Judgment · High Court · 2012

The prosecution case, in brief, is that in the night of 5.2.2003 at about 11 P.M., the appellant, chowkidar of the Primary Health Centre, Kathia tali O.P. called the victim girl and told her that there was an emergency case a nd she should come to the hospital. When she came to the hospital she found none and there was no emergency case in the hospital. The appellant attempted to com mit rape on her but somehow she managed to escape from there. However, the accus ed outraged the modesty of the victim girl as he forcibly laid her on her bed te aring her wearing apparels. On the next day she lodged a written FIR and a case being Kampur P.S. Case No. 9/2003 was registered u/s 376/511 IPC. The I.O. visit ed the place of occurrence, recovered the torn apparels of the victim and examin ed some witnesses. The victim was produced before the Medical Officer who examin ed him and submitted the medical report. The victim was also produced before the I/O and her statement was recorded u/s 164 CrPC. The accused was arrested by po lice and forwarded to the court.

After completion of the investigation charge sheet was laid agai nst the accused u/s 354 IPC. On the basis of the materials collected and upon h earing the learned counsel for the parties, the learned court of Ad hoc Addition al Sessions Judge, Nagaon framed charge u/s 376/511 IPC against the accused appe llant. The charge being read over and explained to the accused person, he pleade d not guilty and claimed to be tried. During trial the prosecution examined 10 witnesses including the victim girl and the Medical Officer while the accused ex amined none in his defence. The learned trial court on consideration of the mate rials and the evidence on record and upon hearing the learned counsel for the pa rties, convicted and sentenced the appellant as mentioned above.

Mr. Choudhury, learned counsel has taken me through the evidence on record, particularly, the evidence of the victim, who was examined as PW 1 a nd PW 3, Deepa Dey, maid servant of the victim. In the FIR, it has been alleged that the appellant came to the official quarter of the victim and asked her to c ome to the hospital at 11 P.M.(night) on the pretext that some patients have com e and he forcefully took her to his nearby bed and attempted to commit rape on h er. But in her evidence before the court, she stated that the accused came and c alled her by using the calling bell in her quarter. At that time she was sleepin g. She accordingly came to the hospital and when she found none in the hospital, she rebuked the accused. Then the accused forcibly laid her on his bed and in t he process her wearing apparels were torn. She could somehow save herself and ca me back to her quarter but he still followed her. On the basis of the evidence o n record, Mr. Choudhury submits that the evidence of the victim PW 1 is not at a ll reliable. Her evidence is not sufficient and trustworthy to convict the accus ed appellant. The charge u/s 376/511 IPC, according to Mr. Choudhury could not b e proved by the prosecution and as such the accused cannot be convicted u/s 376 /511 IPC. According to him, the learned trial court on mis-appreciation of evide nce on record convicted the accused u/s 354 IPC which is liable to be quashed an d set aside.

I have gone through the evidence of PW 3, maid servant of the vi ctim. She categorically stated that the accused came to the house of her mistres 1) e nighty. 2) s on 5.2.03 at about 11 P.M. Her victim mistress accompanied the accused. What h appened thereafter is not known to her but she proved the fact that the accused came to the house in that night. It has been pointed out by the learned counsel for the appellant that PW 3 stated that there was no electric connection in the quarter and calling by the accused by using the calling bell is unbelievable. T his may be a minor contradiction in the evidence of PW 3. The defence did not pu t any suggestion that she deposed falsely against the appellant as tutored by PW

The Medical Officer, PW 2, stated that the victim girl did not give her consent to get her private parts examined. However, he found some tenderness over both shoulders and back of the victim but he found no redness or swelling. There was abrasion on the person of the victim which was old one. The victim wa s medically examined on 6.2.2003 i.e. on the next day of the alleged incident. I t has been argued that the abrasion or tenderness found on the person of the vic tim are not sufficient for coming to a conclusion that the victim suffered physi cally due to the alleged attempt to outrage the modesty of the victim. As per se izure list the I/O seized the following articles - (cid:28)Seizure list M.R. No. 5/2003 Ext. 2 Ref : Kathiatoli P.P. GDE No. 88 dt. 6.2.2003. I S.I. M.N. Saikia Kathiatoli P.P. do hereby seize the below descriptive garment as produced by the complainant namely Smt. Ranjita Hazarika D/O Digen Saikia of Kathiatoli P.H.C. quarter P.S. Kampur today on 6.2.2003.

It is stated at the Bar that the appellant is at the verge of hi s retirement or he might have retired by this time and it is considered fit and proper to take a lenient view on the sentence. Accordingly, the conviction of th e appellant is affirmed and the sentence is reduced to the period already underg one.