Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 356 (GAU)

Sankar Roy v. State of Tripura

2012-03-16

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 4.11.2006, passed in Sessions Case No. 107 of 2005, the learned Sessions Judge, Kokrajhar, has convicted the accused-appellant under Section 376 IPC and sentenced him to suffer rigorous imprisonment for seven years and pay fine of Rs. 5,000/- and, in default of payment of fine, simple imprisonment for a period of six months. The case of the prosecution may, in brief, be described as under : (i) The victim JM (PW4) used to live with her elder sister (PW1) in the house of PW6 as tenant, where the accused also used to live with his mother as tenant. On the day of the occurrence, i.e., 28.3.2005, PW1, who is elder sister of JM (PW4), left the house, at about 4 a.m., to attend her duty as Homeguard. At about 4.30 a.m., on 28.03.2005, when PW4 was alone at the said rented house, the accused entered into her room and committed 'rape' on her, while she was lying on the bed. When PW4 raised hullah, the accused gagged her mouth. As a result of the' rape' committed on PW4, bleeding from her vagina started. The accused gave her some medicines to eat. However, as her bleeding continued, the accused, accompanied by his mother, took PW4, at about 4.30 p.m., to Civil Hospital, Kokrajhar, where PW4 became senseless due to pain and excessive bleeding. She (PW4) regained her senses, at the hospital, on the following day, i.e., 29.03.2005, and reported the occurrence to her sister (PW1) and her parents, whereupon her father (PW2) lodged a First Information Report on 29.03.2005. Based on this FIR, a case was formally registered against the accused under Section 376 IPC. (ii) Before, however, the case was registered by police as mentioned above, an information was, on 28.03.2005, received, at Kokrajhar Police Station, from RNB Civil Hospital, Kokrajhar, that at about 5.25 p.m. on 28.03.2005, a girl, by the name of JM (PW4), had been admitted for vaginal tear. Based on this information, GD Entry No. 1366, dated 28.03.2005, was made. Acting upon the entry, so made in the general diary, the investigating officer visited the hospital; but on meeting the alleged victim, he found that she was unable to speak. Based on this information, GD Entry No. 1366, dated 28.03.2005, was made. Acting upon the entry, so made in the general diary, the investigating officer visited the hospital; but on meeting the alleged victim, he found that she was unable to speak. On the following day, i.e. 29.03.2005, at about 9.45 a.m., a written information, in the form of Ejahar, was lodged by EM (PW2), father of the alleged victim JM (PW4) as mentioned above and, based on this Ejahar, a case was registered against the accused under Section 376 IPC. (iii) During investigation, PW4 was medically examined and the doctor, who examined her, found tear and contusion on the edges of tears on her vagina. The doctor also found blood clot and fresh blood in the vulva, vagina and cloth of PW4. The radiological examination of PW4 revealed that she was about 15 to 17 years of age. As far as the vaginal swab was concerned, the same did not reveal presence of spermatozoa. 2. During trial, a charge, under Section 376 IPC, was framed against the accused. To the charge, so framed, the accused pleaded not guilty. 3. In support of their case, prosecution examined as many as 8 (eight) witnesses. The accused was, then, examined under Section 313 CrPC and, in his examination aforementioned, he denied to have committed the offence, which he was alleged to have committed, his case being that of total denial. No evidence was, however, adduced by the defence. In fact, the defence alleged that there was love affair between the accused and PW4. 4. Having, however, found the accused-appellant guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the convicted person has preferred this appeal. 5. I have heard Mr. A. Ganguly, learned counsel, who has appeared as Amicus Curiae, and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing on behalf of the respondent State. 6. While considering the present appeal, it needs to be noted that the evidence of PW4 is the pivot around which revolves the entire case of the prosecution. Her evidence is, therefore, of utmost important and needs close examination. D. Das, learned Additional Public Prosecutor, Assam, appearing on behalf of the respondent State. 6. While considering the present appeal, it needs to be noted that the evidence of PW4 is the pivot around which revolves the entire case of the prosecution. Her evidence is, therefore, of utmost important and needs close examination. According to her evidence, she used to live with her elder sister (PW1) in a rented house, at Kokrajhar town, where the accused also used to live. On 28.03.2005, her elder sister (PW1) went out of the house, at about 4.00 a.m., to attend her duty as Homeguard and when she (PW4) was alone in her house, accused entered into her house at about 4.30 a.m. and committed 'rape' on her. It is in the evidence of PW4 that when she raised hullah, the accused gagged her mouth. It is also in the evidence of PW4 that she suffered from bleeding, whereupon the accused gave her medicine to eat, but when she suffered from excessive bleeding, the accused, accompanied by his mother, took her, at 3.30 p.m. to Kokrajhar hospital, where she became senseless and, in the next morning, when she regained her senses, she found her elder sister (PW1) and her parents at the hospital, whereupon she reported the occurrence to them and her father filed a case with the police. 