High Court
Case Details
Crl.A. 23/2010 BEFORE HON’BLE MR. JUSTICE P. K. MUSAHARY Heard Mr. P Sarma, learned counsel appearing for the appellant. Also heard Mr. K A Mazumdar, learned Additional Public Prosecutor, Assam appearing for state res pondent. This appeal has been preferred against the judgment and order dated 26.1 2. 0.2009 passed by the learned Additional Sessions Judge (FTC), Rangia in Session Case No. 89(k)/07, convicting the appellant under Sections 448/376 IPC and sente ncing him to undergo RI for 6 months under Section 448 IPC and RI for 7 years an d fine of Rs. 2000/-, in default further RI for one month under Section 376 IPC
Legal Reasoning
3. The prosecution case in brief is that on 15.4.2002 at about 10.30 PM (ni ght), the appellant came to the house of his neighbour Shri Sabin Deka. At that time Sabin Deka was not present in his house and he was enjoying Bihu function. The appellant called the victim, who came out from her room and offered beetle-n ut to the appellant but the appellant forcibly took her inside the room and comm itted rape upon her against her will. As soon her husband returned home, the vi ctim narrated the incident to him. Her husband lodged the FIR in the early morni ng at about 6.30 AM on 16.4.2002. On the basis of the FIR, a case being Baihata Police Station Case No.43/2002 was registered under Sections 448/376 IPC against the appellant. The Investigating Officer visited the place of occurrence, took statements of local witnesses and victim woman and seized wearing apparel of the victim which she wore at the time of occurrence. The Investigating Officer also arrested the appellant and produced him before Magistrate. The Investigating Of ficer forwarded the victim before the Magistrate and got her statement recorded under Section 164 Cr.P.C. She was also produced before the medical officer for m edical test. On completion of the investigation and after collection of the medi cal report the IO submitted charge-sheet against the appellant under Section 448 /376 IPC. On committal and receipt of the record the learned Sessions Judge fram ed a formal charge under Section 448/376 IPC against the appellant. The appellan t pleaded not guilty and claimed to be tried. He accordingly, faced the trial. T he prosecution examined as many as 9 witnesses including the victim woman and me dical officer. After completion of recording of the evidence of the prosecution witnesses, the appellant was examined under Section 313 Cr.P.C. He denied all th e charges but examined no witnesses in his defense. The learned Trial Court, on completion of trial and on consideration of evidence on record and after hearing the parties, passed the impugned order of conviction and sentence against the a ppellant as already stated earlier. 4. It is a case of rape on a woman inside the room. There is no eye witness to the occurrence and as such, the Court has to depend largely on the evidence of the prosecutrix/victim woman. In such a case, the Court can pass the order of conviction and sentence solely on the basis of the evidence of the victim woman if the same is found to be cogent, reliable and trustworthy gaining confidence of the Court. 5. Turning to the evidence of the victim woman, who was examined as PW 4, I find that she was very much categorical in her deposition that the appellant ca me to visit her house when her husband was not present in the late evening at ab out 10.30 PM as he was enjoying the Bihu function. As the appellant is a co-vill ager, on his call, she came out from her room and offered beetlenut but immediat ely thereafter, he forcefully dragged her inside her room and committed rape on her. According to her evidence she could not scream or cry for help as her mouth was gagged by the appellant with a gamosha (piece of cloth). She also stated th at as soon as her husband returned home, she told him about the incident and her husband lodged the FIR in the early morning at 6.30 AM on 16.4.02. The police c ame to her house and took her statement and seized the wearing apparel she used at the time of occurrence. 6. The husband of the victim, who filed the FIR, was examined as PW 1. He h as testified the filing of the FIR and proved the same. He is a reported witness only inasmuch as he was not present at home at the time of occurrence and retur ned after the occurrence. The material witness is the medical officer who was ex amined as PW 5. His evidence is that he examined the victim on being produced be fore him by police. He proved the medical report as Ext-4. In his report, he opined that- I) There was no evidence of recent sexual intercourse and she was used to sexual act. II) There was no mark of violence on her person. III) Her age was about 21 years. The aforesaid medical officer was cross-examined by the defence. 7. The other material witness is the IO, who was examined as PW9. He has de posed that he conducted the investigation and recorded the statement of the witn esses under Section 161 Cr.P.C. His evidence is that he recorded the statement o f the victim under Section 161 Cr.P.C. He clearly stated that the victim in her statement under Section 161 Cr.P.C. did not state before him that the appellant gagged or pressed her mouth by gamosha or a piece of cloth due to which she coul d not make hulla or cry for help. I have verified from the record and found that the victim did not make any statement about gagging or pressing her mouth by a piece of cloth at the time of committing rape. Now, I turn to the statement of the victim under Section 164 Cr.P.C. rec 8. orded by the Magistrate concerned. The victim has stated something different fro m what she stated under Section 161 Cr.P.C. For better appreciation, I deem it f it and proper to quote herein the English rendering of the victim below: (cid:28)My husband was not present at home. My husband went out to enjoy Bihu. The accu sed Nanda Deka visited my house at 11 PM night and enquired whether my husband w as at home. I told him that my husband was not at home. The appellant called me as Deepa. I opened the door. Offered him bettlenut. I enquired why he had come a t the late hour in the night. The accused made me sit on his lap. Thereafter, th e accused co-habited with me against my will. When I cried for help the accused raised the volume of the dack and as a result nobody could hear my cry (cid:29). It is quit noticeable that the victim woman did not make any statement t 9. hat her mouth was gagged or pressed by a piece of cloth before or at the time of committing the alleged rape. The way she had welcomed the appellant and offered bettlenut indicate that she was expecting the appellant in the night in the abs ence of her husband. Further, if she was really against the visit of the appella nt, she would not have so easily sat on the lap of the appellant. From such beha viour and conduct of the victim towards the appellant one can easily understand or infer that she was a consenting party, otherwise she could have made hue and cry as soon as the appellant asked her to sit on his lap. 10. There is no doubt that the victim was a married woman and she was above 18 years of age at the time of occurrence. The evidence of the medical officer a lso confirms that no force was used by the appellant. As she was a consenting pa rty, the doctor, in medical examination, did not find any injury on her person. 11. There is no reason to disbelieve the evidence of IO (PW 9) who stated in his evidence that the victim woman did not tell him about the gagging or pressi ng of her mouth by a piece of cloth at the time occurrence. From the aforesaid e vidence of the victim it appears that she tried to improve her case by deposing before the Court what she did not state in her earlier statements before the pol ice as well as the Magistrate concerned. In my considered view the evidence of t he victim is not at all consistent and reliable inspiring the confidence of the Court. Such evidence cannot be relied upon for conviction of the accused. Having found the evidence of the victim woman as inconsistent and unreliable, I have n o hesitation to come to a conclusion that the charge under Section 488/376 IPC c ould not be established by the prosecution beyond reasonable doubt and as such, the appellant is entitled to acquittal on benefit of doubt. The judgment and ord er dated 26.10.2009 passed by the learned Additional Sessions Judge (FTC) Rangia , in Session Case No. 89(K)/07, convicting the appellant under Sections 448/376 IPC and sentencing him to undergo RI for 6 months under Section 448 IPC and RI f or 7 years and fine of Rs. 2000/- in default RI for one month under Section 376 IPC is hereby quashed and set aside. The appellant stands acquitted on benefit o f doubt. Appeal stands allowed. 12. 13. The bail bond of the appellant stands discharged. Return the LCR.