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2009 DIGILAW 532 (GAU)

Rajib Pator v. State of Assam

2009-08-07

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. None appears for the accused-Appellant. I have heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam. 2. This appeal has been preferred against the judgment and order dated 14.11.2005 passed by learned Sessions Judge of Morigaon in Sessions Case No. 61 of 2005, convicting the accused-Appellant under Section 376 IPC and sentencing him to undergo R.I. for 10 years with a fine of Rs. 10,000/- in default, to undergo further R.I. for 2 years. 3. The prosecution story is that an FIR was lodged by one Shri Kalkaswar Patar with the Officer-in-Charge, Mikirbheta Police Station informing that his daughter Mridula (real name withheld) while she was cutting firewood in the courtyard at about 4 P.M. on 19.06.2005, the accused-Appellant taking the advantage of absence of other family members in the house, dragged her forcibly to a nearby bamboo grove and committed raped on her. Sri Jiban Patar, son of the informant, while he returned home, heard the cry of his daughter and went towards the bamboo grove. The accused, as soon as Jiban Patar arrived at the place, fled away from the scene. On the basis of the aforesaid FIR, a crime being Mikirbheta P.S. Case No. 63 of 2005 was registered under Section 376 IPC. The Police, during investigation, examined some witnesses and after completion of investigation submitted the charge sheet against the accused-Appellant under Section 376 IPC. 4. The case was committed to the Sessions Court, Magigaon for trial. The learned Sessions Court framed charge against the accused-person under Section 376 IPC. The charge being read over and explained to the accused-Appellant, he pleaded not guilty and claimed to stand trial. The prosecution examined as many as 8 witnesses including the victim girl and a medical officer while the defence examined none. On completion of the trial and after hearing the counsel for the parties, the learned trial Court convicted and sentenced the accused-person as stated above. 5. I have gone through the evidence of the prosecution witnesses, particularly, the evidence of PW 1, the victim girl. She was examined as PW 1. According to her, the occurrence took place at about 4 P.M. while her parents were out for day labour/hazira and she was at home alone. Her elder brother and younger brother were also not at home. She was examined as PW 1. According to her, the occurrence took place at about 4 P.M. while her parents were out for day labour/hazira and she was at home alone. Her elder brother and younger brother were also not at home. At that time, she was cutting firewood at the courtyard and suddenly the accused-Appellant came to her house and caught her hands and also pressed her mouth by one hand and dragged her to the adjacent 'bamboo-bari' under threat. She was taken to the backside of the house where the accused-Appellant committed sexual intercourse with her. As soon as her brother, Jiban Patar arrived, he tried to apprehend the accused, but he ran away. At the time of occurrence, according to her, she was aged 14 years. The house of the accused is situated just after three houses from her house. 6. In cross-examination, she stated that she had no relation with the accused-person but as a co-villager, he used to visit some time to her house. The other important witness is PW 5, Jiban Patar, elder brother of the victim girl, who deposed that he was not at home but while he returned home at about 4 P.M. he went towards the bamboo grove to attend his natural call. When he was sitting for latrine in the bamboo grove, he heard some sound and on hearing the sound, he proceeded to the said side towards the sound and could see the accused-Appellant, Rajib Patar having sexual intercourse with his sister. Having seen the occurrence, he made sound and immediately the accused Rajib Patar ran way. Then he brought her sister from there. Her sister told him that while she was cutting firewood at the courtyard the accused came and carried her forcefully and then committed sexual intercourse. PW 2, Shri Kalkaswar Pator is the father of the victim girl and the informant. Maintaining the allegations, he made in the FIR, he further stated in his deposition that when he returned home some villagers already gathered in his house and they advised him to inform other villagers. The villagers gathered in the Namgarh on the next day at 1 P.M. but none from the house of the accused-Appellant turned up. The accused also fled away from the village. The villagers gathered in the Namgarh on the next day at 1 P.M. but none from the house of the accused-Appellant turned up. The accused also fled away from the village. According to him, when the village headman failed to bring guardians of the accused, they advised the informant to file a case. The Ejahar was scribed by a person from Mikirbheta and lodged, which is marked as Exhibit-1. He signed thereon and his signature is marked as Exhibit-1(1). In cross-examination, he stated that his victim daughter's age was 14 years and she attained her puberty two years back. Her daughter was sent by police for medical examination. After about one week, the accused surrendered before the police. In cross-examination, he stated that he does not have any birth certificate of his children. 7. The Medical Officer, Dr. Geri Kanta Bora was examined as PW 3. He deposed that he examined the victim girl on production by the police. He was working as Senior Health Officer at Morigaon Civil Hospital on 21.06.2005. The medical report, he prepared, after the examination of the victim girl, has been proved by him, which is marked as Exhibit-2 which bears his signature marked as Exhibit-2(1). He found no marks of violence but he could detect sexual intercourse in the private parts as well as over the body and he found the victim girl was habituated to sexual intercourse. On clinical and radiological examination, the age of the victim girl was found 17 and 18 years. 