High Court
Case Details
Crl.A. 97/2007 BEFORE HON’BLE MR JUSTICE PK MUSAHARY None appears for the appellants when the matter was called upon for hearing. It is a long pending appeal. In the interest of justice it is felt necessary that t he matter should be disposed of expeditiously and for this purpose I appoint Smt .N.Bharali, who is present in the Court, as Amicus Curiae for appearing on behal f of the appellant and assisting this Court. 2.
Legal Reasoning
I have heard Smt.N.Bharali, learned Amicus Curiae for the appellants and Mr.D.Das, learned Addl.P.P., Assam for the State respondent. 3. This appeal is directed against the judgment and order dated 30.3.2007 p assed by the learned Sessions Judge, Cachar, Silchar, in Sessions Case No. 115 o f 2005 , and convicting the accused appellant Ramu Gore and Bulbulia Ree @ Bali ram Ree u/s 457/34 and sentencing them to suffer rigorous imprisonment for 4 ye ars each in default to suffer rigorous imprisonment for 3 months and convicting the accused appellant Ramu Gore and Bulbulia u/s 376(2)(g) IPC and sentencing them to suffer R.I. for 10 years and to pay a fine of Rs.5,000/-each in default to suffer rigorous imprisonment for 3 months . 4. The prosecution case, in brief, is that the prosecutrix, while she was s leeping with her children in her house, in absence of her husband, the appellant trespassed into the house and committed rape on her. She resisted but she was o ver powered by the appellants whom she could identify. Her written FIR was recei ved by the police and registered as Silchar P.S.Case No.1200/99 u/s 457/376(g) IPC. 5. During investigation the I.O. visited the place of occurrence and produc ed the victim girl before the medical officer for medical test. On completion of the investigation and after collection of the medical report, the I.O. submitte d charge sheet u/s 457/34 and u/s 376 (2)(g) IPC. The learned trial Court on rec eiving of the case on remand, framed charge against the appellants under the afo resaid Sections of law. All the accused appellants pleaded not guilty and claime d to be tried. They accordingly faced the trial. The prosecution examined seven witnesses to establish the aforesaid charges but the appellants declined to addu ce any evidence in their defence. They maintained the plea of complete denial of the charges. The learned trial Court on the basis of materials and evidence on record passed the impugned order of conviction and sentence against the appellan ts as indicated above. 6. I have carefully gone through the evidence available on record. PW 1 is the victim woman. She has maintained the averments and allegations made in her F IR, Ext.1. As per her evidence, apart from the present appellants, some more acc used persons trespassed into her house and assisted the appellants in committing the rape upon her. She could not identify the other accused persons. However sh e could clearly identify the present appellants and she has mentioned their name s in the FIR. In her evidence she has categorically stated that first accused Ra mu Gore committed rape on her and in the second turn Bulbulia Ree @ Baliram Ree committed rape on her. 7. It has been revealed in the evidence of the prosecutrix that her house i s located on a Tila (Hillock) and her brothers’ house is also located at the nea rby Tila. She was sleeping with her seven minor children. Her minor children mad e hue and cry when she was subjected to gang rape. Her brother PW 2, Dipak Rai o n hearing the hue and cry came to the place of occurrence alongwith his wife, PW 3, Supriti Rai. Both of them deposed before this Court that they came to the pla ce of occurrence after hearing the hue and cry, but the time they arrived at the place of occurrence, the accused persons have already fled away. They found one lungi (man’s wearing apparel) near by the place of occurrence. It could not be ascertained by them to whom the said lungi belonged to. As regards the possibility of identifying the accused appellants it may 8. be noted that all the appellants belong to the same village. It is quite natural that the victim could identify the accused appellants as co-villagers. The plea of not being able to identify them cannot be taken by the defence. In such case , in my considered view, the TIP is not an absolute necessity inasmuch as the pr osecutrix firmly stated in the FIR itself that she could recognise them. In t he evidence also she has reiterated the same and the defence could not demolish her evidence in this regard. Thus the evidence of the prosecutrix that she could identify the present appellants, has been established 9. PW 7 testified that he examined the prosecutrix on 30. 8. 1999 after two days from the alleged occurrence (28.8.1999). He has proved his medical report, Ext.3 and his signature, Ext.3(1). The relevant portion of the medical report i s quoted hereunder: (cid:28)Genital Examination :- Pubic hair-absent, Vulva-healthy, Labia majora and minora- patulous, sep arated e xposing vaginal orifice, Hymen- carunculae. Vagina- healthy, blood liqu it staying and oozing from vaginal canal. Cervix - healthy, parous uterus. Fou rchette- posterior commissure abraded . Perinoum - healthy. Vaginal swab smear d oes not show spermatozoa. Only RBC s are seen. X-ray not done. In the opinion of doctor: 1. Age of the woman is above 30 years. 2. Evidence of recent sexual intercourse not seen. 3. She has sustained injuries in her genital person. 4. Injuries in the genitals are suggestive of forceful sexual intercours e either attempted or committed. (cid:29) The findings of the medical officer is that the prosecutrix sustained in juries on her genital and the said injuries are suggestive of forceful sexual in tercourse, either attempted or committed. 10. The evidence of prosecutrix is very much categorical in regard to the fa ct that the appellants No.1.Ramu Gore and appellant No.2 Bulbulia Ree @ Baliram Ree, one after another committed rape upon her. The defence, as stated earlier could not adduce any evidence to disprove the said evidence. There is no reason to disbelieve the evidence of the prosecutrix unless the same is rebutted by the appellants by adducing cogent and reliable evidence. The medical evidence has c orroborated or at least lent support to the evidence of the prosecutrix that she sustained injuries on her genitals. Although the medical officer opined that t he injury on her genital is suggestive of forceful sexual intercourse, on the fa ce of categorical evidence of the prosecutrix , the Court can hold that the pr osecutrix sustained the said injury due to forceful intercourse committed by the appellants on the prosecutrix. 11. It is not necessary to cite any case law to the effect that an accused i n a rape case could be convicted and sentenced solely on the basis of the eviden ce of the prosecutrix, if her evidence is found to be cogent, consistent and rel iable and inspiring confidence of the Court. Here in the present case, I have fo und the evidence of the prosecutrix consistent, cogent and reliable supported by medical evidence.
Decision
12. In view of the above, I am of the considered view that there is no groun d for interference with the findings and conclusion arrived at by the learned tr ial Court. The appellants were rightly convicted and sentenced and therefore I u phold the order of conviction and sentence which are under challenge in this app eal. The sentence could not be reduced inasmuch as it is a case of gang rape wit hin the meaning of 376 (2)(g) IPC and the minimum sentence prescribed thereunder is 10 years with fine. I uphold the sentence as imposed by the learned trial Co urt 13. The appellant No.3 is not found guilty under Section 376 IPC and as subm itted at the Bar, he has served out the sentence under Section 457/34 IPC and as he was not convicted and sentenced u/s 376 IPC, he has already been set at libe rty. The appeal stands dismissed. The Appellant No.1 and 2 shall serve the sente nce as awarded by the learned trial Court for the offence committed by them u/s 376 IPC and upheld by this Court. 14. e Legal Service Authority shall pay an amount of Rs.5000/- to her as legal fee. In recognition of the legal service rendered by Smt. N. Bharali , Stat