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Gauhati High Court · body

2011 DIGILAW 567 (GAU)

Tankeshwar Das v. State of Assam

2011-07-01

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 20.10.2008, passed by the learned Addl. Sessions Judge (FTC), Biswanath Chariali, in Sessions case No. 190 of 2005, under Sections 457/376 IPC (arising out of GR. Case No. 341 of 2004), has been challenged in this appeal. 2. Learned Sessions Judge, by the impugned judgment and order, convicted the appellant, under Sections 376/457 IPC and sentenced him to suffer rigorous imprisonment for seven years and pay fine of Rs. 1,000/-, in default, suffer further imprisonment of sixty days for his conviction under Section 376 IPC and also sentenced him to suffer rigorous imprisonment for three years and pay fine of Rs.500/-, in default, suffer simple imprisonment for additional period of thirty days, for his conviction, under Section 457 IPC. Both the sentences were directed to run concurrently. 3. Aggrieved by the said conviction and sentence, the convict, as appellant, has come up with this appeal. 4. I have heard Mr. T.J. Mahanta, learned counsel appearing for the appellant and Mr. K. Munir, learned Addl. Public Prosecutor, appearing for the respondent. 5. The prosecution case, as revealed during the trial, in brief, may be stated as follows :- Sri Tankeswar Das, who is the present appellant, is a neighbour of the informant i.e. the victim woman. On 20.6.04, at about 10.30 pm, when the informant was sleeping, with her two children, taking the opportunity of the absence of her husband, who had gone to another place, the appellant, breaking open the door, entered her house and grabbed her on the bed. The informant put up resistance and raised alarm, by shouting, but the appellant gagged her mouth with his hand and bit her cheek. Thereafter, he laid her, on the ground and forcefully committed sexual intercourse with her. After committing the said offence, when the appellant tried to fled the house, she also inflicted a dao blow, causing injury on his back. Though the informat i.e. the victim woman raised alarm, due to heavy rain, none of her neighbourers could hear her. However, immediately, after the said occurrence, she rushed to her elder sister Smt. Padumi Das (PW.2) and others and informed them. She also lodged an FIR, with the police, on 21.6.04, which was registered as Gohpur PS case No. 112 of 2004, under Sections 457/376 IPC. However, immediately, after the said occurrence, she rushed to her elder sister Smt. Padumi Das (PW.2) and others and informed them. She also lodged an FIR, with the police, on 21.6.04, which was registered as Gohpur PS case No. 112 of 2004, under Sections 457/376 IPC. After receipt of the said FIR, police launched the investigation into the matter, got the victim woman, as well as the accused person examined by Medical Officer, recorded the statements of the witnesses and at the close of the investigation, submitted chargesheet under Sections 457 and 376 IPC against the accused. The case being exclusively triable by the Court of Sessions, the learned Sessions Judge framed charges under Sections 457/376 IPC. The charges were read over and explained to accused person, to which he pleaded not guilty. 6. To prove their case, prosecution examined as many as twelve witnesses including the Medical Officer (PW 12) and Investigating Officer (PW 11). 7. After examination of all the prosecution witnesses, the accused person was examined, under Section 313 CrPC. He denied the allegations, brought against him and declined to adduce defence evidence. The learned trial Judge recorded the convictions and the sentences as indicated above. 8. Aggrieved by the said convictions and the sentences, the convict, as appellant, has come up with this appeal. 9. Sri T.J. Mahanta, learned counsel, appearing for the appellant, taking this Court through the evidence on record, has submitted that the allegations of entry of the accused into the house of the victim woman and committing of rape on her, are highly improbable and false. The learned counsel, has submitted, that the accused person has been implicated, without any fault, on his part, out of previous enmity and grudge and that the prosecution failed to prove the allegations, brought against him, beyond all reasonable doubt. He further submitted that, contradictions found in the evidence of the prosecution witnesses, raises doubt about the prosecution version and that the learned trial Judge convicted him, without any sufficient, cogent and reliable evidence. The learned defence counsel has prayed for acquittal of the accused person. 10. Controverting the said argument, advanced by the learned counsel for the appellant, Mr. K. Munir, learned Addl. The learned defence counsel has prayed for acquittal of the accused person. 10. Controverting the said argument, advanced by the learned counsel for the appellant, Mr. K. Munir, learned Addl. Public Prosecutor has submitted that there is sufficient evidence on record, more particularly, the evidence of the victim woman, regarding the involvement of the accused person and that the learned trial Judge committed no error by recording the convictions and the sentences, which have been impugned in this appeal. 