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2011 DIGILAW 621 (GAU)

Dipak Tumung @ Piling v. State of Assam

2011-07-26

A.K.GOSWAMI

body2011
A.K. Goswami, J.;- This appeal is directed against the judgment dated 06.08.2005 passed by the learned Ad-hoc Addl. Sessions Judge, Kamrup, Guwahati in Sessions Case No. 17 (K)/2005 convicting the accused appellant under Section 376 IPC and sentencing him to suffer Rigorous Imprisonment for 7 years and to pay a fine of Rs. 2,000/-, in default, to suffer Simple Imprisonment for a further period of 6 months. By the aforesaid judgment, the learned trial Court had acquitted the accused appellant of the offences under Section 379/506 IPC. 2. The prosecution case, in brief, is that one Smt. Numali Hazarika lodged an ejahar before the Officer-in-Charge, Dispur Police Station on 23.01.2003 stating that on 21.01.2003 around 6 P.M., while she was coming from Chaymile to Hengabari in a rickshaw by Borbari Road and while she disembarked from the rickshaw for going to her house located at Hengrabari Milan Nagar, the accused appellant pulled her away and committed the offence of rape on her. It was further stated that as she tried to raise hue and cry, she was threatened with her life by wielding a sharp weapon. She was also threatened not to disclose the incident to any one, or else, he would liquidate her. A sum of Rs. 12,000/-, which was in possession of the complainant, was also snatched away from the bag by the accused. 3. On receipt of the aforesaid ejahar, Dispur Police Station case No. 75/2003 under Sections 376/506/379IPC was registered. The police stated investigation and finding sufficient materials against the accused appellant, the Investigating Officer submitted charge sheet against the accused appellant under Sections 376/506/379 IPC. The offence being exclusively triable by the Court of Sessions, the committing Magistrate committed the case to the Court of the learned Sessions Judge, Kamrup, wherein Sessions No. 17(K)/2005 was registered. The case was transferred to the Court of learned Ad-hoc Addl Sessions Judge, Kamrup, Guwahati and the learned Judge, on the basis of the materials on record, framed charges under Sections 376/506/379 IPC. The charges being read over and explained to the accused appellant, the accused appellant denied the charges and pleaded not guilty and, at the same time, claimed trial. 4. During the trial, the prosecution, in order to establish the charges as against the accused appellant, examined 5 witnesses. The complainant was examined as PW 1. The charges being read over and explained to the accused appellant, the accused appellant denied the charges and pleaded not guilty and, at the same time, claimed trial. 4. During the trial, the prosecution, in order to establish the charges as against the accused appellant, examined 5 witnesses. The complainant was examined as PW 1. The nephew of PW 1, who had written the ejahar, was examined as P W 2. The sister-in-law of PW 1 was examined as PW 3. The Investi­gating Officer in the case was examined as PW 4 and the doctor as PW 5. PW 5 had exhibited the medical examination report as Ext. 4. The defence had also adduced the evidence of the witnesses, examined in the form of DW1 and DW2. 5. PW 1 is the prosecutrix. She had deposed that the incident took place on 21.01.2003 around 6 P.M. while she was going towards her home in Hengrabari by a rickshaw from Chaymile. There was a stretch of road of about 2/3 kilometers where there was no human habitation. She had also stated that the accused got down from a rickshaw and, thereafter, dragged her from her rickshaw to a field and committed rape on her. While she had raised hue and cry, she was threatened by showing a sharp weapon. The accused raped her 3 times and, thereafter, he had left her in an unconscious state. Initially, she did not inform about the incident to anybody, but later on, related the incident to her sister-in-law (elder sister of her husand), who was examined as PW 3 and her son, who was examined as PW 2. It was only therafter that she came to lodge an ejahar, which was exhibited by her as Ext. 1. PW 1 also had proved her statement before the Magistrate recorded under Section 164 CrPC as Ext. 2. She had also deposed that the accused had also taken away Rs. 12, 000/-from her bag. She stated that out of fear of the accused, she had left her previous place of residence immediately after the occurrence. 6. In her cross-examination, PW 1 had narrated that her husband had abandoned her and had taken with him her two children. 2. She had also deposed that the accused had also taken away Rs. 12, 000/-from her bag. She stated that out of fear of the accused, she had left her previous place of residence immediately after the occurrence. 6. In her cross-examination, PW 1 had narrated that her husband had abandoned her and had taken with him her two children. She also denied the suggestion that she had instituted a false case against the accused as she was found in a compromising position with one Monilal Rajkumar, one of her neighbours, by the accused person and the delay in lodging the ejahar was solely on account of the fact that she was devising ways and means to come out of the tight spot she was in, she having been found in a compromising position with Monilal. 7. PW 2 is the scribe of the ejahar who wrote the ejahar as per the version given by PW1. PW2 stated that on 23.01.2003, PW 1 came to their residence and narrated the incident of rape committed by the accused, PW 1, according to him, also told that the accused had also snatched away Rs, 12,000/- from her bag. Though in his cross-examination, he indicated that had not signed as the scribe in the ejahar, but he reiterated that it was he, who had, in fact, written the ejahar. 