High Court
Case Details
Crl.A. 133/2010 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH
Legal Reasoning
This is an appeal directed against the judgment and order dated 31.07.2010 passe d by the learned Addl. Sessions Judge, (FTC) Nagaon, in Sessions case No. 136 of 2008 convicting the appellant under Section 376 read with section 511 IPC and s entencing him thereby to undergo rigorous imprisonment for 4 ‰ years with a fin e of Rs. 5,000/- in default of payment of fine, simple imprisonment for 15 days . The prosecution case, in brief, is that on 28.03.2006 at about 6 a.m. th 2. e victim who was only 11 years age came out of her house to urinate. After urina ting she was putting on her panty, all of a sudden the accused came and pulled off her panties. He asked her not to raise any hue and cry. Thereafter, he attem pted to commit rape on her. However, she was rescued by her aunty, (father’s yo unger sister) and her elder brother who arrived there and saw the incident. The accused fled away. The accused at the relevant time was working as a mason in a house in front of the house of the victim. Farther of the victim lodged the FIR, immediately after the incident. On the basis of the FIR lodged by the father of the victim Khatowal P.S. Case No. 3/2006 under Section 376 IPC was registered. On completion of investigation police submitted the charge-sheet under Section
Legal Reasoning
Heard Mr. B. Kalita learned counsel for the appellant as well as Mr. N.J 376 IPC against the accused appellant. 3. . Dutta, learned Addl. Public Prosecutor appearing on behalf for the State. 4. The accused pleaded not guilty to the charge framed against him under S ection 376 IPC and claimed to be tried. During the prosecution examined as many as 9 witnesses. Thereafter, statement of the accused under Section 313 Cr.PC was recorded. He denied all the allegations leveled against him and stated that fat her of the victim borrowed a sum of Rs. 200/- from him to purchase grocery items with a promise that he would return same. After one week the elder brother of t he victim called him to his house. When he reached there he was assaulted by the brother of the victim and thereafter a false case was lodged against him. He d id not adduce any evidence in his defence. 5. PW 1 is the father of the victim. He stated that the accused at the re levant time was working as a mason in the house of the one Sri Dilip Borthakur which is situated in front of his house. PW 1 did not see the occurrence. He hea rd some noise towards his house while he was working and immediately came to hi s house. He saw the accused was confined in his house by the village people. It was informed to him by the villagers that the accused committed rape on his daug hter. He also met his daughter (victim) as son and his sister. They told him tha t while the victim went out to answer nature’s call the accused committed rape o n her. Her son and sister witnessed the occurrence and raised halla and then the accused fled away. Later on, the accused was caught by the villagers. He repor ted the incident to the Gaon Bura (village headman) and lodged the FIR. The vict im was medically examined and her statement was recorded by the magistrate. He f urther deposed that the age of the victim was about 11 years at the relevant tim e. In cross-examination he denied that in his statement recorded under Section 1 61 Cr.PC, he stated that at the time of occurrence he was sleeping inside his own house. 6. PW 2, the victim, stated in her evidence that on the date of occurrence at about 6 a.m she woke up and came out of her house to answer nature’s call. Wh en she urinating the accused arrived. The accused was doing construction work o f Dilip Borthakur’s house which was situated in front of her own house and he us ed to stay there. The accused came and raped her. As she was then a small child she used to sleep wearing only panty at night and when she came out to urinate she was wearing only panty, she stated the accused removed her panty and attempt ed to rape on her. However, she did not feel any pain. At that moment her elder brother came to defecate and witnessed the occurrence. He called her aunt and s he also witnessed the incident. The accused ran away. Her brother and aunt rais ed hue and cry and the villagers gathered there. They apprehended the accused and tied him up to a betel nut tree outside her house. When her father came bac k, the incident was reported to him. Police arrested the accused and took the vi ctim to hospital where she was examined by a doctor. She was brought to Court an d her statement was recorded by the magistrate. She further stated that she was reading in class IV at the relevant time. In her cross-examination she stated t hat the place where she went to answer nature’s call in an open space and she d id not raise any hue and cry. Seeing her brother, the accused fled away. 7. PW 3 is the elder brother of the victim. Lending support to the evidenc e of the victim, he deposed that in the morning on the day of occurrence he came out of the house and saw the accused found the victim was held by the accused a nd the accused pulling down his lungi. He immediately called his aunt and on the arrival of aunt the accused fled away. The villagers caught the accused and tie d him. In cross-examination he stated that the latrine situated at the back of his house and while he was proceeding towards latrine he saw the incident. Wit nessing the occurrence he immediately called his aunt who was residing near to h is house. He denied that false FIR was lodged against the accused so as to void payment which was made by the accused. 8. PW 4 is the aunt of the victim. She stated that on the day of occurrence he nephew (PW 3) called him to see something. On reaching there she saw the acc used holding her niece in the back side of her house. Seeing her the accused fle d away. PW 4 raised hue and cry then the villagers came and apprehended the accu sed. The accused was handed over to police. PW 4 stated in her cross-examination that her house is adjacent to the house of her elder brother. PW 5, Babul Bora, saw the brother and aunt of the victim chasing the acc PW 6 is the Doctor, Chintaram Hazarika examined the victim on 29.03.200 9. used. The incident was reported to him by the brother of the victim. 