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2006 DIGILAW 444 (GAU)

State of Assam v. Mintu Paul

2006-05-12

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. This is an appeal preferred by the State under Section 378 Code of Criminal Procedure, whereby the Appellant has challenged the legality and validity of the judgment and order, dated 24.6.1999, passed, in Sessions Case No. 131/1995, by the learned Assistant Sessions Judge, Cachar, Silchar, acquitting the accused-Respondent of the charges framed against him under Sections 366 and 376of the IPC. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 6.10.1995, at about 3 A.M., at night, the victim (hereinafter referred to as 'X') went out of her paternal house to make water and did not return home. On an enquiry made by her father (PW1) and their other relatives, it came to light that the victim, 'X', had been enticed and taken away by the accused, who is the maternal uncle of the victim, 'X'. On coming to know that it was the accused, Mintu Paul, who had accompanied his said minor daughter ('X'), PW 1 lodged a written Ejahar on 13.10.95. Treating the said Ejahar as the First Information Report, police registered a case against the accused under Section 366 IPC. During the course of investigation, the victim ('X') was recovered alongwith the accused from a place called Katigorah, whereupon 'X' was medically examined and, on completion of the investigation, the police laid a charge-sheet against the accused under Section 366IPC. 3. At the trial, the learned trial Court framed charges under Sections 366 and 376 of the IPC against the accused. The accused, however, pleaded not guilty thereto. 4. In support of their case, the prosecution examined as many as 7 (seven) witnesses. The accused was, then, examined under Section 313Code of Criminal Procedure and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. Having found the accused not guilty of the charges framed against him, the learned trial Court acquitted the accused of the offences charged with. Aggrieved by this acquittal of the accused, the present appeal, as indicated hereinabove, has been preferred by the State. 5. I have heard Mr. B. S. Sinha, learned Additional Public Prosecutor, Assam, appearing on behalf of the Appellant, and Mr. B. J. Ghose, learned Counsel, appearing on behalf of the accused-Respondent. 6. Aggrieved by this acquittal of the accused, the present appeal, as indicated hereinabove, has been preferred by the State. 5. I have heard Mr. B. S. Sinha, learned Additional Public Prosecutor, Assam, appearing on behalf of the Appellant, and Mr. B. J. Ghose, learned Counsel, appearing on behalf of the accused-Respondent. 6. While considering the present appeal, the determination of the age of the alleged victim, 'X', at the time of the alleged occurrence, is of immense importance. In this regard, what is worth noticing is that the evidence of the informant (PW1), whose daughter is the alleged victim, his said daughter was aged about 16 years at the time of the occurrence. The correctness of evidence, so given, by PW1 was under challenge at the trial. The age of the alleged victim needs to be, therefore, decided in the light of not only the evidence of PW1, but also the other available evidence on record. 7. My quest for an answer to the above question brings me to the evidence of PW 7, who was, at the relevant point of time, an Assistant Professor of Forensic Science at Silchar Medical College & Hospital. This witness's evidence is that on 17.10.1995, while he was serving as Assistant Professor of Forensic Medicine at Silchar Medical College & Hospital, he, on requisition given by the police, examined, at about 10.45 A.M., the victim, 'X', and found as follows: Physical examination-build-average, height-150 c.m. weight-40 Kg, teeth total No. 28 space present in all quadrate. Scalp auxiliary and public heirs present and black in colour. Breast-developed, slightly pendulous, nipple and areola brownish in colour. No secretion. Genital examination : valva healthy, valva healthy orifice admit two fingers and hymen-old, tears present at sixth and 11th o-clock position. Perineum and services-healthy, Ors. -there are no injury marks on her body, vaginal smear taken on two slides, Result-swear did not show any spermatozoa or gonococci. Mental condition-good. X-ray findings-Elbows joints-all the epiphyses have fused with parent bones. Wrist joint-all the carpel bones had appeared. Distal, redial and bone epiphysis have fused with the present bone. Shoulder joint-All the epiphyses have fused with parent bones. Pelvis, jliac crest epiphyses have fused with the parent bones. Report of X-ray was given by Dr. D. K. Chakravorty, MD, Department of Radiology, S.M.C.& Hospiral. 8. Wrist joint-all the carpel bones had appeared. Distal, redial and bone epiphysis have fused with the present bone. Shoulder joint-All the epiphyses have fused with parent bones. Pelvis, jliac crest epiphyses have fused with the parent bones. Report of X-ray was given by Dr. D. K. Chakravorty, MD, Department of Radiology, S.M.C.& Hospiral. 8. In the opinion of the doctor (PW 7), the alleged victim, 'X', was, in the light of her physical, denial and radiological examination, aged about 18 years. 9. The above findings of PW 7 and the opinion given by him with regard to age of the alleged victim 'X' was not disputed at the trial. There is also nothing in the evidence on record indicating that the findings rendered by PW 7 with regard to the age of alleged victim, 'X', are not true and/or incorrect. This apart, the radiological examination, as already pointed out above, reveals that in elbows joints, all the epiphyses had fused with parent bones and, similarly, in the wrist joint, all the carpel bones had appeared and that even in distal and redial bones, epiphyses stood fused with the parent bone. The radiological examination further revealed that not only in the shoulder joints, all the epiphyses had fused with parent bones, but also in pelvis and iliac crest, epiphyses had fused with the parent bones. 