8. PW 3 is the sister-in-law, who corroborated the evidence of PW 2 to the effect that PW 1 came to the residence of PW 2, where she also resided and had narrated the incident of rape and snatching away of money. She had deposed that she had taken P W 1 to the police station for the purpose of lodging the FIR. In her cross-examination, she had deposed that the ejahar was lodged on the day when P W 1 came to thier residence. 9. PW 4 is the S.I. of Police of the police station, who had conducted the investigation and had laid the charge-sheet, Ext. 2. It is in his evidence that he had sent PW 1 to the Court of Judicial Magistrate for recording her statement under Section 164 CrPC. It was he, who had collected the medical examination report of the victim. In his cross-examination, he had indicated that he had conducted search for the rickshaw puller, but could not succeed to find him. 10. It was he, who had collected the medical examination report of the victim. In his cross-examination, he had indicated that he had conducted search for the rickshaw puller, but could not succeed to find him. 10. PW 5, as has been noted earlier, is the doctor, who had proved the medical examination report as Ext. 4. According to him, the following injuries are found as per the medical examination report:- "Injury: (i) On scratch abrasion of the 4 cm x 0.2 cm present in front of neck. At the level of thyroid cartilage. (ii) One healed abrasion of size 5 cm x .5 cm over the lower lip on rt angle of mouth. (iii) Grazed abrasions of size varying from .5 cm x .5 cm to. 1 cm x. 1 cm present over rt buttock. All injuries covered by reddish brown colour scab. Age of injury approx 48 to 72 hours." 11. According to him, from the medical examination report, it would appear that the victim would be aged about 25 years and that there was no evidence of recent sexual intercourse and that she was accustomed to sex. In his cross examination, he had also indicated that the injures, as was noticed in the medical examination report, could also be caused by fall or by blunt impact. 12. As against the prosecution witnesses, D W1, who is known to both the complainant and the accused, stated that both of them are residing in the same neighbourhood and that one day, P W1 went to his place and told him in presence of his wife that the accused had outraged her modesty after taking her away from a rickshaw that she was riding in. He also deposed that subsequently, he had enquired about the same from the accused, who then informed him that there was no such incident and that, on the contrary, he had found PW 1 and Rajkumar together in a field, for which, he scolded them. It had also been deposed that he heard rumours later on that Rajkumar and PW 1 were involved in indecent activities. 13. It had also been deposed that he heard rumours later on that Rajkumar and PW 1 were involved in indecent activities. 13. In his cross-examination, DW 1 stated that PW 1 told him that she was coming in a rickshaw and she had been taken down from the rickshaw that she was travelling in and the accused had raped her by taking her to nearby field and that he had snatched away her money. This, according to DW 1, was told after one day of incident. In his cross-examination, he has also stated that Monilal Rajkumar was the Head Assistant in the office of the Director of Fire Service, where he was also an employee. 14. DW 2 stated that he had heard village people saying that Monilal Rajkumar and Numali Hazarika (the prosecutrix) were seen walking in a place where there were no human habitation and, therefore, the accused had threatened them. He did not know as to why the accused had threatened Rajkumar and Numali Hazarika. He had also stated that he had heard that PW 1 was abandoned by her husband and that she was living alone and that after the incident, she had left the place. In his cross-examination, he indicated that Numali Hazarika used to work in the house of Rakjkumar and used to sell clothes. 15. The statement of the accused was also recorded under Section 313 CrPC and in such statement, the accused denied complicity in the offences alleged against him. According to him, he had found Rajkumar and Numali Hazarika on the night of alleged occurrence around 7.30 PM in an intimate position in a field near Hengrabari bridge. He had informed the villagers about the same. Subsequent thereto, Numali and Rajkumar had left the said place and he came to know about the present case when he was arrested after 15/20 days of the incident. 16. On the basis of the aforesaid evidence on record, the learned trial Court found the charge under Section 376 1PC well] established and, accordingly, had convicted; and sentenced the accused, as noted in the earlier part of the judgment. The learned trial; Court, at the same time, held that the prosecution was unable to prove the case beyond reasonable doubt so far as the charge under Section 379/506IPC are concerned : and accordingly, the accused was acquitted of the aforesaid charge. 17. The learned trial; Court, at the same time, held that the prosecution was unable to prove the case beyond reasonable doubt so far as the charge under Section 379/506IPC are concerned : and accordingly, the accused was acquitted of the aforesaid charge. 17. I have heard Mr. A. M. Bora, learned Curiae and Mr. B. S. Sinha, learned Addl. Public Prosecutor, Assam. 