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2012 DIGILAW 591 (GAU)

Nuralam v. State of Assam

2012-05-15

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By the judgment and order, dated 19.02.2005, passed by the learned Sessions Judge (FTC), Bongaigaon, in Sessions Case No. 40(A)/2004, the accused-appellant, while being acquitted of the offence under Section 417 IPC, stands convicted of the offence of rape punishable under Section 376 IPC, and sentenced, for his conviction under Section 376 IPC, to suffer rigorous imprisonment for 7 (seven) years and pay fine of Rs. 2,000/- and, in default of payment of fine, to undergo rigorous imprisonment for a further period of 1 (one) year. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus : The accused and the informant (hereinafter referred to as 'KH') are co-villagers and, being known to each other, they developed love affair. The accused often visited the house of the complainant, 'KH', and, about four months preceding 25th May, 2004, the accused came to the house of 'KH', at about 7-00 p.m., when 'KH' was alone at her home, and forcibly had sexual intercourse with her and also threatened her that if she disclosed the fact that he had sexual intercourse with her, he would kill her. Out of fear, 'KH' did not inform anyone about the incident. Thereafter, on 25.05.2004, the accused took her to his house by telling her that he would marry her; but when they reached the house of the accused, the father of the accused assaulted the accused and turned him out of the house. However, 'KH' remained at the parental house of the accused for the night on 25.05.2004. This was followed by a 'Mel' (meeting of the elder persons for settling of dispute) at the instance of the father of the accused, wherein the accused, too, was present and, in the said meeting, the accused told that he would marry 'KH', but his parents did not agree thereto and the accused left the place of the meeting, whereupon 'KH' made a complaint, in the Court of the Sub-Divisional Judicial Magistrate, Abhayapuri, and her complaint was sent to the police. Based on the said complaint and, treating the same as the First Information Report (in short, 'FIR'), a case was registered against the accused under Sections 493/373/420/417/34 of the IPC. On completion of investigation, police laid charge-sheet against the accused-appellant under the said penal provisions. 2. Based on the said complaint and, treating the same as the First Information Report (in short, 'FIR'), a case was registered against the accused under Sections 493/373/420/417/34 of the IPC. On completion of investigation, police laid charge-sheet against the accused-appellant under the said penal provisions. 2. To the charges framed against him, under Sections 376 and 417 IPC, at the trial, the accused pleaded not guilty. In support of their case, prosecution examined as many as seven witnesses. The accused was, then, examined under Section 313 CrPC, wherein the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. On completion of trial, the learned trial Court, having found the accused not guilty of the offence under Section 417 IPC, acquitted him accordingly; but, on finding the accused guilty of the charge, framed against him under Section 376 IPC, convicted him and accordingly passed sentence against him as mentioned above. 3. I have heard Mr. J. Ahmed, learned counsel for the accused-appellant, and Mr. K. A. Majumdar, learned Additional Public Prosecutor, Assam. 4. While considering the present appeal, it needs to be noted that the evidence of PW1 (KH) is pivotal in nature inasmuch as to the occurrence of rape, no witness other than PW1 was, according to the prosecution's case, present at the place of occurrence. The evidence of PW1 is, therefore, being of prime importance, needs to be taken for discussion before one enters into the discussion of the evidence of the remaining witnesses. 5. According to the evidence of PW1 (KH), she had known the accused and that she and the accused had developed love affair two years before from the date of occurrence. 6. Describing the occurrence, PW1 has deposed that about four months preceding the day of occurrence, one day, at about 7-00 p.m., when she was alone in her house, the accused came to her house and forcibly had sexual intercourse with her and also threatened her not to disclose the matter to anyone, or else, he would kill her. 7. 6. Describing the occurrence, PW1 has deposed that about four months preceding the day of occurrence, one day, at about 7-00 p.m., when she was alone in her house, the accused came to her house and forcibly had sexual intercourse with her and also threatened her not to disclose the matter to anyone, or else, he would kill her. 7. With regard to what had happened on 25.05.2004, PW1 (KH) has deposed that, on 25.05.2004, the accused took her to his parents' house and, on reaching there, the accused informed his parents that he would marry PW1, but the father of the accused turned him out of the house, however, PW1 remained in the house of the parents' of the accused for the night, whereupon a 'Mel' was convened at the instance of the father of the accused and, in the said meeting too, the accused said that he would marry PW1, but his parents did not agree and the accused left the place of the meeting and, thereafter, she (PW1) lodged a complaint in the Court of the Sub-Divisional Judicial Magistrate, Abhayapuri, which is 'Exhibit 1'. It is also in the evidence of PW1 that she was examined by a doctor on her being referred to by the police for medical examination, 8. In her cross-examination, though PW1 has admitted that the accused had sexual intercourse with her, even on 25.05.2004, on the way to his house from the house of PW1. However, the defence has denied that the accused-appellant had taken PW1 (KH) to his parents' house on 25.05.2004. 9. What is, however, of great significance to note, now, is that, in response to the question put to her by the defence, PW1 has clearly deposed that on the day of the occurrence, the accused had entered into her bedroom through window, had sexual intercourse with her and threatened her that he (the accused) would kill her if she (PW1) reported that he had sexual intercourse with her. Surprisingly enough, there is no denial of the fact by the defence, while cross-examining PW1, that the accused had come to the house of PW1, as described by PW1, when she was alone and forcibly had sexual intercourse with her and threatened her that he would kill her if she disclosed the matter to anyone. Surprisingly enough, there is no denial of the fact by the defence, while cross-examining PW1, that the accused had come to the house of PW1, as described by PW1, when she was alone and forcibly had sexual intercourse with her and threatened her that he would kill her if she disclosed the matter to anyone. Thus, the material aspects of the evidence of PW1 have remained wholly unchallenged and, in fact, stand admitted. What has been denied by the defence is that the accused had sexual intercourse with her; but, with regard to description of the occurrence, as indicated hereinbefore, there is absolutely no denial. 