High Court
Case Details
Crl.A. 12/2008 BEFORE HON’BLE MR JUSTICE P K MUSAHARY JUDGMENT AND ORDER(Oral)
Legal Reasoning
Heard Mr.P.Mahanta, learned counsel for the appellant and Mr. B.B.Gogoi, learned Addl. Public Prosecutor, Assam. 2. This appeal has been preferred challenging the judgment and order dated 24.12.2007 passed by the learned Addl. Sessions Judge, Tinsukia in Sessions Ca se No.97(M)of 2007 convicting the appellant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for five years with fine of Rs.5000/- and in default to undergo further six months rigorous imprisonment. Briefly stated the prosecution story is that on 15.6.2005, the prosecutr 3. ix lodged an Ejahar with the police informing that on 10.4.2005 while she was sl eeping in her house, the appellant after enjoying television along with others, allowed her to sleep in a separate room along with two maid servants, and therea fter, the appellant entered the room and then by gagging her mouth, took her out and committed rape on her in his room at about 3 am. The prosecutrix spent t he night at the appellant’s house and on the following day she reported the matt er to sister-in law of the accused about the incident but she ignored her compl aint by giving her a tablet. The prosecutrix did not disclose the matter to anyb ody except her mother as alleged in the FIR after two months, while her menstrua tion did not take place. Her father reported the matter to the house of the accu sed/appellant. The father of the prosecutrix, while he reported the matter, was assaulted by the family members of the appellant. On the basis of the FIR filed on 14.6.05, a case being Margherita P.S.Case No.105/05 was registered under Sec tion 376, IPC and the investigation commenced. During investigation, the victim was produced before a Magistrate and her statement was recorded under Section 16 4 Cr.P.C. on 20.6.2005. She was also produced before the medical officer, Tinsuk ia Civil Hospital for medical examination on 15.6.2005. On completion of invest igation and after going through the medical report, the IO having found no evid ence against the appellant, returned the case in FR but the learned Magistrate r efused to accept the FR and ordered to proceed with the trial. The matter was t hen committed to the court of Sessions for trial. The learned trial court framed charge under Section 376 IPC against the appellant, who on being read over and explained, pleaded not guilty and demanded trial. The prosecution examined nine witnesses including the victim gir 4. l, medical officer and the IO of the case, but the appellant examined none in hi s defence. On the basis of materials and evidence on record, the learned trial c ourt convicted and sentenced the appellant vide impugned judgment and order. 5. Before appreciating the evidence on record, it is to be noted that the alleged occurrence took place on 10.4.2005 and the FIR was lodged on 14 .6.2005, that is, after about two months of the occurrence. No explanation has been furnished justifying the delay in filing the FIR. The victim was medically examined on 15.6.2005. She was produced before the Magistrate and her statemen t was recorded on 20.6.2005 under Section 164 Cr.P.C. All these were done after two months from the date of alleged occurrence. 6. P.W.1 is the victim girl. I have carefully gone through her evid ence on record. She has vividly narrated how the accused committed rape on her. She was allegedly picked up by the appellant at around 3 AM (in the night), w hile she was sleeping along with two other girls. She stated that she was gagged due to which she could not raise any alarm. But she did not state that the app ellant carried any arms or threatened her. In fact, she resisted his action. E ven when she was taken up to other room, she made no noise or hue and cry to att ract the inmates of the house. It is difficult to believe that a young lady woul d not try to resist the person who had come to ravish her in the night. She was not alone at the time when she was picked up. Even after commission of alleged o ffence, she was sitting in the house of the appellant as if nothing had happened inasmuch as she did not try to report the incident to other girls who were slee ping with her or to any inmates of the house. In the evidence of the victim girl nothing is found that the appellant threatened the prosecutrix not to tell or r eport the incident or else she would face dire consequence. Inspite of that she did not dare to report the incident to anybody. She could report the incident to the sister-in-law of the accused-appellant when reportedly her menstruation wa s stopped after two months and she had a doubt that she got pregnant. On compl aint made before the police she was medically examined. 7. The medical officer concerned was examined as PW-3. The medical officer proved the report that he prepared justifying that he examined the victi m girl on 15.6.2005. As per medical report, no pregnancy was detected and in his opinion her age was between 17-18 years. No opinion could be given by the medic al officer as to whether the victim was subjected to rape or not. 8. Going by the opinion of the medical officer (PW-3), the girl was at the age between 17-18 years at the time of alleged occurrence. As the victi m was above 16 years, she was at the age of consent and it cannot be said that t here was no consent from her side in indulgence herself in sexual intercourse w ith the appellant. Looking at the conduct of the prosecutrix that she did not r esist the action of the appellant it can be presumed that the prosecutrix volunt arily indulged in sexual intercourse with the appellant. It is to be noted that the prosecution did not examine the other two girls who were sleeping with the prosecutrix on the date and time of the occurrence. Besides, as stated earlier t he prosecutrix did not come forward with any explanation on the delay in filing the FIR. No attempt has been made by her or the prosecution to explain the delay . The delay of two months in lodging the FIR is fatal to the prosecution case. N ormally in a case of rape some delay in filing the FIR could be excused because there are lot of factors to be considered by the prosecutrix as well as family m embers before filing the FIR. But in the present case it took about two months t ime to file the FIR without an explanation. Such an inordinate delay cannot be excused even in the rape case of the present nature. It is unthinkable that in a serious matter like this, the prosecutrix would await about two months to lodg e the FIR. 9. The prosecutrix has been found untrustworthy and unbelievable a nd her evidence has failed to gain the confidence of the court. Although she all eged in her FIR as well as statement under Section 164 Cr.P.C. that she was pre gnant due to alleged rape committed by the appellant, the medical officer, in t he medical examination, did not find any sign of pregnancy. In view of the above , I am bound to hold that the prosecution failed to prove the charge under Sect ion 376 IPC against the appellant. The appellant is entitled to acquittal. Accor dingly the impugned judgment convicting and sentencing the appellant stands quas hed and set aside. The appellant stands acquitted. He be set at liberty forthwit h if his further detention is not required in connection with in any other case . Return the LCRs.