Smti Rita Devi v. Smti A. Begum

Heard Smti Rita Devi, learned Counsel, appearing for the appellant. Also heard Smti A. Begum, learned Additional P.P., Assam, for the respondent.

2. This appeal is directed against the judgment and order dated 26.05.2003, passed by the learned Sessions Judge, Sonitpur, in GR Case No.996/2001, convict ing under Section 448/342/376 IPC and sentencing him to undergo RI for 3 (three) years and also to pay fine of Rs, 1,000/- only, in default to undergo RI for an other 3 (three) months under Section 376 R/W Section 511 IPC to undergo imprison ment for 3 (three) months and also fine of Rs.500/- only, in default to undergo for another 1 (one) month under Section 448 IPC and further to undergo imprisonm ent for 3 (three) months and to pay fine of Rs.500/- only, in default to undergo RI for another 1 (one) month under Section 342 IPC, which would run simultaneo usly.

3. Briefly stated, the prosecution case, is that on 28.07.2001, at about 1 1 a.m., taking advantage of the absence of parents, the accused committed trespa ss into the house of the informant and kidnapped his first daughter Anju Rani (r eal name withheld) and kept her confined, in his house. The victim’s father, Shr i Nirmal Nath, lodged the FIR, with the local Police and a case being Dhekiajuli P.S. Case No. 139/2001, was registered under Section 448/342/376/511 IPC. On co mpletion of the investigation, the I/O, submitted charge-sheet against the accus ed under the aforesaid Sections of law. On committal, the learned Sessions Judge framed charge against the accused under the aforesaid Sections of law. The char ge being read over and explained, the accused pleaded not guilty and demanded tr ial.

4. The prosecution examined as many as 9 (nine) witnesses including the vi ctim girl and the Medical Officer. The accused examined none in his defence and the learned trial Court, on consideration of the materials and evidence on recor d and upon hearing the learned Counsel for the parties, convicted and sentenced the accused, as mentioned earlier.

5. The most serious offence, alleged against the appellant, is the offence under Section 376 IPC. In my considered view, without going into the other detai ls of the offence, it is necessary to examine whether there are sufficient mater ials and evidence on record, substantiating the allegation/charge of rape within the meaning of 376 IPC. For this purpose, the Court has to examine and apprecia te the evidence of the victim girl.

6. In this case, the victim was examined as PW-7. In her deposition, she h as stated, amongst other, that in the absence of her parents, the accused entere d her house and forcibly dragged her to his house, in presence of the younger si ster. The victim was confined in the house of the accused and thereafter he forc ibly stripped off her wearing garments including her underwear and started bitti ng her cheeks and squeezing her breast. She gave vivid narration how the accused outraged her modesty. To put them in her own words:- (cid:28) & & & & &Accused Bhaben Nath dragged me to the next house i.e. h ouse of Bhupen Nath, elder brother of the accused and dragged me through the Jik a cultivation of the accused and took me inside his house. Thereafter accused bo lted the door from inside the house. Thereafter accused forcibly stripped off my wearing garments including my underwear and started bitting my cheeks and squee zed my breast. Accused forcibly took off my underwear and made an attempt to com mit rape on me. Being scared I beseeched the accused not to rape me and agreed t o put vermillion on my forehead so that he would not damage my chastity. The acc used being assured got his finger cut and put blood on my forehead. Accused want ed confirmation from me whether I would stay with him or not, and told me that i f I do not agree to stay with him he would administer poisonous substance to me which was carrying with him. I pretended that I would fulfill his wishes and the refore accused did not administer that poisonous substance ’Furand’ on me. After sometime Police reaches there and rescued me. Accused did not open the door til l police arrived and asked me to open the door. I narrated the incident before t he women police and also in presence of other persons. My mother, father and oth er people were there at that time. (cid:29)

7. The evidence of the victim girl is quite clear that she was not raped by the accused and, in fact, an attempt to commit rape was made by him. In a rape case, the evidence of the victim girl should receive maximum evidentiary value and when a victim girl has deposed that she was not raped, there is no sc ope for convicting the accused under Section 376 IPC.

8. Now, coming to the evidence of the Medical Officer (PW-1), deposed t hat, he medically examined the victim girl in Tezpur Civil Hospital. The medical report has been proved and marked as Exhibit- 1. In the medical report, the Med ical Officer, opined that there was no evidence suggesting rape and her age was above 18(eighteen) years. As per pregnancy test report, result was negative. In the said medical report, no injury to the person of the victim girl has been rec orded. From the aforesaid medical report, it is apparent that there was no sign of rape. As the victim received no injury on her person, it can not be said that the accused person used force in making the alleged attempt to commit rape on h er. The victim girl, in her evidence, stated that the accused is a neighbour but she did not have even talking term with him. But it appears that the accused pe rson loved the victim and he intended to marry her.

9. From the record, it appears that the accused used to live in a house adjacent to victim’s house and, although, she deposed that there was no talking terms, t here is hardly any basis to believe her evidence in this regard. The alleged inc ident took place at 10 A.M. At such time inmates are available at home. Neighbou rs are also naturally available at such hour of the day.

10. On the basis of the aforesaid evidence on record, in my considered view, no conviction can be recorded under Section 376 IPC and the conviction as record ed by the learned Trial Court, can not be upheld. In view of the above, the conv iction and sentence awarded against the appellant under Section 376 IPC is set a side and quashed.

11. So far conviction under Section 448 IPC, is concerned, on the basis of the evidence that both accused and the victim girl were neighbours and the al leged incident took place in the morning, there is no strong basis for convictin g the accused under Section 448 IPC and in that view of the matter, conviction a nd sentence recorded under Section 448 IPC, is not sustainable and accordingly, the conviction and sentence under Section 448 IPC as imposed by the learned tria l Court is set aside and quashed.

12. As regards the conviction and sentence under Section 342 IPC, I fin d no ground for interference with the same inasmuch as, there are sufficient mat erials and evidence to the effect that, the accused forcibly dragged and confine d her in his house and she could be recovered only after the Police came to the place of occurrence. In this regard, the I/O, who was examined as PW-9, deposed that the accused was present in his house and the victim girl was found confined in his house.The evidence of the PW-9 is enough to convict the accused under Se ction 342 IPC and accordingly, the conviction and sentence as awarded by the lea rned trial Court against the appellant calls for no interference and accordingly , same is upheld.

13. It is stated by Smti Rita Devi, learned Counsel, appearing for the accused/a ppellant that he was arrested during investigation and was in custody for 2 (two ) months and he was subsequently allowed to remain on bail. In my considered vie w, the ends of justice would be met, if the appellant is sentenced to undergo im prisonment for 2 (two) months i.e. the period already undergone by him with fine of Rs.1,000/- to be paid to the victim. The aforesaid amount of Rs.1,000/- shal l be deposited by the appellant in the Court of learned Chief Judicial Magistrat e, Sonitpur within a period of 40(forty) days from today and the same shall be paid to the victim. In case, the appellant fails to pay the fine to the victim, the appellant shall be liable to undergo imprisonment for 1 (one) month.

14. nd sentence as indicated above. The appeal stands partly allowed with modification in the conviction a

15. - Return the LCR forthwith.