10. In the face of the findings arrived at by the radiological examination of the victim, 'X', the opinion given by PW 7 that at the relevant point of time, the victim, 'X', was above 18 years of age cannot be discarded. 11. Though it is true that the opinion of the door with regard to the age of an alleged victim, such as 'X', may suffer from marginal error of 2 (two) years, the fact remains that the benefit of such an uncertain situation must also be given to the accused. 12. In view of the above, neither the trial Court could have held nor can this Court, now, hold that the alleged victim, 'X', was 16 years old; rather, from the evidence, as discussed above, it is clear that the alleged victim, 'X' (PW 2), was more than 18 years old at the time of the alleged occurrence. 13. 12. In view of the above, neither the trial Court could have held nor can this Court, now, hold that the alleged victim, 'X', was 16 years old; rather, from the evidence, as discussed above, it is clear that the alleged victim, 'X' (PW 2), was more than 18 years old at the time of the alleged occurrence. 13. Bearing in mind what have been pointed out above, when I turn to the evidence of PW 2 (who is the alleged victim), I notice that according to her evidence, the accused is her maternal uncle and, in the morning of the day of occurrence, when she went out of her house to make water, the accused pressed her mouth with a piece of cloth, she, initially, resisted, but, later on, she fainted and when she regained her senses, she saw the accused and two Ors. in a house, they stayed in the said house for many days and then she was brought to Leparputa Village, where they stayed in a house of one Muslim person and, on the next evening, she was brought by a Taxi to Sewti, where the accused committed rape on her. PW2 has deposed that on the next day, she was brought to Chandranath, where she was forcibly dressed to wear make-up and put on vermilion on her forehead and, then, she was brought to Lumding, she stayed there with the accused for two or three days and, during this period, the accused had sexual intercourse with her and after three days, she was brought to Katigorah by train and kept concealed at Gangapur and, on the next day, the brother of the accused brought her to Police Station, she was brought to the court from the Police Station, where her statement was recorded. 14. From a careful reading of the evidence of PW 2, what transpires is that according to her evidence, she had not been kept at one place and that she had been made to move from one place to Anr.. In such a situation, when there is no evidence indicating that PW 1 was under threat, the fact that PW 2 did not, admittedly, make any attempt to either run away or raise cries for help, one cannot help but that she kept moving with the accused from place to place willingly. In such a situation, when there is no evidence indicating that PW 1 was under threat, the fact that PW 2 did not, admittedly, make any attempt to either run away or raise cries for help, one cannot help but that she kept moving with the accused from place to place willingly. This impression gets reinforced from the fact that the Investigating Officer has confirmed that PW 2 has stated, in her statement recorded by the police, that in the morning of the day of occurrence, i.e. on 7.10.1995, when she went for morning walk, she met the accused, with whom she had been in love for the last 18 months, and that she had also been told by the accused that he would marry her. The previous statement of PW2, so recorded by the Investigating Officer, reflects that the version of the occurrence, which PW2, her parents and other relatives have, now, projected to the effect that PW 2 went out of the house, at night, to make water and had been forcibly taken away by the accused is wholly unsafe to believe in or rely upon. 15. From what have been pointed out above, it is more than abundantly clear that PW 2, who was more than 18 years old, at the time of the alleged occurrence, went out with the accused willingly. In a situation, such as this, the learned trial Court was not wrong in holding to the effect that no offence was proved, beyond all reasonable doubt, to have been committed by the accused under Section366 IPC. 16. Now, turning to the charge framed against the accused-Respondent under Section 376 IPC, what may be carefully noted is that according to the evidence of PW 2, the accused, having kidnapped her, attempted to the sexual intercourse with her, but as she resisted, the accused did not succeed and, later on, while she was at Lumding, the accused forcibly had sexual intercourse with her thrice. Apart from the fact that the Investigating Officer has proved that PW 2 never stated before him that the accused had made any attempt to either commit rape on her or have sexual intercourse with her coupled with the fact that PW 2 did not also state before the police that the accused had sexual intercourse with her against her will or without her consent, her belated assertions to the effect that the accused forcibly had sexual intercourse with her is wholly unsafe to believe in or rely upon. At any rate, in the absence of any assertion, on the part of PW 2, in her earlier statement made before the police, indicating that the accused forcibly had sexual intercourse with her, the learned trial Court cannot be said to be unjustified in not placing any reliance on such accusations made by PW2 at the trial. 17. Because of what have been discussed and pointed out above, it was, at any rate, reasonably possible for the learned trial Court to hold that there was no credible, convincing and reliable evidence to sustain the charge of rape framed against the accused-Respondent. Since the conclusion so reached by the learned trial Court was reasonably possible, this Court, sitting in an appeal against the acquittal, cannot reverse such a finding. 18. In the result and for the reasons discussed above, I find no merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed. 19. Send back the LCR. 20. With the above observations and directions, this appeal shall stand disposed of.