10. 6 and his findings are as follows:- (cid:28)Identification Mark:- An old scar on the dorsim of left hand. History:- On the previous morning she was sexually assaulted by a person. Detail of examination:- Clothing-wearing frock, chemiz, jangia cloths intact. No . stains. Heath- 129cm, Weight- 24 Kg, teeth- Upper 12/Lower-11, Azillary hair- absent, Br east-Not developed, Public hair-absesnt, Hymen Anular, intact with an anticl tha t admits only tip of finger, Vaginal injury-absent, No. discharge. Investigation:- (1) Vaginal smear for spermatozoa- Lab. Regd. No.45/06 dated. 29.03.2006. The re port No spermatozoa Seen. (2) X-ray for age determination:- X-ray Nos. 10058 + 59 + 60/06 dtd. 29.03.2006 reported by Dr. B. N. Hazarika, Radiologist. The report (1) The epiphyses for lower ends of radius and ulna are not united. (2) The epiphyses for lateral epicandyle has not appeared. (3) The epiphyses for right iliac bone has not appeared. Impression - Radiological age is 10/11 years. Opinion:- (1) Age of the girl is radiologically 10/11 years. (2) There is no sign of recently committed sexual intercourse, clinically. (3) There is no sign of any recent injury in her private part or her body.’’ In the opinion of doctor age of the victim was about 10-11 years. There was no sign of recent sexual intercourse. There was no sign of any recent injury on he r private part or body. The doctor was not cross-examined. 11. PW 7 Anil Borhtakur is the neighbourer of the victim. He deposed that h e heard hue and cry and saw people searching for someone. When he reached the ga teway of his house someone told him that the accused had performed bad act on th e victim. He also stated that the accused was working as a mason in the house of Dilip Borhtakur. This witness was declared hostile by the prosecution and he re sided from his earlier reinstatement recorded by the police under Section 161 Cr .PC, wherein, he stated that he saw the accused hiding himself in a nearby jung le and on being asked he (accused) confessed before him that he had performed ba d act on the victim. 12. PW 8 and 9 are the Investigating Officer. PW 8 simply collected the medi cal report of the victim and submitted the charge-sheet against the accused. It was PW 9 who infact investigated the case. During investigation he forwarded the victim to the hospital for medical examination. He visited the place of occurre nce and drew sketchmap of the site. He recorded the statement of the witnesses a nd arrested the accused. The statement of the victim was also recorded by the ma gistrate under Section 164 Cr.PC during the investigation. He confirmed the stat ement of the witness recorded by him under Section 161 Cr.PC. In his cross-exam ination he further confirmed that the father of the victim in his statement unde r Section 161 Cr.PC had stated that he was sleeping inside his house and that t he incident was reported to him by the villagers. From the testimony of the victim it is clearly emerge that the accused a 13. ttempted to commit rape on her. The statement of the victim is corroborated on m aterial point by PW 3 and PW 4 who are brother and aunt of the victim. The evide nce of PW 5 also lend support to the evidence adduced by PW 2, 3 and 4. 13. It is submitted by the learned counsel for the appellant that the doctor who examined the victim find no sign of sexual intercourse or injury on her pri vate part or body of the victim. Had there been any attempt to commit rape on th e victim, and the victim being minor girl must had sustained some injuries on he r body. On carefully scrutiny of the evidence of PW 3, 4 and 5 it appears that t he accused removed the panty of the victim and as soon as he attempted to commit rape on her, the brother and aunt of the victim witnessed the occurrence. The v ictim categorically stated victim did not feel any pain in her vegina. It is ap parent from her evidence that the accused made an attempt only to commit the ra pe, however, he could not do so as he was seen by her relatives. 14. It is settled law that the evidence of the victim of rape should not be viewed with doubt or suspicion. The evidence of the victim of sexual assault st and almost at par with the evidence of an injured witness and to an extend th at it is even more reliable. Here the victim was a minor girl of 11 years of ag e. The incident was immediately reported to the villages. The neighbour also s aw the accused running away and the brother and aunt of the victim chasing him. 15. In view of the above discussion this Court finds that there is nothing to interfere that the conviction recorded by the trial court under Section 376 Cr.PC read with Section 511 IPC. Section 511 IPC prescribes half of period impri sonment if the offence committed by the accused is punishable for life and in an y other case 1 ‰ of the imprisonment provided for the offence. Sentence for the offence under Section 376 may extend upto 10 years. The accused was sentenced to undergo rigorous imprisonment for 4 ‰ years. It is submitted by the learned cou nsel for the appellant that the accused was aged about 21 years at time of occur rence. He was a tender age youth. He was not convicted earlier in any other case . Considering the young age of the accused the sentenced of 4 ‰ years may be red uced. 16. In view of the submission the sentence to undergo rigorous imprisonment for 4 ‰ years is hereby reduced to 3 years. However the payment of fine of Rs 50 0/- is increased to Rs 5,000/- in default of payment of fine further simple impr isonment for 2 months for the offence under Section 376 read with section 511 IP C. Rupees 5,000/- so released shall be paid to the victim. With this modificatio n the appeal is partly allowed. 17. Send down the LCR along with copy of this judgment.