High Court · 2012

2. The prosecution case in brief is that on 18.5.2003, the accused Budhan B orah, a Compounder of Rangamati Tea Estate Hospital, came to the father of the v ictim at 4.30 p.m. and requested him to allow him to take his daughter to work as Helper in the house of the accused. She was taken by the accused, but instead of taking her to his residence, he took her to his quarter in the tea estate. A t night, he attempted to rape her, but she managed to enter inside a nearby room which she bolted from inside and saved herself from being raped and in the morn ing, she fled away from the house of the accused to a near by house of her relat ive and thereafter, she informed the matter to the local people. The local peop le handed over the victim to her father. It was alleged in the FIR that the ac cused arranged a blue film show on the night of occurrence. On receipt of the FI R, Police investigated the case and the statement of the victim was recorded und er Section 164 CrPC and she was medically examined. On completion of investigati on, charge-sheet under Section 342/376/511 I.P.C. was laid against the accused.

3. During trial, the accused pleaded not guilty to the charges framed under Section 342/376/511 I.P.C. Altogether 10 witnesses were examined on behalf of the prosecution. The 4. prosecution, which recorded the statement of the victim under Section 164 CrPC, there is some variation. The case of defence being of total denial, no evidence was adduced by the defence.

5. The accused in his statement recorded under Section 313 CrPC denied the allegation levelled against him. He examined himself and adduced evidence of two witnesses in his defence. On completion of the trial, the learned trial Court f ound the accused guilty of the offence under Section 354 IPC and convicted and s entenced him as stated earlier.

6. Heard Mr. T.J. Mahanta, learned counsel for the accused-petitioner and M r. K. Munir, learned Addl. Public Prosecutor.

7. It has been submitted by the learned counsel for the appellant, that the learned trial Court failed to appreciate the evidence of P.W.1, who alleged tha t her father had to lodge the FIR due to pressure from the local people. The le arned trial Court did not consider the evidence of defence witnesses while convi cting the accused appellant. The learned trial Court failed to appreciate the st atement of the accused.

8. The learned Addl. Public Prosecutor, per contra, has submitted that ther e is adequate evidence on record to show that the accused attempted to commit ra pe on the victim. However, the accused was leniently dealt with by the learned t rial Court and the judgment and order passed by the learned trial Court needs in terference. It is in the evidence that the accused took the victim from her hous e for the purpose of rendering service as a helping hand to his wife, but instea d taking her to his wife, he took her to the quarter allotted in the tea estate. On the way, the accused procured some C.Ds from a shop. After having tea, he sw itched the blue film cassette It was recorded that she conveyed the accused that she did not like to enjoy such film, but he insisted her to enjoy the same. The n the accused laid her on the bed and atrempted to commit rape on her. She, then , by force freed herself from the grip of the accused, went to the adjacent room and bolted the room from inside. Though she cried, but as there was no quarter at the immediate neighbourhood, it went unheard. She went inside the adjacent ki tchen and bolted the door from inside. Thereafter, the accused asked for water on the pretext that he was thirsty. After repeated insistence, she opened the do or enabling the accused to take water but the accused again called her to share the bed with him, but she declined to go with him and preferred to stay for the night in the kitchen. She bolted the door of the kitchen and slept for the night there and in the early morning at about 4 a.m. she fled from the quarter. Durin g cross-examination, she admitted that there was a cinema show in the tea estate on the relevant day. She also admitted that the accused prepared the meal, whic h they had enjoyed. Thereafter, she slept for the night inside the kitchen. Ho wever, it was further alleged that during the cinema show, when the accused swit ched the blue film, she conveyed that she did not like to enjoy the blue film an d she wanted to leave the room, then the accused pulled her by her hand and prev ented her from going anywhere and laid her on the bed in the sitting room. Ther eafter, she freed herself by force pushing the accused. She went to the kitchen and bolted the room from inside. She stated that in the morning, the accused cam e to meet her father and took him to the house of her brother-in-law. Her fathe r took her to the house of Khagen Gowala, Secretary, ACMS. In the meantime, 4/5 ladies from the Mahila Samiti and some staff gathered there and they enquired ab out the matter from her and some thing was written that no case will be filed. H er father returned home but she stayed in the house of her brother-in-law. Ther eafter, her father was again taken by some members of the Indian Peoples Forum ( IPF) and some others insisted her father to lodge FIR. Earlier the draft paper was torn by them. The members of the IPF thronged to damage the hospital. The pe ople gathered there brought the accused and handed over him to the police. Her father was forced to file the case by these persons. However, she denied that sh e stated before the police that she did not open the door on the request of the accused that he would take water from the kitchen. She also denied that after t aking her from her home he dropped her near the quarter of her sister. P.W.2 Patras Kerketa, is the father of the victim. He stated that the ac 9. cused came to him as wanted to take his daughter for helping the daughter of the accused to her educational institution. He agreed to his proposal. The accused took the victim on his motor-bike. On the next morning, the accused again came to his house and informed that the victim had fled away. P.W.2 came to learn tha t his daughter was in the house of his another daughter Susheela. He also came t o know from the villagers about the incident. The accused took P.W.2 to the hous e of the Ganesh for settling the matter. In the meantime, some ladies came out and protested against any settlement on the matter. They argued that the well-to -do people cannot be allowed to exploit the poor in such way. The FIR was lodged by the villagers and P.W.2 put his signature. He admitted that nothing was repo rted to him by his daughter. He also admitted that there was an attempt to rape , but there was no rape. He denied that the accused did not want to take the vic tim with him on the same date, but due to insistence that she wanted to enjoy ci nema with her sister, the accused took her with him. He admitted that the accuse d was taken to the police station P.W.3 is the sister of the victim. She stated that in the early morning 10. , Anita, the victim came to her house and informed her that the accused molested her. In cross examination, she admitted that her maternal uncle, P.W.2 did not want to file any case but under the pressure of the villagers, he had to lodge t he FIR.

