High Court
Case Details
CRL.A(J) 3/2013 B E F O R E HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) This appeal is directed from jail against the judgment and order dated 2 3.11.2012 passed by the learned Additional Sessions Judge, Dibrugarh, in Session s Case No.88/2012, convicting the accused appellant under Section 376 IPC and se ntencing him to undergo imprisonment for 8 years, also to pay fine of Rs.1000/- in default to undergo imprisonment for three months. 2. I have heard Mr. BN Gogoi, learned Amicus Curiae appearing for the appel lant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for t he State respondent.
Legal Reasoning
The prosecution case in brief is that an FIR was lodged by an unfortunat 3. e girl, aged about fourteen (14) years only (hereinafter to be referred to as th e victim) before the Officer-in-charge, Tengakhat Police Station on 10.04.2012, alleging that her father Sri Kristopher Purti (the accused) forcibly raped her b y gagging her mouth on 05.02.2012 when she was asleep at night. He also told her that if she divulged about the same to anybody, he will kill her. It has been f urther alleged that her father wanted to do such type of things now and then. On receipt of the FIR so lodged, a case was registered being Tengakhat P 4. .S. No.32/2012 under Section 376(2)(f) IPC. Police started investigation. The vi ctim was medically examined and her statement was also recorded under Section 16 4 Cr.P.C. During the course of investigation, the Investigating Officer (IO, for short) recorded the statement of other witnesses and on completion of the inves tigation submitted charge sheet under Section 376(2)(f) IPC. 5. The learned trial court on perusal of the materials on record framed cha rge against the accused under Section 376 IPC. The charge so framed being read o ver and explained to the accused, he pleaded not guilty and claimed to be tried. 6. During the course of trial, prosecution examined as many as 8 witnesses including the IO and the Doctor. Defence adduced none. Defence case is of comple te denial. 7. On the basis of the evidence on record, oral as well as documentary, the learned trial court convicted and sentenced the accused appellant as aforesaid. Hence the present appeal from jail challenging the legality of the impugned jud gment. 8. Now the point to be decided is as to whether the prosecution has been ab le to bring home the charge under Section 376 IPC against the accused appellant beyond reasonable doubt by adducing cogent, reliable evidence. 9. PW-1 is the victim herself who has stated that the accused is her father . Her family consists of her father, mother, elder brother, younger brother and grandfather. They lived together in their house, which had one bedroom and one k itchen. She used to sleep in the kitchen with her elder brother and younger brot her, whereas her father, mother and grandfather slept in the bedroom. One night, her father (the accused) went near her and raped her gagging her mouth. At that time she was sleeping in the kitchen with her younger brother. The other family members were in the other room and her elder brother was outside home on that n ight. The incident occurred at about 4.30/5.A.M., before sunrise. Her father, th e accused had sexual intercourse with her and asked her not to raise hue and cry . However, she told her aunt, Monica Purti regarding the incident. Thereafter th e FIR was lodged. Ext.1 is the FIR and Ext.1(1) is her right thumb impression th erein. The FIR was written by one Sri Prem Masi Kashyap, a member of the Village Defence Party (VDP). The FIR was reduced to writing as per her statement. Polic e examined her and recorded her statement. Police also had her medically examine d and got her statement recorded by the Magistrate under Section 164 Cr.P.C. She narrated the facts before the Magistrate who wrote as per her version. Thereaft er, the same was read over to her and she put her right thumb impression on the statement. Ext.2 is the statement recorded under Section 164 Cr.P.C. and Ext.2(1 ) is her right thumb impression. In the cross examination, she has stated that sometime before the incide nt her parents got her married to one Birju without her consent. She stayed with Birju for about 6 days. As she did not like him, she fled away from the residen ce of Birju. Thereafter, she stayed with her aunt Monica Purti instead of stayin g with her parents. Her aunt took her to Tengakhat Police Station and there she lodged the FIR. Ext.1 is the FIR against her father. When asked by the Court she replied that the incident occurred before she was married to Birju. The suggest ions put to her that she has made false allegation against her father in view of the fact that he scolded her for fleeing away from the house of Birju has been denied. 10. PW-2, Monica Purti is the aunt of the victim. She has stated that the vi ctim was her niece. About 2 months back, the victim came to her and told her tha t her father had sexual intercourse with her. Thereafter she informed the matter to the members of Mahila Samiti as well as Village Defence Party. Then the vict im lodged an FIR before Tengakhat Police Station. Police examined her. She has f urther stated that she had also accompanied the victim to the Police Station as well as when she was taken for medical examination and to the Court for recordin g her statement under Section 164 Cr.P.C. In the cross examination, PW-2 has stated that after the victim fled awa y from her matrimonial house, she came to her house but she did not go to her pa rents house and instead stayed with Kuwari Purti. She knew that the victim did n ot agree with her marriage with Birju, so she fled away from his house. She was not aware about the incident before. She only came to know from the victim after she came and fled away from Birju’s house. She has also stated that she is not aware as to whether the victim has lodged a false case against her father as she was married to Birju against her wish. 11. d that the victim told her that her father wanted to sleep with her. PW-3, Smti Birshi Purti is the elder sister of the victim. She has state In the cross examination, she has stated that the victim told her that t heir father wanted to sleep with her, she (PW-3) did not disclose the said fact to anybody else.
