High Court
Case Details
Crl.A. 100/2006 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY This appeal is directed against the judgment and order dated 12. 4.2006 passed by the Assistant Sessions Judge, Morigaon in Sessions Case No. 128 /05 whereby the appellant was convicted under Section 448/376 of IPC and sentenc ed to undergo R.I. for eight years and also to pay a fine of Rs. 10,000/-, in de fault, to suffer R.I. for one year for offence u/s 376 of IPC and R.I. for 6 mon ths and to pay fine of Rs.500/- in defaualt R.I. for 1 month for the commission of offence u/s 448 of IPC. 2. f as follows: The facts leading to filing of this appeal may be stated in brie On 17.4.2005, the informant Eyajul Haque lodged an ejahar allegi ng therein that the accused-appellant at about 12 noon came to their house and f inding his maternal aunt alone in the house, attempted to commit rape on her for cibly and in the process an alarm being raised, people of the locality gathered and caught and trapped the accused/ appellant. On the basis of the aforesaid eja har, investigation was launched. During the course of investigation, the Investi gating Officer recorded the statement of the victim under Section 161 Cr.P.C. an d also got the statement of the victim recorded as per provisions of Section 164 Cr.P.C. and, thereafter, the victim was sent for medical examination. On comple tion of the investigation, the Investigating Officer submitted chargesheet again st the accused/ appellant alleging commission of offence under Section 448/376 I PC. 3. During trial the learned Assistant Sessions Judge having found s pecific materials against the accused/ appellant, framed the formal charge under Section 376 IPC against the accused/ appellant. On being read over and explaine d the charge, the accused/ appellant pleaded ’not guilty’ and claimed to be trie d.
Legal Reasoning
In order to substantiate the charge, the prosecution side examin 4. ed as many as five witnesses including the doctor and the Investigating Officer. All the witnesses were thoroughly cross-examined by the defence counsel. On clo sure of the prosecution evidence, defence statement of the accused was recorded under Section 313 Cr.P.C. In his statement under Section 313 Cr.P.C. the accused / appellant took the plea that the informant, P.W.1 was a Life Insurance policy agent and the accused/ appellant as a holder of LIC policy purchased from P.W.1, had gone to the house of the said witness on the date of alleged occurrence i.e . 17.8.2005. At that time when the accused/ appellant was talking to the victim widow in their house, finding them alone in the house, the accused was illegall y trapped by the informant side and was falsely implicated with the alleged offe nce. On conclusion of hearing, the learned Trial Court convicted the accused/ ap pellant as aforesaid giving rise to this appeal. 5. Learned counsel for the accused/ appellant by referring to the e vidence of the prosecutrix given on three occasions-(1) statement before the Inv estigating officer u/s 161 Cr.PC.; (2) statement before the Magistrate u/s 164 C r.P.C.; and (3) statement before the Trial Court, submitted that the victim at e very stage tried to improve the story of the alleged commission of rape upon her by the accused/ appellant. On the other hand, learned Addl. Public Prosecutor submitted tha 6. t the decision rendered by the Trial Court is a reasoned one and there is no sco pe for interference with the findings of the Trial Court. 7. s of things to look into the evidence of the prosecution witnesses. In order appreciate the rival contentions, it would be in fitnes The first informant, P.W.1 (Md. Yazul Haque), stated in his dep osition that on the date of occurrence on his arrival at his residence, he found that his maternal aunt Mustt. HB was alone in the house and he saw the accused attempting to commit rape on her maternal aunt. When he enquired, his maternal a unt stated him that the accused/ appellant arrived at their house and tried to c ommit rape on her. P.W.1 raised alarm and called the neighbours, whereafter, the accused was caught and arrested. P.W.2 (Md. Nazimuddin Ali), stated that on the date of occurrenc 8. e when he was sitting in front of the informant’s house, he heard hue and cry fr om the house of the first informant. He went there and saw that both the accused /appellant and the victim were brought out from inside the house. However, at th at time the accused/appellant wanted to settle the matter amicably and, thereaft er, P.W.2 left the place of occurrence. 9. P.W.3 (the victim), aged about 40 years, who is the prosecutrix of this case, in her deposition stated that on the date of occurrence at the day time she was in the house of her brother-in-law and was cooking in the kitchen alone. At that time the accused came to the house and pressed her mouth and when she attempted to raise alarm, the accused forcibly committed rape. After that h er nephew arrived there and witnessed the occurrence. On seeing them, the first informant, P.W.1 locked the door from outside. 