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2010 DIGILAW 290 (GAU)

Sushil Suri v. State of Assam

2010-04-27

C.R.SARMA

body2010
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order dated 23.05.2003, passed by the learned Addl. Sessions Judge (Ad-hoc) Sibsagar in Sessions Case No. 39(s-S) 2002. By the impugned judgment and order, the learned Sessions Judge convicted the Appellant namely Sri Sushil Suri for the offence Under Section 376(2)(f) read with Section 511 IPC and sentenced him to suffer R.I. for 5 years and pay fine of Rs. 2,000/- in default to suffer further period of 3 months for his conviction Under Section 376(2)(f) read with Section 511 IPC. 2. Being aggrieved by the said conviction and sentence, the Appellant has come up with this appeal. 3. I have heard Mr. B. Sarma, learned Counsel for the Appellant find Mr. K. Munir, learned Addl. Public Prosecutor, Assam. 4. The prosecution case as revealed during the trial, in brief, may be stated thus: 5. On 3.6.2001 Sri Naga Goraik (informant) lodged an FIR with the O/C Simaluguri Police Station informing that in the afternoon on 2.6.2001 at about 2 P.M. the Appellant enticed his minor daughter (here-in-after called the victim girl) to the Rajabari Tea Garden and committed rape on her. On receipt of the said FIR Police registered a case under Section 376(f) IPC and lodged investigation in this matter. During the investigation police recorded statements of the witnesses including the victim girl, got the victim examined by a medical officer. At the close of the investigation police submitted charge-sheet against the Appellant for the offence Under Section 376(2)(f) read with Section 511 IPC and forwarded him to the Court to stand the trial. 6. The offence being exclusively triable by the Court of Sessions, the learned Sessions Judge framed charge Under Section 376(2)(f) read with Section 511 and read over and explained the charge to the accused to which he pleaded not guilty. 7. In support of its case the prosecution examined as many as 9 witnesses including the Medical Officer, the Judicial Magistrate who recorded statements of the victim girl Under Section 164 Code of Criminal Procedure and the Investigating Officer. 8. At the close of the prosecution evidence the learned Addl. Sessions Judge examined the accused Appellant under Section 313 Code of Criminal Procedure. The accused/Appellant denied the allegation and declined to adduce defence evidence. The defence plea was a denial one. 8. At the close of the prosecution evidence the learned Addl. Sessions Judge examined the accused Appellant under Section 313 Code of Criminal Procedure. The accused/Appellant denied the allegation and declined to adduce defence evidence. The defence plea was a denial one. Considering the evidence on record the learned Sessions Judge, at the close of the Trial, convicted the accused/Appellant Under Section 376(2)(f)/511 IPC and sentenced him as aforesaid. Hence, this appeal. 9. Mr. B. Sarma, learned Counsel appearing for the Appellant, taking this Court through evidence on record submitted that there is contradiction in the evidence of prosecutrix as well as the medical evidence and that there was enmity between the two families. It is however, submitted that due to the said enmity the accused person has been falsely implicated in this case and that in view of the contradiction found in the evidence of the prosecutrix (PW-3) and the medical officer PW-4, the sole evidence of the prosecutrix can not be relied upon to base the conviction. It is further submitted that the statements of the prosecutrix that she deposed before the Court on being tutored by her parents, ought not have been used against the accused. The learned Counsel appearing for the Appellant, submitted that the learned Sessions Judge committed error, by convicting the accused Appellant without sufficient, cogent and reliable evidence and as such the impugned conviction and the sentence are liable to be set aside and quashed. 10. Controverting the said arguments, advanced by the learned Counsel for the Appellant, Mr. Munir, the learned Addl. P.P. has submitted that the discrepancy pointed out in respect of the evidence of the prosecutrix is a minor one and as such her evidence can not be totally discarded. The learned Addl. Public Prosecutor, supporting the conviction and sentence aforesaid, submitted that there is sufficient evidence on record to show that the accused person attempted to commit rape on the prosecutrix and as such learned Sessions Judge committed no error by recording the conviction and sentence. 11. It is settled law that, in a criminal proceeding, the burden lies upon the prosecution to prove the allegations brought against the accused person(s) beyond all reasonable doubt. It is also a settled principle of law that the conviction can be based solely relying on the prosecutrix if her statement is found to be reliable, true and untutored. 11. It is settled law that, in a criminal proceeding, the burden lies upon the prosecution to prove the allegations brought against the accused person(s) beyond all reasonable doubt. It is also a settled principle of law that the conviction can be based solely relying on the prosecutrix if her statement is found to be reliable, true and untutored. In order to examine the correctness of the impugned judgment and order, it would be proper to briefly discuss the evidence on record as follows: 12. The father of the prosecutrix who deposed as PW-1 stated that he was informed by his wife about the occurrence. This witness has no personal knowledge. In his evidence PW-1 stated that on his return home from his work place about 4-00 P.M. he was informed by his wife that the accused Appellant had enticed away his minor daughter (victim girl) towards the garden and that he had committed the crime on her. He further stated that, on being asked, the victim girl also told him that the accused person had taken her to the garden and assuring to give her some sweets and had committed the acts. He further stated that he lodged a complaint with the villagers and that the villagers expressed their inability to decide the matter, and then he had lodged the FIR with the Police. In his cross-examination, this witness stated that his son namely