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2011 DIGILAW 129 (GAU)

Prabin Nath v. State of Assam

2011-02-15

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Subhash Ch. Biswas, learned Counsel for the Appellant. Also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. This appeal is directed against the judgment and order dated 21.6.2003 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 80/2000 convicting the Appellant under Section 376, IPC and sentencing him to undergo RI for seven years and fine of Rs. 1,000, in default further RI for three months. 3. The prosecution story, in brief, is that on 9.1.1998 at about 12 noon, taking advantage of absence of other family members, the victim girl was taken out by the accused Appellant to a nearby Tea Estate and she was raped by him. The mother of the victim girl lodged an FIR on the basis of which a case being Dhekiajuli PS Case N6.7/98 was registered under Section 376/34, IPC. After completing the formalities and the investigation, including examination of the victim girl by Medical Officer, charge sheet was submitted against the accused Appellant under Section 376/34, IPC. On charges being read over and explained, the Appellant denied the allegation and pleaded not guilty. The accused Appellant, however, did not examine any witness in his defence. The learned trial court on the basis of evidence and materials on record convicted and sentenced the accused Appellant as stated earlier. 4. I have gone through the evidence on record and appreciated the same. The victim girl was examined as PW2. In her deposition she categorically stated that she was raped by the Appellant. She sustained injury on her person as she resisted when she was forcibly laid on the ground and raped. In her statement under Section 164, Code of Criminal Procedure also she made similar statement before the Magistrate. It is a settled position of law that conviction can be ordered solely on the basis of evidence of the victim girl, if her statements are found to be cogent, reliable and inspiring confidence of the court. It is the duty of the court to evaluate the truthfulness of the statement of the victim girl. To testify the same it is necessary to consider the other materials and evidence on record. First of all, the medical evidence/report (Ext-1) may be taken into consideration. The said Ext-1 was prepared by Dr. Achinta Kr. It is the duty of the court to evaluate the truthfulness of the statement of the victim girl. To testify the same it is necessary to consider the other materials and evidence on record. First of all, the medical evidence/report (Ext-1) may be taken into consideration. The said Ext-1 was prepared by Dr. Achinta Kr. Barua (PW1), The relevant portion of the said report is reproduced for convenience of all: Height - 154 cm. Weight - 45 kgs. No of teeth - 15+15 Secondar sex character - Breast well developed, Pubic and axillary hair well developed Vulva and vagina - intact No sign of injury detected on the body or in private parts. Hymen torn not tender (old tear) Vaginal swab taken for detection of human sperm. No spermatozoa was seen. No evidence of rape found on her body. No mark of violence found on her body and private parts. PW1, who examined the victim girl, proved the aforesaid medical report and clearly stated that the victim girl sustained injury (sic) on her person and he stood by the finding recorded in the medical report (Ext-1). The medical report does not support the evidence of the victim girl inasmuch as no injury has been found on her person although she deposed that she resisted the Appellant and in course of such resistance she sustained several injuries. It is quite natural that if some resistance was put against the forceful ravishment by a young man, the victim girl would sustain some injury/injuries on her person. But that is found absent in the present case. In such a situation it is difficult to accept the evidence of the victim girl as cogent, truthful and reliable, not to speak of inspiring confidence of the court. 6. There is no eye witness to the incident, which is, of course, quite natural, because the incident took place in the Tea Estate. But there is no such evidence to the effect that the accused Appellant forcefully took out the victim girl from her house or she made hue and cry as a mark of her opposition to accompanying the Appellant or she was unwilling to accompany him. But there is no such evidence to the effect that the accused Appellant forcefully took out the victim girl from her house or she made hue and cry as a mark of her opposition to accompanying the Appellant or she was unwilling to accompany him. The evidence of the victim girl is very clear that an arrangement for marriage between her and the Appellant was made inasmuch as her parents had agreed already and there was exchange of gifts from both the families to celebrate the settlement of the marriage. The mother of the victim girl Smt. Labanya Das (PW3) has also corroborated the statement of the girl in respect of settlement of the marriage. This indicates that she was allowed by her parents to move out with the Appellant so that they can talk and know each other and under such circumstances it can be legally presumed that the prosecutrix went out from her house willingly. 7. On appraisal of the evidence on record, particularly the medical evidence, I am unable to persuade myself to agree with the finding of the learned trial court that the accused Appellant committed rape on the prosecutrix but there is a case for outraging the modesty of the prosecutrix or an attempt on the part of the accused Appellant to that end, as the prosecutrix, being engaged for marriage with the accused, moved with him freely but when moving inside the Tea Estate the Appellant had done something which was not acceptable for her and at that moment it is but natural that she objected, resisted and cried for help. From the records I have verified that the accused was not examined medically to testify his possible sex, forcefully or otherwise, with the prosecutrix. The defence did not raise any point in this regard during the trial. 8. Considering the aforesaid facts and circumstances of the case and the evidence on record I am of the considered view that there is no case of rape committed by the present accused Appellant except indulging himself in an attempt to outrage the modesty of the prosecutrix attracting the offence under Section 354, IPC. The conviction awarded by the learned trial court is liable to be converted to one under Section 354, IPC and consequently reducing the sentence to a fine which is quantified at Rs. The conviction awarded by the learned trial court is liable to be converted to one under Section 354, IPC and consequently reducing the sentence to a fine which is quantified at Rs. 2,000 to be deposited in the court of the learned CJM, Sonitpur, Tezpur within a period of two months from today and in default, he shall suffer SI for two months. The accused Appellant shall be set at liberty as soon as the aforesaid fine is deposited. 9. The appeal stands disposed of with modification in the conviction and sentence as indicated above. Return the LC Rs immediately.