. The learned trial Court upon perusal of the materials on record as well as hearing the learned counsel appearing for the parties framed charges against the accused appellant under Sections 376/417 IPC. The charges so framed being re ad over to the accused appellant he pleaded not guilty and claimed to be tried. 6.
Legal Reasoning
During trial, prosecution examined as many as 9 witnesses, including Sri Manglu Bhuyan, PW-1, Smti Gangi Bhuyan, PW-2, the victim girl, who is PW-3, Sri Phaniram Kurmi, PW-4 a co-villager of the informant as well as the accused, Smt i Bandori Gor, PW-5, younger sister of the informant, Raghupati Kisan, PW-6 and Sri Joynal Gor, PW-7 both are co-villagers, Dr. Sanat Kr. Dutta, the Medical Off icer, PW-8 who examined the victim and Sri Pratap Borgohain, PW-9, the Investiga tion Officer, (’IO’ for short). However, the defence did not adduce any evidence. 7. In the statement made under Section 313 Cr.P.C., recorded by the trial c ourt, the accused denied his involvement in the case and stated that evidence ad duced by prosecution are all false. 8. The learned trial court after hearing the learned counsel appearing for the parties and on perusal of the materials on record passed the judgment and or der of conviction as indicated hereinabove. Hence the present appeal. 9. The victim girl in this case was examined as PW-3. In her evidence she h as stated that the accused is the brother of her step mother. Around 1 year ago, the mother of the accused was undergoing treatment at Bahadur TE Hospital. She along with the sister of the accused person visited the said hospital to see the ailing mother of the accused. The accused also accompanied them to the hospital . The sister of the accused stayed in the hospital and she along with the accuse d were returning home. The accused on the way caught hold of her and molested he r by committing rape on the road itself. At that time, it was 7/8 P.M., and it w as dark. Thereafter they came back to their respective houses. Soon after the in cident also the accused person committed rape upon her after giving threatening that he would kill her if she resist. The accused also threatened her with dire consequence if she discloses the incident to anybody else. The victim out of fea r did not report the incident to others. Another day, while she was proceeding t o the house of her grandmother in the same village, in the evening, the accused suddenly appeared and snatched her chunri (dupatta). She asked him to give her c hunri but the accused caught hold of her hand and dragged her towards the nearby paddy field and committed rape on her inspite of her resistance. At that time, it was around 5/6 P.M., and it was dark. Then she came back to her house. Therea fter, the accused threatened her to make love with him and out of fear she agree d and had sexual intercourse with him as a result she got pregnant through the a ccused and her monthly period stopped. The accused threatened her not to disclos e the fact of pregnancy to anybody else otherwise he would kill her. Out of fear she did not disclose the fact of pregnancy to her mother also. Thereafter, she went to the house of the accused person and asked him to accept her since she go t pregnant through him but the accused refused to accept her. The accused advise d her to abort her pregnancy through Doctor. Then her father lodged the FIR narr ating the incident. She had delivered a male baby about 1 and half months ago. T he police got her statement recorded by Magistrate under Section 164 Cr.P.C. Ext . 2 is the said statement and Exts.2(1), 2(2) and 2(3) are her signatures. In the cross-examination, she has stated that she cannot say the date of her birth. She also cannot say whether her age is 19 or 20 years on that day. S he has further stated that she knew the accused after the incident. Around 5/6 y ears ago, her father married the elder sister of the accused. Prior to the occur rence, they had visiting terms with the accused person. The suggestions put to her that while the accused committed rape on her she did not raise any hue and cry has been denied. She has stated that at the ti me of occurrence she was wearing skirt and top. At the time of occurrence the ac cused raised her skirt. The accused also undressed her panty. She has stated tha t she told police that after the occurrence the accused had physical relationshi p with her for about 8 times. She has further stated that after the incident the accused had sexual intercourse with her for about 8 times with a gap of 2/3 day s after the first incident. This physical relationship occurred at tea garden as well as paddy field during night hours. Her family members had no information a bout the said physical relationship. When she got pregnant through the accused, she approached the accused and asked to marry her but on his refusal to do so sh e reported the matter to her mother who took her to the Doctor for examination a nd thereafter her father lodged the FIR. She has specifically stated that had th e accused married her, her father would not have lodged the FIR. She has denied the suggestions put to her that she had love affair with the accused and out of which she offered proposal to marry him but he refused. She has further denied t he fact that she was not impregnated by the accused and that the accused person is not the father of the baby, which she delivered. She has further denied that the accused person did not have sexual intercourse with her by force. 