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2012 DIGILAW 533 (GAU)

Deuti Gogoi @ Jogesh Gogoi v. State of Assam

2012-04-30

UJJAL BHUYAN

body2012
JUDGMENT Ujjal Bhuyan, J. 1. This appeal has been preferred by the two accused appellants against the judgment and order dated 27.04.2004 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 31 (DH)/2002 convicting them u/s 376(2)(g) and 448 of the Indian Penal Code (IPC) and sentencing each of them to suffer rigorous imprisonment (RI) for 10 years and to pay fine of Rs. 10,000/-, in default, further R1 for 6(six) months each for the first offence and to suffer R1 for 6(six) months each for the second offence, both sentences to run concurrently. The facts of the case may be briefly noted. 2. One Shri Dharani Deka lodged a first information before the Officer-in-Charge, Dhemaji Police Station on 03.02.2001 alleging that at around 12 noon of that day while his sister Smt. Beauty Deka was alone in his house, two youths entered into his house and committed rape on her. The said information was treated as FIR and on the basis of the same, Dhemaji P.S. Case No. 10/2001 under Section 448/376/34 IPC was registered. In the course of the investigation, the police arrested some persons including the two accused. The victim identified both the accused in the test identification parade (TIP), which was conducted in the Dhemaji district jail. On completion of the investigation, the police submitted charge-sheet against both the accused persons under Section 448/376(2)(g)/34 IPC. Being exclusively triable by a Court of Session, the case was thereafter committed to the Court of the learned Sessions Judge, Dhemaji, whereupon it was registered as Sessions Case No. 31(DH)/2002. 3. A prima facie case having been found against the two accused, the learned trial Court framed charge against them under the aforesaid sections, to which they pleaded not guilty and claimed to be tried. In the course of the trial, the prosecution examined as many as 12 witnesses. The defence side also examined 5 witnesses. Their plea was that of total denial. On perusal of the evidence adduced and after hearing both the sides, the learned Sessions Judge convicted both the accused under the aforesaid two provisions and sentenced them as indicated above. 4. Heard Dr. Y. K. Phukan, learned Senior Counsel appearing for the appellants as amicus curiae, assisted by Ms. K. Baruah, learned counsel. Also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam for the State. 5. Dr. 4. Heard Dr. Y. K. Phukan, learned Senior Counsel appearing for the appellants as amicus curiae, assisted by Ms. K. Baruah, learned counsel. Also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam for the State. 5. Dr. Phukan, learned senior counsel fairly submits that from the evidence on record, it will be difficult to dislodge the finding of guilt recorded by the learned Court below. He, however, contends that the learned Court below went wrong in treating the offence as a case of gang rape which led to the imposition of the minimum sentence of 10 years. According to him, the appellants are in jail since 27-04-2004 and during the investigation stage also, they were in custody for 23 days. He, therefore, submits that the sentence should be reduced to the period already undergone and the appellants be directed to be released accordingly. 6. Mr. Munir, the learned Additional Public Prosecutor on the other hand submits that there is no infirmity in the findings given by the learned Sessions Judge, who rightly convicted the appellants under Section 376(2)(g) as well as under Section 448 IPC. In so far the sentence is concerned, he submits that even in a case of gang rape, as per the first proviso to sub-section (2) of section 376 IPC, the Court has the discretion to impose a lesser sentence but the same must be for adequate and special reasons. 7. In view of the submissions made by the learned counsels, the scope of this appeal has considerably narrowed down. Since the conviction and sentence under Section 448 IPC has not been questioned, the same has not been gone into by the Court. The moot question which now confronts the Court is whether it was a case of rape or gang rape and whether the sentence imposed should be reduced to the period undergone. To answer this question, a brief survey of the relevant evidence adduced may be necessary. 8. At that outset, let us examine the evidence of the prosecutrix herself. She is PW-9. She stated that at the time of occurrence she was staying at the official quarter of her elder brother, the informant PW-1, who was serving at the relevant time in the police wireless station. On the fateful day, both her brother and sister-in-law, who is a school teacher, went to attend their duties. She was alone at home. She stated that at the time of occurrence she was staying at the official quarter of her elder brother, the informant PW-1, who was serving at the relevant time in the police wireless station. On the fateful day, both her brother and sister-in-law, who is a school teacher, went to attend their duties. She was alone at home. At about 12 noon, while she was watching television, the two accused persons, whom she could identify as the two persons standing in the dock, entered into the house/room and closed the door. Thereafter, they committed rape on her. Before leaving, the accused threatened her not to inform anybody. Though her brother came home in the afternoon for lunch, she did not inform him out of fear and shame. In the evening, when her sister-in-law came home from school, she informed her about the whole incident, who in turn reported the matter to her husband, the PW-1. Thereafter, the PW-1 lodged the FIR. She has stated that the police recorded her statement on the same evening and that she had told the police that she would be able to identify the accused if they were produced before her. She was examined by the doctor PW-8 at the Dhemaji Civil Hospital on the next day. Her inner wear was seized by the police vide the Ext-2 seizure list, which was subsequently sent for forensic examination. Her statement was also recorded a couple of days after the incident on 05.02.2001 by the Judicial Magistrate u/s 164 of the Code of Criminal Procedure (Cr.P.C), which was exhibited as Ext.5. In that statement, she stated in clear and specific terms about the incident and gave vivid description of the accused persons. She stated that after a few days, she was taken to the Dhemaji jail where she could identify the two accused from about 50 boys in the TIP conducted in the presence of the Magistrate. She was categorical in saying that the two persons standing in the dock were the persons she had identified in the TIP and they were the persons who had committed rape on her. Pointing towards the appellant No. 1, she stated that he was the one who had gagged her mouth. 