High Court
Case Details
CRL.A(J) 5/2010 BEFORE HON’BLE MR. JUSTICE P.K. SAIKIA This appeal is directed against the judgment and order dated 24.12.09, passed by Addl. Sessions Judge, FTC, Biswanath Chariali in Sessions Case No. 223/07 convi cting one Bapa Das, herein after referred to as accused person of offence under Section 376 I.P.C. and sentencing him to R.I. for 10 years and a fine of Rs. 100 0/- in default S.I. for 60 days for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid Judgment, this ap peal has been preferred by the accused/ appellant citing several infirmities in the prosecution case. 3. The brief facts necessary for disposal of the present appeal are that on 05.08.2006 at about 1:00 p.m., Sri. Bapa Das, the accused came to the house of the informant Sri. Madhab Baishya and told him that he knew some special kind of treatment which could cure the disease of the people and as such he could treat his daughter helping her to recover from her disease.
Legal Reasoning
4. Believing to his assurance to be true, he allowed his daughter to be tre ated by the accused person. Thereafter, the accused took his daughter inside a r oom and asked the family members of the informant not to enter such room, otherw ise Goddess Kali might destroy them out of anger. Thereafter, the accused person took the prosecutrix, the daughter of aforesaid Sri. Madhab Baishya and got her confined therein. Soon thereafter, the accused person on the pretext of treating his daugh 5. ter, committed rape on her which was noticed by the elder sister of the victim, who saw the incident by peeping through the hole in the wall of their house. At the time of the incident, the father of the victim girl was not there in the house. 6. When he returned home, he was informed of the incident aforesaid. Being so informed, he lodged an F.I.R. same day seeking punishment to the accused in a ccordance with law. On receipt of the F.I.R., police registered the case, invest igated the same and after completion of the investigation, I.O. submitted charge sheet under Section 376 I.P.C. and forwarded him to the Magistrate to stand his trial there. 7. The Magistrate before whom the charge sheet was so laid committed the c ase to the Court of Sessions to dispose the same in accordance with law. The Cou rt of Sessions thereafter transferred the case to the file of Addl. Sessions Jud ge, FTC, Biswanath Chariali for disposal. On the receipt of the case on transfer , the learned Addl. Sessions Judge, FTC, heard the arguments, advanced by learne d counsel for the parties and on going through the materials on record, he fram ed charge under Section 376 I.P.C. against the accused person. The charge, so framed, on being read over and explained to the accused p 8. erson, he pleaded not guilty and claimed to be tried. In the course of trial, the prosecution side has examined as many as 7 (seven) witnesses including the i nformant, the victim and the investigating officer (in short the I.O.). The stat ement of the accused person was recorded under Section 313 of the Criminal Proce dure Code. 9. In his statement under Section 313 I.P.C, the accused admitted that on t he day in question, he came to the house of the informant and told him that he c ould help the prosecutrix in recovering from her disease by making some tantric treatment. He further admitted that he took the prosecutrix to a room and confin ed her there in order to perform some tantric treatment on her. He, however, den ied the allegations that he committed rape on her. 10. But he declined to adduce any evidence of his own. Learned trial court o n conclusion of trial and on hearing the arguments, advanced by learned counsel for the parties convicted the accused under Section 376 I.P.C. and sentenced him to punishment as aforesaid. In that Judgment, this has been assailed in this ap peal citing several infirmities in his judgment under the question aforesaid. Opening up argument on behalf of the accused/appellant, the learned Amic 11. us Curiae contends that the prosecution case suffers from several infirmities. A ccording to her, though the victim girl was examined by the doctor soon after th e alleged incident, yet, the doctor did not find any injury either on the person or on her other body parts. Absence of any mark of injury on her body, more par ticularly, on her private parts has huge meaning and it clearly shows that prose cution case has been founded on conjecture and surmise. 12. It has also been alleged that there is evidence on record to show that w all of the room where the offence in question took place was a mud plastered one meaning thereby that there cannot be any hole in the wall of the room aforesaid . Despite above being situation as far as wall of the house in question is conce rned, the elder sister of the prosecutrix is said to have seen the incident in q uestion peeping through the hole of the wall. The above revelations not only mak e the witnesses of the prosecution side unsafe for reliance but also make prosec ution case extremely doubtful. 