Biswanath Pachi v. State of Assam — 1999 DIGILAW 267 (GAU)

This appeal is directed against the judgment and order dated 6.4.99 passed by the learned Sessions Judge, Karimganj in Sessions Case No.5 of 1990 whereby the appellants were convicted under 458 IPC and sentenced to rigorous imprisonment for 6 years and to pay a fine of Rs.100 each in default to suffer further imprisonment for two months and under section 376 IPC with the sentence of 8 years rigorous imprisonment and to pay a fine of Rs.200 each in default to 3 months further rigorous imprisonment. 2. I have heard the learned counsel Mr. N. Dhar assisted by Smti A. Begum for the appellants and also Mrs K. Deka, learned Public Prosecutor, Assam, and perused the judgment under appeal and the connected case records. 3. The prosecution case as is revealed in the First Information Report is that on the night of 15.6.1988 at about 2 AM, the appellants namely Biswanath Pachi, Jalandhar Dhubi and Basanta Tuna entered the residential house of the complainant Smti Sefali Rani Roy being armed with lathis and took away the prosecutnx, namely, Kalpana out of the house after a brief scuffle and committed rape on her and, thereafter, left her in the compound of their neighbour Bihari a Turia who eventually handed over Kalpana Roy to the complainant. It would further appear from the FIR that the accused persons had covered their face and head with white cloth and the complainant could recognise them only from their voice. 4. An ejahar depicting the aforesaid incidence was lodged at the Patharkandi Police Station on the following day at 1PM. The police .initially registered a case under sections 147/458/366/376 IPC and eventually on completion of the investigation submitted charge sheet against the aforesaid named three persons and one Shri Gopal Harijan under sections 458/366/376/34 IPC. 5. On commitment of the case to the Court of the learned Sessions Judge, charge was framed against all the 4 accused persons under sections 458/34 and 376/34 IPC. The accused persons denied the indictment and claimed to be tried. The learned Sessions Judge after taking into consideration the evidence of prosecution witnesses awarded the verdict of guilt and sentenced the accused persons as aforesaid. Being aggrieved with the aforesaid judgment of conviction and sentence, this appeal has been preferred controverting the same on various grounds set forth in the memorandum of appeal. 6. The learned Sessions Judge after taking into consideration the evidence of prosecution witnesses awarded the verdict of guilt and sentenced the accused persons as aforesaid. Being aggrieved with the aforesaid judgment of conviction and sentence, this appeal has been preferred controverting the same on various grounds set forth in the memorandum of appeal. 6. The learned counsel for the appellants pointed out that the evidence on record is not adequate enough to show that the appellants were recognised beyond all shadow of doubt. According to the learned counsel, there is mistake in the charge with regard to the date of offence and that this has prejudiced the appellants in their defence at the trial stage. The learned counsel also questioned the propriety of the medical report on the ground that the opinion was tendered without considering the report of examination of vaginal sward and that the doctor admitted during the course of cross-examination that the injuries sustained by the prosecutrix could have also been caused by self sufferance. 7. At the very beginning, I would like to deal with the objection raised regarding mistake in the charge. It would appear from the charge framed by the learned Sessions Judge that the offence was committed at 2 AM between 15.6.88 to 16.6.88. From the ejahar it appears that the occurrence took place on the night of 15.6.88 at 2 AM. This shows that the occurrence took place immediate after midnight of 15.6.88. It was, therefore, in the early hours of 16.6.88. As such the date and time marked in the charge cannot be construed as a mistake at all. Consequently, the question of prejudice to the appellants on the above count does not arise. 8. A reappraisal of the evidence on record is considered necessary in order to find out the complicity of the appellants with the alleged offence. From PW 1 Smti Kalpana Rani Roy, the prosecutrix, we find that she was unmarried grand daughter of the informant Smti Sephali Rani Roy. On the day of occurrence she was in the house of the informant at village Araligoor. She came to Araligoor a few days back. On the night of occurrence Shri Khirod Roy,'the husband of the informant (her grand father) was away to Dimapur in connection with the affairs of his business. On the day of occurrence she was in the house of the informant at village Araligoor. She came to Araligoor a few days back. On the night of occurrence Shri Khirod Roy,'the husband of the informant (her grand father) was away to Dimapur in connection with the affairs of his business. She was sleeping with her grand mother in one room while her younger brother Rajkumar, Sujan Rani and Kajal Roy were sleeping in the adjacent room. In the night she heard banging sound on the door urging upon them to open the door. The miscreants instantly broke open the door and entered the room. They were armed with daggers and lathis. They also carried torch lights. The miscreants numbering four caught hold of her. At that moment Sephali, Rajkumar, Anjan and Kajal came to her rescue. They were assaulted by the miscreants. She could recognise the accused persons, namely, Jalandhar Pachi, Basanta Tuna, Gopal Harijan and Biswanath Pachi in the light of the torch carried by them. She was forcibly lifted by them and carried