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2009 DIGILAW 516 (GAU)

Dilip Saikia v. State of Assam

2009-07-31

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. H.K. Baishya, Learned Counsel for the accused appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam appearing for the State respondent. 2. This appeal has been filed against the judgment and order dated 2.8.2004, passed by the learned Sessions Judge Jorhat in Sessions Case No. 24(JJ) of 2003 convicting the accused appellant under Sections 457/376(1) of IPC and sentencing him to undergo rigorous imprisonment for 2(two) years under Section 457, IPC and to pay a fine of Rs. 500 in default to undergo another Hone) month and for the offence under Section 376 of IPC, rigorous imprisonment for 7(years) and to pay fine of Rs. 1,000 in default to undergo another 1(month) rigorous imprisonment. 3. The prosecution narrates its story as under: On 17.7.2002, one Shri Nomal Bora, PW2 of Marisuti Gaon filed an FIR with the Officer-in-Charge of Jengraimukh Police Station alleging that on the previous night i.e., on 16.9.2002 at about 10.00 P.M., he went with his minor daughter to witness Bhawna in the Namghar, leaving his wife Smt. Rina Bora alone at home. The accused, Shri Dilip Saikia, taking advantage of the absence of the informant, trespassed into his house and committed rape on her by gagging her mouth and covering her face. In the meantime, the informant Nomal Bora returned home and saw the accused committing rape on his wife. Sensing the return of the informant, the accused ran away from inside his house. On the basis of the said FIR, the Jengraimukh Police station case No. 13/2002 was registered under Sections 457/376, IPC. The Investigating Officer visited the place of occurrence and got the victim woman medically examined by the doctor. She was also produced before the learned Sub-Divisional Judicial Magistrate, Majuli and her statement was recorded under Section 164, Cr.PC. The accused-appellant was arrested on 19.7.2002 and he was forwarded to the court to stand trial. 4. During investigation, the police recorded the statement of witnesses in connection with the occurrence and after completion of the investigation, submitted charge sheet under Section 457/376IPC against the accused-appellant. The case was committed by the Sub-Divisional Judicial Magistrate, Majuli to the court of Sessions, Jorhat. On appearance of the accused, the learned trial court read over and explained the charge to which the accused-appellant pleaded not guilty and claimed to stand trial. The case was committed by the Sub-Divisional Judicial Magistrate, Majuli to the court of Sessions, Jorhat. On appearance of the accused, the learned trial court read over and explained the charge to which the accused-appellant pleaded not guilty and claimed to stand trial. The learned trial court at the conclusion of the trial and after hearing the Learned Counsel for the parties convicted and sentenced the accused-appellant as stated earlier. 5. To bring home the charges against the accused-appellant, the prosecution examined as many as 9(nine) witnesses including the victim woman and the Medical Officer. A court witness was also examined. Nomal Bora, husband of the victim who lodged the ejahar was examined as PW3. According to him on the date of the occurrence, there was a Bhawna in his village. His wife was ill and therefore, she did not go out to witness the Bhawna and so he went with his minor daughter and his wife was staying alone. His other two sons were present at the place of Bhawna. After half an hour, he returned from the place of Bhawna along with his minor daughter and as he entered the front door, he saw the accused running away from his residence. He heard his wife shouting and going inside the bedroom, he found his wife lying on the floor and her mouth covered with her 'chadar'. Then she disclosed that the accused-appellant during his absence came to their house and initially tried to embrace her while she was sleeping in the bedroom. She tried to resist but fell down on the ground and taking advantage of the said situation, the accused-appellant committed rape on her on the floor by gagging her with 'chadar'. In cross-examination, the defence Counsel put suggestion to PW1 that his wife had an illicit relationship with his brother Jadav Bora and both of them were punished by the villagers. This suggestion was denied by PW1. It was also suggested that his wife had subsequently developed illicit relationship with the son of Bhaktiram Bora. The same was also denied by PW1. Next, it was suggested that he took a loan of Rs. This suggestion was denied by PW1. It was also suggested that his wife had subsequently developed illicit relationship with the son of Bhaktiram Bora. The same was also denied by PW1. Next, it was suggested that he took a loan of Rs. 2,500 from the accused Dilip Saikia with a promise to sell a pair of bullocks and when he failed to deliver the bullocks, the accused came to his residence along with his friends on the date of occurrence asking for return of the loan amount and thereafter made false allegation to harass the accused. PW1 denied the said suggestion also. He also denied that he took loan from the accused. 6. The victim woman made her statement under Section 164, Cr.PC, Exhibit (3). She was examined as PW2. The contents of the said statement tally with the deposition made by her before the learned trial court. Shri Nomal Bora, husband of the victim woman, was examined as PW3. He corroborated the evidence of his wife. The Medical Officer, Dr. Bimal Chandra Pegu was examined as PW7. He deposed that on 22.7.2002, while he was serving as Medical Officer at Jengraimukh Public Health Centre, he examined the victim wife of Nomal Bora. According to him, she was aged 28 years and there was no evidence of sign or symptoms of rape and physical torture over her body. 7. The prosecution examined Jogot Bora and Jai Prakash Bhuyan as PW4 and 5 respectively. They were co-villagers. They have no personal knowledge about the incident but they have stated that there was a Bhawna in their village in the night when the occurrence took place. One Bhaktiram Bora was examined as court witness No. 1. He is also a co-villager who participated in the said Bhawna. It is deposed by him that in the night when the Bhwana was staged, Nomal Bora did not tell him about the incident. He came to know about the incident only when the police visited the village in the evening on the next day of occurrence. 