Legal Reasoning
PW-4, Sri Patras Purti is the Secretary of VDP of Dharia Gaon. He has st 12. ated that the victim initially told his wife Smti Kuwari Purti about the inciden t and later told him on being questioned that her father Kristopher had raped he r. In the cross examination, he has stated that he advised the victim to lo dge an FIR. The suggestions put to him that there is enmity between him and the accused and because of that he persuaded the case and asked the victim to file a false case against her father has been denied. He has further stated that the v ictim lodged the FIR after two days after she fled away from the house of Birju. The victim was not desirous to get married to Birju and because she was forced to get married with Birju, she was angry towards her father. He has denied the f act that taking advantage of the above, she lodged the FIR against her father. 13. PW-5, Smti Kuwari Purti is the wife of PW-4. She has stated that the vic tim is her co-villager. The incident occurred in April 2012. The victim told her that her father used to sexually abuse her by raping her and that she became pr egnant. Her mother managed to get her aborted by taking help of local herbs and medicines. After the abortion, the victim’s parents had married her to one Birju of Basmatia Tea Garden. The victim was against the marriage as Birju was alread y a married man, therefore, soon after the marriage with Birju, the victim fled away from Birju’s house and came to her aunt Smti Monica Purti’s house. Monica b rought the victim to her house. She has further stated that as the accused repea tedly used to sexually abuse and rape the victim and when he could not keep his promise not to repeat such things again, the villagers decided to bring the matt er to the notice of the police by lodging an FIR. Thereafter the FIR was lodged. In the cross examination, she has stated that she along with other femal e villagers requested Sri Prem Masi Kashyap to write the FIR. Accordingly he wro te the FIR as narrated by the victim. Though the victim earlier informed her aun t Monica Purti and Sanjib Purti before her marriage with Birju about the said fa ct they did not inform the police. Other suggestions put to her have been denied . 14. PW-6 is the Doctor who had examined the victim girl. In her examination report, she has vividly described the case history of the victim, which is quote d hereinbelow: (cid:28) Case history as per version of the victim girl was that since last Nov ember, 2011, her own father Sri Kristopher Purti have been allegedly having sexu al intercourse with her occasionally while she was asleep. She also gives histor y of cessation of menstruation for 2-3 months and so her mother took her to Teng akhat Hospital where she was given some medicine after consuming which she had h er menses on 01.04.2012, but it was unusually very heavy. Thereafter her father again allegedly gave the girl to a man named Birij of Basmatia to keep the girl as his wife. The girl stayed for few days and when she came to know about her fa ther’s motive, she ran away from there on 08.04.2012 and informed her other rela tives and villagers. So, a case was registered and she was brought for medical e xamination to Assam Medical College and Hospital, Dibrugarh. (cid:29) On the basis of physical examination, Radiological and laboratory invest igation done on the victim, Doctor is of the opinion that: (i) (ii) (iii) Evidence of recent sexual intercourse not detected on her person; Evidence of injury not detected on her private parts and; Her age is above 12 years (twelve) and below 14 years. She has further opined that on clinical examination of the victim, as ol d tears were found which were healed at the time of her clinical examination. Th e time/age when the victim had last sexual intercourse could not be ascertained. Ext.2 is the medical examination report and Ext.2(1) to Ext.2(3) are the signat ures of PW-6. Defence declined to cross examine the Doctor. 15. PW-7, Sri Prem Mashi Kashyap wrote the FIR. He has stated that on 10.04. 