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2007 DIGILAW 334 (GAU)

Ranjit Saikia v. State of Assam

2007-05-08

AFTAB H.SAIKIA

body2007
1. Heard Ms. R.D. Mazumdar, learned amicus curiae. Also heard Mr. B. Buragohain, learned P.P., Assam. 2. This criminal appeal has been directed against the judgment and order dated 7.2.2004 rendered by the learned Sessions Judge, Tinsukia in Sessions Case No. 130(M)/03 whereby the appellant was found to be guilty of the offence of rape committed on P.W.1, the prosecutrix and accordingly he was convicted under section 376, IPC and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 1,000, in default to suffer rigorous imprisonment for 3 months. 3. The prosecution case, in short, may be noticed. An ejahar was lodged on 8.12.2002 by P.W. l, the prosecutrix of No. 2 Borgolai with Margherita Police Station alleging that on 6.12.2002 at about 5 p.m. the Appellant, Ranjit Saikia entered into her house at the time of absence of her husband and forcefully raped her. When she raised noise, neighbouring persons gathered at the place of occurrence. 4. On the basis of the F.I.R., Margherita Police registered a case under section 376, IPC against the appellant and started investigation. 5. On completion of the investigation, charge-sheet was submitted against the appellant under the aforesaid section. 6. During the trial the learned before the learned Sessions Judge to whom the case, being exclusively triable by the court of Sessions, was committed by the learned SDJM, Margherita, the prosecution examined as many as six witnesses including the P.W.6, Dr. Dilip Kumar Gogoi who examined the prosecutrix and P.W.5, Sri Anjan Thakur, the Investigating Officer (I.O.). 7. The defence case was of total denial and accordingly no witness was examined on behalf of the appellant. In his examination under section 313, Cr. PC the accused/appellant denied all the allegations. Rather, in his defence he stated that the husband of the prosecutrix took Rs. 1,500.00 from him for supply of bamboo but he did not supply the same and when he asked for the repayment of money, the instant false case was instituted against him. 8. After appreciation of the material evidence on record both oral and documentary, and after hearing the learned counsel for the parties, the learned Sessions Judge by the impugned judgment and order convicted and sentenced the appellant as already indicated above. Hence this appeal from jail. 9. Challenging the impugned conviction and sentence Ms. 8. After appreciation of the material evidence on record both oral and documentary, and after hearing the learned counsel for the parties, the learned Sessions Judge by the impugned judgment and order convicted and sentenced the appellant as already indicated above. Hence this appeal from jail. 9. Challenging the impugned conviction and sentence Ms. R. D. Mazumdar, learned amicus curiae has advanced her three fold argument as follows : - (i) There was a considerable delay in filing the FIR by the prosecutrix and the delay was not adequately explained. (ii) There was a glaring contradiction in the evidence of P.W. 1 as regards the duration of sexual work between the prosecutrix and the appellant and the same cannot be the basis of conviction. (iii) The medical evidence did not indicate any evidence of rape on the person of the prosecutrix. 10. According to her, if the above mentioned facts and circumstances are considered, it can be well said that the prosecution failed miserably to prove the commission of offence of rape by the appellant beyond reasonable doubt. 11. On the contrary, Mr. B. Gogoi, learned P.P. in support of the impugned conviction and sentence, has strenuously argued that the sole testimony of P.W. 1 was sufficient to convict the appellant for such heinous crime committed on her. According to him, the delay was properly and adequately explained in filing the FIR in her deposition wherein the PW-1 in her clear term deposed that as her husband was ill, she had to go for work for her livelihood of the family consisting of her husband and two minor children aged about 2V6 years and 3Vi- years and therefore, she could not inform the police immediately. 12. Referring to the medical evidence, the learned PP has argued that since the prosecutrix was a married woman there could not be any sign of any injury on her private part and such evidence can be easily discarded and conviction can be upheld simply relying on the evidence of the prosecutrix herself who was victim of the circumstances. He has also stated that the testimony of "the prosecutrix is wholly reliable and trustworthy because she, being an Indian woman from a poor but an orthodox family would never tell lie in narrating such fact of criminal assault on herself putting her prestige and image in the family and in the society at stake. He has also stated that the testimony of "the prosecutrix is wholly reliable and trustworthy because she, being an Indian woman from a poor but an orthodox family would never tell lie in narrating such fact of criminal assault on herself putting her prestige and image in the family and in the society at stake. Accordingly the conviction and sentence so rendered by the learned Sessions Judge do not warrant any interference from this court. 