10. PW-1 is the informant, who is also the father of the victim girl and bro ther-in-law of the accused. He has stated that he came to know from his wife i.e ., the mother of the victim girl that menstrual period of his daughter stopped. So he took her to Bahadur TE Hospital for examination. On examination, the Docto r, opined that his daughter is carrying pregnancy of three months. On being aske d, his daughter (victim girl) informed him that she got pregnant through the acc used person. He then lodged the written ejahar before the Longkashi Outpost narr ating the occurrence. Ext. 1 is the said ejahar and Ext.1(1) is his signature. P olice recorded his statement during investigation. As per PW-1 his daughter was born on 31.12.1992. He has further stated that police sent the victim to the Cou rt for recording her statement and also got the victim medically examined. In the cross examination, PW-1 has stated that he has not mentioned the date of birth of his daughter i.e. the victim girl in the FIR. He also did not m ention about the same before the IO nor had he produced any document before the police in support of the age of his daughter. PW-1 has stated that at the time o f occurrence the age of his daughter may be more than 18 years. He has stated be fore the IO as told by his wife. He did not ask his daughter about the occurrenc e. The accused did not visit their house. They used to visit the house of the ac cused. He has also stated that he did not see his daughter with the accused pers on at any time. The suggestions put to him have been denied. 11. PW-2 is the mother of the victim girl. She has stated that informant is her husband and the victim girl is her daughter. She has further stated that her husband has got two wives, she is the elder one and the accused is the brother of the second wife of her husband. She came to know from the mother of the accus ed about the pregnancy of her daughter. Mother of the accused told her that her daughter was two months pregnant and that she was impregnated by the accused. Th ey asked the accused to take their daughter as his wife but he refused to accept her. So her husband lodged the ejahar. Police recorded her statement. Subsequen tly her daughter delivered a male baby and the victim girl is staying with her. In the cross examination, PW 2 has stated that she cannot say the presen t age of her daughter but she may be of 16/17 years of age. No birth document of the victim is available with her. She has also stated that she would not have k nown about the pregnancy of her daughter, had this fact been not reported by the mother of the accused. Her daughter did not disclose about the pregnancy. The v ictim girl was taken to the Bahadur TE Hospital as she was suffering from abdomi nal pain. Her daughter did not tell her about her sexual intercourse with the ac cused. The accused never visited her house. Her daughter visited the house of th e accused for the purpose of harvesting paddy along with the sisters of the accu sed. The suggestions put to her that the accused did not commit any offence a s alleged has been denied. PW-4 is the Government Gaonburah. He has stated that he knows the inform 12. ant as well as the victim and the accused. He came to know from the informant th at accused had some illicit relationship with his daughter. Accordingly, he sugg ested for a ’Bichar’ in the village. In the meantime, the informant approached t he in-charge of Langkashi Outpost for taking legal action against the accused pe rson. PW-4 being a Government Gaonburah, the in-charge of the Langkashi Outpost asked him to produce the accused before the police and accordingly he produced t he accused before the police. The defence declined to cross examine PW-4. 13. PW-5 has stated that the informant is her elder brother and the victim i s her niece. She came to know from the mother of the victim that the victim got pregnant through the accused. In the cross-examination, she has stated that she does not know the trut hfulness of the version of the victim and her mother. In such type of incident v illage ’Bichar’ is held. However, no such meeting was held. The suggestions put to her that she deposed falsely has been denied. PW 6 has stated that the occurrence took place about one year ago. Polic 14. e asked him to appear in the police station. Accordingly, he went to the police station and found both the parties there and on their appearance police asked hi m to settle the matter but the accused refused to accept the victim and denied t he charge levelled against him by the victim that she was impregnated by him. In the cross examination, PW 6 has stated that the informant is his co-villager and as co-villager they would have known if any such incident taking place in th eir village. Had there been any incident of rape in their village, there would h ave been ’hullah’. Before his coming to the police station there was no ’hullah’ in their village about any incident of rape upon the victim. No meeting was hel d in the village in respect of the alleged occurrence. He being the villager kno ws about the character of the youths of his village. PW 6 has specifically state d that there was no allegation against the accused prior to this case. He has fu rther stated that he knows the accused person to be a man of good character. To his knowledge, the victim used to maintain illicit intimacy with other man prior to this case. He also stated that he does not admit that the accused committed rape upon the victim as alleged and got pregnant thereby. 