to a jungle at a distance of 1 KM. All the four accused persons denuded her and forcibly committed rape on her. Her voice was gagged by cloth and she became unconscious because of the assault. When she regained her senses, she found herself in the courtyard of one Bihari Turia. She called Bihari Turia and narrated the entire occurrences. Bihari took her to the house of her grandmother who was not in the house at that moment as she went out in search of this witness. She narrated the occurrence to all the persons present. Sephali took her to the police station to lodge the FIR. She was also examined by the doctor. She further told that on the previous day she went to witness Puja with her grand mother to the Araligoor Basti when the accused persons had teased her. She further deposed that she knew the accused persons from before and one of them namely Gopal proposed to marry her when she went to fetch water from his pond. She also exhibited the seizure list marked as Ext 1 by which the sari, underwear and blouse were seized by the police. 9. PW 2 is Sephali Rani Roy, the grand mother of the prosecutrix. She also exhibited the seizure list marked as Ext 1 by which the sari, underwear and blouse were seized by the police. 9. PW 2 is Sephali Rani Roy, the grand mother of the prosecutrix. We find from her evidence that on the night of occurrence her husband was at Dimapur in connection-with business. She was in the house along with her son Anjan and Kajal and grandson Rajkumar and the prosecutrix, sister of Rajkumar, who came to her house about 10/15 days prior to the date of occurrence. She was sleeping with Kalpana and her daughter aged 10 years jn one room while Anjan, Kajal and Rajkumar were sleeping in the Southern room. In the night some miscreant knocked at the door, broke it open and entered the room. She could recognize Gopal Harijan, Biswanath Pachi, Jalandhar Dhobi and Basanta Tuna in the focus of the torch carried by them. The said persons attempted to take away Kalpana. On being resisted by her, they assaulted her on her head and hand by lathi. The accused persons also threatened them with a dao and gagged Kalpana by putting a piece of cloth inside her mouth. Anjan, Rajkumar and Kajal also intervened and they were also assaulted by the accused persons. Just before dawn her neighbour Bihari Turia and his wife brought Kalpana to her house. Kalpana narrated to them that the accused persons had raped her by taking her to the jungle and, thereafter, left her in the courtyard of Bihari Turia who poured water on her head. Kalpana was wearing only blouse and a petticoat. About three days before the occurrence, the accused Gopal Harijan proposed to Kalpana to marry him when she went to fetch water from his tank and also threatened her to face grave consequences. This fact was reported by Kalpana to the witnesses. Two days prior to the occurrence this witness along with Kalpana went to attend a Kali Puja where accused persons also intimidated them. She proved Ext 2, the ejahar filed by her and seizure lists Exts 3 and 6 vide which the police seized a bamboo stick and a gamocha. 10. This fact was reported by Kalpana to the witnesses. Two days prior to the occurrence this witness along with Kalpana went to attend a Kali Puja where accused persons also intimidated them. She proved Ext 2, the ejahar filed by her and seizure lists Exts 3 and 6 vide which the police seized a bamboo stick and a gamocha. 10. PW 3 Kajal Roy and PW 5 Rajkumar narrating the occurrence emphatically asserted that they had recognised the accused persons namely Biswanath Pachi, Jalandhar Dhobi, Basanta Tuna and Gopal Harijan in the light of the torch focussed by the accused in different directions. PW 3 Kajal Roy stated that when resisted by them, accused Gopal and Biswanath assaulted his mother Sephali and accused Gopal assaulted Rajkumar and Anjan while Biswanath gave first blows. He further stated that the accused persons gagged Kalpana and took her forcibly. According to them, Bihari Turia and his wife brought Kalpana back to the house and on arrival of his mother who went out in search of Kalpana, the entire episode about the rape was narrated by Kalpana. Almost in the same tune PW 6 Anjan also deposed that he could recognise the accused persons in the flash of the torch focussed by them and that the accused persons threatened them with a dao and took away Kalpana after gagging her mouth. Kalpana was brought back home by Bihari Turia and his wife and he noticed injuries on her person. Kalpana also narrated to them that the four accused persons took her to the jungle and corumitted bad acts on her. 11. The evidence of PW 1, PW 2, PW 3, PW 5 and PW 6 without least deviation indict the accused persons. They are also unanimous in their version about the recognition of the accused persons in the flash of the torch light carried by the accused persons. 