2012 he wrote an FIR as per version of the victim girl. Ext. 1 is the FIR wherei n the victim put her RTI vide Ext.1(1) in his presence. Ext.1(2) is the signatur e of PW-7. In the cross examination, PW-7 has stated that he wrote the FIR as told by the victim as well as told by the women accompanying her. He has further stat ed that he cannot say whether the victim was persuaded by the women accompanying her to lodge the FIR according to their version. PW-8 Sri Ghana Kanta Baruah is the IO who has stated that on 10.04.12 th 16. e victim girl lodged an FIR and the OC Tengakhat P.S. after registering the same as Tengakhat P.S. Case No.32/2010 entrusted the case to him for investigation. Accordingly he undertook the investigation of the case, proceeded to the place o f occurrence, prepared the sketch map, recorded the statement of the witnesses i ncluding the victim, arrested the accused and brought him to Tengakhat Police St ation. He also had the victim medically examined at AMCH, Dibrugarh and collecte d the medical examination report. After finding, prima facie, case under Section 376(2)(f) IPC against the accused, he submitted charge sheet against him in the aforesaid sections of law. Ext.5 is the charge sheet and Ext.5(1) is his signat ure. In the cross examination, he has stated that the place of occurrence is the residence of the victim and the accused. However, he did not record the stat ement of the mother of the victim, the victim’s grandfather and other residents of the house. The FIR was lodged after lapse of several months from the date of occurrence. He recorded the statement of the victim and other witnesses at the p olice station. He has further stated that he recorded the statements of all the witnesses except Smti Birshi Purti when they came accompanying the victim to the police station at the time of lodging the FIR. 17. On conclusion of the trial, the learned trial court recorded the stateme nts of the accused under Section 313 Cr.P.C., wherein he has admitted that the v ictim is his daughter and she is aged about 14 years. He has denied his involvem ent in the case. When asked by the Court as to whether he had anything to say, h e replied that he does not know as to why his daughter, other relatives and the witnesses had falsely implicated him as he is innocent. On the basis of the evidence on record, the learned trial Court passed t 18. he judgment of conviction by holding that the prosecution has been able to prove the case against the accused beyond reasonable doubt, inasmuch as, the evidence of the witnesses are trustworthy and there is no contradiction. More so, disbel ieving the victim does not arise as she has made the allegation against her own father. The evidence of the victim girl also has been corroborated by the deposi tions of PW-2 and PW-5. Though there was a gap in lodging the FIR, it is because of the fact that the victim did not immediately divulge the fact of alleged rap e to others. She has divulged it to her mother and aunt but they did not lodge t he FIR as the accused was related to them and that is the reason why there was d elay in lodging the FIR. On going through the evidence on record, I have found that the evidence 19. adduced by the victim, PW-2 and PW-5 are cogent, reliable and trustworthy. Disca rding their evidence does not arise as they have corroborated each other. The pr osecution case also finds support from the report of the doctor (PW 6). The doct or found old tears in the private part of the victim. As per opinion of the doct or, the age of the victim was above 12 years and below 14 years, which is also s upported by her father, the accused, who has stated that the victim is about 14 years old. In view of the same, I am not inclined to interfere with the judgment of conviction passed by the learned trial court. 20. Prosecution has been able to prove the charge leveled against the accuse d beyond all reasonable doubt. There is no merit in the appeal and the same is d ismissed. 21. Before parting with the case, I would like to put on record the valuabl e assistance rendered by Mr. BN Gogoi, learned Amicus Curiae in arriving at a de cision as aforesaid. Accordingly, learned Amicus Curiae is entitled to a profess ional fee of Rs.5000/- (Rupees Five Thousand) only. 22. Send down the lower court record.