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2010 DIGILAW 343 (GAU)

Giridhar Kishko v. State of Assam

2010-05-14

RANJAN GOGOI, T.NANDA KUMAR SINGH

body2010
T. Nanda Kumar, J. - The appellant accused, by filing this appeal, is assailing the judgment and sentence dated 8.2.2006 passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 129 of 2005 (GR Case No. 639/05) convicting the appellant accused under Section 376, IPC and sentenced him to undergo R.I. for life and also to pay a compensation of Rs.50,000 to the victim girl, failing which he will suffer R.I. for another ten years and period of the appellant accused in custody in connection with the case shall be set off from his sentence. 2. None appears for the appellant. Heard Mr. D. Das, learned P.P., for the respondent. 3. Justice Thakkar, J. (as his lordship then was) observed that "human goodness has limits human depravity has none. The need of the hour however, is not exasperation." [Ref.: Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 . 4. Justice R.C. Lahoti J. (as his lordship then was) in State of Rajasthan v. N.K. (2000) 5 SCC 30 . The accused, observed that "It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts, which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault of women. 5. It is the spurt in the number of unmerited acquittals recorded by criminal courts, which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault of women. 5. Section 228A of IPC, 1860 makes disclosure of identity of victim of certain offences punishable. Printing or publishing name or any matter which may make known the identity of any person against whom an offence under Sections 376, 376A, 376B, 376C, 376D is alleged or found to have been committed can be punished. But the restriction does not relate to printing or publication of judgment by the High Court or the Supreme Court. 6. Rape is not only a crime against the person or a woman; it is a crime against the entire society. Sexual violence apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity, it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman, i.e., her dignity, honour, reputation and not the least her chastity. 7. The Apex Court in two cases: (1) State of Karnataka v. Puttaraja (2004) 1 SCC 475 , and State of H.P. v. Shree Kant Shekari (2004) 8 SCC 153 , was of the view that in the judgment be it of the Supreme Court, High Court or the lower court, the name of the victim should not be indicated. 8. The prosecution version as unfolded during the trial, is that, the victim is a permanent labourer of Gopal Krishna Tea Garden and the appellant/accused is the Sardar of the garden, who is a married man having wife and four children. On 13.8.2005 the victim attended duty at 8 a.m. At 11,30 a.m. there was a break of duty. She took her meal, which she carried with her and thereafter she told her younger maternal aunt, Saraswati Devi, PW2 and her mahi, Rebati Devi (PW3) that she had to plant paddy and as such she intended to go to the paddy field. She took her meal, which she carried with her and thereafter she told her younger maternal aunt, Saraswati Devi, PW2 and her mahi, Rebati Devi (PW3) that she had to plant paddy and as such she intended to go to the paddy field. Accordingly, the victim and her Mahi, i.e., Ms. Saraswati Devi, PW2 and Mami, Rebati Devi (PW3) went to the paddy field and started planting of seedling. At that time, appellant/accused came there and called the victim several times. After several call the victim went to the appellant/accused who caught her hand and dragged to the jungle situated by the side of the garden and the victim created hullah and hearing her hullah, her mahi, Smt. Saraswati Tanti PW2 followed them. The appellant accused threatened PW2 by showing a dao and as she got fear came back. In the jungle the victim was forced to lay on the ground, torn her cloth and committed sexual intercourse. Till 10.30 p.m. she was kept in the garden and by different path, victim was taken to the house of the appellant/accused. The appellant/accused committed sexual intercourse in his house again in presence of his wife. In the morning victim's father went to the house of the appellant/accused and came to know that victim was kept under lock and key in a room. Victim's father and married sister of victim, PW4, Bandi Tulu and PW5, Robin Mardin broke open the door and victim came out. Immediately, the victim and her father went to Nellie Police Outpost and her father filed a case. The then I/C Nellie Police Outpost made a GD entry in the GD of the outpost and forwarded the ejahar to the O/C Jagiroad P.S. The O/C Jagiroad P.S registered a case being GR case No. 137/05 under Sections 332/376, IPC and handed over to one Shri Pradip Pator, Investigating Officer, S.I. of Police (PW6) who, after investigation, forwarded the victim for medical examination and also recorded statements of the victim and two witnesses under Section 164, Cr.P.C. During investigation the I.O., collected medical report of the victim and also examined witnesses. After getting sufficient material evidence, the I.O., submitted charge-sheet of P.S. Case No. 137/05 under Section, 342/376, IPC against the appellant accused before the then CJM, Morigaon. After getting sufficient material evidence, the I.O., submitted charge-sheet of P.S. Case No. 137/05 under Section, 342/376, IPC against the appellant accused before the then CJM, Morigaon. As the offence under Sections 366/376, IPC is exclusively friable by the court of Sessions Judge, learned Magistrate vide his order dated 7.12.2005 committed the case to the court of Sessions Judge, Morigaon for trial. The learned Sessions Judge framed charge under Sections 342/376, IPC against the appellant accused and read over and explained the same to the appellant accused in a language known to him, to which the appellant accused pleaded not guilty and claimed to be tried. 