Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 575 (GAU)

Haren Patgiri v. State of Assam

2007-08-28

H.BARUAH

body2007
JUDGMENT H. Barua, J. 1. The appellant was tried by the learned Sessions Judge, Barpeta under Section 376 IPC for committing rape on PW-3, the younger sister of the informant (PW 1) on 17.1.1997 at 7 p.m. at Kardoiuri field. The learned Sessions Judge, Barpeta at the conclusion of the trial convicted the appellant and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-. In default of payment of fine, the appellant was further sentenced to undergo 6 (six) months R.I. It was also directed by the learned trial court that if the fine were realized, the same would be given to the victim as compensation. 2. The factual matrix of the prosecution case is that on 17.1.1997 victim (PW3), the sister of (PW 1), the informant was taken away by the appellant to act in a theatrical performance in their village. On their way while both reached Kardoiguri Pathar at 7.p.m. the appellant forcibly raped on her and left the place. The victim (PW3) thereafter took shelter at Chekigaon wherefrom she had been escorted to her residence by PW7 and PW8. A village mel was convened during the right itself. But there was no result. On the next morning at 10 a.m. i.e. on 18.1.1997, PW1 set the criminal law in motion by filing FIR (Ext. 1) with the Officer-in-Charge of Sarupeta Police Out Post. On being filed the FIR (Ext. 1), the same was forwarded to Patacharkuchi Police Station for registration of a case. Sashadhar Pathak, Sub-Inspector of Police of Sarupeta Police Out Post on receipt of the FIR (Ext. 1) after entering the same in the General Diary took up the investigation of the case in anticipation of entrustment of the investigation to him by the Officer-in-Charge of Patacharkuchi Police Station. The Station House Officer of Patacharkuchi Police Station accordingly registered a case under Section 376 IPC. 3. The case was investigated into. During investigation, the witnesses were examined under Section 161 of the Cr.P.C. Statement of the victim girl (PW 3) under Section 164 as well as under Section 161 were recorded and examined by a doctor also. After completion of the investigation, a charge sheet was laid against the appellant under Section 376. 4. The case being committed to the court of Sessions, a charge under Section 376 was framed against the appellant. Trial commenced. After completion of the investigation, a charge sheet was laid against the appellant under Section 376. 4. The case being committed to the court of Sessions, a charge under Section 376 was framed against the appellant. Trial commenced. Prosecution examined 9 witnesses including the Medical Officer and the Investigating Officer. The defence also examined two witnesses. The defence case is on the denial. The defence further case is that the victim (PW3) once tried to elope with one Gobinda, a dance Master, but she was unsuccessful due to intervention of the appellant and one Sarbeswar. The appellant was also examined under Section 313 of the Cr.P.C. He pleaded his innocence. At the conclusion of the trial, the learned Sessions Judge, Barpeta convicted the appellant as mentioned above. 5. It will be pertinent to mention at this stage that our present appellant was once tried and acquitted from the charge under Section 376 by the learned Sessions Judge, Barpeta, Shri U.C. Rabha but this Hon'ble High Court in Criminal Revision Petition No. 70/2001 (Suo moto) set aside the judgment of acquittal and directed the learned Sessions Judge, Barpeta to conduct retrial in accordance with law. 6. I have heard learned senior counsel, Mr. A.K. Bhattacharjee, assisted by Shri B.K. Singh, for and on behalf of the appellant and also heard Mr. K. Munir, learned Public Prosecutor for and on behalf of State Respondent. 7. Before entering into the merit of this appeal, it would perhaps be appropriate for this Court to project the evidence of some of the witnesses (material witnesses) for better understanding, appreciation of this appeal. In this case, we have found evidence of three witnesses most material and vital for the purpose of the decision of this appeal. They are PW 1, the informant; PW 3, the prosecutrix (Victim); PW2, the doctor, who examined the prosecutrix, P.W. 3 together with P.W. 6, the Investigating Officer. 8. PW 1 is the informant of this case. Her evidence on oath is that PW 3, her younger sister had been taken away by the appellant for theatrical performance at their village and on their way the appellant committed rape on her at Saonabari pathar. PW3 thereafter took shelter in a house at Cekiagaon wherefrom she had been escorted by two boys, who divulged the incident for the first time to her. PW3 thereafter took shelter in a house at Cekiagaon wherefrom she had been escorted by two boys, who divulged the incident for the first time to her. When asked PW3, she also divulged that the appellant committed rape on her. She (PW1) had seen atom mini-skirt. Her father placed the issue before a somaj. The appellant refused to admit his guilt. Thereafter, she filed Ext. 1 the FIR. In cross-examination this witness stated that she did not state in the FIR that rape had been committed at Saonabari Pathar. She also did not state to the Investigating Officer that two youths, who accompanied the victim, reported the matter to her for the first time. 9. RW. 3 is the victim herself. She has stated in her evidence that on the relevant day she had accompanied the appellant to their village to act in a drama from Sorbhog. Both the appellant and herself came to Bhavanipur by bus at 3 p.m. and then from Bhavanipur they boarded a truck proceeding towards their village. After travelling some