11. In order to appreciate the arguments, advanced by the learned counsel, for both the parties and to examine the correctness of the impugned judgment, I feel it appropriate to, briefly, scan the evidence on record. 12. The victim woman has been examined as PW 2. She, in her evidence, stated that on the night of occurrence, she was sleeping, in her house, with her two children and at that time, the accused person, who forcefully entered her house, had touched her body and forcefully committed sexual intercourse on her by laying her on the ground. She stated that when she put up resistance, her wearing apparels, including her blouse, were torn and the accused person had bitten her cheek. According to this witness, due to rain, none could hear the alarm raised by her. She further stated that when the accused person was leaving her house, she had given a dao blow, on his back, which might have caused injury on him. She has exhibited the FIR as Ext.2 and her signature, thereon, as Ext.2/1. This witness also gave statement under Section 164 CrPC before the learned Magistrate and she exhibited, her said statement as Ext.3. In her cross-examination, she stated that the accused was her adjacent neighbour with a common boundary. From her said evidence, it appears that her children were aged about eight years and four years and, on the fateful night, she was sleeping with her children. She nowhere stated that her children, more particularly, her eldest son, aged about eight years had woke up. Her statement that she raised alarm and that her blouse was torn, in the said resistance, given by her, indicates that she had put up sufficient resistance and raised alarm, at the time of occurrence. She nowhere stated that her children, more particularly, her eldest son, aged about eight years had woke up. Her statement that she raised alarm and that her blouse was torn, in the said resistance, given by her, indicates that she had put up sufficient resistance and raised alarm, at the time of occurrence. Considering the said circumstances and the sequences leading to rape, it is quite doubtful, as to why, her eldest child, who was aged about eight years, could not hear the alarm raised, just near the bed, where the said child was sleeping. She clearly stated that, as soon as, the appellant had touched her body, she had raised hue and cry by shouting and that scuffling, as well as, the rape continued for about half an hour. She denied the suggestion that she had falsely lodged the case due to boundary dispute with the accused person. Had there been any such resistance, shouting etc. continuing for about half an hour, her said child would have ordinarily woke up. This aspect of the matter, raises doubt about the veracity of the evidence given by PW 2. That apart, as the PW.2 claimed that she went to bed after closing the door of the house, properly, it is not known how or in what manner the accused could open the same. Therefore, the allegation of forceful entry is not free from doubt. 13. Smt. Padumi Das, the elder sister of the victim woman, used to live near her (PW.2's) house. She deposed as PW.3. She stated that, when she was sleeping at night, PW 2 went to her courtyard and called her son, namely, Haren. This witness stated that she came out from her house and saw PW 2, in her courtyard, who was wearing a petty coat and a blouse. According to this witness, the blouse was in torn condition, and on being asked, she was informed by the victim woman that the accused person had entered her house and forcefully committed rape on her. She further stated that, PW.2, requested her to go to the accused person's house to see whether he had sustained any injury, due to the dao blow, inflicted by her. She further stated that, PW.2, requested her to go to the accused person's house to see whether he had sustained any injury, due to the dao blow, inflicted by her. According to this witness, on being so informed, she along with Sri Dimbeshwar Das (PW 5), Sri Sarat Das (PW 9), Sri Brajen Bania (PW6) and Sri Daben Das, proceeded to the accused person's house and found bleeding injury on his back. She denied the suggestion that she did not tell the police that the victim woman was found wearing a petty coat and a torn blouse. She also denied the suggestion, that the victim woman did not tell her that she had inflicted a dao blow to the accused person, that, on being requested by her to go to accused's house and see the said injury, she (PW.3) along with Sri Dimbeshwar Das, Sri Sarat Das, Sri Brajen Bania and Sri Daben Das, had gone to the house of the accused and saw the injury on him. The said contradictions were proved by the Investigating Officer. Therefore, perusing the evidence of PW 3 and PW 11 i.e. the Investigating Officer, it is found that PW 3 did not tell the police, at the time of giving statement, under Section 162 CrPC, that the victim woman, when arrived at her house, was wearing a petty coat and a torn blouse, that she had inflicted a dao blow on the accused person and that she, on being requested by her, had gone to the accused's house and saw the said injury. The statement, made under Section162 CrPC being the first statement, the person concerned is required to disclose all material facts. Failure to do so or withholding of vital facts raises doubt about disclosure, made after long delay, in the Court. In view of the above, it appears that PW.3, for the first time, in the Court, stated that she found the victim woman with a petty coat and a torn blouse and that she, along with others, found bleeding injury on the person of the accused. In my considered opinion, her said statement, being the first statement, made before the Court cannot be safely relied upon. In my considered opinion, her said statement, being the first statement, made before the Court cannot be safely relied upon. Therefore, it is doubtful, that the victim woman went to PW.3, after the occurrence, that she reported her (PW.3) about the alleged occurrence and that any injury was found on the back of the accused. 