9. The evidence of the prosecutrix PW-9 is clear, specific and unwavering. Pointing towards the appellant No. 1, she stated that he was the one who had gagged her mouth. 9. The evidence of the prosecutrix PW-9 is clear, specific and unwavering. There is complete corroboration between her exhibit-5 statement recorded under Section 164 Cr.P.C. and her deposition is Court. There is no reason to disbelieve her evidence. Though it is a settled legal proposition that conviction on a charge of rape can be maintained on the sole testimony of the prosecutrix, nevertheless, in the present case, her evidence stood corroborated by the evidence of the other witnesses, including the medical evidence. In such circumstances, in the considered opinion of this Court, the charge of rape against the two accused stood conclusively proved. 10. Having held the two guilty of committing rape, the next question which therefore arises for consideration is whether it was a case of gang rape. Gang rape is not defined in the IPC. Under section 376(2)(g), it is provided that whoever commits gang rape shall be punished with RI for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Under the proviso, for adequate and special reasons to be mentioned in the judgment, the Court may impose a lesser sentence. As per Explanation 1, where a woman is raped by one a more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of the said sub-section. 11. From a reading of the above explanation, it is clear that when a woman is subjected to rape by even one person from out of a group of persons acting in furtherance of their common intention, each of the persons of that group would be deemed to have committed gang rape. A group of persons to constitute a gang would mean a body of several persons. The ordinary dictionary meaning of the word gang is an organized group of people. Group means a number of people located, gathered or classed together. According to the Black's Law Dictionary, Sixth Edition, a gang means any company of persons who go about together or act in concert, mainly for criminal purpose. Company would mean a group or body of people acting together. Group means a number of people located, gathered or classed together. According to the Black's Law Dictionary, Sixth Edition, a gang means any company of persons who go about together or act in concert, mainly for criminal purpose. Company would mean a group or body of people acting together. Therefore, to form a gang, there certainly has to be more than two members. To constitute the offence of gang rape, there must be a group of several persons i.e., at least more than two persons, acting in furtherance of their common intention to commit rape on the victim woman and even if one out of the group had actually committed the offence of rape, each of the persons of the group shall be deemed to have committed the said offence. 12. In the present case, the two appellants committed rape on the prosecutrix. No other person accompanied the two appellants. The evidence on record does not indicate that the two appellants were members of a group or a gang and in furtherance of their common intention, the two had committed rape on the victim woman. Therefore, in view of the discussions made above and in the considered opinion of this Court, though the two appellants had committed the offence of rape, it was not a case of gang rape. Considering the same, the conviction of the appellants is altered from 376(2)(g) IPC to one under Section 376(1) IPC. 13. There is one more aspect which needs to be noted. The learned trial Court on the same day on which he convicted the two accused persons, heard them on the point of sentence and imposed the sentence. Considering the seriousness of the offence for which the appellants were convicted and the severity of the sentence which awaited them, the learned trial Court ought not to have passed the sentence on the day of conviction itself without giving adequate time and opportunity to the accused to make submissions on the sentence, as even in a conviction under Section 376(2)(g), discretion is with the Court to impose a sentence lesser than the minimum prescribed. 14. The two appellants are young men and they were in their early twenties when they committed the offence. They are now serving their sentence since 27.04.2004 i.e., for more than 8(eight) years. During the investigation stage also, they were in custody for some days. 15. 14. The two appellants are young men and they were in their early twenties when they committed the offence. They are now serving their sentence since 27.04.2004 i.e., for more than 8(eight) years. During the investigation stage also, they were in custody for some days. 15. Considering the above, the sentence imposed is reduced to the period already undergone by the appellants. 16. The appeal accordingly stands allowed to the extent indicated above. The appellants are directed to be released forthwith. 17. Before parting with the record, this Court would like to place on record its appreciation of the assistance rendered by the learned amicus curiae. 18. Registry to send down the LCR. No cost. Appeal allowed.