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2007 DIGILAW 629 (GAU)

Lepa Gayari v. State of Assam

2007-09-19

AFTAB H.SAIKIA, H.BARUAH

body2007
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. A.D. Choudhury, learned Amicus Curiae and Mr. P.C. Gayan, learned P.P, Assam. 2. An FIR was lodged by P.W.-1 the father of the victim girl on 28.6.2004 with the Dimakuchi Police Out post under Paneri Police Station alleging that his daughter aged about 15 years while coming along with her 6 years old younger sister at about 12 noon to enquire about midday meal from their mother, who was working in the garden, the appellant forcibly caught her and raped her in the Garden No. 5 as a result of which her vagina was bleeding and she was recovered almost in unconscious state. 3. Having registered a case on the basis of the FIR, the police started investigation and on completion of the same submitted charge sheet against the appellant under Section 376 IPC. 4. During trial before the learned Sessions Judge, Darrang at Mangaldoi, the prosecution examined as many as 10 witnesses including the Doctor P.W-6 and the Investigating Officer (for short, 'the I.O') P.W. 10 and the Magistrate P.W. 9 before whom the accused-appellant made his confessional statement. 5. The learned Judge on discreet analysis and evaluation of the testimony of the prosecution witnesses particularly, P.W-4, the prosecutrix and P.W-6, the Doctor and also upon hearing the learned Counsel for the parties, found the appellant guilty of the offence of committing rape under Section 376 IPC upon the P.W.-4 and accordingly by his judgment and order dated 12.01.07 passed in Sessions Case No. 51(DM)/2005 convicted him under Section 376 IPC and sentenced him to undergo Rigorous imprisonment (for short, the 'R.F) for life with a fine of Rs. 5000/-, in default, R.I. for six months. 6. Mr. Choudhury, the learned Amicus Curiae, in support of the appeal so preferred by the appellant from jail and also impugning the conviction and sentence, has contended that the evidence of the prosecution witness is not at all corroborative and the same are full of discrepancies. Even the testimony of the prosecutrix P.W. 4 cannot be accepted. Reason for his such submission is that the P.W.-4 at the time of commission of offence, as has been put on evidence, she did not offer any resistance nor made any hue and cry at the time of commission of offence. Even the testimony of the prosecutrix P.W. 4 cannot be accepted. Reason for his such submission is that the P.W.-4 at the time of commission of offence, as has been put on evidence, she did not offer any resistance nor made any hue and cry at the time of commission of offence. Even from the Doctor's evidence P.W-6, it appears that there was no sign of any violence of any part of the body of the victim except on her private part. According to him, the evidence would go to show that she was a consenting party in the said act. Referring to the confessional statement so made by the accused, it is contended by the learned Amicus Curiae that when the accused asked her to lie on the ground she lay down for commission of this alleged offence without any hesitation. She did not even resist rather she quietly lay down. The entire conduct on the part of the prosecutrix would go to show that the incident happened only on her consent. Under such factual premises, according to Mr. Choudhury, the impugned conviction and sentence deserves to be interfered with. 7. Per contra, Mr. Gayan, learned P.P., Assam has forcefully submitted that the learned Judge was justified and correct in handing down the impugned conviction and sentence upon the appellant. It is contended by him that the prosecutrix vividly narrated the entire incident and it has been put on record that the appellant was carrying an axe with him by which he threatened her to kill as he introduced himself as an extremist and that has also been corroborated in the confessional statement so made by the appellant before the Magistrate P. W.-9. Besides the testimony of P.W.-4, the medical evidence also corroborated the incident of rape. Doctor, on examination of the victim girl, found the mark of violence on her private part. That being, the position, there is no convincing or compelling circumstances to dislodge the prosecution case and no interference is called for with the impugned conviction and sentence. 8. We have given our thoughtful consideration to the rival submissions so advanced by the learned Counsel for the parties including the learned Amicus Curiae. That being, the position, there is no convincing or compelling circumstances to dislodge the prosecution case and no interference is called for with the impugned conviction and sentence. 8. We have given our thoughtful consideration to the rival submissions so advanced by the learned Counsel for the parties including the learned Amicus Curiae. Also meticulously scanned the testimony of the witnesses including P.W-4 and the confessional statement made by the appellant before P.W-9 who after following the entire essential formalities recorded the statements of the appellant who confessed about the commission of offence. 