14. Sri Haren Das, the son of PW.3, has deposed as PW 4. In tune with the evidence of PW.3, he stated that, the victim woman called him, knocking his door and he and other family members of his house came out from the house and found the victim woman i.e. PW.2, who was wearing a petty coat and a blouse. According to this witness, PW2 had informed them that she was raped by the accused person in her house. He further stated that PW 2 had asked them to ascertain if the accused person had sustained any cut injury, inflicted by her. According to this witness, he, along with other villagers, went to the house of the accused person and found a cut injury on his back and that there was bleeding from the said injury. He admitted that he did not tell the police, that the victim woman had knocked their door and raised any alarm, that he saw her wearing a petty coat and a torn blouse and that he did not tell the police about the cut injury, found on the body of the accused person. He explained that he did not state the said facts, because he was not asked by the police. From the cross-examination of PWs. 3 and 4, it is found that none of the said two witnesses, stated before the police, that the victim woman appeared with a petty coat and a torn blouse and that they had found bleeding injury on the person of the accused. PW 2, in her statement, though stated that she had inflicted injury, she nowhere stated that she had requested PWs. 3 and 4 to go and see the said injury. In view of the above, I find it hard to believe the statements of PWs. 3 and 4, who stated, for the first time, in the Court, about the appearance of the victim woman with a petty coat and a torn blouse and the injury sustained by the accused person. 15. In view of the above, I find it hard to believe the statements of PWs. 3 and 4, who stated, for the first time, in the Court, about the appearance of the victim woman with a petty coat and a torn blouse and the injury sustained by the accused person. 15. Sri Dimbeshwar Das deposed as PW 5, He stated that, on the fateful night, at about 10-11 pm, when he was sleeping, PW 2, wearing a petty coat and a torn blouse, went to his house and informed him that the accused person had committed rape on her. This witness stated that he found bleeding injury on her cheek and lips. According to this witness, PW.2 told him that she had inflicted a dao blow, on the accused person and that he, along with others, went to the house of the accused person and found bleeding injury on his back. He also stated that, as he was not asked by the police, he did not tell the police what he has stated before the Court. From his evidence, it appears that he also stated for the first time, in the Court, regarding the reporting by PW 2 and the injury found on the back of the accused person. PW 2 i.e. the victim woman stated that she had informed her sister i.e. PW 3 about the occurrence. She nowhere stated that she informed PW 5. Therefore, the evidence of PW 5 that PW 2 had gone to his house to inform him abut the occurrence is not believable for want of corroboration. 16. Sri Brajen Bania, who deposed as PW 6, stated that, while he was returning from his daily work, he heard from the villagers that the accused person had entered the house of PW 2, on the previous night. This witness stated that he heard that the accused sustained injury at the hand of PW 2. He also stated that he did not know the reason why the accused had gone to the house of PW.2. According to this witness, he also went to the house of the accused person, along with members of the family and relatives of PW 2, but he returned home apprehending some trouble. This witness was declared hostile by the prosecution and cross-examined. From his cross-examination, nothing incriminating could be elicited against the accused person. According to this witness, he also went to the house of the accused person, along with members of the family and relatives of PW 2, but he returned home apprehending some trouble. This witness was declared hostile by the prosecution and cross-examined. From his cross-examination, nothing incriminating could be elicited against the accused person. In his cross-examination, made on behalf of the accused person, he stated that a land dispute, regarding boundary, existed between the accused person and PW 2 and that about one month prior to the occurrence, a quarrel had taken place between them. He further stated that there was a village meeting, in which, PW 2 had said that, she would, one day, compel the accused to undergo