distance, both alighted from the truck and walked along through a village and in the middle of the village the appellant suddenly grabbed her and fell her down on the ground and forcibly committed rape on her. The appellant had sex with her for about 10 minutes. Thereafter both walked together and after going a little distance, the appellant again expressed his desire to have sex with her for the second time. Being afraid of, she started running. The appellant too followed her, but she somehow took shelter in the house of a man at Chekiagaon. On her arrival in the house she did not divulge the incident to any body and thereafter she had been escorted by two boys to their residence. She reported the incident to her parents. It is also stated by her that her father convened a meeting at the very night but the appellant did not join in the meeting. On the next morning her elder sister PW1 launched the FIR (Ext. 1) at Sarupeta Police Station. Doctor examined her at Sarupeta Public Health Centre. Frock wearing at the time of the occurrence was shown to the police during investigation. She did not sustain any injury in her private part as a result of sexual intercourse. She was reading at Class-VI during the relevant period. 10. 1) at Sarupeta Police Station. Doctor examined her at Sarupeta Public Health Centre. Frock wearing at the time of the occurrence was shown to the police during investigation. She did not sustain any injury in her private part as a result of sexual intercourse. She was reading at Class-VI during the relevant period. 10. This witness was thoroughly cross-examined by the defence. In her cross-examination, she has stated that the appellant and herself attended in the village Bichar but the appellant denied the allegation of charge. In the said meeting their statements were also recorded. No decision could be arrived at. This witness also stated that the appellant and the several others brought an accusation against her that once she had eloped with one Gobinda, a dance master. This witness was also confronted with her previous statement recorded under Section 164 of the Cr.P.C. that she had divulged to the police that four months prior to the present occurrence the appellant had sex with her but she did not disclose the same to any body. Further she has stated that at the time of occurrence she was wearing briefs. Blood stained the same. Blood oozed out as a result of sex by the appellant. Blood stained frock had been shown to the doctor. Torn frock was shown to the public and the police as well. It was also stated by her that occurrence took place at Saonabari Pathar. She further stated if one goes to Sarupeta. Kadamtoli is reached first, then Saonabari and then Kardoiguri. She also stated that when she ran and had taken shelter, a lady came out but she never divulged the incident neither to the boys, who escorted her nor to the lady, who came out of the house for the first time. 11. PW 2 Dr. Saifuddin Ahmed deposed that on 18.1.1997 he examined PW3 in connection with Patacharkuchi P.S. Case No. 15/1997 under Section 376 aged about 18 years and during the course of examination he did not find blood stains, seminal stains, other discharges, foreign material. Tears were not seen in the vagina. He, of course did find old tears in the Hymen. After examination of PW 3, he gave finding that he was unable to detect sign of rape and gave the age of the girl below 18 years. Tears were not seen in the vagina. He, of course did find old tears in the Hymen. After examination of PW 3, he gave finding that he was unable to detect sign of rape and gave the age of the girl below 18 years. In the cross-examination he also stated that he did not discover any mark of violence on the body of the P.W. 3 at the time of examination. Further he gave his opinion that if the victim girl is ravished there might be some marks of resistance on her body. In case of forceful penetration, there might be marks of bleeding in her private part. Even marks of injury might also be present. Existence of old tears of hymen infers previous copulation. 12. The learned senior counsel, Shri A.K. Bhattacharjee therefore taking aid of the evidence of the three above witnesses submitted that the learned trial court failed to read evidence of the PWs in its proper perspective and thus erroneously rendered this judgment of conviction against this appellant. It is further submitted by him that the victim which was alleged to have raped by the appellant on the fateful day cannot be believed in view of the fact that she is not wholly reliable. That apart her evidence is liable to be discarded so only on the ground that she did not divulge the incident when she entered into the house situated at Chekiagaon after being chased. Victim at her entrance did find a lady coming out of the house but she did not reveal the incident. The boys who escorted her unto her residence were also not told about the incident. 