8. Mr. H.K. Baishya, Learned Counsel for the appellant submits that Bhaktiram Bora, court witness is an independent witness. He came to know about the incident only when the police visited the village in the evening on the next day of occurrence. 8. Mr. H.K. Baishya, Learned Counsel for the appellant submits that Bhaktiram Bora, court witness is an independent witness. In her evidence, the victim woman, PW2, deposed: On the night itself we informed the matter to the members of Yuva Sangha but as they were taking part in the Bhwana, no discussion on the matter could be held during the night itself. On the next morning, my husband filed FIR in police station. At the time of filing FIR, I accompanied my husband to the Thana. PW3, husband of the victim woman, also stated that he went to the place of Bhwana and informed Bhaktiram Bora and Jitu Saikia about the alleged incident but as they were taking part in the Bhwana, they expressed their inability to help him in that night. According to Mr. Baishya, Learned Counsel for the accused-appellant, aforesaid court witness has not corroborated the evidence of PW2. It is also submitted by the Learned Counsel for the appellant that although the allegation is made against the accused-appellant that he forcefully committed raped on PW2 by gagging her mouth with chadar, there is no sign of any injury violence or rape as per the evidence of the doctor PW7 and as such the allegation made against the accused-appellant cannot be treated as correct and true. In other words his submission is that without corroborated medical evidence, the court cannot convict and sentence the accused merely on the basis of oral evidence of the victim or her husband. 9. I have considered the evidence on record along with the materials made available before this Court at the time of hearing. I have also considered the submissions made by the Learned Counsel for the appellant. Before coming to the conclusion, I must make myself aware of the present position of law in regard to appreciation of evidence and conviction of accused under Section 376 IPC. 10. In Prakash Nath v. State of Assam (2008) 1 GLR 111, this Court has held that court, under Section 114A of the Evidence Act, can presume that the woman did not consent if she states in her evidence before the court that she did not consent. 10. In Prakash Nath v. State of Assam (2008) 1 GLR 111, this Court has held that court, under Section 114A of the Evidence Act, can presume that the woman did not consent if she states in her evidence before the court that she did not consent. The presumption is rebuttable but onus lies on the accused that the consent to sexual intercourse existed in a given case. It is also held that victim of a sexual assault needs no corroboration. It is by now an established position of law that conviction can be recorded even on sole uncorroborated evidence without even not supported by medical evidence provided the testimony of the prosecutrix inspires confidence of the court and found reliable. The Apex Court in Dinesh v. State of Rajasthan (2006) 3 SCC 771 , held that corroboration is not a sine qua non for conviction. Similarly in Vimal Suresh Kamble v. Chaluverapinake Apal S.P and Anr. (2003) 3 SCC 175 , it is held by the Apex Court that conviction on sole testimony of prosecutrix can be made, if it appears to be natural and truthful inspiring the confidence of the court. 11. On careful perusal and appreciation of the evidence of PWs 2 and 3 i.e., victim and her husband, it is found that they have corroborated each other. There is no material or significant contradiction in their evidence. It is quite natural that when there is a Bhwana in the village the children would like to witness the same and the husband had to take his children to the said Bhwana. He was away from home for a brief period and as his wife was left alone as she was ailing. He returned home and he was confronted with the accused while he was fleeing away from his house. Being a co-villager, it was natural that he could recognise the accused person. PW3 is not an eye witness of the actual occurrence but ho is the first man to go inside the bedroom and he could see the condition of his wife. He found his wife lying on the ground and crying. Her mouth was gagged by 'chadar'. His wife told him about the incident and in the next morning, he reported the matter in writing to the police. He found his wife lying on the ground and crying. Her mouth was gagged by 'chadar'. His wife told him about the incident and in the next morning, he reported the matter in writing to the police. Going by the evidence of PWs 2 and 3 one could hardly find any contradiction in the material facts narrated by them. Therefore, there is hardly any scope for terming the evidence of these two witnesses as unreliable or untruthful. 12. In my considered view, the evidence of both PWs 2 and 3 are cogent, natural, truthful, reliable and confidence inspiring. Regarding the medical evidence, it must be noted that the victim woman is a married woman with three children. It is not expected that in such case of rape on a married woman, there could be mark of violence or injury on her person unlike the unmarried women or maiden who are not habituated in sexual intercourse. Therefore, the evidence that there is no sign of rape and violence on the person of the victim woman would not affect in any manner the credibility of the evidence of the victim woman, whose evidence have been otherwise found cogent and reliable being corroborated by PW3. 13. Although the defence tried to take the plea that due to enmity regarding non-payment of the loan amount by the husband of the victim woman, a false case has been brought against him, it failed to prove the same by adducing sufficient and convincing evidence before the learned trial court and, therefore, the said story lost its significance. 14. In view of the aforesaid appreciation of evidence and discussion, I hold that the prosecution has been able to prove the case against the accused appellant beyond reasonable doubt and I could not persuade myself to hold a different view other than the one taken by the learned trial court so as to set aside the impugned judgment and order passed by the learned trial court, I uphold the same. 15. Accordingly this appeal stands dismissed. 16. The lower court records may be returned forthwith to the learned trial court. Appeal dismissed.