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2007 DIGILAW 362 (GAU)

Indrajit Chandra Nath v. State of Assam

2007-05-17

AFTAB H.SAIKIA

body2007
1. Heard Mr. J.M. Choudhury, learned senior counsel assisted by Mr. B.M. Choudhury, learned counsel appearing for the appellant and Mr. P.C. Gayon, learned PP, Assam representing the State of Assam. 2. The conviction of the appellant under section 376, Indian Penal Code ('IPC') and the resultant sentence to undergo rigorous imprisonment ('the R.I.') for 7 years and to pay a fine of Rs. 500, in default to suffer further rigorous imprisonment for 2 months imposed by the learned Sessions Judge, Dhubri in Sessions Case No. 73/04 by his judgment and order dated 28.5.2005, has been challenged in this criminal appeal. 3. The facts in brief as projected by the prosecution is that the appellant a resident of Khalilpur under Dhubri Police Station, called the victim prosecutrix P.W.I on 3.8.2003 and took her away from her house on the pretext of having discussion over certain documents and accordingly, she was taken to Jogomayaghat of Dhubri town. Both of them took seats in a boat and started to talk. Suddenly, the appellant embraced the victim P.W.I forcibly and gagged her mouth and thereafter committed rape on her under threat. As a result of such criminal assault, wearing apparel of the prosecutrix were torn and she sustained injuries on different parts of the body. Alleging the incident above mentioned, she lodged an F.I.R. with the Dhubri Police Station which was registered as Dhubri RS. Case being No. 261/03 under section 376, IPC. 4. On the basis of such F.I.R. investigation ensued and on completion of investigation, police submitted charge sheet against the appellant under section 376, IPC. 5. In course of investigation, police seized one old boat, one yellow sallowar kamij, one worna and other cloths including pantie. The victim was medically examined and the appellant was arrested. Later on the accused was enlarged on bail. 6. During the trial before the learned Sessions Judge, Dhubri to whom the case, being exclusively triable by the Court of Sessions, was committed by the learned Chief Judicial Magistrate, Dhubri, the prosecution examined as many as 6 witnesses including the victim-prosecutrix P.W.I and Dr. Saumitra Paul, P.W.5 including the Investigating Officer (I.O.) Shri Ganesh Ch. Das as P.W.6 when defence was examined none. The appellant was examined under section 313 Cr.P.C. and he denied the charge under section 376, IPC pleading not guilty. 7. Saumitra Paul, P.W.5 including the Investigating Officer (I.O.) Shri Ganesh Ch. Das as P.W.6 when defence was examined none. The appellant was examined under section 313 Cr.P.C. and he denied the charge under section 376, IPC pleading not guilty. 7. The learned Sessions Judge on appreciation of the evidence on record particulary the deposition of P.W.I and P.W.5 the Doctor and also upon hearing the learned counsel for the parties found the appellant guilty of the offence under section 376, IPC and convicted and sentenced accordingly as mentioned above. 8. Mr. J.M. Choudhuy, learned senior counsel, assailing the impugned judgment of conviction, has forcefully argued that the set of witnesses so examined by the prosecution miserably failed to make out a case under section 376, IPC against the appellant as the evidence of P.W.I and P.W.5 cannot be accepted as trustworthy and reliable which can inspire to indict the appellant in the alleged offence. Drawing attention to the deposition of P.W.I, it is contended that the appellant on her evidence specifically stated that she was in love with the appellant prior to the marriage and after her marriage being dissolved with her husband she was at her parent house and she, being fully aware of earlier relationship and on being invited, went with him and took seats in a boat. It was also, brought in evidence, according to Mr. Choudhury, that on the Ghat itself many people were present including an operator of the boat and it was really amazing that such an offence of rape could not be committed upon P.W.I in such place unless she permitted and consented to such act to the appellant. According to Mr. Choudhury, medical evidence of Doctor was in specific that there was no injury on the part of the body to show that there was any commission of rape on her. Moreso, there was no whisper in the medical evidence as regards any bodily injury on her person as claimed by the prosecutrix. That being so, on discreet analysis of the evidence of both RWs. 1 and 5, Doctor, the appellant deserves acquittal. 9. Per contra, Mr. Moreso, there was no whisper in the medical evidence as regards any bodily injury on her person as claimed by the prosecutrix. That being so, on discreet analysis of the evidence of both RWs. 1 and 5, Doctor, the appellant deserves acquittal. 