11. P.W.4 Donbosco Kerketa is a relative of P.W.3 and uncle of the victim. T he incident was reported to him by the villagers. He went to the house of the b rother-in-law of the victim and the victim informed him that the accused attempt ed to molest her. She bolted herself inside the adjacent room for the rest of th e night and in the early morning she fled away from the house of the accused and took shelter in the house of her sister.

12. eported that the victim informed them that the accused molested her. P.W.5 Indra Nahekia, P.W.6 Boiragi Tanti, P.W.7 Fazal Sheikh and P.W.8 r

13. The accused in his evidence as D.W.1 stated that he came to the house of the victim to take the victim to his house at Biswanath Chariali to engage her as helper in the house-hold work. It was Friday and he used to go home on Saturd ay evening. The wife of Patras Kerketa requested him to take the victim to the q uarter of her elder sister, as there was cinema show in the Tea Garden on that n ight and that was the reason for which the accused was requested to take the vic tim to the quarter of her elder sister, so that the victim could enjoy cinema. I t was also stated that on the next day, the victim would accompany the victim to his house. He, therefore, took her on his motor cycle and dropped her near the quarter of her elder sister. At the relevant time, there was a meeting of the I PF members and they could see the accused dropping the victim near the quarter o f Susheela. According to him, the victim was not taken to his quarter. The all egation that he attempted to commit rape on her, was totally false and Petrus wa s forced to lodge the FIR against the accused by the IPF members. He further sta ted that the Workers’ Union i.e. the Rangagarh Division is dominated the IPF mem bers and as he was not supporting them, they victimized him implicating in this case. In cross examination, he further alleged that as the IPF members wanted a donation of Rs.5,000/- from him and as he expressed inability to pay that amount , they became hostile towards him and pelted stone etc. on his quarter.

14. D.W.2 Sri Budhu Nayak and D.W.3 Jibon Biswakarma stated that the victim went to the house of the Susheela and she enjoyed cinema show along with her si ster. In the morning, at about 4 a.m., the cinema show was over and they all re turned to their respective quarter.

15. From the evidence discussed above, it transpires that none of the prosec ution witnesses suggested that the accused was victimized by IPF members as he w as not supporting them. No such plea was taken by the accused in his statement recorded under Section 313 CrPC. There was no suggestion even that IPF members w anted a donation of Rs.5,000/- from the accused and as he refused or expressed i nability to pay the amount, they became hostile. The fact that the accused went to the house of the victim and requested her father to allow him to take the vi ctim to his house, has been admitted by the accused himself in his evidence. The re was no enmity between the victim and the accused to implicate him falsely wit h the allegation of attempt to commit rape. The learned trial Court has elaborat ely discussed all aspects of the mater and rightly came to the conclusion that t he accused committed rape on her, the offence under Section 342 and 354 IPC. He nce, the conviction under the aforesaid Sections of law is upheld. 16. It is further submitted by the learned counsel for the appellant that t he accused had faced the trial and he had suffered imprisonment during the inves tigation of the case and contended that such quantum of sentence imposed may be reduced or punishment under Section 354 IPC may be reduced to the extent of two years or with fine or with both.

17. Considering the fact that the accused faced trial since 2003 with senten ce of imprisonment is reduced already undergone. The accused shall pay a fine of Rs.5,000/- in default simple imprisonment for 6 months.

18. 19. With the above modification, this appeal is disposed of. Send down the LCR along with a copy of this judgment and order.