15. PW 7 is the VDP Secretary of the village Jengaigaon. He was also asked b y the police of Langkasi Out post to come to the Out Post. Accordingly, he went there and found the informant, his wife and their daughter, the victim girl. In- charge of the Out Post informed him that the victim was pregnant. At that time, the village headman Phanindra Kurmi was present at the Out Post. He did not ask the accused or the victim about the occurrence. Defence declined to cross examine PW 7. 16. d as follows: PW 8 is the doctor who examined the victim girl. On examination he foun (cid:28)Mental state : Healthy. Height : 5’2 (cid:29). Weight: 52 KG Teeth : 30 in numbers. Abdomen : Soft. Breasts, Areola, Nipples : Developed. Scalp hair : Grown. Pubic hair : Present. : 12 weeks size. Axillary hair : Grown. Vulval injury : Absent. Labia majora and Labia Minora : Healthy. Hymen-absent. Uterus Vaginal discharge/bleeding Fourchette Injuries on the body other than genitals : Absent. The radiological report shows the age between 18 to 20 years. : Healthy. : Absent. Lab. Examination of vaginal smear : Vaginal smear shows . no spermatozoa . Opinion : A girl of 18 to 20 years of age with 12 weeks of pregnancy with no gen ital and extra-genital injury. (cid:29) Ext. 3 is the Medical report wherein Ext. 3(1) is the signature of PW 8. Ext. 4 is the Pathological Report and Ext. 4(1) is the signature of Dr. RK Gog oi, Pathologist whereas Ext. 5 is the X-Ray report along with the X-Ray plate an d Ext. 5(1) is the signature of Dr. S.N. Bora which he knows. 17. PW 9 is the IO, who has stated that on 12.02.2010, when he was posted a t Langkashi Police Out Post under Bordubi PS, an FIR was lodged by one Sri Mongl u Bhuyan., which was entered vide GD entry No. 175 dated 02.02.2010 and forwarde d the same to the Officer-in-Charge, Bordubi Police Station for registering of case. Ext. 1 is the FIR. After making the G.D. entry, he started investigating t he case, visited the place of occurrence, examined available witnesses including the informant and the victim and the victim was produced before the Chief Judic ial Magistrate, Tinsukia for recording her statement under section 164 CrPC and the same was recorded accordingly. He also sent the victim woman for medical exa mination. During investigation he had arrested the accused person Sri Suresh Loh ar and forwarded him to judicial custody. On completion of investigation and aft er collecting the medical examination report, finding a prima facie case, submi tted charge sheet against the accused person under sections 493/376 IPC. Ext. 6 is the charge sheet and Ext. 6(1) is his signature. During cross-examination, he has stated that neither the victim girl, nor the in formant or any of the witnesses have mentioned about the exact date of alleged r ape by the accused on the victim. PW 9 has further stated that the victim girl did not tell him that she was married to the accused person and there was sexual relation with the accused person being her husband. While recording her stateme nt, the victim girl stated that she was involved in sexual relation with the acc used for more than 8 times in different places. Before she was detected to be pr egnant by the doctor, the matter of sexual relation was not disclosed to anybody . Her age was stated to be 18 years in the FIR and as per her parents also her a ge was 18 years. The Medical Officer stated the age of the victim woman to be 18 to 20 years. PW 9 has stated that no any documentary proof of the age was coll ected by him during investigation except statement made by them. 18. After closure of the prosecution witnesses the trial court recorded the statement of the accused under section 313 CrPC wherein he has denied the allega tion levelled against him and stated that he did not rape the girl by threatenin g her but she had sex with him of her own volition. On a closed perusal of the evidence of the prosecution witnesses, the fo 19. llowing facts would reveal: The prosecution case is solely based on the evidence of the victim but t (i) he FIR has been filed by the PW 1 who is not the victim. There is no independent witness to the occurrence. All the witnesses are relatives. (ii) In the FIR (Ext. 1), it has been specifically stated that the village p eople called for a (cid:28)Mel (cid:29) and in the (cid:28)Mel (cid:29) they decided to hand over the victim g irl to the accused. However, the accused denied to accept her. On the other hand , PW 1 in his deposition has not stated about any such village (cid:28)Mel (cid:29) but stated that immediately after coming to know about the pregnancy of his daughter, the v ictim girl, he lodged the written ejahar before the Langkashi Police Out Post. (iii) PW 5, who is the younger sister of PW 1 has categorically