10. What emerges from the above, if I may point out, once again, is that the evidence, given by PW1, to the effect that the accused had gone to her house, when she was alone, and forcibly had sexual intercourse with her and threatened her not to disclose to anyone that he had sexual intercourse with her, or else, he would kill her, have all remained undisputed and the omnibus denial is that the accused did not have sexual intercourse with PW1 (KH). It is to be noted, in this regard, that there is no enmity, alleged or discernible from the evidence on record, between the accused and PW1. 11. Situated thus, the evidence of PW1 cannot be ignored, discarded or disbelieved and her evidence, if believed, which I see no reason not to believe, is clinching and sufficient to hold that the accused-appellant did have sexual intercourse with PW1 against her will. 12. While coming to the medical evidence on record, given by the doctor (PW4), it transpires that, according to him, the hymen of PW1 was found normal in shape and size and there was no tear or inflammation on the hymen. What is, however, necessary to note is that penetration is sine qua non for the offence of rape. There must be convincing evidence on record that some part of the virile member of the accused was within the labia of the pudendum of the female person, no matter how little such part was within the labia of the pudendum. What is, however, necessary to note is that penetration is sine qua non for the offence of rape. There must be convincing evidence on record that some part of the virile member of the accused was within the labia of the pudendum of the female person, no matter how little such part was within the labia of the pudendum. What is, however, of utmost importance to note is that rupture of hymen is not at all necessary for the purpose of constituting the offence of rape inasmuch as even slightest penetration, in the vulva, is sufficient to constitute the offence of rape. Vulva penetration, with or without violence, is as much rape as vaginal penetration. The statute demands evidence of penetration howsoever little it may be and this may occur even with the hymen remaining intact. One may, in this regard, refer to the case of Aman Kumar Vs. State of Haryana, reported in (2004) 4 SCC 379 , wherein the relevant observations appearing read as under : 7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893)...........The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC. (Emphasis is added) 13. As far as PW2 and PW3 are concerned, both of them gave evidence to the effect that they had seen PW1 KH in the house of the accused. The evidence, so given by PW2 and PW3, have also remained unshaken. 14. As far as PW5 is concerned, he is father of PW1 (KH). According to his evidence, the accused is his own nephew. He has also deposed that on 25.05.2004, at about 7-00 p.m., the accused took his daughter (KH) to his (accused) house, whereupon the father of the accused called a 'Mel' in the village. 14. As far as PW5 is concerned, he is father of PW1 (KH). According to his evidence, the accused is his own nephew. He has also deposed that on 25.05.2004, at about 7-00 p.m., the accused took his daughter (KH) to his (accused) house, whereupon the father of the accused called a 'Mel' in the village. In the said 'Mel', the accused admitted that he took KH to his house to marry her, but the father of the accused did not agree to the marriage between KH and the accused and, then, KH filed case in the Court of the SDJM, Abhayapuri, and, from the Court, the case was sent to the police and police examined KH by a doctor. 15. Coming to the evidence of PW7, who is the Investigating Officer, it may be noted that on 02.06.2004, while he was posted at Abhayapuri Police Station, the Officer-in-Charge, Abhayapuri Police Station, received an Ejahar through toe SDJM, Norm-Salmara/Abhayapuri, filed by KH, and accordingly Abhayapuri Police Station Case No. 124/2004, under Sections 493/396/420/417/34 IPC, was registered and, on being entrusted by the Officer-in-Charge of the said Police Station with investigation, he (PW7) launched investigation and visited the place of occurrence and recorded the statements of the victim (PW1) and other witnesses and, thereafter, he sent the victim (PW1) for medical examination and for getting her statement recorded by the Court. Thereafter, he arrested the accused and forwarded him to Court and, after completion of investigation, he submitted charge-sheet against the accused under Sections 493/376/420/427/34 IPC, Exhibit 4 being the charge-sheet. 16. While considering the evidence of the prosecution witnesses, as considered by the learned trial Court, it is to be noted that that the learned trial Court has recorded that the evidence of PW1 is natural, consistent and inherent. 17. 16. While considering the evidence of the prosecution witnesses, as considered by the learned trial Court, it is to be noted that that the learned trial Court has recorded that the evidence of PW1 is natural, consistent and inherent. 17. Though it has been contended, on behalf of the accused-appellant, that even if there was sexual relationship between the accused-appellant and PW1, the relationship was with the consent of PW1, what cannot be ignored, as already indicated above, is the fact that the evidence of PW1, given to the effect that the accused came to her house, when she was alone, and forcibly had sexual intercourse with her and also threatened her not to disclose to anyone that he had sexual intercourse, or else, he would kill her, has remained unchallenged by the defence except a bald denial that the accused did not have sexual intercourse with her. 18. It is already seen from the above discussion that it is possible to commit the offence of rape without the hymen having been ruptured. Though such cases may be rare, the present one cannot, but be regarded as one of the rare cases. If the evidence of PW1, which is, otherwise, relevant, believable, reliable and trustworthy, which I have seen no reason to disbelieve, there can be no escape from the conclusion that the accused, having had forcibly sexual intercourse with PW1 (KH), threatened her not to disclose the said fact to anyone, or else, she would be killed, committed the offence of rape and has, therefore, been rightly convicted of the offence under Section 376 IPC. 19. Because of what have been discussed and pointed out above, I do not find that the conviction of the accused-appellant suffers from any infirmity, legal or factual. Even the sentence of the accused-appellant is minimum and cannot be interfered with. 20. In the result and for the foregoing reasons, I do not find any merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed. Send back the LCR. Appeal dismissed.