12. The learned counsel for the appellants raising doubts about the credibility of the witnesses submitted that PW 2 Sephali in her ejahar (FIR) clearly mentioned that the miscreants had their faces covered by white clothes and for this reason alone the evidence that the witnesses had recognised the accused persons is not to be relied upon. But I have carefully examined the FIR lodged by PW 2 Sephali. But I have carefully examined the FIR lodged by PW 2 Sephali. Although it is mentioned in the FIR that the miscreants had covered their faces with white clothes, yet it has been mentioned in the ejahar that there was an altercation at the time of occurrence. It is not in dispute that the accused persons are known to the complainant and the prosecutrix from before. Even on two occasions before they had intimidated both PW I and PW 2. Accused Gopal also. proposed to Kalpana to marry him. When there was an altercation resulting into assault, it was quite possible on the part of the witnesses to recognise the accused persons. From the evidence of Dr. Saroj Kanti Das (PW 4) we find that Sephali (PW 2) sustained one haematoma 4" x 3" over external side of left arm and another haematoma 3" x 1" over right side of occipital region 1" away from midline. This shows that the statement made by PW 2 that she was assaulted on her hand and head is not an embellishment. Rajkumar Roy (PW 5) also sustained injuries on cheek and left middle finger. PW 6 Anjan Roy also sustained an injury. All these injuries were caused by blunt weapon. The evidence of PWs 2, 3, 5 and 6 that the accused persons had assaulted them clearly show that there was an altercation and when they offered resistance they were assaulted. The injuries on the person of the witnesses show that during the course of entire transaction there was every opportunity on their part to recognise the assailants. In addition, there is evidence of the prosecutrix Kalpana that she was forcefully taken by the accused persons in the jungle and raped. Thereafter, she was left in the courtyard of Bihari Turia. It is pertinent to mention here that the offence of rape on Kalpana was committed when she was unmarried. She appeared before the Court to depose in the case after her marriage. Normally a married woman would not come forward to depose falsely that she was raped by the accused persons before her marriage thereby jeopardising her martial life. Therefore, the evidence of PWs read with the medical evidence and more particularly the evidence of the prosecutrix leave no doubt that the witnesses had recognised the accused persons during the occurrence. Normally a married woman would not come forward to depose falsely that she was raped by the accused persons before her marriage thereby jeopardising her martial life. Therefore, the evidence of PWs read with the medical evidence and more particularly the evidence of the prosecutrix leave no doubt that the witnesses had recognised the accused persons during the occurrence. The FIR lodged on the next day disclosing the identity of Biswanath Pachi, Jalandhar Dhubi and Basanta Tuna clearly establish the involvement of the accused persons in the alleged crime. Absence of the name of Gopal in the ejahar further reinforce their evidence. Had it been a case of false implication, the complainant should not have missed to insert the name of Gopal. Although the name of Gopal Harijan was not mentioned in the ejahar, yet the evidence on record do not admit of any scope to doubt his complicity, the evidence of prosecutrix being positive and definite .about him. 13. Bihari Turia has been examined in this case as PW 7. He deposed that in the night at 2 AM a girl called him from outside. On opening the door, he found that the girl was Kalpana who reported to him that four persons had kidnapped her from her house and left her behind his house. This witness was declared hostile by the prosecution. He was cross-examined by the prosecution as well as the defence. He was confronted with the statement made to the IO that Kalpana reported to him that Gopal Harijan, Jalandhar Dhubi, Biswanath Pachi and Basanta Tuna kidnapped her forcibly by breaking open the door and raped her. PW 8 Bhadra Kanta Das, IO confirmed the aforesaid statement having .been made by Bihari Turia during the examination under section 161. It appears that PW 7 Bihari Turia made false statement on oath before the learned Sessions Judge. 14. The Doctor's report shows that Kalpana sustained the following injuries: “A scratch mark 2" x 1" over inner side of right breast. External genitalia Erythema present. Hymen ruptured.” He gave a definite opinion that rape was committed on her and that there were marks of violence in her private parts. The learned counsel for the appellants argued that the examination of the vaginal sward was not taken into consideration by the Doctor while giving the aforesaid report. External genitalia Erythema present. Hymen ruptured.” He gave a definite opinion that rape was committed on her and that there were marks of violence in her private parts. The learned counsel for the appellants argued that the examination of the vaginal sward was not taken into consideration by the Doctor while giving the aforesaid report. But the opinion tendered by the Doctor is based on the injuries sustained by Kalpana on her private parts. It is needless to point out that an opinion about rape can be tendered by a Doctor unless the injury report ex-facie shows that rape was not at all probable. It is immaterial for the purpose of such opinion whether the report of the vaginal sward was taken into consideration or not. A grievance has been sought to be made out by the learned counsel on the ground that the Doctor's report is not acceptable for want of sufficient reasons. So far external injuries are concerned, it is obvious that no reasons are required to be assigned. It is merely a description of the injuries sustained by the prosecutrix. The injuries found on the right breast of the prosecutrix and on her private parts speak of volumes for itself. It is the totality of the circumstances with which the medical opinion has to be read and not in isolation. The evidence as above when read with the medical opinion establish the prosecution indictment of kidnapping and rape. 15. The learned counsel for the appellants has referred to the variations and contradictions in the evidence of the prosecution witnesses. In my considered opinion, the variations and contradictions are minor in nature and cannot be resorted to for