13. It has also been pointed out that mother of the victim girl in her evide nce claims that her daughter has raised any hue and cry when incident under con sideration was going on. But such claim stands contradicted in view of evidence of the father of the prosecutrix who claims that the prosecutrix did not raise a ny hue and cry as she was subjected to allege sexual intercourse. 14. Still different was the version of the daughter of the informant (prosec utrix) who claims that she could not raise any hue and cry since the accused gag ged her mouth. Inspite of all these, she kept on resisting the accused while the accused subjected her to sexual intercourse. These inconsistent versions of the principle prosecution witness on some very fundamental aspect of the prosecutio n case serves to show that prosecution case is far from reliable 15. The learned Amicus Curiae urges this court to acquit the accused person of offence of which he was held guilty, convicted sentence to punishment as afo resaid on setting aside the judgment which is impugned in the present appeal. Countering the argument so advanced from the side of accused/appellant M 16. s. A. Begum, learned Addl. P.P. submits that the judgment, impugned, was rende red by the learned Court below on the evidence on record which is cogent, consis tent and clear on all material point under consideration. Such a judgment theref ore, invites no interference from this Court of Appeal. 17. She therefore, submits this Court to dismiss the appeal. I have consider ed the arguments, advanced by learned counsel for the parties having regard to t he materials on record. On a very careful perusal of judgment impugned having re gard to the evidence on record, I have found that learned trial court has accura tely and appropriately reproduced the evidence on record in its judgment. 18. In order to appreciate the dispute before us properly and for convenienc e as well I propose to re-reproduce the evidence on record as reproduced by lear ned Court below in its judgment under challenge. The relevant part of the judgme nt which contained the evidence of the PW’s is reproduced below:- (cid:28)PW-1, Madhab Baishya is the father of the victim and he is the informant in thi s case. According to him, his daughter the victim was suffering from a disease. The accused one day told him that he can cure his daughter from her illness by g iving ’tabiz’ (a medicine prepared from plants and kept inside a container). Acc ordingly, next day the accused came to his house, performed ’Puja’ took his daug hter inside a room and asked others not to enter into the room by saying that if anybody try to enter into the room, some mischief may took place. When his daug hter, the victim came out from the room, his elder daughter noticed some unusual of her wearing clothes. On questioning the victim told them that the accused ra ped her saying that it will cure her disease. After hearing the news from her el dest daughter he asked the victim and the victim also told him that the accused raped her. When he charged the accused, the accused admitted his guilt. Accordin g to him, the occurrence took place in the drawing room where only one bed was t here. He admitted that his daughter, the victim has not risen and hue and cry at that time and he did not notice any injury on her person. PW-2, Lily Baishya is the mother of the victim who has fully supported t he version of her husband, PW-1. According to her, one day the accused came to t heir house and told her that he can cure the illness of her daughter, the victim by applying ’tabiz’. Accordingly, next day, the accused came to their house, as ked he to provide some articles, he took the victim in a room and asked them not to enter into the room, otherwise the Goddess ’Kali’ may do any harm to them ou t of anger. Therefore, they did not enter into the room. When the victim came ou t from the room, they noticed unusual in her wearing clothes. On questioning, th e victim told them that accused committed rape upon her person. According, to he r, at that time the victim was reading in class- VIII or IX. According to her, t he victim raised hue and cry but as the accused asked them not to enter into the room, therefore, they did not enter into the said room out of fear. PW-3, Suren Baruah, the brother-in-law of the victim has supported the s tory of the prosecution by stating that the victim told them that the accused co mmitted rape upon her person. PW-4, the victim is the very important witness in this case. She in her deposition stated that in the month of August, 2006, may be 5th or 6th August, S aturday, the accused came to their house and told them that he can cure her dise ase by applying ’tabiz’. Accordingly, next day the accused came, took her inside the drawing room and asked others not to enter into the room. He told the membe rs of her family that if anybody try to enter into the room, the Goddess ’Kali’ out of anger may destroy them. According to her, at first the accused performed ’puja’ by throwing flowers on her and thereafter, asked her to give metal. But, she could not understand about it. Thereafter, the accused told her that he can bring metal by himself and thereafter, committed rape upon her person. When she raised hue