imprisonment. He clearly stated that he did not see any injury on the person of the accused and that he did not hear about such injury. From the above evidence, given by PW 6, it appears that there existed a boundary dispute between the accused person and PW 2. Though PW 3 stated that, she, along with Sri Dimbeswar Das (PW5), Sri Brajen Bania (PW.6) and others, had visited the house of the accused person and found injury on his person, PW 6 Sri Brajen Bania, failed to corroborate her evidence. The evidence of PW 6 does not indicate that, he, along with others, had found a bleeding injury on the accused. Rather, from the evidence of PW.6, which remained unchallenged, it is found that the occurrence took place on the previous night and the villagers i.e. the members of the family of the victim woman had gone to the accused person's house on the next date. This contradiction found in the evidence of PWs aforesaid also raises doubt about the prosecution version. 17. PW 7 was the father-in-law of the victim woman. He stated that he used to reside in a separate house, near the house of the victim woman, i.e., his daughter-in-law and that the accused was also known to him. He expressed his total ignorance about the occurrence. This witness was declared hostile and was cross-examined by the prosecution. He denied the suggestion that he told the police that his daughter-in-law, on 20.06.04, had informed him that the accused person committed rape on her, after entering her house and that she had given a dao blow on his back. He expressed his total ignorance about the occurrence. This witness was declared hostile and was cross-examined by the prosecution. He denied the suggestion that he told the police that his daughter-in-law, on 20.06.04, had informed him that the accused person committed rape on her, after entering her house and that she had given a dao blow on his back. PW 7 being the father-in-law of the victim, it is really surprising and doubtful as to why he failed to support the prosecution version, more particularly, the statement given by PW 2, if the occurrence, as alleged by PW 2, had really taken place. His failure to support the evidence, given by PW2, raises doubt about the prosecution story itself. 18. Sri Ranjan Hazarika, who was a co-villager, deposed as PW 8. He also failed to support the prosecution version. He was cross examined, on being declared hostile. Nothing incriminating could elicited from his evidence. In his cross-examination, made on behalf of the defence, he stated that his house was adjacent to the house of the victim woman and that she never informed him about the incident. There is nothing on record to find that PWs. 6, 7 and 8, had any enmity with PW 2. Therefore, considering the nature of the allegation, brought by PW 2, against the accused, I find that there was no reason as to why these witnesses declined to support the prosecution version, if any such occurrence had really occurred. 19. Sri Sarat Das deposed as PW.9. According to PW.3, he also went to the house of accused person to see his injury. But, PW 9 stated that he, after arriving home from his grocery shop, found Sri Haren Das (PW-4) and some other people armed with dao, lathi etc. On being enquired by him, Sri Haren Das told him that, as the accused person had committed rape on PW.2, they would teach him a lesson. According to this witness, he had asked them not to quarrel and assured that a village meeting would be held, on the next morning. According to this witness, on the following day, he came to know that a complaint was filed by PW 2. This witness was cross-examined by the prosecution, after declaring him hostile, but nothing incriminating could be brought out from his evidence. He clearly stated that the victim woman did not tell him anything. According to this witness, on the following day, he came to know that a complaint was filed by PW 2. This witness was cross-examined by the prosecution, after declaring him hostile, but nothing incriminating could be brought out from his evidence. He clearly stated that the victim woman did not tell him anything. According to this witness, he also went to the house of the accused person, but did not see any injury on his person. This statement of PW 9, that he did not see any injury, on the person of the accused, remained uncontroverted. In view of the said evidence given by PW 9, the evidence of PWs. 3, 4 and 5 that they saw bleeding injury on the back of the accused person is not believable. This doubt is fortified by the evidence of PW 12 i.e. the Medical Officer, who examined the accused person on 29.6.04. According to the Medical Officer, no sign or symptom of injury was found. Though the Medical Officer examined him on the ninth day of the occurrence, if any cut injury, causing bleeding, was inflicted, injury mark would have been there. Therefore, the evidence of PW12 coupled with the evidence of PWs 6 and 9 raises doubt about the evidence given by PWs. 2, 3, 4 and 5 that they found cut injury on his person. 