9. It would be apt and appropriate to discuss the medical evidence so adduced by P.W-6 who examined the victim on the very day of occurrence. According to the Doctor, the following injuries were found: Laceration over post wall of vagina, blood staining present. Hymen rupture. Vagina admits one finger, tender introits. 10. In the opinion of the Doctor there was violence mark on the private part of the victim girl and it was difficult to comment whether she was raped by one person or gang. 11. P.W.-4, the prosecutrix in her deposition categorically stated that it was the appellant who confronted her with while she was coming to the garden with her younger sister and at that time the accused came to her taking an axe in his hand and threatened that he was an extremist and he would cut her if she would not allow her to commit rape on her. He pushed her and fell down on the ground. Then beating her, the accused took her to the lonely place of the garden and stripped off her skirt, shirt and panties. When she begged him to leave her, he did not listen and raped her. Her private pail was bleeding, Committing rape on her, the accused left the place of occurrence. Her mother, brothers and the people from the garden came and caught the accused. She was taken to the garden hospital in a injured state. Then she was shifted to Barangajuli hospital from Baganjuli and there from she was taken to the police station and then to the G.M.C.H. According to this witness, the other Bodo boy who accompanied the accused did not do anything to her. It was the appellant only who raped her. She also categorically stated that before committing rape the accused assaulted and injured her. 12. It was the appellant only who raped her. She also categorically stated that before committing rape the accused assaulted and injured her. 12. In cross-examination she explicitly deposed that the appellant raped on her forcefully by holding her. She could not raise alarm as he threatened that he would kill her with the axe in his hand. She was almost senseless after she had been raped. 13. The sister of the victim, P.W.-5 also narrated the same story as recorded by P.W.-4. According to the child witness who was aged about 7 years testified that while they were coming in the midst of the garden two Bodo boys came and one of the Bodo boy (present in the dock) dragged her sister into the garden bushes, fell her on the ground and showing the axe in his hand, the accused raped her. Showing the axe, the accused wanted to beat this witness. She ran away and told her mother about the incident. She also deposed that her elder sister, the victim, begged the appellant to leave her but he refused. She led her mother and the public. When the accused was shown, the public caught him and assaulted him. Then her elder sister was taken to the Baganjuli hospital. 14. The accused made his confessional statement before the Magistrate P.W-9 as under: Around 12 noon on last Monday giving midday meal to her mother, working in the garden, Ranjita was coming along with her younger sister. Meeting he near the garden I asked her to come with me. She did not agree. At this I dragged her into the garden. I asked her to lie on the ground. She lay down. Then I forcibly removed her panties. Undoing the zipper of my (Wearing) half pants I pushed my penis into her vagina She did not raise any alarm. Her vagina was not bleeding. When her younger sister informed her mother, the latter and the other people of the garden came and assaulted me. 15. Having carefully considered and appreciated the testimony of the above witnesses including P.W-4 and the confessional statement of the accused, we find that no such compelling or convincing grounds have been put forward so as to interfere with the impugned conviction and sentence. 15. Having carefully considered and appreciated the testimony of the above witnesses including P.W-4 and the confessional statement of the accused, we find that no such compelling or convincing grounds have been put forward so as to interfere with the impugned conviction and sentence. Accordingly, we are in full agreement with the view so arrived at by the learned Judge and uphold the conviction so imposed upon the accused-appellant. 16. As regard the sentence, given facts and circumstances of the case in its entirety, we are of the considered opinion that ends of justice would be adequately satisfied if the appellant is sentenced to 10 years of rigorous imprisonment with a fine of Rs. 5000/- in default further rigorous imprisonment for 1(one) month instead of sentence of life imprisonment. It is ordered accordingly. 17. In the result, this appeal stands partly allowed to the extent of modification of sentence as indicated above. Before parting with the judgment, we would like to put on record our appreciation to Mr. A.D. Choudhury, the learned Amicus Curiae for the help and assistance rendered to arrive at a decision in this appeal aforesaid and accordingly, it is ordered that he is entitled to get his professional fee which is quantified at Rs. 3000/- Send down the L.C.R. forthwith.