9. In order to bring home the charge against the appellant accused, prosecution examined seven witnesses, viz. PW1 Victim, PW2 Saraswati Tanti (younger maternal aunt of the victim). PW3 Smt. Rebati Soren (mahi of the victim), PW4 Binadi Tudu, married sister of the victim, PW5 Robin Mardi (neighbour of the victim), PWG Pradip Pator, S.I of Police, Investigating Officer, Nalie Outpost, who received the ejahar from the informant, Petla Baske (father of the victim), PW7, Dr. Tarun Sarma, Superintendent of Civil Hospital, where the victim was medically examined on 14.8.2005. 10. The victim girl (PW1) deposed that she is a permanent labourer of the Gopal Krishna Tea Garden of Nalie Division and the appellant accused is the Sardar of the said Tea Garden. On the day of occurrence, she attended her duties up to 8 a.m. At 11.30 a.m. there was a break. At the break time, she took her meal. After taking meal she told her maternal aunt Smt. Saraswati Tanti PW2 and her mahi, Rebati Soren PW3 that she had to plant paddy sidling, so she intended to go to the paddy field. The victim along with PWs 2 and 3 went to the paddy field for planting paddy sidling. At that time the appellant accused called the victim several times. Initially, victim refused to go to the appellant; accused but after several call and as the accused appellant is working as Sardar of the Tea Garden, victim went to him for a talk but she was immediately caught by the appellant/accused and dragged her to the jungle. On hearing victim's hullah, PW2 Sarastati Tanti ran towards them but she was helpless. On hearing victim's hullah, PW2 Sarastati Tanti ran towards them but she was helpless. The appellant accused forcibly took the victim in the midst of the jungle and laid heron the ground, torn her cloth and thereafter, appellant/accused committed sexual intercourse on the victim. Till 10 p.m. the victim was kept confined in the garden and through different paths victim was taken to the house of the appellant accused. In his house, the accused appellant again committed sexual intercourse on the victim even in presence of his wife. His wife also intended to keep her as second wife of the appellant accused. In the morning father of the accused Pelta Baske informant and elder married sister of the victim, PW4 Binadi Tudu broke open the door of the room where the victim was kept confined and victim was taken to Nalie Outpost and father of the victim, Pelta Baske filed a case. Father of the victim died after 1½ months after the occurrence. 11. The statement of the victim girl was not shaken in the cross-examination. In the cross-examination the victim stated that in the night, wife of the appellant/accused was in a different room of the accused/appellant's house and victim wanted to sleep on the ground but the appellant/accused forcibly took her to his bed. 12. PW2. Saraswati Tanti, deposed that the victim is the daughter of her elder sister. On the day of occurrence she along with PWS, Rebati Soren and victim were planting paddy sidling at the field of the victim after returning from the Tea Garden duty in the morning. While they were in the paddy field the accused, who is sardar of the Tea Garden came to the paddy field and called the victim. After several call the victim went to the appellant/accused and they had talked for sometime. And the appellant/accused dragged the victim to the jungle and while doing so the victim was crying. On hearing cry of the victim she went towards them but the appellant accused showing a dao put her to instant fear as she was alone and the place was not a residential area and it was a big jungle. The appellant/accused took the victim girl in the midst of the jungle. On hearing cry of the victim she went towards them but the appellant accused showing a dao put her to instant fear as she was alone and the place was not a residential area and it was a big jungle. The appellant/accused took the victim girl in the midst of the jungle. At 1 p.m. she again went to the Tea Garden and after depositing tea leaves she returned home and reported the occurrence to the married sister of the victim girl, i.e., PW4. In cross-examination, PW2 stated that on the next following day of occurrence appellant accused was taken to the police station and thereafter she was called at the Police Station and Police interrogated her. 13. PW3 Smt. Rebati Soren also stated that on the day of occurrence, after the break of tea garden duty the victim along with PW2 Smt. Saraswati Tanti and herself went to the paddy field of the victim for paddy sidling plantation and while they were planting paddy the accused/appellant, Sardar of the Tea Garden, called the victim. But the victim did not desire to go; and after several call, the victim went to the appellant/accused and he caught hold of the victim and dragged her towards the jungle. Then the maternal aunt of the victim, PW2 Smt. Saraswati Tanti followed them and as she was helpless returned back. Later at about 1 p.m. they went for garden duty. PW2 disclosed the occurrence in the midst