20. PW 10 Smt. Sudhama Das stated that she knew both the parties and that there was a boundary dispute between the accused and the members of the family of the informant. She, supporting the evidence of PW.6, stated that the victim woman had said that she would file a case against the accused person and send him to jail. This witness was declared hostile by the prosecution and cross-examined. But nothing incriminating could be brought out, from his cross-examination made by the prosecution. Her evidence, that there was a dispute between the accused person and the victim woman and that the victim woman declared that she would file a case against the accused person and send him to jail, remained unchallenged. The existence of such dispute, coupled with the declaration that the PW.2 would send the accused to jail, raises serious doubt about the veracity of the evidence of PW.2. That apart, the above stated contradiction regarding the injury, alleged to be sustained by the accused, also creates doubt about the prosecution version. 21. The existence of such dispute, coupled with the declaration that the PW.2 would send the accused to jail, raises serious doubt about the veracity of the evidence of PW.2. That apart, the above stated contradiction regarding the injury, alleged to be sustained by the accused, also creates doubt about the prosecution version. 21. The Medical Officer, who examined the victim woman, has been examined as PW 12. He stated that, on examination, he found the following :- Her age is 16/17 years from radiological report. Injuries: (a) Abrasion on right breast. (b) Bruise inside lower lip. (c) Tenderness on Rt. Chin. (d) Abrasion on back. On private parts: (i) No any sign any symptom of sexual violence on her parineal region and vagina. (ii) No hymen seen. Sign and symptom of regular intercourse of the vaginal wall Laboratory examination :- (a) Urine for HGC (Pregnancy) test. (b) Vaginal swab for sperm detection - No spermatozoa is seen. He opined that the injuries, sustained by the victim may indicate attempt to rape. According to him, there was no sign of rape committed on the victim. The evidence, that the injuries may indicate attempt to commit rape, does not, conclusively lead to believe that there was rape. It is not the case of the prosecution that there was only attempt to commit rape. 22. There is no dispute that the solitary evidence of a rape victim, if found reliable and trustworthy, can be the basis for conviction. I have already noticed the contradictions and the discrepancies found in the evidence of the prosecution witnesses. There is no eye witness with regard to the entry of the accused person into the house of the victim woman or about his exit therefrom. The victim woman clearly stated that she had given a dao blow on the back of the accused person and PWs. 2, 3, 4 and 5 also stated that they, on their visit to the house of the accused person, found such injury on his back. PW 3 claimed that PW 6 and PW 9 also accompanied them to the house of the accused person to see the said injury. But PW 6 and PW 9 declined to support the said evidence of PWs 4, 5 and 6. I have already noticed that PW.7, who was the father-in-law of the victim woman, expressed his ignorance about the occurrence. But PW 6 and PW 9 declined to support the said evidence of PWs 4, 5 and 6. I have already noticed that PW.7, who was the father-in-law of the victim woman, expressed his ignorance about the occurrence. Admittedly, he lived near the house of victim woman. Considering his relation (father-in-law) with the victim woman, his silence, in this regard, raises serious doubt about the occurrence itself. 23. In view of the above discussed evidence, I find sufficient contradiction and discrepancies in the evidence of the prosecution witnesses. It is the settled law that in a criminal case, prosecution is required to prove its case beyond all reasonable doubt. Law is also well settled that in the event of existence of two probable views, the benefit should always be given to the accused person. From the evidence on record, it has been established that there existed a land dispute between the parties and the complainant declared that she would send the accused person to jail. 24. Though conviction can be based on the solitary statement of a rape victim, while relying on any such evidence, careful scrutiny is necessary, to see that an innocent person, with whom the victim had dispute, relating to property (here boundary dispute), that too, whom she declared that she would send the accused to jail. In such a case, apart from relying on the evidence of the victim, corroboration should be sought from other independent witnesses as well as circumstantial evidence, in support of her evidence. In the present case, though the victim woman had stated that she was raped by the accused person, as discussed above, the prosecution failed to adduce substantive, cogent and reliable evidence in support of the said allegation. 25. Therefore, considering the entire aspect of the matter and in view of the above stated contradictions and the discrepancies, I have no hesitation in holding that the prosecution failed to prove the case, beyond all reasonable doubt, against the accused person. Therefore, I find sufficient merit in this appeal, requiring interference. 26. Accordingly, the appeal is allowed. The impugned convictions and sentences are set aside and quashed. The accused person/appellant is acquitted and set at liberty forthwith, if not required in any other case. Return the lower Court records.