8. The I.O., Shri Kamal Ch. Gohain, ASI, was examined as PW 7. He deposed that the Officer-in-Charge received Ejahar (Exhibit-1) at Police Station which was registered as Mikirbheta P.S. Case No. 63 of 2005 and he was entrusted by the O.C. with preliminary investigation. He examined the victim and the informant while they appeared before the Police Station themselves. Thereafter, he sent the victim for medical examination in Morigaon Civil Hospital. He also examined some witnesses at the place of occurrence. He could not find the accused. Later on, he surrendered and accordingly he was arrested on 28.06.2005. The I.O. forwarded the victim before the Magistrate for recording her statement under Section 164 Code of Criminal Procedure. After completion of the investigation, he handed over the case diary to the Officer-in-Charge. He also examined some witnesses at the place of occurrence. He could not find the accused. Later on, he surrendered and accordingly he was arrested on 28.06.2005. The I.O. forwarded the victim before the Magistrate for recording her statement under Section 164 Code of Criminal Procedure. After completion of the investigation, he handed over the case diary to the Officer-in-Charge. In cross-examination, he stated that he did not seize the cloth worn by the victim girl at the time of occurrence. 9. Going through the evidence of the victim girl, I could notice that while she was allegedly taken towards the bamboo grove by force, she made no hue and cry, although it is alleged that she was dragged by the accused-Appellant from the courtyard where she was cutting firewood. Even when she was taken to bamboo grove, she made no cry for help nor did she resist the attempt made by the accused-Appellant who committed rape on her. In cross-examination, she stated that beyond the 'bari' there are some houses. The time of occurrence is about 4 P.M. and it was not yet dark. The villagers are not asleep at that time and if she made any 'hallah' or 'cry' for help, naturally the people from nearby houses could have heard and come for rescue of the victim girl. 10. The absence of marks of violence on her person has been proved. It clearly shows that she did not try to resist when she was taken from the courtyard by force towards the bamboo grove. She also did not resist the accused-Appellant while he indulged in sexual intercourse. The brother of the victim girl, Shri Jiban Patar, who was examined as PW 5. did not hear any cry for help but he simply heard some sound only. The sound was naturally created due to on going sexual intercourse between the victim girl and the accused. There is nothing to suggest from the evidence on records that the victim girl resisted or tried to resist the alleged forceful action of the accused-Appellant. 11. The evidence of the medical officer, PW 3, is very significant inasmuch as he has stated that the victim girl is habituated with sexual intercourse. Her vagina accommodates two fingers easily and her hymen was found to be absent and no tenderness and recent tear was detected. 11. The evidence of the medical officer, PW 3, is very significant inasmuch as he has stated that the victim girl is habituated with sexual intercourse. Her vagina accommodates two fingers easily and her hymen was found to be absent and no tenderness and recent tear was detected. For better appreciation, it is appropriate to quote the relevant portion of the medical report. On examination: 1. Identification mark-small mole in left cheek in front of the ear. 2. Teeth-15/15 3. Secondary sex character-well developed 4. No external injury detected 5. Hymen was found to be absent, no tenderness and recent tear detected. 6. Vagina accommodates two fingers easily. 7. X-ray was done and it was reported by Dr. R.P. Bora, Radiologist and his impression of age 17 to 18 years. Opinion: 1. Clinically and radiological age of the victim girl is 17 to 18 years. 2. No marks of violence following. Sexual intercourse was detected in the private parts as well over the body, but victim girl is habituated to sexual intercourse. 12. The age of the victim girl, according to the opinion of doctor, is between 17 and 18 years. His opinion is based on clinical and radiological test. The medical report as regard the age of the victim girl cannot be ignored and the same is to be accepted inasmuch as the informant (father of the victim) stated that there is no birth certificate of his children. The victim girl did not go to school and as such, no school certificate could be produced to ascertain her age. This being the position, the age of the victim girl should be accepted between 17 and 18 years as opined by the medical officer on the basis of medical examination. Once it is found that the girl is above 16 years of age it can be said that she was in a position to give her consent to such sexual intercourse. On the basis of such evidence on records, the Court can come to a safe conclusion that the sexual intercourse between the victim girl and the accused-Appellant took place with her consent. It is also in the evidence that the victim girl is habituated with sexual intercourse and it can be concluded that there was sexual relation between the victim girl and the accused-Appellant since before the alleged occurrence took place. 13. It is also in the evidence that the victim girl is habituated with sexual intercourse and it can be concluded that there was sexual relation between the victim girl and the accused-Appellant since before the alleged occurrence took place. 13. Having considered the aforesaid facts and circumstances of the case and also the evidence on records made available before the Court at the time of hearing, I come to the conclusion that the victim girl was a consenting party to the alleged sexual intercourse and they had been maintaining such relation much before the alleged incident took place. Considering the proved fact that the victim girl was above 16 years of age and she was in a position to give her consent to such sexual intercourse and it is sufficiently proved that she was a consenting party, 1 do not find that the accused-Appellant can be convicted under Section 376 IPC. The charge of rape under Section 376IPC having not been proved, the Appellant is entitled to acquittal. 14. In view of the above, the impugned conviction and sentence as recorded by the learned trial Court under Section 376 IPC is liable to be set aside and it is set aside accordingly. The accused-Appellant be set at liberty forthwith, if his further detention is not required in connection with any other case. 15. The appeal stands allowed. 16. Send down the LCR to the Court below forthwith. Appeal allowed.