of the workers and after garden duty. PW2 went to the house of the victim and reported the occurrence. The father of the victim girl died two months after the occurrence. PW3, married sister of the victim also deposed that her house, i.e., house of her husband is at a distance of more than a furlong from the house of the victim and at about 4.30 p.m. she was at the house of her husband. At that time, her maternal aunt PW2 Saraswati Tanti came and told her that the appellant/accused dragged away the victim towards the jungle from paddy field while they were planting paddy sidling. At about 7 p.m. of the day of occurrence, she went to the house of the appellant accused to know about the fact and she secretly enquired into the matter but did not find any clue so she returned home and took her meal. At about 7 p.m. of the day of occurrence, she went to the house of the appellant accused to know about the fact and she secretly enquired into the matter but did not find any clue so she returned home and took her meal. After taking meal she slept at home. On the next day at about 5 a.m. she along with her father and PW5 Robin Mardi went to the house of the accused where they met wife of the accused appellant outside the house. The wife of the appellant accused, on enquiry about the appellant accused and victim, replied that they did not return from the jungle, but they saw that one room of the house was kept under lock and key. They also herd howl of the victim inside the room and wife of the appellant accused refused to open the lock. The father of the victim, Pelta Baske, PW5 -Robin Mardi broke open the lock of the door and victim came out. The victim disclosed that the appellant accused committed sexual intercourse on her in the jungle and at his house. Thereafter, father of the victim brought the victim to the Nalie Outpost and lodged an ejahar. 14. PW5 Robin Mardi, who is a neighbour of the victim stated that in the evening of the occurrence he heard from neighbour that the appellant accused had kidnapped the victim. In the evening he went to the house of the appellant accused in search of him and the victim but he did not meet them. On the next following morning he along with father of the victim, elder sister of the victim PW2, went to the house of the appellant accused in search of the victim and found that the victim was kept under lock and key in one of the room of the accused appellant's house. He, father of the victim and sister of the victim PW4 Binadi Tudu requested wife of the appellant accused to open the room but she refused to do so. Thereafter father of the victim and PW5 Robin Mardi broke open the lock of the room and victim girl came out. He, father of the victim and sister of the victim PW4 Binadi Tudu requested wife of the appellant accused to open the room but she refused to do so. Thereafter father of the victim and PW5 Robin Mardi broke open the lock of the room and victim girl came out. From the victim he came to know that from the paddy field of the victim the appellant accused dragged the victim and kept confined her for the whole day in the jungle and committed forcibly sexual intercourse and brought her to the house of the appellant/accused and in the night also the appellant/accused forcibly had sexual intercourse at his house. 15. PW7, Dr. Tarun Sarma was the Superintendent of the Morigaon Civil Hospital where Dr. Hiteswar Gogoi was working. Dr. Hiteswar Gogoi, on Police requisition, examined the victim girl on 14.8.2005 at 6.30 p.m. as identified by Constable Tirtha Hazarika. Dr. Hiteswar Gogoi recorded brief history of occurrence, which shows sexual intercourse on 13.8.2005 at 12.30 p.m. by the Tea Garden Sardar, i.e., the appellant accused. Dr. Hiteswar Gogoi was not available for examination as PW as he was undergoing training at Guwahati. PW7 further stated that he know the signature and hand writing etc of Dr. Hiteswar Gogoi who conducted the medical examination and prepared medical examination report. He also stated that the report does not exclude sexual intercourse of the victim at about 12.30 p.m. at 13.8.2005. 16. The appellant accused was examined under Section 313, Cr.P.C. for seeking his explanation to tile materials/statements of PWs against him. The appellant accused in his statement under Section 313, Cr.P.C. admitted that he took away the victim with a view to marry her and also committed sexual intercourse. The confession of the accused in his statement under Section 313, Cr.P.C. can also be treated as a confession; and it can be used not only for appreciation of statement of PWs but also for ascertaining the truthfulness of the prosecution case. The question is as to whether such a statement of the accused recorded under Section 313, Cr.P.C. can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why; sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why; sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Sub-section (4) of Section 313 of the Cr.P.C. clearly states that answer given by the accused may be taken into consideration in such inquiry or trial for any other offence which such answer tend to show he has committed. 17. The Apex Court in State of Maharashtra through CBl v. Sukhdeo Singh and Anr. AIR 1992 SC 2100 , held that "Thus the answers given by the accused in response to his examination under Section 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari MANU/SC/0085/1967,1968 Crl. LJ 95. The Apex Court in the case of Hate Singh v. State of Madhya Bharat, MANU/SC/0073/1951, 1953 Crl. LJ 1933 held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. 