18. Mr. Bora, learned Amicus Curiae submits that the prosecution has miserably failed to prove the guilt of the accused person beyond reasonable doubt. There is no plausible explanation as to why the ejahar was lodged after two days of the incident.: Having regard to the materials and evidence on record, he submits that, it would appear that the case was tiled against the accused] appellant only as he was a witness to the PW1 and Monilal Rajkumar being found in at compromising position. In the facts and circumstances of the case, the learned counsel; for the accused appellant submits that the learned trial Court committed manifest error of law in convicting the accused appellant, on the basis of the evidence of the prosecutrix alone and, therefore, he contends that the prosecution having failed to establish the guilt of the accused beyond reasonable doubt, the accused is entitled to be acquitted of the charge under Section 376 IPC. 19. Mr. B. S. Sinha, learned Addl. Public Prosecutor, Assam has supported the impugned judgment. He submits that the conviction can be sustained only on the basis of evidence of the prosecutrix and in instant case, apart from the evidence of PW 1, i.e. the prosecutrix, there is corroborating evidence of PW 2 and PW 3. He submits that the prosecution has adduced reliable evidence and, therefore, there is no reason as to why this Court should interfere with the finding of conviction arrived at by the learned trial Judge. The learned Addl. Public Prosecutor has also placed reliance on a judgment of the Apex Court in State of Chhattisgarh Vs. Derha, reported in (2004) 9 SCC 699 , On the basis of the aforesaid judgment, the learned Addl. Public Prosecutor want to fortify his submission that if the Court 4 is satisfied on the basis of the evidence of the prosecutrix, then, the conviction can be based solely upon the evidence of the prosecutrix without seeking for corroboartion from other quarters. 20. Public Prosecutor want to fortify his submission that if the Court 4 is satisfied on the basis of the evidence of the prosecutrix, then, the conviction can be based solely upon the evidence of the prosecutrix without seeking for corroboartion from other quarters. 20. Before proceeding farther, it would be worthwhile to note that the evidence of a victim of sexual assault is more or less at par with the evidence of an injuired witness and to an extent is even more reliable. The testimony of the victim in cases of sexual offences is significant and unless there are good and compelling reasons, which require or necessitate looking for corroboration of her statement, the Court can act on the basis of testimony of a victim of sexual assault alone to convict an accused, if the testimony of the victim inspires confidence and is found to be reliable. The Court while appreciating the evidence of the prosecutrix, may look for some assurance of her statement to satisfy its judicial conscience, but there is no requirement in law to insist upon corroboration of her evidence to base conviction of an accused. 21, Turning to the evidence on record, it is found that the alleged incident had taken place in a deserted area, where there was no people and no witnesses to the ocurrence. The rickshaw puller from whose rickshaw the victim was dragged out, was not to be found in spite of efforts made by the Investigating Officer. PW 1 had deposed that the accused had threatened her with dire consequences. Having regard to the society on which PW 1 lives, it would not be unnatural or wrong to assume that she needed some time to make up her mind with regard to the course of action she should adopt pursuant to the sexual assault on her. That she had come to PW 2 and P W 3 has not been discredited by the defence. It is not a case where PW 1 did not at any point of time did not take any body into confidence. Though PW 1 was abandoned by her husband, yet, she had gone to her husband's elder sister and her son, PW 2 and PW 3, respectively and had narrated the incident and took their advice as to what should be done in the circumstances. Though PW 1 was abandoned by her husband, yet, she had gone to her husband's elder sister and her son, PW 2 and PW 3, respectively and had narrated the incident and took their advice as to what should be done in the circumstances. It is also evident to form the record that on the very day i n which P W1 had gone to the residence of PW 2 and PW 3, the ejahar came to be lodged and PW 2 had accompanied P W 1 to the police station. Thus, it is considered opinion of the Court, the delay of 2 delay in lodging the ejahar, in the facts and circumstances of the case, cannot throw out the prosecution case. 22. The projected defence version that the instant case had been lodged because of the fact that allegedly the accused found PW 1 and Monilal Rajkumar in a compromising position, does not appeal to this Court. There is nothing on record to sustain such a plea, apart from the statement of the accused. It is hardly conceivable that a woman can invite a false stigma of rape on herself and run the risk of being looked down upon by the society. The evidence of PW 1 is found to be trustworthy. The defence had not been able to shake her testimony in any manner. The injuries indicated on Ext 4 dated 24.01.2003 would also indicate that the injuries were caused within approximately 48 to 72 hours, which would go to show that such injuries could have been caused on 21.01.2003. The Injuries Nos. 2 and 3 are type of injuries, which can possibly be associated with an offence of rape. 23. For the reasons aforesaid, I am of the considered opinion that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt for the offence under Section 376 IPC. For the aforesaid reason, the judgment of the learned trial Court does not call for any interference. 24. The appeal is dismissed. Send back the LCRs. 25. Before parting with the record, this Court records its appreciation to Mr. A. M. Bora, learned counsel, who has rendered able assistance to this Court as an Amicus Curiae.