High Court
Case Details
Crl.A. 32/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
Heard Mr. M. Chetia, learned counsel for the accused appellant. Also heard Mr. Z . Kamar, learned P.P., Assam along with Mr. N.J. Dutta, learned A.P.P., Assam. This appeal is directed against the judgment of conviction and sentence 2. dated 19.12.2011 passed by the learned Additional Sessions Judge (FTC), Lakhimpu r in Sessions Case No. 76(NL)/2010 convicting the accused appellant under Sectio n 376 IPC and sentencing him to undergo RI for 7 years with fine of Rs. 1000/-an d in default to suffer RI for another 30 days. 3. Dhakuakhana P.S. Case No. 116/2009 dated 4.9.2009 was registered under S ection 376/325 IPC on the basis of the FIR dated 4.9.2009 submitted by the fathe r of the victim girl stating that his daughter, aged about 13 years was raped by the accused appellant under threat of killing her and expelling her from the vi llage. On receipt of the FIR, the police registered the aforesaid case and carri ed out the investigation, during which the statement of the witnesses were recor ded including the statement of the victim girl under Section 161 CrPC. Her state ment was also recorded under Section 164 CrPC. 4. During trial, the prosecution examined 6 witnesses and the accused was e xamined under Section 313 CrPC. In his statement, the age of the victim girl was stated to be 15 years. 5. The learned Trial Court has convicted the accused appellant appreciating the evidence on record including the testimony of the victim girl. Although, it was argued that there was variation about the incident in the statement of the victim girl made under Sections 161 and 164 CrPC, but on perusal of the said sta tements what is found is that the same more or less corrorated each other. This aspect of the matter has also been appreciated by the learned Trial Court. 6. ncident. Her testimony could not be dislodged in the cross examination. During trial, PW-1 i.e. the victim girl categorically stated about the i 7. PW-2 is the father of the victim. As per his deposition, his daughter wa s about 13 years of age. Narrating the incident he had deposed that taking advan tage of his absence at home and so also of his wife, the accused committed the o ffence punishable under Section 376 IPC. In the cross-examination, he had stated that there was strained relationship with the accused. However, it was never su ggested that he had falsely implicated the accused appellant because of such rel ationship. PW-3 in his deposition stated about the offence committed by the accu sed appellant, about which, he had also enquired from the accused appellant. Upo n such enquiry, the accused appellant revealed to him that he had only kissed th e victim. PW-4 in his deposition while narrating the incident stated as to how t he same was revealed to others. Nothing substantial could be brought out in the cross-examination. PW-5 is the doctor, who examined the victim girl, who in her deposition stated that the pregnancy test of the victim girl was negative. She i n her opinion stated that the age of the victim girl could be above 15 years and below 17 years. It will be pertinent to mention here that the medical examinati on of the victim girl was conducted on 4.9.2009 i.e. the date on which the FIR w as filed, which was much after the incident took place. 8. n stated about the investigation and submission of the charge sheet. PW-6 is the I/O, who carried out the investigation, who in his depositio 9. Learned Trial Court appreciating the aforesaid evidence having convicted the accused appellant, he has filed the instant appeal. Mr. M. Chetia, learned counsel for the appellant submits that the whole case having emarated due to enm ity from bad relationship between the family of the victim and the accused appel lant, the deposition made by the victim girl should not be taken into account on its face value. He also submits that having regard to the contradiction regardi ng the age of the victim girl and going by the nature of evidence available on r ecord, even if the alleged occurrence took place, the victim being a consenting party, the accused appellant could not have been convicted for the offence under Section 376 IPC. 10. Countering the above argument, Mr. Z. Kamar, learned P.P., Assam along w ith Mr. N.J. Dutta, learned A.P.P., Assam submits that when the victim girl hers elf stated about the incident in clear terms, coupled with the fact that there i s corroborative evidence, the impugned judgment of conviction is liable to be up held. 11. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also gone through the entire materials on record. My findings and conclusions are as follows: 12. There is nothing to disbelieve the testimony of the PW1 i.e. the victim girl. As has been observed by the learned Trial Court, no girl of self respect a nd dignity who is conscious of her chastity having expectation of married life a nd livelihood would accuse falsely any other person of rape, much less against h er own related grandfather, sacrificing thereby her chastity and also exposing t he entire family to shame and at the risk of condemnation and ostracism by the s ociety. It is equally settled principle of law that in sexual offence, the pros ecutrix is not accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material p articulars. 14. As discussed above, the other witnesses also corroborated the evidence a dduced by PW-1. Much was debated about the age of the victim girl, which accordi ng to the learned counsel for the accused appellant was above 16 years. Thus pre sumption has been emphasized so as to contend that the victim was a consenting p aty. Apart from the fact that there is nothing to show in the evidence that the victim was above 16 years of age, as per the own statement of the accused appell ant recorded under Section 313 CrPC at the time of occurrence, the victim was 15 years old. This aspect of the matter need not detain us inasmuch as there is no thing in the evidence to show that the victim was a consenting party. 15. As noted above, apart from the deposition during trial, the prosecuting also narrated the incident in her statement made under Section 161 and 164 CrPC. Her statements were cogent, constant and reliable and there is nothing to disbe lieve the same. It is settled principle of law that if the testimony of the pros ecutrix inspires confidence, same cannot be brushed aside, even if there is no c orroboration. However, in the instant case, apart from the testimony of the vict im girl, there is also evidence corroborating her testimony. 16. In view of the above, I do not find any infirmity in the impugned judgme nt of conviction and sentence dated 19.12.2011 passed by the learned Additional Session Judge (FTC), Lakhimpur in Sessions Case No. 76(NL)/2010 convicting the a ccused appellant under Section 376 IPC. 18. a copy of this judgment and order.
Decision
The appeal is dismissed. Registry is directed to send down the LCR with