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2004 DIGILAW 8 (GAU)

Dibru Lohar v. State of Assam

2004-01-06

I.A.ANSARI, P.G.AGARWAL

body2004
JUDGMENT 1. Heard Mr. R.D. Mazumdar, learned Amicus Curiae appealing for the Appellant and Mr. F.A. Laskar, learned Public Prosecutor for the State. 2. This appeal is directed against the judgment passed by the Additional Sessions Judge, Dibrugarh in Sessions Case No. 90 of 1998 whereby the accused-Appellant, Dibru Lohar was convicted under Section 376 read with Section 304 IPC. The accused was sentenced to imprisonment for life for commission of rape and to under go Rigorous Imprisonment for 8 years and to pay fine of Rs. 2,000/-, in default, further RI. for 1 year for the offence under Section 304 IPC. Both the sentences were directed to run concurrently. 3. This is an unfortunate story of a teenage girl loosing her life due to lust of the accused-Appellant. The victim, Marilda Lakhra aged about 10 years was sent to the grocery shop by her parents to fetch some essentials. It was around 4'o' clock on 17.09.97. The girl did not return, whereupon, search was made and subsequently, the girl was found lying injured in a paddy field. She was brought home and there from removed to the Tingkhong Tea Garden Hospital. The girl was, thereafter, taken to Assam Medical College Hospital, Dibrugarh, where she succumbed to the injuries. 4. P.W. 8, Dr. R. Chaliha who held autopsy on the dead body and found as follows: On external appearance: A female dead body of about 10 years wearing a frock. Eyes and mouth are closed. Natural orifices are healthy. Rigormortis is present in both upper and tower limbs. 1. An infected lacerated injury over the left cheek measuring 2.5 x 1 cm similar in shape and resulting a litenash. Thorax - All the organs are pale and healthy. Abdomen - All the organs are healthy. In the genitals 3rd-degree perialtem is present which is grossly of shock. Vaginal smear does not show any spermatozoa or Gonococci. Opinion - Death is due to exhaustion as a result of the injuries described. The injuries of the cheek are due to biting and the injuries to the genitals are suggestives of forcible sexual intercourse. Injuries are ante-mortem. Time since death 36-48 hrs. Time since injury 7-10 days approximately. 5. P.W. 2, Dr. Opinion - Death is due to exhaustion as a result of the injuries described. The injuries of the cheek are due to biting and the injuries to the genitals are suggestives of forcible sexual intercourse. Injuries are ante-mortem. Time since death 36-48 hrs. Time since injury 7-10 days approximately. 5. P.W. 2, Dr. Karuna Kanta Saikia, who was a medical officer of the Tea Garden Hospital, has deposed that Christofar Lakhra, P.W. 4 and his wife Tasila Lakhra, P.W. 3 had brought their daughter Marinda to the hospital in a semi-conscious state. On examination, the doctor found blood stained on the private parts and the vagina was wounded. There was little cuts in the cheek and hand. The injuries were fresh. The girl was kept in the hospital and given treatment but as there was no improvement, the girl was sent to the Assam Medical College Hospital, Dibrugarh on the next day. 6. In the present case, we find that the medical evidence has not been challenged and in view of the oral and medical evidence on record, the fact that the death of the deceased was caused due to injuries sustained by her in course of rape committed on her stands fully established. 7. The next question for consideration is whether the accused-Appellant was involved in the above incident. Admittedly, there is not eye witness to the occurrence as the sole witness, i.e., the victim is no more in this world. The prosecution has relied on the oral dying declaration and circumstantial evidence to bring home the charge. 8. The parents of the deceased, i.e., the P.Ws. 3 and 4 have deposed that on the date of occurrence, their daughter Marinda was sent to a shop to bring 'dal' and 'mustard-oil' but as the girl did not return, they made an inquiry and went to the shop and they were informed that the girl did not come to the shop. They made a search for the girl and found her in a jungle in the middle of a paddy field. She had the injuries on her vagina and other small injuries on the cheek and hand. She was brought home and there from, she was removed to the garden hospital. They made a search for the girl and found her in a jungle in the middle of a paddy field. She had the injuries on her vagina and other small injuries on the cheek and hand. She was brought home and there from, she was removed to the garden hospital. She was brought to the Assam Medical College Hospital, Dibrugarh where, after two days, she regained her senses and, then, she informed her parents that the accused, Dibru Lohar forcibly took her from the road and raped her in the jungle of the paddy field P.Ws. 3 and 4 have deposed about the oral dying declaration of the deceased in their presence. 