stated that in such type of incident, village (cid:28)Bichar (cid:29) is held. However, no such (cid:28)Bichar (cid:29)(meet ing) was held. In the same breath, PW 5 has stated that she does not know the t ruthfulness of the version of victim and her mother. PW 6 also has stated that had there been any incident of rape in their v (iv) illage, there would have been (cid:28)hullah (cid:29). But there was no (cid:28)hullah (cid:29) in their villa ge about any incident of rape upon the victim. No meeting was held in the villag e in respect of the alleged occurrence. PW 6 in his cross examination has specifically stated that he being the (v) villager knows about the character of the youths of their village. There is no a llegation against the accused prior to this case. He knows the accused person to be a man of good character. But to his knowledge the victim used to maintain il licit intimacy with other persons prior to this case. He has further stated that he does not admit that the accused committed rape on the victim girl as alleged and impregnated her. In the medical examination report, doctor found no sign of external or i 20. nternal injuries on the body of the victim regarding commission of any forceful sexual intercourse. Regarding the age of the victim girl, PW 1, i.e. the father of t 21. he victim has stated that at the time of occurrence, the age of his daughter may be more than 18 years. According to PW 2, the mother, her age was 16/17 years. On the other hand, the doctor, on examination, found her age to be 18 to 20 year s. PW 2, the mother of the victim girl has stated that she would not have k 22. nown about the pregnancy of her daughter. Had this fact been not reported by t he mother of the accused. Her daughter did not disclose about the pregnancy. The victim girl was taken to the hospital as she was suffering from abdominal pain. Her daughter did not report her at any time about her sexual intercourse with t he accused. The accused never visited her house but her daughter visited the hou se of the accused for the purpose of harvesting paddy. 23. If we accept that the accused had sex with the victim girl, the same was with her consent and hence, no offence committed under section 376 IPC because sex with woman above 16 years of age with her consent is not rape. In the ins tant case, admittedly as per statement made by the victim girl, the accused had sex with her for about 7/8 times which is not possible without consent on the pa rt of the victim girl. 24. As per the statement made by the victim girl, at the time of commission of the offence she did not make any hue and cry because of the threatening give n to her by the accused cannot be accepted, inasmuch as, as per her own version, the accused had sexual intercourse with her for about 8 times with a gap of 2/3 days. But she did not tell anybody including her mother about the same, instead she approached the accused and asked to marry her but on his refusal to do so only, she had reported the matter to her mother and thereafter, her father lodge d the ejahar cannot be believed. The victim was 18/20 years old at the time of o ccurrence. At her age, it cannot be believed that the accused had, by threateni ng her, committed sexual intercourse forcefully and out of fear she agreed to ha ve sexual intercourse with him. For which, she got pregnant through the accused. Thus, the evidence of the victim girl is not at all acceptable for the reasons already indicated hereinabove and therefore, this court is constraint to hold th at the evidence of PW 3 does not inspire confidence so as to sustain the convict ion of the accused appellant under section 376 IPC. 25. In Ramnarayan Jha Vs. State of Assam, reported in 1999(1) GLT 54 , this Court held that when the evidence of doctor cast a reasonable doubt as to whether the prosecutrix in fact was raped and in that case, it was held that th e accused is entitled to the benefit of doubt. 26. In Moinul Haque and Ors. Vs. State of Assam, reported in (2001) 1 GLR 516, this Court observed at paragraph 16 as follows: (cid:28)It is true that a court has to take seriously the cases relating to violence ag ainst women. Simultaneously, the court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omission s and contradictions and it raises a strong doubt which over-shadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the convi ction in this case relying upon the testimony of the prosecutrix alone. Dignity of women will have to be protected, but without the aid of emotion. This is undo ubtedly not a case where the prosecutrix has the last ’say’. (cid:29) That being the position, this Court is of the view that 27. the material facts as pleaded and proved above, show that the prosecution story of occurrence of rape has not been proved beyond all reasonable doubt, more so, the essential ingredient of Section 375 IPC having being found absent, the learn ed trial court ought not to have convicted the accused appellant under Section 3 76 IPC.
Decision
28. In the result, the appeal is allowed. The judgment of co nviction and sentence is hereby set aside. The accused appellant is acquitted an d he be set at liberty forthwith, if not wanted in connection with any other cas e. 29. Send down the lower court records.