Judgment · High Court · 2012

I have heard the learned counsel appearing on behalf of the appellants and Mr. K. Munir, learned Addl. PP, appearing on behalf of the State of Assam. 6]. It is submitted by the learned counsel for the appellants that the pro secution could not establish that any offence under Section 376 IPC was committe d by the accused appellants. The medical evidence and the evidence of the victi m are inconsistent. PW-1 (victim) deposed that she is aged about 15 years. The a ccused was known to her. She went to shop to bring tea leaves and while she was returning home, the accused persons met her and asked her as to whether he had g one. Thereafter, the accused Jiban Das gagged her mouth and dragged her under t he Dhansiri Bridge where they committed rape on her one after another. She becam e senseless and the accused persons fled away. After regaining the sense, she m anaged to come on the road where she met a boy and reported him the said inciden t. The said boy sent the message to her home, then, her father and uncle came to the place and took her. On the following day, the FIR was lodged by the father of the victim. In her cross-examination, she stated that the accused persons t ook her near the bridge on a bicycle. PW-2, father of the victim, stated that th e occurrence took place while he was away from his house. When he returned home, he did not find his daughter. At about 10.00 P.M., one Bikash Paul and his neph ew came to his house and informed that his daughter was lying near the Dhansiri Bridge. The victim was at the relevant time was semiconscious and therefore, PW- 2 did not ask her anything. Next day, when she became normal, on being asked, sh e told that on the previous evening while she was returning home from the shop, both the accused persons took her forcibly under the Dhanriri Bridge and committ ed rape on her one after another and fled away. Accordingly PW-2 lodged the FIR. PW-3, Bikash Paul, who deposed that at about 8.00 P.M. after closing t 7]. he shop, while he was returning home on a scooter, he saw that one girl sitting on the road in front of his house. Coming near to her he could indentify the gir l is the daughter of PW-2, then, he went to the house of PW-2 and informed him t hat his daughter is sitting on the road in front of his house. The father of the victim came and took her to his house. On being asked next day morning, the vic tim told that both the accused persons committed rape on her in the jungle. PW-6 is the doctor, who, after examination of the victim, deposed that he did not fi nd any sign of sexual intercourse prior to her medical examination. He finds no injury on the body of the victim. The Hymen was intact. While appreciating the e vidence of doctor, the learned trial Court observed that the victim was examined by the doctor after 46 days of the occurrence. Relying on the case of Aman Kumar Vs. State of Haryana, report 8]. ed in 2004 CLJ 1399, it was observed by the Court that the medical officer does not state that rape was not committed rather he deposed possibility of sexual in tercourse was not ruled out on the ground that hymen was found intact and the in jury was not found on the private parts of the prosecutrix. Moreover, the exami nation was also held after more than 46 hours of the incident. There was no evi dence that the victim and her family members were with the enmity to the accused persons. In the FIR, the informant contended that the victim was induced to go with the accused persons. It is also contended that one of the accused Jiban Da s committed rape on the victim and another accused Ratan Seal outraged her modes ty. The victim, thereafter returned back home and reported the incident to her f amily members. The victim, in her evidence, deposed that the accused Jiban Das a long with two others committed rape on her. In her cross-examination, she state d that the accused Jiban Das took her to the place of occurrence on his bicycle. She could identify two accused persons but she could not identify the another accused person. It appears from the cross-examination of the victim that she stated bef 9]. ore the Investigating Officer or in her statement recorded under Section 164 Cr. P.C. that accused Jiban Das committed rape on her. In the FIR also, it is alleg ed that the accused Jiban Das committed rape on her while the accused Ratan Seal outraged her modesty. The victim, in her evidence, disclosed that her age is 1 5 years and her evidence was recorded after 2 years of the incident. Therefore, according to victim, she was age at about 13 years of age at the time of inciden t. The doctor, during examination, opined that the victim was above 18 years of age at the time of incident. In the FIR, it is also alleged that the accused-pe rsons induced the victim to accompany him. The accused Jiban Das took her on hi s bicycle under the river bridge and committed rape on her while the Ratan Seal outraged her modesty. The doctor find no sign of rape. There was no injury on t he body of the victim. Moreover, the hymen of the victim was found intact. No do ubt, the cited cases, referred by the learned trial Court, it was held that even a slight penetration in the vulva is sufficient to constitute the offence of ra pe and rupture of the hymen is not necessary. In this case, the victim alleged t hat she was raped one after another by three persons. In the absence of injury on her private parts and the hymen remained intact bears a doubt whether she was actually raped by the accused persons as alleged. The inconsistency in the evid ence of the victim also creates doubt whether she was forcefully taken by the ac cused persons. The medical evidence was also shows that the victim was above 18 years of age. The variation of two years on the either side in determining the age can be presumed but here there is a variation of four years with regards to the age of the victim. From the above 10]. evidence, it appears that the accused was acquai nted with the victim and he induced the victim to go with her while she was alon e in the house. The victim accompanied him on his bicycle and thereafter she wa s molested and left alone. The prosecution failed to establish by the cogent ev idence that any rape was committed to the victim without her consent. The accus ed persons are, therefore, liable to be convicted under Section 354 of the IPC. Accordingly, the conviction under Section 376 IPC sentencing them to rigorous i mprisonment for 10 years with a fine of Rs.5000/- are set aside. The Accused ap pellants are convicted under Section 354 IPC and sentenced them to undergo rigor ous imprisonment for 2 years with a file of Rs.3,000/- in default, further impri sonment for one month. 11]. The accused appellants have already undergone the imprisonment of more than 2 years. Therefore, they may be set at liberty on payment of file of Rs.3 000/- in default, they will serve out the sentence as imposed in lieu of fine. 12]. of. With the above modifications, this appeal is accordingly disposed 13]. urt below. Send down the LCR along with a copy of this judgment and order to the co