and cry at the time of commission of rape upon her, he gagged her mou th. When she came out from the room she told the story to her family members. Sh e also gave statement before the Magistrate vide Ext.3. In cross-examination, she clearly stated that at that time the accused u ndressed her and he also undressed himself. He committed rape upon her person by removing her underwear and keeping her skirt upwards. PW-5, Dilip Gogoi came to the house of the informant on hearing hue and cry. He saw the accused was roped with a tree. He came to know that the accused with a pretext of cure the disease of the victim committed rape upon her person. PW-6, Dr. Babul Saikia has examined the victim but he did not find any i njury upon her person. He also did not find any sign and symptom of rape upon t he victim. According to him, the victim was 16 years old at that time. PW-7, Shri Prakash Nath is the I.O. in this case. He on getting endorse ment to investigate the case, visited the place of occurrence, examined the witn esses, drew the sketch-map, sent the victim to the hospital for medical examinat ion, collected the medical report. He also sent the victim and two other witnes ses before the Magistrate to record their statement as per provision of Section 164 of the ’Code’. After finding materials against the accused, he submitted ch arge-sheet against him. (cid:29) Now, let us see how far above evidence makes out the charge, lavelled ag 19. ainst the accused person. On a careful perusal of testimony of prosecutrix, I ha ve found that in her evidence, she has categorically and clearly stated that on the fateful day, once she was confined in a room of their house, the accused sta rted performing some kind of puja and thereafter, committed rape on her. 20. Her evidence further reveals that though she tried to make hue and cry s he could not do so since he gagged her mouth with clothes. Very importantly, in her cross-examination, she has stated that in the process of performing puja the accused undressed her and also removed his clothed as well and thereafter, comm itted rape on her. 21. Such evidence of prosecutrix (PW-4) finds huge support from the almost u nchallenged testimony rendered by other PW’s more particularly PW-2 (mother of t he prosecutrix) as well as PW1 (her father). The PW-2 in her evidence has stated that once the victim was taken inside the room and once she was confined therei n, they were ordered to go out of such room. However, when the prosecutrix came out of the room, she told that the accused had committed rape on her. 22. More importantly in her cross-examination, she further state that despit e hearing noises coming from the aforesaid room, they refrained themselves from entering thereinto since they were advised not to venture to the room else they should invite the wrath of goddesses Kali. Such evidence of PW 2 clearly demonst rates that what PW 4 has stated on the allegation under consideration is truth a nd truth on. Even the father of the prosecutrix also corroborates the testimony rende 23. red by his daughter and wife when he is found saying that on his arrival in his house just after the alleged incident, his daughter told him that the accused ha d committed rape on her. Such fact coupled with the fact that his elder daughter saw her sister coming out of the room with her clothes in an extremely jumbled condition which remains totally unchallenged fortifies more and more the claim o f the prosecutrix that on the fateful day she was raped by the accused person. 24. It is worth noting that the accused in his statement under Section 313 C r.P.C. admitted having confined the prosecutrix in one of the rooms in their hou se. He also did not dispute the fact that he advised the family members of the p rosecutrix not to enter the room above while he subjected the prosecutrix to som e kind of tantric treatment. 25. It is also not in dispute that soon after the alleged incident the situa tion turned for worse and he found himself detained by family members of the pro secutrix and other allegedly committing rape on the prosecutrix. These admitted positions, in the fact and circumstances of the case under consideration makes i t inescapable for this court to come to a conclusion that the accused did commit rape on the prosecutrix on the day in question. 26. I have found that the FIR was lodged on the day of incident itself and t he story narrated in the FIR corroborates the prosecution story told and retold before the court during the trial. Equally importantly, the statements which the victim and her mother rendered before the Magistrates during investigation are found to be totally in the tune of evidence, rendered by the witnesses before t he court during trial. 27. Being so in my considered opinion, the prosecution case as it emerges d uring trial draws enormous support not only from the FIR which was proved as Ext 1 but also from the statements rendered by the victim and her mother during the course of investigation which were proved as Ext. 3 and Ext. 2 respectively. 