18. In Narain Singh v. State of Punjab, MANU/SC/0137/1962, (1963) 3 SCR 678 the Apex Court held that if the accused confesses to the commission of the offence with which he is charged the court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judges Bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685: "Under Section 342 of the Code of the Criminal Procedure by the first sub-section, insofar as it is material, the court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation if any, of the incident which forms the subject matter of the charge and his defence. By sub-section (3), the answers give by the accused may be "taken into consideration" at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the court may, relying upon that confession proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he had committed no offence, the statement of the accused can only be taken into consideration in its entirety." (emphasis supplied). Sub-section (1) of Section 313 corresponds to sub-section (1) of Section 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old sub-section (4) and the present subsection (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3) Therefore, the foretasted observations apply with equal force." 19. For the foregoing reasons we have no hesitation to come to the conclusion that the statement of the appellant accused recorded under Section 313, Cr.P.C. admitting to his guilt of the offence under Section 376, IPC in the given case can be used for proving his guilt as mvjich as evidence given by a prosecution witness. 20. The prosecurrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony is to be appreciated on the principle of probabilities just as the testimony of other wit- nesses; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony is to be appreciated on the principle of probabilities just as the testimony of other wit- nesses; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. Once a statement of the prosecutrix inspires confidence and accepted by the court as such, conviction can be passed only on the solitary evidence of the prosecution. No corroboration would be required unless there are compelling reasons, which instituted the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not requirement of law but a guidance of prudence under the given facts and circumstance. Corroboration of the victim of the sexual offence may be considered essential to establish the offence in the backdrop of the social ecology of the western world. But it is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attituded mores, response of the Indian Society, and its profile. Rarely will a girl or a woman in India make false allegations of sexual assault due to various psycho-social factors. And when in the face of those factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated. Reference may be made to a long chain of decisions some of which are: Rameshwar v. State of Rajasthan AIR 1952 SC 54 ; Sidheswar Ganguly v. State of W.B. AIR 1958 SC 143 ; Madho Ram v. State of U.P. (1973) 1 SCC 533 ; State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) 1 SCC 550 ; Madan Copal Kakkad v. Naval Dubey (1992) 3 SCC 204 ; State of Rajasthan v. Narayan (1992) 3 SCC 615 ; Kamel Singh v. State of M.P. (1995) 5 SCC 518 and Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490 . 21. The Apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1996) 2 SCC 384 , 403, observed that "refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. 21. The Apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1996) 2 SCC 384 , 403, observed that "refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. This court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion. We need only remind ourselves of what this court has said through one of us". (Dr. A.S. Anand, J, as his Lordship then was) in State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384 (SCC p. 403; para 21). "A rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case." 22. Keeping in view of the ratio laid down by the Apex Court in the cases discussed above, we have given our anxious consideration of the statement of PW1 for appreciation on the principle of probabilities and are of firm view that statement of prosecutrix inspire confidence and it must be relied upon without seeking corroboration of her statements in material particulars. Over and above, the statement of PW1 is fully corroborated in material particulars by PWs. 2, 3, 4 and 5. Therefore, we are of firm view that the prosecution proved beyond reasonable doubt that the appellant accused is a rapist of the victim and found guilty of offence punishable under Section 376, IPC. 23. In view of the discussions as aforesaid. we do not find sufficient ground for interfering with the impugned order of conviction and sentence against the appellant accused by the learned Sessions Judge, Morigaon. Accordingly, the appeal is dismissed having no merit. 23. In view of the discussions as aforesaid. we do not find sufficient ground for interfering with the impugned order of conviction and sentence against the appellant accused by the learned Sessions Judge, Morigaon. Accordingly, the appeal is dismissed having no merit. Send a copy of this judgment to the concerned trial court along with the LCR for information. Appeal dismissed. --------------------------------------