10. PW.4, Md. Muzammil Dewan, was enjoying cricket commentary at the relevant time. Having heard hue and cry in the house of the informant, he came there and found P.W.1 (Md. Yazul Haque) keeping the door closed from outside and on being asked, he stated that the accused and his maternal aunt were inside th e house. 11. tim immediately after the occurrence, found the following injuries: P.W.5 (Dr. Abu Taher), the Medical Officer who examined the vic y (cid:28)1. Teeth- 30 in nos. 2. Breast- fully developed, having children, histor of last child birth 12 years back, presently she is widow. 3. No injury mark on her mouth, cheeks or breast. 4. Pubic hair shaved. 5. Injury of the vaginal valve absent. 6. Vaginal meicosa- no laceration, no abruded or any injury present. 7. Hymen- absent 8. Genital canal- rigid, constricted, 9. Fourchette- normal, no laceration. 10. Ferineum- Normal 11. No stain present on the private parts of the body, 12. Vaginal smear examination: Vaginal smear was collected and examined under microscope but no spermatozoa present. 13. No pregnancy present on P/V examination. Remarks : 1. ion. 2. e of my examination 3. t the time of my examination. (cid:29) In my opinion there was no sign of rape at ll at the time of my examinat There was no sign of violence on her body or any private part at the tim As per my clinical assessment, the age of the widow was about 30 years a medically to have been ravished. The evidence of PW.5 clearly reflects that victim was not found
Legal Reasoning
12. Learned counsel for the appellant by referring to the evidence o f the cross-examination of the victim, P.W.3 and to the evidence of the victim r ecorded under Section 161 and 164 CrP.C. pointed out that the evidence of the vi ctim is self-contradictory. In her statement under Section 164 Cr.P.C., she stat ed to have been ravished by the accused/ appellant by gagging her mouth and, acc ording to her, she was seen by the first informant when the accused/ appellant w as committing rape on her. However, in her deposition in the Court she stated th at she was seen by the first informant when the accused attempted to commit rape for the second time. If we see the evidence of PW.1, the first informant, it ap pears that the victim was not found putting up any resistance to the accused, wh en PW.1 saw both of them inside the house. Rather, apparently it was PW.1, who found his victim aunt and the accused together, and raised objection. On a close r look, it appears that the victim changed her statement every time. The statem ent of the victim only reveals that she never resisted the advances of the accus ed prior to coming of PW.1 in the scene. 13. The medical report of the victim does not support any commission of rape on her person. Clothing of the victim was not seized and the opinion of the doctor clearly reveals that there was no fresh sign of rape at all found in the examination which carried out within 24 hours from the time of occurrence. 14. The Hon’ble Supreme Court as well the high Courts in the Country in a catenae of cases have held that when the evidence of the prosecutrix is fu ll of discrepancies and not supported by medical evidence, it would not be safe to convict the accused for the commission of rape. More so, in the facts and cir cumstances discussed above, the defence statement of the accused regarding visit ing the house of the first informant for making payment of LIC dues cannot be br ushed aside. The victim did not react to the coming of the accused and getting i nto her room, therefore, the offence under section 448 IPC, cannot be attracted. 15. When the victim a widow having all experiences in life did not resist th e advances of the accused on her own and hanged on till coming of the P.W.1 to f ind them together in compromising position. In the circumstances, the defence si de has probbalised the story that the victim had sex with the accused-appellant with her full consent. An offence under Section 376 IPC is serious in nature, but unles 16. s the said offence is proved, it would not be apposite for the Court to convict a person purely on the basis of the oral statement of the prosecutrix loaded wit h embellishment and embroidery uncorroborated by the medical evidence . 17. ent of victim supports the story of the prosecution. In the instant case, neither the medical evidence nor the statem According to this Court, prosecution has failed to prove its cas 18. e beyond reasonable doubt and there is no basis for the conviction of the accuse d-appellant either under Section 376 IPC or under Section 448 of I.P.C.
Decision
In the result and for the reasons discussed above, this appeal s 19. ucceeds. Accordingly, the conviction and sentenced passed by the learned Trial Court is hereby set aside and quashed. 17. The accused- appellant be set at liberty forthwith, if he is not required in connection with any other case. 18. Send down the LCR immediately.