9. Per contra, Mr. Gayon, learned P.P.Assam, has vehemently submitted that the evidence of P.W. 1 is sufficient to convict the appellant under the offence of rape because in her deposition she testified that the appellant induced her to accompany him to the Jogomayaghat and on his asking only she was compelled to take seat on the boat and on a sudden, he forcibly embraced her and under threat he criminally assaulted her. It is also contended that the evidence of the prosecutrix is found to be reliable and can be wholly accepted and no much reliance should be given to the medical evidence. His case is that the prosecutrix being the divorcee, the sign of sexual assault on her body may not be ascertained being habituated to sex and as such the medical evidence cannot be attracted and be the basis of any such acquittal as claimed on behalf of the appellant. Accordingly, he has submitted that conviction under section 376, IPC is justified and correct if the deposition of P.W.I is accepted and found to be reliable though there may be certain minor discrepancies. 10. We have given our anxious consideration to the extensive arguments so advanced by the learned counsel for the parties and also meticulously examined and analysed the entire evidence on record including the deposition of P.W.I and P.W.5. 11. For the sake of convenience, it would be prudent and necessary to refer to the injury so found by the Doctor P.W.5 on examination on the person of the prosecutrix which may be noticed as under : - 1. Mole on right cheek. 2. Mole below the right clavicle. 3. Height : 4. Weight: 5. Teeth : 6. Breast: Well developed 7. Secondary areola present, grown. Presence of meeting absent. Menstrual cycle : 28 +2 days. Last day of menustruation : 27.7.2003 Hymen absent. Examination of microscopic examination for spermatozoa of vaginal smear : absent. Radiological age of the person is above 18 years." 12. 3. Height : 4. Weight: 5. Teeth : 6. Breast: Well developed 7. Secondary areola present, grown. Presence of meeting absent. Menstrual cycle : 28 +2 days. Last day of menustruation : 27.7.2003 Hymen absent. Examination of microscopic examination for spermatozoa of vaginal smear : absent. Radiological age of the person is above 18 years." 12. On perusal of the evidence of Doctor RW.5 as mentioned above, it appears that the opinion of the Doctor was very much categorical in stating that the age of the P.W.I was above 18 years and no injury mark was found on her body. The final opinion of Doctor P.W.5 may also be reproduced. "Final opinion: (1) The age of the person is above 18 years. (2) It could not be ascertained whether she has been raped or not. (3) No injury on her body." 13. The opinion above referred, would clearly go to show that the victim did not suffer any injury on any part of her body not to speak of on her private part as claimed by her in her deposition. In the process of criminal assault on her by the appellant, according to P.W-1, the entire wearing clothes were torn and she sustained injuries on different parts of her body but such evidence of P.W.I was absolutely dislodged by the medical evidence. 14. Amazingly considering the place of occurrence which took place at a river boat, i.e., Ghat known as Jogomaya, in her cross-examination, it transpires that in the evening there were many persons in that area. She evidenced that the house of one Kausaleswar Roy, Amzad Ali, Hiran Deka and others were nearer to her house and the Dhubri Civil Hospital was also nearer to her house. Surprisingly in her cross-examination she mentioned that she did not tell the incident to the operator of the boat meaning thereby the boat operator was very much present in the boat .The entire facts and circumstances as revealed from the deposition of P.W.I and also from the medical evidence of Doctor P.W.5, this court is of the firm opinion that the prosecutrix appears to be a consenting party and accordingly the prosecution has failed to establish a case of commission of rape upon the prosecutrix by the appellant. 15. 15. In a recent case of Apex Court reported in (2006) 9 SCC 713 (Yerumalla Latchaiah v. State of U.P.) the Supreme Court has categorically ruled that since the medial evidence was inconsistent with evidence of prosecutrix, her evidence was belied by the medical evidence. In paragraphs 2 and 3 it was held as follows : - "2. The sole appellant was convicted by the trial court under section 376 of the Penal Code ('IPC') and sentenced to undergo rigorous imprisonment for a period often years. On appeal being preferred, the High Court upheld the conviction and reduced the sentence from ten years to seven years. Hence, this appeal by special leave. 3. In the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (PW 7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence, In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction." 16. Given the facts and circumstances of this case in its entirety and also upon hearing the learned counsel for the parties as well as having regard to the judicial pronouncement as referred to above, this court is of the considered view that the impugned conviction and sentence on the basis of the present set of evidence cannot be sustained. 17. Consequently, the conviction and sentence of the appellant under section 376, IPC stands quashed and set aside. 18. The appellant be set at liberty, if he is not required in connection to any other case. 19. In the result, the appeal succeeds and stands allowed. 20. L.C.R be sent immediately.