13. I have given my thoughtful consideration to the extensive argument so canvassed by the learned amicus curiae, Ms. R. D. Mazumdar as well as the learned P. P. and also perused carefully the records so made available including the evidence of all the witnesses and meticulously evaluated the same. It transpires from the testimony of P.W. 1, prosecutrix that when she, on the fateful day was at home with her two minor children aged about 3 ½ years and 2 ½ years and her husband was also absent during the relevant period as he went to the shop, the appellant at about 6.30 p.m. entered into their house and pushed her towards the wall and then accused person opened her clothes. He took her to a nearby bed and fell her down. Then, he opened his pant and ejected his penis and did sexual work with her. It was deposed that he did sexual work for half an hour and she raised halla. Persons came. Sitaram and his wife also came. Accused person left the place. After 3 or 4 days police was informed. As her husband was ill and she had to go for work, she could not inform police immediately. She could not read and write. She put her thumb impression in the ejahar. She was sent for medical examination. In her cross, she testified that she stated before the Magistrate that the accused person did sexual intercourse with her for five minutes and on the day of recording her evidence she told that the appellant did sexual intercourse with her for half an hour. 14. P.W.6, the Doctor who examined the prosecutrix, in his detailed examination on the person of the prosecutrix found the following injuries: "Details of examination :- 1. A young adult woman of about 20-22 year of age. 2. Secondary sexual character well developed. 3. Stria graidenum present, 4. Vulva & vagina healthy and dry. 5. 14. P.W.6, the Doctor who examined the prosecutrix, in his detailed examination on the person of the prosecutrix found the following injuries: "Details of examination :- 1. A young adult woman of about 20-22 year of age. 2. Secondary sexual character well developed. 3. Stria graidenum present, 4. Vulva & vagina healthy and dry. 5. Pubic hair dry. 6. Introtus admits two fingers easily. 7. No any sign of injury of mark of violence present on her body. Neither party nor police furnished X-ray reports for determination of Radiological age of victim or high veginal swab for detection of sperm." In his evidence the doctor opined that no sign of violence or forceful sexual intercourse was present. As no radiological evidence was furnished, age determination was inconclusive. 15. On the other hand, P.W. 5, IO in his deposition testified that immediately on receipt of the FIR he was endorsed with the investigation of the matter and accordingly he took statement of the complainant of the prosecutiix in the police station itself as the victim was sent for medical examination and she was also sent for recording her statement under section 164, Cr.PC to SDJM. Marghertia who recorded her statement. 16. Having meticulously scanned the evidence of P.W. 1, prosecutrix P.W.5, 10 and P.W.6, the doctor it transpires that the evidence of the prosecutrix was not inspiring and the same cannot, therefore, be accepted. In her examination in chief, P.W.I was very much categorical that the act of sexual work lasted for about half an hour but at the same time in her cross-examination her specific stand was that the accused person did sexual intercourse only for five minutes. On the same breath, it is interesting to note that again in cross she reiterated that said intercourse took half an hour. It is really surprising and not a believable. This particular testimony smacks doubt as regards the commission of offence of rape. 17. Besides there was a delay of two days in lodging the FIR with the police station and in her statement she mentioned that as her husband was sick and she had to go for work she could not intimate the police about the occurrence. This piece of deposition also can not be accepted simply because that when she could go out for work, what prevented her from not informing the police within the reasonable period of time. 18. This piece of deposition also can not be accepted simply because that when she could go out for work, what prevented her from not informing the police within the reasonable period of time. 18. That apart, medical evidence was very specific that no sign of violence of sexual intercourse was found on her private part. There is nothing on evidence that there was any resistance on the part of P.W.1 which she was criminally assaulted. On close appreciation of the evidence of P.W. 1, this court is of the firm view that prosecution has failed to prove the case against the appellant beyond reasonable doubt. 19. Consequently the impugned conviction and sentence are hereby set aside and quashed. 20. We direct the appellant be released forthwith if he is not otherwise connected in any other case. 21. In the result, this appeal succeeds and stands allowed. 22. LCR be send down immediately. 23. Before parting with the case record, we would like to put on record our appreciation to Ms. R.D. Mazumdar, learned Amicus Curiae for rendering her valuable assistance and help in arriving at the aforesaid decision and accordingly we order that she is entitled to get his professional fees which is quantified at Rs. 2,500.