13. We have found from the evidence of PW 1, the informant that for the first time, the boys who came along with the victim stated about the incident and then on being asked by her, the victim divulged the incident to her that the appellant committed rape on her. Shri Bhattacharjee therefore taking the fact of nondisclosure of the incident neither to the lady nor the boys or not to her elder sister for the first time, submitted that in such circumstances evidence of the prosecutrix cannot inspire confidence in the mind of the Court that there is a truth in the statement. Shri Bhattacharjee therefore taking the fact of nondisclosure of the incident neither to the lady nor the boys or not to her elder sister for the first time, submitted that in such circumstances evidence of the prosecutrix cannot inspire confidence in the mind of the Court that there is a truth in the statement. Shri Bhattacharjee argued that rule of law provides that conviction can be warranted on the basis of the testimony of a single witness if the testimony can be relied upon by the court. That aspect is missing from the evidence of the girl. The testimony offered by the victim thus cannot form the basis of conviction of the appellant. Shri Bhattacharjee in this context pawed a pertinent question as who prevented the victim not to divulge the incident to any of them. No explanation is offered by her which can be taken into consideration. Shri Bhattacharjee argued that the evidence of this lady cannot be believed in toto with reference to the allegation of commission of rape. 14. The second argument that has been advanced by Shri Bhattacharjee is in the context of the behaviour of the girl with reference to her previous conduct. It is in the evidence on record that the victim PW3 once tried to elope with one Gobinda, a dance master but due to intervention of the appellant and one Sharbeswar she was not successful in her attempt. That apart, learned senior counsel Shri Bhattacharjee also brought to the notice of this Court regarding the fact of sexual intercourse in between the appellant and victim. This witness in her cross-examination stated that four months before this occurrence, she had sex with the appellant but this incident was never expressed to anybody. Now, who prevented her not to divulge the incident. Omission on her part gives an inference that she was a consenting party. Mr. Bhattacharjee therefore, argued that the victim is not of such a character that the court can take a view that sexual intercourse was committed by the appellant without her consent. 15. The I.O., the Investigating Officer Shashadhar Pathak has been examined as PW 6. This witness in his cross-examination stated that the occurrence took place at Kardoiguri Bazar as per sketch map. But the occurrence took place at Saonabari Pathar. He admitted that he did not visited Kardoiguri. 15. The I.O., the Investigating Officer Shashadhar Pathak has been examined as PW 6. This witness in his cross-examination stated that the occurrence took place at Kardoiguri Bazar as per sketch map. But the occurrence took place at Saonabari Pathar. He admitted that he did not visited Kardoiguri. So basing on this evidence and the evidence of PW 1 and PW 3, Shri Bhattacharjee, learned senior counsel put emphasis that the prosecution fails to stick to the place of occurrence so narrated in the FIR rather projected a variation thereto. It would be improper to hold that the occurrence did take place in the place which find place in the first information report. The FIR (Ext-1) speaks that occurrence took place at Kardoiguri Pathar. This FIR was lodged by PW 1 but this PW1 in her evidence categorically stated that occurrence took place at Saonabari Pathar. So, there appears a total conflict in respect of the place of occurrence. P.W.3, the victim who is the prime witness in this case also fails to stick the place of occurrence so described in the first information report (Ext. 1). She has categorically stated that the occurrence took place at Saonabari Pathar. This witness also gives description topography of the place of occurrence. So from the composite reading of the evidence of PW 1, PW 3 and PW 6 we do not find a uniform statement regarding the place of occurrence. Shri Bhattacharjee therefore, argued that no such occurrence did ever take place as claimed by the prosecution. The witnesses differ from each other in regard to the place of occurrence. 16. Shri Bhattacharjee, learned senior counsel therefore taking this particular aspect of variance of place of occurrence and the previous character of the victim girl submitted before this Court that the victim was a consenting party. The evidence of the doctor speaks that she (PW3) was below 18 years. Therefore, two years plus minus (+-) can be calculated at the age given by the doctor. If the two years is added at the given age, the age would be at 20 years. In that calculation the victim appears to be major one. It is also argued by Shri Bhattacharjee learned senior counsel that PW 3 in her evidence no where stated that at the time of commission of rape, she raised hullah. If the two years is added at the given age, the age would be at 20 years. In that calculation the victim appears to be major one. It is also argued by Shri Bhattacharjee learned senior counsel that PW 3 in her evidence no where stated that at the time of commission of rape, she raised hullah. There is no evidence to show that the appellant resorted to some steps so that PW 3 the victim could not raise any alarm or hue and cry. This aspect coupled with the age of the victim girl gives inference that the victim was a consenting party if sexual intercourse is committed with the consent of the girl, who is found to be a major one the person who committed sexual intercourse cannot be brought to book under Section 376 IPC. 17. Shri A.K. Bhattacharjee, learned senior counsel also question the veracity of the statement of the witnesses in view of non-examination of some of the members who attended the village 'mel' on the very night. It is in the evidence on PW1, PW3 and her parents that a 'mel' was convened regarding this incident in the same night but no decision could be arrived at in the said meeting. PW 3 stated that in the said meeting their (appellant and herself) statement were recorded. But the Investigating Officer while investigating the case in the face of such statements did not find it reasonable to examine any of the members of the said meeting nor tried to seize the statement of the appellant and the victim. According to Shri Bhattacharjee, the with holdment of such witnesses by the prosecution makes the case shaky and feeble. 