Judgment · High Court · 2012

I have heard Mr. B.M. Choudhury, learned counsel as Amicus Curia e for the convict-appellant and also heard Mr. K. Munir, learned Addl. P.P., Ass am for the State-respondent.

This appeal has been filed against the judgment and order dated 2 4.01.2005 passed by the learned Ad hoc Additional Sessions Judge, FTC, Karbi Ang long rendered in Sessions Case No. 5 of 1998 convicting him under Sections 376/3 23 IPC and sentencing him to undergo R.I. for 5 years and to pay fine of Rs. 500 /-, in default of payment of fine, to undergo further simple imprisonment for on e month.

Briefly stated, the prosecution case is that the convict appella nt, on 28.5.1995 committed rape on the victim girl, daughter of the informant, w hile she was returning home after attending a village function in the late eveni ng on the road side. The victim girl told her mother about the said incident and her father to convene a public meeting for a bichar. The appellant attended the public meeting and when he was asked to marry the victim girl, he became violen t and assaulted some members of the public in the meeting. Then the father of th e victim was advised to filed FIR before the police. Accordingly, the FIR was lo dged which was registered as Howraghat PS Case No. 68/1995 under Sections 376/32 3 IPC. Investigation was made and after completion of the same, the I.O. submitt ed the charge-sheet against the convict appellant and the case was committed by the Magistrate concerned to the court of Sessions for trial. The learned trial C ourt framed charge against the appellant under Sections 376/323 IPC. He denied t he charges, pleaded not guilty and claimed to stand the trial. The prosecution e xamined nine witnesses including the victim girl and after examining the appella nt under Section 313 CrPC, the learned trial court convicted and sentenced him a s mentioned above. The appellant declined to examine any witness in his defence.

As usual, in this alleged rape case, no eye witness is available . Before coming to the evidence of other witnesses, I would like to appreciate t he evidence of PW 4, the victim girl. In her deposition she stated that on the d ate of occurrence, she attended a puja in the house of a co-villager in the even ing and she came back to her house alone at about 10 PM. The accused Shri Arun H azarika followed her and he caught hold and laid her on the ground. When she tri ed to resist, the accused showed a knife and threatened her. Out of fear she had to surrender and the accused raped her. Returning home she informed her mother about the matter. The matter was informed to her father after about 25 days and her father in his turn informed the local Gaonbura and some other co-villagers. As advised by the Gaonbura and villagers her father convened a meeting. In the s aid meeting she as well as the appellant were present. In the meeting the appell ant reportedly admitted his guilt and he was advised by the members of the meeti ng to marry her but he refused to marry and he started assaulting one Bimal Baru ah who asked the appellant to marry the victim girl. While the accused turned vi olent, the public advised her father to lodge an FIR with the police. She testif ied that she was examined by a Medical Officer and produced before a Magistrate in Diphu Court for recording her statement. In her cross examination, she stated that the place of occurrence was about 100 metres from the place of puja and th ere was a house of Dhiren Borah in between her house and place of puja.

Dr. A.K. Gupta, Medical & Health Officer(1) of Bokalia Rural Hos pital was examined as PW 5. He stated that on 30.6.1995 he examined Shri Gaura M ohan Roy and Shri Bimal Baruah of village Sonpura. He found injuries on the left back just below the scapula of Goura Mohan Roy and swelling as a result of the said injuries. He also examined Bimal Baruah and found swelling and tenderness o ver the left lateral position of thigh region. The injuries were simple in natur e.

Another Medical Officer Dr. Surjit Kr. Borthakur was examined as PW 7. He was serving as Medical & Health Officer (1) in Diphu Civil Hospital on 03.07.1995 and on that date, at about 11 AM, on being produced by the police, h e examined the victim girl in presence of a female attendant. As per his evidenc e he could not notice any evidence of recent sexual intercourse.

The I.O. who was examined as PW 8 has testified that he investig ated the case, produced the prosecutrix before a Magistrate for recording her st atement under Section 164 CrPC, produced the prosecutrix before the medical offi cer for medical examination, collected the medical reports and also arrested the convict appellant on 02.07.1995.

It may be noted that from the records the following facts have b een found which are not disputed. The alleged occurrence took place on 28.05.199 5, the FIR was lodged on 30.06.1995 and the victim girl was medically examined o n 03.07.1995. There is delay of 33 days in filing the FIR from the date of alleg ed occurrence. The said delay in filing the FIR has not been explained properly and satisfactorily. It appears that the informant tried to explain and justify t he said delay due to holding of village bichar. No date has been mentioned as to on what date the said village bichar was held. The alleged bichar was held only on one occasion without any fruitful result whereas the information about the a lleged incident was reported by the prosecutrix on the same day of the incident to her mother. It is difficult to believe and accept that in such a serious case the guardian of the victim girl or for that matter the victim herself would wai t for such a long period of 30 days for filing FIR. Had there been a delay of fe w days in filing FIR it would have been accepted as justified because a victim g irl has to think over the consequence of filing the FIR and has to take a firm d ecision to face any consequence. I have failed to find out any reasonable and ju stifiable explanation for the delay in filing the FIR.

What is more significant is that the victim girl stated that the plac e where the alleged offence was committed was at a distance of 100 metres from t he place of puja and there existed the house of one Dhiren Baruah in between the two places. The place where she was laid down and raped was just by the road si de and it is difficult to accept that the alleged offence could have been commit ted by the appellant. The fact remains that she did not make any hue and cry whe n the appellant was following from the place of puja and waylaid her for commiss ion of rape upon her. Even if the appellant was carrying or showing a knife in h is hand, the prosecutrix should have at least raised alarm but she did not do so . In her evidence before the court she stated that she surrendered as she was th reatened by showing a knife. In fact the appellant did not use the knife alleged ly carried by him but it is found from her evidence that she easily surrendered herself before the appellant without putting any resistance or making hue and cr y.

The medical evidence is of no consequence inasmuch as the medica l examination was done after more than a month from the date of occurrence, as s tated earlier. It makes no difference whether any injury was found or not on the person of the victim girl.

The above discussion on the veracity of evidence of the victim g irl and the fact situation particularly that the victim girl made no attempt to resist the accused and she surrendered at the show of knife leads me to a conclu sion that the prosecution story is not believable and the conviction as ordered by the learned trial court is not acceptable and sustainable under the law. In m y considered view, the delay of one month in filing the FIR without offering sat isfactory and valid reason is fatal to the prosecution case.

In view of the above, I hold that that the prosecution failed to prove the charge against the appellant beyond all reasonable doubt and the appe llant is entitled to acquittal on benefit of doubt. Consequently the order of co nviction and sentence dated 24.01.2005 which is under challenge in this appeal, is, hereby quashed and set aside. The appellant is acquitted on benefit of doubt .

It appears that the appellant has been serving sentence and he filed an application for bail being Crl. Misc. case No. 86 of 2005 which was rej ected vide order dated 27.04.2005. From record it appears that the appellant has served out the sentence and the jail authorities shall verify and release him i f he is not wanted in connection with any other case. Acknowledging the legal assistance rendered by Mr. B.M. Choudhur 15. y, learned Amicus Curiae, this Court directs the State Legal Services Authority to pay an amount of Rs. 5,000/- to him as his legal fee.

14. Appeal stands allowed. Return the LCR forthwith.