demolishing the prosecution story. In State of Andhra Pradesh vs. Gangula Satya Murthy, (1997) 1 SCC 272 , the Supreme Court pointed that the Courts are required to show great responsibility while trying an accused on charge of rape. The Court should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses to throw the charge of rape. In the instant case, the most important feature is that the prosecutrix was an unmarried girl when the offence was committed and she came to the witness box even after her marriage to indict the accused persons. In the instant case, the most important feature is that the prosecutrix was an unmarried girl when the offence was committed and she came to the witness box even after her marriage to indict the accused persons. It would also be relevant to point out here that in the State of Punjab vs. Gurmit Singh, AIR 1996 SC 1393 : (1996) 2 SCC 384 it has been held that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. In the instant case the learned counsel has insisted and relied upon certain infirmities and variations in the testimony of the witnesses. These infirmities and variations are not of such magnitude so as to tarnish the witnesses as unworthy of credence. In Bharwad Bhoginbhai vs. State of Gujarat reported in AIR 1983 SC 753 , the Supreme Court held that in the Indian setting, to disbelieve the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. The Supreme Court was also of the opinion that there is no reason to view the evidence of a girl or a woman who complains of rape or sexual molestation with doubt, disbelief or suspicion. I, therefore, see no reasons to attach any importance to the minor discrepancies in order to doubt the credibility of the prosecutrix. 16. On the face of what is stated above the argument advanced by the learned counsel that the witnesses for the first time identified the accused persons at the trial and that no identification parade was held loses its significance. The learned counsel also referred to a decision in AIR 1970 SC 1321 . The ratio laid down in the said case has no relevance for the simple reason that in the instant case the prosecutrix and other PWs have from the very beginning maintained that they have recognised the accused persons who were known to them from before. 17. The decision in 1981 Crl LJ 1060 (Orissa High Court) relied upon by the learned counsel also has no significance so far the case at hand is concerned. Although it is stated in the ejahar by PW 2 that she could recognise the accused persons by their voice, the evidence about their identity is so overwhelming thai the said statement in the ejahar lost its significance, if any. Although it is stated in the ejahar by PW 2 that she could recognise the accused persons by their voice, the evidence about their identity is so overwhelming thai the said statement in the ejahar lost its significance, if any. This is not a case based on recognition of some unknown culprits by voice only. 18. The learned counsel also wanted to make out a case for the appellants on the ground of delay in lodging the FIR and for his purpose relied upon certain decisions of the Apex Court. But in the instant case the offence was committed in the night, the victim returned to her house in the dawn and, thereafter, within a few hours the ejahar was lodged before the Patharkandi Police Station which is 14 KM away from the place of occurrence. This delay of few hours is no delay at all. In AIR 1981 SC 361 , the Apex Court maintained the conviction of the accused under section 376 although there was a delay of 10 days in lodging the FIR. The Supreme Court found the explanation given for delay reasonable and declined to interfere with the judgment of conviction. In the instant case there is no noticeable delay at all and, as such, no doubt on that count arises. There is no evidence of any enmity between the parties except that the prosecutrix was teased on two occasions earlier. This is not so deep rooted a grudge for which a false charge of rape could be foisted. 19. Having due regard to the evidence on record, specially that of the prosecutrix and, on consideration of the fact that the testimony of the witnesses could not be shaken to the extent of even creating any doubt, this Court is of the opinion that the appellants have been rightly convicted by the Court below under section 458/34IPC and 376/34IPC 20. In the result the appeal is dismissed. Registry is directed to send the case record along with a copy of the judgment to the concerned Court for execution of the sentence immediately. 21. Before parting with the record it is felt necessary to reiterate that PW 7 Bihari Turia apparently made a false statement before the learned trial Court. He was the first person before whom the prosecutrix narrated the occurrence indicting the accused persons by name. 21. Before parting with the record it is felt necessary to reiterate that PW 7 Bihari Turia apparently made a false statement before the learned trial Court. He was the first person before whom the prosecutrix narrated the occurrence indicting the accused persons by name. It is he who had taken the prosecutrix to her house. But the prosecution had to declare him hostile. In a case of rape such an attitude on the part of a witness is unpardonable. Therefore, it is ordered that the learned trial Court shall issue a notice to this hostile witness calling upon him to show cause as to why he should not be prosecuted for making a false statement on oath. A separate miscellaneous case in this behalf be registered. The learned Court shall after considering the reply to the show cause pass appropriate orders for prosecution of this witness strictly in accordance with law.