7. Though PW4 has been cross-examined, at some length, by the defence, the material aspects of her evidence, particularly, the fact that the accused had sexual intercourse with her, remained wholly unshaken. In other words, the fact that the accused had sexual intercourse with PW4 surfaced unscathered from the cross-examination of PW4. What also could not be dislodged by the defence was the evidence given by PW4 to the effect that she had resisted the accused in having sexual intercourse with her meaning thereby that her 'consent' for the sexual intercourse, which the accused had with her, did not exist. 8. Though the accused, in his statement under Section 313 Cr.P.C. claimed that he had love affair with PW4, the fact of the matter remains that there is absolutely nothing, in the evidence on record, to show that the sexual intercourse, which the accused had with PW4, was with the 'consent' of PW4. 9. 8. Though the accused, in his statement under Section 313 Cr.P.C. claimed that he had love affair with PW4, the fact of the matter remains that there is absolutely nothing, in the evidence on record, to show that the sexual intercourse, which the accused had with PW4, was with the 'consent' of PW4. 9. Bearing in mind what has been indicated above, let me, now, turn to Section 114A of the Evidence Act, which reads as under : 114A. Presumption as to absence of consent in certain prosecutions for rape--In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. (Emphasis is supplied) 10. A bare reading of Section 114A shows that Section 114A warrants raising of legal presumption as regards absence of consent if the woman who is subjected to rape, alleges that she had been subjected to rape without her 'consent' provided that the evidence on record proves that the accused had sexual intercourse with her. 11. To put it a little differently, Section 114A of the Indian Evidence Act obliges the Court to presume, in the case of offence under Section 376 IPC, absence of 'consent' by the woman, who alleges to have been subjected to rape, if it is proved that the accused had sexual intercourse with the woman. 12. In the case at hand, the learned trial Court was, in the light of the language used by Section 114A of the Evidence Act, bound to raise the presumption of absence of 'consent' and this presumption ought to have been discharged by the accused either by eliciting materials in this regard from the cross-examination of PW4 or by adducing evidence. Nothing was, however, done in the present case. 13. Thus, the evidence of PW4 given to the effect that the accused had sexual intercourse with her, without her 'consent', remained, as already indicated above, unshaken. 14. Nothing was, however, done in the present case. 13. Thus, the evidence of PW4 given to the effect that the accused had sexual intercourse with her, without her 'consent', remained, as already indicated above, unshaken. 14. Closely corroborating the evidence of PW4, her sister (PW1) has deposed that she (PW1) had left her house leaving behind her sister (PW4), on 28.03.2005, to attend her duty as Home guard and when she returned home at about 8 p.m., she did not find her sister at home and came to know that her sister (PW4) was lying at Kokrajhar hospital, whereupon she went to the hospital, but found her sister unable to speak and, then, she informed her father, on phone, who lives at Gosaigaon, and her father came and, on the following day, her sister told her that accused Sankar Roy had committed rape on her. The evidence of PW1, thus, lends substantial support to the evidence of PW4. 15. As far as PW2, father of PW1 and PW4, is concerned, his evidence is material, because of the fact that he, too, was reported, at the hospital, by PW4 that the accused had committed 'rape' on her and this part of the evidence of PW2, too, remained unshaken. Even the evidence of PW1, given to the effect that PW4 had reported, at the hospital, as indicated above, that the accused had committed rape on her, remained wholly unshaken in the cross-examination by the defence. 16. Close on the heels of evidence of PWs 1, 2 and 4, is the evidence of the doctor (PW5), who examined PW4 in the hospital and found, as indicated above, contusion oh both the edges of the tear of her vagina with clotted blood and fresh blood on vulva, vagina and cloth. The evidence of PW5 is also ample proof of the fact that force had been applied on PW4. 17. Situated thus, it becomes clear that the prosecution has adduced sufficient evidence proving beyond reasonable doubt that the accused-appellant had subjected PW4 to 'rape' and committed thereby an offence punishable under Section 376 IPC. The conviction of the accused-appellant cannot, therefore, be interfered with. 18. As far as the sentence, passed against the accused-appellant, is concerned, I have already mentioned that he has been sentenced to seven years of rigorous imprisonment, which is the minimum punishment prescribed for an offence under Section 376 IPC. The conviction of the accused-appellant cannot, therefore, be interfered with. 18. As far as the sentence, passed against the accused-appellant, is concerned, I have already mentioned that he has been sentenced to seven years of rigorous imprisonment, which is the minimum punishment prescribed for an offence under Section 376 IPC. The accused-appellant has also been sentenced to pay a fine of Rs. 5,000/- and, in default, to suffer simple imprisonment for six months. 19. This Court is, however, of the view that in the facts and attending circumstances of the present case, the accused-appellant, in the case of default in payment of fine, ought to have been sentenced to simple imprisonment for three months. 20. In the result and for the reasons discussed above, while maintaining the conviction of the accused-appellant under Section 376 IPC, his sentence is modified to the extent that he is hereby directed to undergo simple imprisonment for a period of three years if he fails to pay fine of Rs. 5,000/-. 21. With the above modification in the sentence, the appeal shall stand disposed of. Send back the LCR.