9. Besides the above evidence, there was another witness, namely, Sri Uma Kanta Deury, an employee of the Tea Board. He has deposed that on being directed by the Manager of the garden, he had visited the victim at the Assam Medical College Hospital, Dibrugarh, and found that the girl was in a position to speak and on inquiry being made, she told him about the commission of rape on her by the accused-Appellant. Sri Uma Kanta Deuiy was examined as a court witness and he has deposed that at the relevant time, P.Ws. 3 and 4 were also present at the hospital. 10. The learned Amicus Curiae has submitted that in this case, the investigating police officer did not arrange for recording of dying declaration, although he had sufficient opportunity to do so. This may be due to the negligence of the investigating police officer to discharge his duties, as required under the law. We also find that initially, the case was registered under Section 325 IPC and the victim was a tea garden laborer and the investigating police officer mi not have taken up the matter seriously. However, the prosecution cannot be affected due to negligence on the part of investigating police officer. Notwithstanding our unhappiness regarding the manner in which investigation has been canned out in the present ease, we propose to examine as to whether the prosecution has been able to establish the guilt of the accused by adducing evidence as required under the law. 11. There is no dispute regarding the admissibility of oral dying declaration in evidence. In this case, the oral dying declaration was made in presence of three witnesses. They were examined by the prosecution. 11. There is no dispute regarding the admissibility of oral dying declaration in evidence. In this case, the oral dying declaration was made in presence of three witnesses. They were examined by the prosecution. Although these witnesses have been cross-examined, nothing has come out to show that the deceased was not in a position to make the statement; on the contrary we find that P.Ws. 3 and 4 were candid enough to submit that at the time of recovery of the girl, she was in semi-conscious state, but after treatment at Assam Medical College Hospital, Dibrugarh, she recovered slightly, although for a short period, and during that period, on being questioned by them, she narrated the fact. We also find absolutely no reason on the part of these three witnesses to falsely implicate the accused-Appellant as admittedly they have no animus with the accused. The defence could not show anything as to why these witnesses will make false accusation against him. Further, the oral evidence stands corroborated by the medical evidence on record, which shows that a girl of 10 years was raped by a young man resulting in serious injuries to the genetic organs of the deceased, which ultimately, led to her death. The trial Court has relied upon the dying declaration and we also held that the oral dying declaration on record is reliable and trust-worthy. 12. Besides the dying declaration, there is other evidence, which connect the accused with the above incident. Sri Robat Gogoi, P.W. 6 is a middle aged villager and he had deposed that he had seen the deceased weeping in the paddy field and the accused was standing near the girl. Likewise, Sri Alfrad Toppo, P.W. 5, a co-worker in the garden had also seen the girl in the company of the accused in the said paddy field. The evidence of P.Ws. 5 and 6 lends credence to the oral dying declaration that it was the accused-Appellant and no one else, who had committed the heinous act of rape on a teenaged girl. 13. In view of the evidence on record and on foregoing discussion, we find absolutely no material to modify the order of conviction. The evidence of P.Ws. 5 and 6 lends credence to the oral dying declaration that it was the accused-Appellant and no one else, who had committed the heinous act of rape on a teenaged girl. 13. In view of the evidence on record and on foregoing discussion, we find absolutely no material to modify the order of conviction. The learned Amicus Curiae has, however, submitted that the accused is a young boy and for the offence of rape, the punishment of imprisonment for life is higher and the accused might have committed the above act at the heat of passion. Upon consideration of the submission and the facts stated in the case and taking into consideration the age of Dibru Lohar, we sentence the accused-Appellant as below: For the offence under Section 376 IPC, the accused-Appellant is sentenced to under go imprisonment for 10 years and to pay fine of Rs. 1000/- and in default, further imprisonment for one month. For the offence under Section 304Part II IPC, the accused is sentenced to imprisonment for 7 years and to pay fine of Rs. 2000/-, in default, further imprisonment for 2 months. Both the sentences shall run concurrently. The period of detention undergone by the accused shall beset off under Section 428 Code of Criminal Procedure. 14. With the above modification, the appeal shall stand disposed of.