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2006 DIGILAW 159 (GAU)

Parag Sahcia @ Ridip Saikia v. State of Assam

2006-02-16

B.P.KATAKEY

body2006
B.P. KATAKEY, J.— A criminal prosecution was launched against the appellant Sri Parag Saikia @ Ridip Saikia on the basis of the first information report submitted by Jagat Chandra Saikia, the husband of the Victim intimating the Officer-in-Charge of Ghiladhari police station on 23.10.97 that Parag Saikia the accused appellant and his wife were found stark naked in his bed room at about half past 9 p.m. on 22.10.97, when he was away from home. The police on receipt of the said information registered Ghiladhari P.S. Case No. 46/97 under Section 451/354 I.P.C. and upon completion of investigation, submitted charge sheet under Section 376IPC. Charge under the said provision of law was also framed by the learned Session Judge, Golaghat, against the accused appellant. The prosecution in order to bring home the charge under Section 376 IPC against the appellant examined five witnesses namely the victim as P.W. 1, Dr. Binud Kanta Bora, who medically examined the victim as P.W. 2, the first informant, husband of the victim as P.W. 3, Sri Ajit Saikia, the brother of the P.W. 3 as P.W. 4 and the Investigating Officer Md. Ramjan Ali, who conducted the investigation as P.W. 5. The defence also examined one witness namely Dr. Dilip Kumar Sarmah, to prove the injury on the appellant, who medically examined him. The learned Session Judge upon consideration of the evidences on record vide judgment dated 22.12.99 convicted the appellant under Section 376 (1) IPC and sentenced him to suffer rigorous imprisonment for five years and pay a fine of Rs. 500/- in default, to under go rigorous imprisonment for a further period of six months. Hence the present appeal. 2. I have heard Mr. C. K. S. Baruah, learned Sr. counsel for the appellant and Mrs. A. Begum, learned public prosecutor, Assam. 3. Mr. Sarma Baruah, learned Sr. counsel for the appellant has submitted that from the reading of the evidence of the P.W. 1 the alleged victim as well as the deposition of the P.W. 4, the brother of the victim's husband, it appears that the victim was a consenting party and she being about 19 years old at the time of occurrence, no offence under Section 376 IPC is made out against the appellant, more so when the doctor in his deposition has made a categorical statement that no opinion can be given regarding the rape. Mr. Mr. Baruah, submits that it is in the evidence of P. W. 1, the victim, as well as of P.W. 4 Ajit that the victim was sleeping with her children i.e. daughter Lukumoni aged about six years and son Ranjan aged about three years and it is therefore, highly improbable that when there was forceful sexual inter-course of the victim, she would not raise the alarm as P.W. 4 was also staying in the next room. According to the learned counsel the story given by the prosecution is highly improbable and there are discrepancies on material facts in the deposition of the prosecution witnesses and therefore, serious doubt arises about the commission of offence under Section 376 IPC and hence the appellant is entitled to be acquitted from the charges level against him by setting aside the judgment of conviction recorded by the learned session judge. 4. Learned Public Prosecutor, Assam on the other hand supporting the judgment of conviction recorded by the learned session judge has submitted that the conviction can be based on the sole testimony of the victim, if such evidence is found to be trustworthy, convincing and reliable. For recording the conviction under Section 376 no corroboration by the medical evidence is necessary. Referring to the deposition of the victim P.W. 1, learned P.P. has submitted that the victim has specifically stated about the sexual assault without her consent and therefore, the judgment of conviction was rightly recorded by the learned Session judge against the appellant. 5. I have considered the submissions of the learned counsel for the parties and afso perused the evidences on record both oral and documentary. 6. In the first information report which was lodged on the next day of occurrence, the P.W. 3, the husband of the victim has stated only about finding both the accused and the victim stark naked in the bed room on the night of 22nd October, 1997. Though the FIR was lodged on the next day i.e. almost after 12 hours of the occurrence, there is absolutely no mention about committing rape by the appellant. Though the FIR was lodged on the next day i.e. almost after 12 hours of the occurrence, there is absolutely no mention about committing rape by the appellant. P.W. 1, the victim in her deposition has narrated about the incident occurred on the day of occurrence by stating that on the night of occurrence she came to bed at about half past 9 after doing the household work and closing the door of her bed room she went to bed with her daughter Lukumoni aged about six years and son Ranjan aged about three years. At that time the accused who was hiding under the bed got himself atop her and gagged her and after pulling off all her cloths he raped her. The victim has also stated that the accused threatened her not to raise any alarm, if she did so he would killed the son. The victim in her deposition has further stated that the accused remained atop her for about half an hour and at that point of time the boy woke up and started crying. The brother of the husband on hearing the cry of the baby came inside and caught hold of the accused. It has also been stated in her deposition that both of them were fully naked and seeing Ajit inside, the accused hurriedly put on a pair of trouser. It is also in the evidence of the victim that the accused had penetrated his penis into her vagina but she did not suffer any injury except some pain in the neck. During cross examination the victim has stated that police did not write down everything told by her because if they did so her husband might have driven her out. The defence by cross examining the victim has brought out the contradictions between the statement made by her before police and court to the effect that the victim did not tell before the police about the accused hiding under the bed and also about gagging her by the accused. During cross examination of the P.W. 4 Ajit Saikia, the brother of the P.W. 3 the defence has also proved those contradiction, which are material for the purpose of this cases. During cross examination of the P.W. 4 Ajit