18. Per contra to the argument so advanced by Shri Bhattacharjee, learned Public Prosecutor, representing the State respondent failed to lead me through any evidence available on record to show that Investigating Officer did try to record the statements of the members of the meeting, but he was unable to do so, nor there was any attempt on the part of the Investigating Officer to seize the statement of the appellant and the victim allegedly recorded in the meeting itself. Non-procurement of the statements and non-examination of the members of the meeting as well, according to Shri Bhattacharjee, makes the case of the prosecution unreliable. Non-procurement of the statements and non-examination of the members of the meeting as well, according to Shri Bhattacharjee, makes the case of the prosecution unreliable. Had there been any such incident as claimed by the prosecution and had there been a convention of such meeting at the village in the night itself, Investigating Officer would have certainly examined those members of the meeting and seized the statements so allegedly recorded. But since nothing is available before this Court, it cannot be said that there is truth in the case of the prosecution so projected. 19. Shri Bhattacharjee, learned senior counsel further argued that neither of these aspects which have been discussed hereinbefore was taken into consideration by the learned trial Court and thus the trial committed error and illegality in rendering the conviction and sentence against this appellant. 20. In a catena of decision Hon'ble Supreme Court and the High Court laid down that in case under Section 376, the court should not ask for corroboration from the evidence of other witnesses since such act is always committed in secret. Further, it is held that on the basis of the single testimony of the victim, conviction can be warranted under Section 376 IPC without taking any recourse to the evidence of the doctor and other witnesses. 21. In the case of Joshep v. State of Kerala reported in (2005)5 SCC 1997, the Apex Court has held that the injuries are not always sinequanon to prove the charge of rape. Here, in the case we have found from the evidence of doctor that except old tears in hymen, no injury whatsoever was found on the private part of the victim or any other marks of violence. He also opined that after examination of the victim, he did not find any sign of rape. In the cross-examination, this witness stated that hymen can be torn as a result of sexual inter course. We have found from the evidence of PW 3, the victim that during investigation of the case when her statement was recorded under Section 161 Cr.P.C. stated to the I.O. that prior four months of the occurrence, she had sex with the appellant, but the incident was not reported to any body. Therefore, she is found habituated with sex. Tears of hymen is possible from such intercourse. 22. Therefore, she is found habituated with sex. Tears of hymen is possible from such intercourse. 22. In the case of State of Rajasthan v. Om Prakash 2002 CriLJ 2951, the Apex Court has held that it is necessary for the courts to have sensitive approach when dealing with the cases of rape. The Apex Court has held as follows: 13. The conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victims is a well referring to State of Punjab v. Gurmit Singh, Kewalchand Jain this Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision by Dr. Justice A.S. Anand (as His Lordship then was), speaking for the Court that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors, which the court should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 14. In the State of H.P. v. Gian Chand Justice Lahoti speaking for the Bench observed that the Court has first to assess the trustworthy intention of the evidence adduced and available on record. If the Court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted on though there may be other witnesses available who could have been examined but were not examined. 23. Here, in the case we have found the age of the victim below 18 years. This court as discussed hereinbefore finds that 2 years can be calculated plus minus(+ -) in such case. 23. Here, in the case we have found the age of the victim below 18 years. This court as discussed hereinbefore finds that 2 years can be calculated plus minus(+ -) in such case. From the reading of the evidence of the victim herself (PW3) and her parents we have found that the victim did not divulge the incident to any one and nor to PW 1, her elder sister. When asked about the incident then and then she divulged it. The behaviour of the prosecutrix for not divulging the incident at her own, the case of the prosecution remained to be unbelievable and unacceptable. 24. Taking into consideration of the facts and circumstances appearing in the case, the evidence on record both oral and documentary, the submissions of the learned Counsel for both the party and the law laid down by the Apex Court, this Court is of the opinion that the appellant cannot be held guilty. The learned trial Court failed to apply its mind to the evidence on record and the facts in its proper perspective and therefore rendered the judgment and order of conviction erroneously. This court finds sufficient grounds to interfere with the judgment and order of conviction rendered by the learned trial Court. It is accordingly interfered with. 25. This appeal stands allowed. The impugned judgment and order of conviction is set aside. The appellant is acquitted. Send back the L.C.Rs. Appeal allowed.