High Court
Case Details
Crl.A. 240/2012 BEFORE THE HON’BLE DR.(MRS.) JUSTICE I. SHAH JUDGMENT & ORDER (ORAL)
Legal Reasoning
The judgment and order dated 29-09-2012 passed by learned Addl. Sessions Judge (FTC), Bongaigaon, in Sessions Case No.18(B)/2010, convicting the appella nt under Section 376 read with Section 511 IPC and sentencing him thereby to und ergo rigorous imprisonment for 4 years and also to pay fine of Rs.1,000/- in def ault of payment of fine, simple imprisonment for 1 month has been challenged in this appeal. 2].
Legal Reasoning
I have heard Mr. DA Kaiyum, learned counsel for the appellant and Ms. B. Bhuyan, learned Addl. Public Prosecutor appearing on behalf of the State of Ass am. 3]. The facts of the prosecution case, in brief, are that on 03-07-2003 at a bout 2.00 P.M, while the victim went to the paddy field to bring her cow therefr om, suddenly the accused came out from a nearby jungle caught hold of her, dragg ed her into the jungle and committed rape on her. Immediately after the incident , the victim went to the house of Smt. Rita Bala Hajong and reported the inciden t. The matter was reported to other villagers. There was a village meeting on the subsequent day. However, the accused appellant did not attend the meeting c onvened by the villagers and as a result of which, no decision could be arrived at. The victim, then, lodged the FIR on 08-07-2003. On the basis of the FIR, B ijni P.S. Case No. 87 of 2003 was registered. During investigation, the victim was medically examined and her statement as well as statements of other witnesse s were recorded under Section 164 Cr.P.C. On completion of investigation, police submitted the charge-sheet under 4]. Section 376 IPC against the accused. The accused appellant pleaded not guilty t o the charge framed against him under Section 376 IPC and claimed to be tried. 5]. During the trial, the prosecution examined altogether 08 witnesses in support of its case. The accused, in his statement, recorded under Section 313 C r.P.C. denied the allegations levelled against him and pleaded that he is innoce nt. No defence witness was adduced. On conclusion of trial, learned trial Court convicted the accused under Section 376 read with Section 511 IPC as aforesaid. 6] The victim was examined as PW.5. She deposed that on the date of occurrence, she was alone in the house. Her parents went out for their respecti ve jobs. One of her neighbours Abul Munshi informed her that her cow, which was with rope in the paddy field, was unfastened and she then went to bring her cow back home. When she reached the paddy field, all on a sudden, accused Barkat Al i, came out from nearby jungle, caught hold and gagged her mouth with a towel (g amcha). He undressed her pulling her wearing blouse and sari and dragged her to nearby jungle, where he committed rape on her. After committing rape, when he l eft her, she went to the house of Mahendra master and informed the matter to his wife Rita Barman. Soon after, Rita Barman and wife of one Santosh took her to the house of the accused to enquire about the incident. However, the accused de nied that he did not commit such act. On next day, at bout 3.00 P.M., a village meeting was convened, which was attended by many people but the accused did not attend the meeting. Therefore, any decision could not be arrived at. Then, she lodged the FIR. She further stated that as she was waiting for the result of th e village meeting, there was delay in lodging the FIR. She handed over the cloth es, blouse and sari, which were torned in the incident, to the police. 7]. In cross-examination, she stated that she attempted to raise alarm but a s the accused gagged her mouth with a towel/gamcha, she could not raise alarm. After the incident, the accused fled away. She reiterated that the accused commi tted rape on her. Her husband was also not present in the house as he went to G uwahati in connection with his job. She denied the defence suggestion given by the defence that prior to her marriage there was a marriage negotiation in betwe en her and the accused and the accused refused to marry her she lodged the FIR. 8]. Corroborating to the evidence of the victim, PW.1, Smt. Rita Bala Hajong deposed that on the date of occurrence at about 1.30 P.M., the victim came to h er house. PW.1 was then lying on bed as she was ill. The wearing clothes of the victim were torned as noticed by PW.1. On her quarry, victim stated that the a ccused had committed rape on her inside the bamboo grove adjacent to the paddy f ield of Birendra. At about 2.30 P.M., PW.1 along with the victim came to the pl ace of occurrence in search of the ear-ring, which was lost during the incident. Thereafter, they went to the house of the accused and enquire about the inciden t. However, the accused refused that he ravished the victim. She exhibited her s tatement recorded under Section 164 Cr.P.C. In her statement recorded under Sec tion 164 Cr.P.C. she disclosed the name of her husband as Mahendra Brman but dur ing evidence, she stated the name of her husband as Birendra Barman. There is n o confusion from the exhibit-1 recorded under Section 164 Cr.P.C. that Mahendra Barman and Birendr Barman are one and same person. The statement recorded under Section 164 Cr.P.C. by PW.1 is consistent with her evidence in the court. 9]. PW.4, Sri Gyanendra Roy is a reported witness. The incident was reported to him on the very date of occurrence at about 3.00 P.M., by the victim . He also exhibited his statement recorded under Section 164 Cr. P.C. It appea rs from his cross-examination that his house is situated near the place of occur rence. However, he did not hear hue and cry raised by the victim during the inci dent. PW.3, Smt. Sandhya Barman is also a reported witness. She accompanied by PW.1 and the victim went to the house of the accused to enquire about the incide nt. She also deposed that the accused refused that he committed any offence. 10]. Corroborating the evidence of victim, she stated that there was a villag e meeting. PW.4 is the father of the victim. The incident was reported to him a t 4.00 P.M. when he returned back home. The evidence of PW.6, Dipali Barman is hearsay. However, she deposed that there was a village meeting but she could not say about the out come of the said village meeting. 11]. Pw.7, Dr. Rabiram Wary, examined the victim on 08-07-2003 at 1.00 P.M. H e did not find any sign of recent violence on the private parts of the victim. He found old multiple abrassion in both breast over upper quadrant and abrassion in both the lips. In the opinion of doctor, the victim was not raped recently. She was abo ve 18 years of age. The finding of the doctor that there was no sign of recent sexual intercourse or rape is not inconsistent with the prosecution story as the incident occurred on 03-07-2003 and the victim was examined on 08-07-2003. Mor eover, the victim being a married woman, there was difficult to ascertain the si gn of recent sexual intercourse. However, the old multiple abrasion of both brea st over upper quadrant and both lips suggest that there was assault on the victi m. The multiple abrasion injury over both the quadrant and lips clearly indicate that the accused either committed rape or attempted to commit rape. The victi m categorically stated that the accused committed rape on her. The evidence of v ictim was corroborated to the medical evidence to the extent that there was inju ry on the victim. However, the learned trial Court finding that the accused only attempted to commit rape on the victim. It is submitted by the learned counsel for the appellant that the Investigating Officer of the case was not examined b y the prosecution and the torned clothes, which were handed over to the police b y the victim, were not exhibited. Only because of torn clothes were not exhibit ed, the consistent evidence of the victim corroborating by PW.1 and other witnes ses cannot be thrown out. Considering all, the judgment passed by the learned trial Court is h 14]. ereby upheld. The appeal is dismissed being devoid of merit. Send down the LCR 15]. and order. Send down the LCR to the court below along with a copy of the judgment JUDGE