28. Here, I may note here that the prosecution case has been challenged by d efence on several counts. In the first place, it was contended that the doctor f ound no injury on the prosecutrix despite of his examining the prosecutrix withi n hours of alleged incident. Basing on such findings, it is contended that the a llegation of victim being subjected to sexual assault on the noon in question is nothing but a huge lie. 29. It is true that the doctor did not find any wound on the victim but in a case of rape a positive finding of doctor regarding injury/violence on the pros ecutrix or her private parts is not a sine-qua-non. If the evidence of prosecutr ix reveals that there was penetration and if such evidence is confidence inspiri ng; then the accused can be convicted despite there being no medical evidence as to the penetration or violence on the private part of prosecutrix. 30. Coming back to our case, I have found that the prosecutrix is found to b e totally reliable. What is more her evidence draws support on material points f rom other witnesses more particularly her parents. Even the accused in his 313 s tatement rendered huge support to the certain aspects of the prosecution case. B eing so the doctor’s evidence no way comes in the way of prosecution case in que stion. It has also been contended that as per FIR, the sister of the prosecutri 31. x is said to have witnessed the incident in question through some hole in the wa ll of the room where such incident occurred. However, there is evidence on recor d to show that the wall of the room above was mud plaster and it only shows that it was not possible for the sister of the prosecutrix to witness the incident through the hole in the wall of the room. 32. This contention is also found to be without any substance. It is true th at in the FIR, it has been stated that the sister of the prosecutrix saw the inc ident under consideration through the hole in the wall of the house. It is also true that the wall of the house of the PW-1 was mud plastered one. But that does not mean that there cannot be any hole in the wall of house of the aforesaid pe rsons. 33. Quite contrary to it, the nature of the house only shows that there is e very possibility of some holes being in the wall of the house of the PW-1. The f act that the FIR was lodged soon after the alleged incident with aforesaid infor mation therein only make it obligatory on the part of the Court to consider afor esaid statement in the FIR as truthful one. 34. Another charge being lavelled against the prosecution case was that ther e was that though the victim girl claims that she could not raise hue and cry si nce her mouth was gagged her mother told the court that family members outside t he room heard some unusual noise inside the room where the accused reportedly su bjected the prosecutrix to some kinds of tantric treatment. Such inconsistency o n a very vital point makes the entire prosecution case doubtful. 35. Once again such argument too is found to be the farthest from the truth. It is true that the victim stated that her mouth was gagged by the accused whil e subjecting her to forceful sexual intercourse. But then, we must not be oblivi ous to the fact that prosecutrix very clearly claims in her evidence that she ha d made all effort to raise hue and cry as evident from her cross-examination. Th is establishes more than clear that there cannot be any differences between the evidence of victim and her mother over the claim of victim raising hue and cry a t the time under consideration. 36. Though the father of the prosecutrix claims that the prosecutrix did not make any hue and cry while she was subjected to sexual assault, yet, such evide nce does not carry much weight since the father of the prosecutrix was not there at his house when incident under consideration took place. Being so, this conte ntion from the side of defence could cause no harm to the case under considerati on. 37. In view of what I have discussed herein before and what have emerged, th erefore, I am of the opinion that prosecution has successfully proved the charge under Section 376 I.P.C. against the accused person and as such, learned trial court has rightly convicted him under the aforesaid provisions of law. In the re sult, I have found no reason to interfere with the judgment as far as conviction the accused/appellant of the offence aforesaid is concerned. Coming to the sentence, I have found that the trial court having regard 38. to the fact and circumstances of the case in question, sentenced the accused/app ellant to suffer R.I. for 10 (ten) years with a fine of Rs. 1000/- for offence u nder Section 376 I.P.C. 39. But in my opinion, the sentence, so imposed, on the accused/appellant, n eeds a little reduction. Accordingly, the period of sentence is reduced to 8 (ei ght) years and a sum of Rs. 1000/- in default of S.I. for 2 (two) months. With the above modifications, this appeal is partly allowed. 40. 41. Before I part with the record, I deeply appreciate the assistance receiv ed from Ms B. Sharma, learned Amicus Curiae in disposing the case. The authority concerned is directed to pay her professional fee amounting to Rs. 5,000/-(rup ees five thousand) at an early date. 42. Return the L.C.R.