Paranay used to work under the accused for about one year and that he was not paid his salary for the last 3 months for which an altercation had taken place between the accused and his wife i.e. PW-2 on the previous day of the occurrence. Therefore, from the evidence of this witness it appears that there was a quarrel between the parties regarding non payment of the salary of the son of PW-2 and as such enmity existed between the accused person and Smti. Therefore, from the evidence of this witness it appears that there was a quarrel between the parties regarding non payment of the salary of the son of PW-2 and as such enmity existed between the accused person and Smti. Phula Goraik, who was the mother of the victim girl, PW-2 stated that, not finding her two daughters i.e. the victim girl as well as the 3 years old daughter in the place, where they were playing, and on being informed by a person that her daughters were seen going towards the garden eating sweets, she proceeded towards the garden calling her daughters and found the accused running away from the place of the garden, where the victim girl was found. According to this witness the victim girl, who had a sweet in her hand, was found without her under pant. She further stated that, on being asked, her said daughter had cried and informed her that the accused had enticed her by giving sweet and that he had committed illegal act by putting his penis in between her thighs. According to this witness, they lodged a complaint with the villagers. In her cross-examination, this witness denied the suggestion, that on the previous day a quarrel had taken place with the accused regarding non payment of salary to her son. She also denied that she had falsely stated that the accused had committed illegal act by putting his penis between the legs of her said daughter. Perusing the evidence of the PW-2 and P W-1 it is found that there is contradiction regarding the said quarrel, PW-2, by denying the said suggestion contradicted the evidence of the husband (PW-1). This contradiction raises doubt about the veracity of the evidence of PW-2. The victim girl on her examination as PW-3, stated that the accused took her towards the garden and after removing her under garment put his penis near her private part. In her cross-examination she further stated that there was bleeding from her private part and the doctor had stitched the injuries. She further stated that her parents had tutored her as to what she should tell before the Court. According to the victim girl, she sustained in jury requiring stitching of the injury, but the Medical Officer, who examined her, stated nothing regarding injury sustained by the victim girl. The Medical Officer found the following injuries: General appearance good. She further stated that her parents had tutored her as to what she should tell before the Court. According to the victim girl, she sustained in jury requiring stitching of the injury, but the Medical Officer, who examined her, stated nothing regarding injury sustained by the victim girl. The Medical Officer found the following injuries: General appearance good. Height 3'1". Weight 18 KG Teeths 12/12 Axillary and pubic heirs not developed. Breast not developed and no any external injury is found or speaculam examination Labia majola and minola not well developed. Hymen present. No any external injury detected on her private part. Not any staining detected. Vaginal smear could not be taken due to presence hymen. He also opined that the age of the victim girl could not be more than 10 years. The medical officer categorically stated that no injury was noticed in respect of the private of the victim girl. Upon careful perusal of the deposition of the victim girl as well as Medical Officer, it is found that there is contradiction regarding injury, alleged to be sustained by the victim girl. If the victim girl had sustained any injury resulting bleeding and if stitching was done in respect of the said injury, there was no reason as to why the medical officer did not mention about such injuries. That apart, neither the PW-1 nor the PW-2, who met the victim girl immediately after the occurrence, stated anything about the injury. Therefore, the evidence of the PW-3, that she sustained injury and that there was bleeding and stitching in respect of her injury, appears to be exaggeration of fact. That apart, the victim girl deposed, on being tutored by her parents, whose relation with the accused was not good. In view of the quarrel which took place regarding non payment of salary, there is material to believe that there existed enmity between the parties. Except the evidence of the PW-3, there is no other evidence to find that the accused had committed or tried to commit any sexual assault on the victim girl. We have already noticed that the victim girl exaggerated the fact and she being a minor girl was a tutored witness. The evidence of the victim girl lacks corroboration or material point. We have already noticed that the victim girl exaggerated the fact and she being a minor girl was a tutored witness. The evidence of the victim girl lacks corroboration or material point. In view of the above contradiction on material point and in the light of the existing enmity between the parties, I am of the considered opinion that it will not be safe to rely on the evidence of PW-3 to believe that the accused person had attempted to commit rape on the victim girl. Law is well settled that in the event of existence of two inferences i.e. one going in favour of the accused person and other going in favour of the prosecution, the inferences going in favour of the accused should be accepted and the benefit of doubt should be given to the accused person. 13. Considering the totality of the evidence on record and the facts and circumstances of this case I am of the considered view that the prosecution failed to establish the charge, brought against the accused person, beyond all reasonable doubt and as such the accused person is entitled to be acquitted on benefit of doubt. In view of the above, I find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly the appeal is allowed and the impugned conviction and sentence are set aside and quashed. 14. Return the LCR. Appeal allowed.