High Court
Case Details
Crl.A. 83/2012 BEFORE HON’BLE MR JUSTICE B.K.SHARMA Heard Mr Anup Boro, learned counsel for the appellant. Also heard Mr NJ Dutta, l earned APP, Assam. This Appeal is directed against the judgment of conviction dated 30.3.2012 passe d by the learned Sessions Judge, Dhemaji in Sessions Case No. 42(JN)/2011, convi cting the accused appellant under Section 376 (1) IPC and sentencing him to und ergo RI for 7 years and to pay fine of Rs.5000/- and in default, RI for another 3 months. Jonai PS Case No. 153/2010 was registered under Section 376 IPC on the basis of the FIR lodged by the victim. As per the said FIR, the accused appellant had committed the offence punishable under Section 376 IPC. It was stated in the FIR that on 5.12.2010 at around 8-30 P.M. when the informant went to Borbali LP School to bring her three children, who were watching VDO show within the school complex, on her way the accused ap pellant laid her on the ground and by gagging her mouth with a gamocha committe d the offence under Section 376 IPC. Thereafter she went to the school and came back home along with her children. As regards the delay in lodging the FIR, it was stated that as her husband was a way from home coupled with some domestic inconvenience, there was delay. On conclusion of the investigation, that was carried out by the police, the accu sed appellant was charge sheeted under Section 376 IPC and upon framing of the c harge under the same Section, the learned Trial Court proceeded with the trial. During trial, the prosecution examined 5 witnesses while the accused examined 2 witnesses. The statement of the accused appellant was also recorded under Sectio n 313 CrPC. PW-1 is the victim. In her deposition during trial, it was stated that on 5.12.2 010 while proceeding towards the school to bring her three children at about 8/8 -30 P.M. the accused appellant caught hold of her and committed the offence unde r Section 376 IPC. Thereafter she went to the school and came back along with he r children. She further stated in her deposition that she lodged the FIR after 2 days as she was waiting for her husband to come from his working place. Howeve r, as regards the return of her husband from the working place, she stated in he r deposition that her husband came back from Arunachal Pradesh after one month o f the occurrence. PW-2 and 3 are the reported witnesses who in theirs deposition stated about the incident as narrated by the PW-1. PW-4 is the Doctor who had examined the victim. In his deposition, referring to the findings recorded upon examination of the victim, stated that there was no i njury mark in the private parts and on the body of the victim. PW-5 is the I.O. who conducted the investigation. He in his deposition generally stated about the investigation that was carried out and submission of the charg e sheet. DW-1, who was examined by the accused appellant, stated in his deposition about the VDO show in which there was gathering of about 150 people. As per his deposi tion, a quarrel took place between the victim and the accused appellant due to s tumping of leg at the venue of the VDO show. As per the deposition of the said w itnesses it was because of the said incident the victim had stated that she woul d take revenge on the accused. He also stated in the deposition that when the VD O show was over the gathering dispersed. In his cross-examination he had stated that if the accused appellant had committ ed any bad work with the victim he was not aware of that. DW-2 also stated the s ame as that of DW-12. If we go by the evidence of the defence witnesses it will be seen that both the accused and the victim were present at the site where a Missing film was being s hown on VDO. As per the deposition of DW-1 after the particular incident becaus e of the leg stumping the victim told the accused appellant about the revenge to be taken and she remained in the verandah of the school. The question necessari ly arises if the victim had gone to the school to bring her children and the acc
Legal Reasoning
used appellant had committed the offence against her, why she did not narrate th e same to the gathering and for that matter the persons known to her. In the ev idence of DW-1 it was stated that a quarrel took place between them due to the l eg stumping and after that the victim remained in the school verandah. Thereafte r the gathering dispersed when the VDO show was finished. In the evidence of PW-1 she stated that there was delay in lodging the FIR as sh e was waiting for her husband. However, in the same breath she has also stated t hat her husband came from Arunachal Pradesh after one month. In the FIR there is no mention of any paddy field in which the accused appellant allegedly committed the offence. In her statement made under Section 164 CrPC a lso she did not say that the offence was committed in the paddy field. However, during trial she stated that the offence was committed on the path of the paddy field. If the alleged offence had taken place on 5th December, 2010 on a paddy field th e cloths of the prosecutrix must have been spoiled. As per her version due to th e offence committed by the accused appellant her under garment also became wet b ut the prosecution did not seize the under garment for examination by the Forens ic Science Laboratory. If the offence was committed on way to the VDO show, it i s not understood as to how she could behave normally even to the extent of picki ng up quarrel with the accused appellant on the alleged stumping of legs. As per the evidence of PW-4 (Doctor) there was no suggestive inference of sexual assau lt. Coupled with this there was also no bodily injury. The learned Trial Court has convicted the accused appellant solely on the basis of testimony of the prosecutrix. While doing so, it has referred to the decision of the Apex Court reported in AIR 1996 2 SC 384 (State vs Gurmit Singh). That w as a case of kidnapping a 16 years old girl which eventually resulted in an offe nce punishable under Section 376 IPC. It was in such circumstances it was held t hat the testimony of the prosecutrix was believable. Unlike the said case, in th e instant case, because of the above contradictions, it is totally unsafe to rel y on the evidence of the prosecutrix and to convict the accused appellant solely on the basis of her testimony.
Decision
Situated thus, I am of the considered opinion that the accused appellant is enti tled to benefit of doubt. Accordingly the Appeal is allowed. The judgment of con viction and sentence dated 30.3.2012 passed by the learned Sessions Judge, Dhema ji in Sessions Case No. 42(JN) is set aside and quashed. The accused appellant s hall be set at liberty forthwith, if not wanted in any other case. The Registry will send down the LCRs along with a copy of the Judgment.