Saikia, the brother of the P.W. 3 the defence has also proved those contradiction, which are material for the purpose of this cases. P.W. 3 in his deposition has also stated that on 22.10.97 at 3.15 a.m. when he returned home from Guwahati his brother Ajit informed him that upon hearing the city of the little child he pushed open the bed room door and found the accused Parag and his wife naked without any cloths on their body and when raised hue and cry the villagers came and caught hold the accused. The said witness has also slated that his wife told him that the accused has raped her. But interestingly though the FIR was lodged on 23.10.97 at about 8.30/am, i.e. after almost five hours of his returning home, this witness has not stated anything in the F.I.R. regarding the rape of his wife by the accused The version of the P.W. 3 therefore, creates doubt about its truthfulness. This witness has tried to improve his statement before the court with a view to make out a case against the appellant. 7. P.W, 4 Ajit, in his deposition has stated that about 9.30 p.m. on the day of occurrence when he heard the cry of the children from his sister-in-law's room hecame out of the bed and found the door of the sister-in-law's room open and saw a man in naked position. This witness has also stated that her sister-in-law had cloths on her and on seeing that he shut the door from out side and raised hue and cry then neighbours came and caught hold to the accused. The evidence of the P.W. 1 victim has not been corroborated by the evidence of P.W. 2 who claimed to see the accused in fully naked position. The victim has stated that Ajit found both of them in fully naked position and the on the other hand Ajit has stated that only the accused was in fully naked position but the victim had her cloths on. 8. The investigating Officer, Ramjan Ali, who was examined as P.W. 5 has stated about making a G.D. Entry No. 474 dated 23.10.97 by Ajit at about 2.15 a.m. on the night of 22.10.97 and 23.10.97 but the said G.D. Entry has not been proved by the prosecution before the court. 8. The investigating Officer, Ramjan Ali, who was examined as P.W. 5 has stated about making a G.D. Entry No. 474 dated 23.10.97 by Ajit at about 2.15 a.m. on the night of 22.10.97 and 23.10.97 but the said G.D. Entry has not been proved by the prosecution before the court. The contents of the said G.D. Entry is withheld from the court, may be because that may lend support to the defence version. The defence by cross examination the I.O. has brought out the contradictions in the statement of the victim to the effect that the victim before the police did not tell that the accused had inserted his penis into her vagina and also did not tell that the accused had gagged her. 9. The doctor who examined the victim in his deposition has stated that upon examination of the victim on 23.10.97, he did not find any injury nor any stain of seminal fluid. The doctor has further deposed that he did not find any injury in vaginal canal also and no spermatozoa was also found. The doctor in its report, which was exhibited as exhibit-2, has opined that no opinion can be given regarding rape. 10. From the narration of the evidences on record, it is evident that the victim was sleeping with two children, a boy and a girl and no injury was found on the person of the victim. The prosecution story that the victim was gagged and was threatened and thereafter was forcefully raped cannot be believed as the first information report, which was submitted after 12 hours of occurrence did not state anything regarding rape nor regarding gagging of the victim by the accused. The first information having been lodged after more than 12 hours naturally would contain everything in detail. Surprisingly, in the first information report what stated was that both the accused and the victim were found fully naked. The prosecution has also failed to prove and produce the G.D. Entry made by the police on the basis of the information given by Ajit at about 2.15 a.m. on the night of 22.10.97 and 23.10.97, which also lent support on the doubt about the prosecution story. P.W. 4 Ajit in his deposition has stated that he found the door open and saw the accused in fully naked position and the victim with clothes on. P.W. 4 Ajit in his deposition has stated that he found the door open and saw the accused in fully naked position and the victim with clothes on. On the other hand the victim has stated that the door was closed from inside and accused was hiding under the bed, which she did not divulge to any body. The victim has also stated that Ajit found both of them fully naked. Therefore, there is contradictions on the material point, which creates doubt about the commission of offence by the accused punishable under Section 376(1) IPC. It is being the prosecution case that the brother of victim's husband Ajit was also staying in the neighbouring room, if any forceful act was committed by the accused, the victim naturally with a view to save herself would have raised alarm to draw the attention of Ajit. The "Victim admittedly did not raise any alarm and the explanation was given for that is that the accused gagged her and threatened to kill the son. The said version of the victim is not believable because of the fact that gagging by the accused has not been stated by her in the statement made before the police and also before any other witness. Moreover no injury was also found on the body of the victim. The story regarding the threatening given by the accused has also not been stated by her to anybody. From the aforesaid discussion serious doubt arises about commission of offence under Section 376 IPC by the accused. 11. Though a conviction can be recorded on the basis of the sole testimony of the victim without any corroboration by the medical and other evidence, before accepting the statement of the victim the court must see whether the evidence is truthful, convincing and reliable. In the instant case from the evidence on record, as discussed above, doubt arises about the truthfulness as well as reliability of the testimony of the victim and therefore, her testimony cannot be based for the purpose of convicting the accused appellant. 12. In view of the above, the judgment of conviction and sentence passed by the learned Session Judge is set aside. The appellant is discharged from bail bond. 13. The appeal is accordingly allowed. 14. The Registry is directed to send down the records to the learned trial court with a copy of the judgment.