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2013 DIGILAW 222 (GAU)

Jumur Dhar v. State of Assam

2013-03-22

P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. Heard Mr. T.J. Mahanta, learned counsel, appearing for the appellant, and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. This appeal is directed against the judgment and order, dated 05.02.2010, passed, in Sessions Case No. 188(K) of 2007, by the learned Additional Sessions Judge, (FTC) No. 1, Kamrup, Guwahati, convicting the appellant and sentencing him to undergo rigorous imprisonment for 2 (two) years, and to pay fine of Rs. 15,000/- only, in default of payment of fine, rigorous imprisonment for 6 (six) months under Section 354 of the IPC. 2. The prosecution case, in brief, is that one Ruma Deb Nath lodged an FIR with the Officer-in-Charge, Geetanagar Police Station, on 08.05.2007, to the effect that on 04.05.2007, at about 1:30 p.m., the appellant took her minor daughter, aged about 3 (three) years 9 (nine) months, to his house and with the help of his wife, assaulted her minor daughter and caused injury to her private part. On the basis of the said FIR, a case being Geetanagar P.S. Case No. 72 of 2007, was registered, under Section 376(2)(f), IPC. 3. Formal investigation was made and during investigation, the statement of the victim girl was recorded. She was medically examined by a medical officer. After completion of the investigation, charge-sheet was laid against the appellant, under Section 376(2)(f), IPC. To the charge, so framed, against the appellant, under the aforesaid Section of law, the appellant denied the charge, pleaded not guilty and claimed to be tried. Accordingly the appellant stood the trial. In the trial, the prosecution examined 6 (six) witnesses, including the victim girl and the medical officer. The appellant after examination, under Section 313, Cr.P.C. was offered chance to adduce evidence, but he declined to adduce any witness in his defence. On the basis of the materials and evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. 4. I have perused the FIR, statement of victim girl recorded under Section 164, Cr.P.C. and her deposition before the learned trial Court. In the FIR, it has been mentioned that the appellant on threat and with the help of his wife lifted the victim girl and caused serious injury on her private part. There is no allegation in the FIR that the appellant committed rape by force on the victim girl. In the FIR, it has been mentioned that the appellant on threat and with the help of his wife lifted the victim girl and caused serious injury on her private part. There is no allegation in the FIR that the appellant committed rape by force on the victim girl. In the statement of the victim girl, under Section 164, Cr.P.C. she has not stated that the appellant committed rape on her. She reiterated what she stated in the FIR Coming to the evidence of the victim girl as PW 5, I find mat she has not stated anything about commission of rape on her, except being hurt on her private part. 5. I have also gone through the evidence of the medical officer (PW 6), who examined the victim girl. He testified that he prepared a report, i.e., Ext. 2. The relevant portion of his medical report is quoted hereunder: (i) Valva swollen tender on touch and red in colour. (ii) Hymen tender on touch red in colour and admits only tip of the little finger. (iii) Vagina consist not visualized. (iv) Two glass slide smlar prepared from around valve- examination of slide did not slow present of any gonococci and sperinetezea. 6. In the said report, the medical officer opined that (i) there was evidence suggestive of attempted sexual intercourse (ii) No injury was detected on her body and private parts. In cross-examination, he stated that from the medical examination, it was difficult to ascertain whether there was penetration or not, however, he stated that it cannot be treated as an injury. On apprehension of the evidence on record, I find that there is no case of rape on the victim girl. The learned trial Court rightly acquitted the appellant under Section 376(2)(f), IPC and equally rightly converted the aforesaid charge under Section 376(2)(f), IPC to Section 354, IPC, and no interference with the impugned judgment is called for. The appellant stands convicted under Section 354, IPC. However, so far the sentence imposed is concerned, I am of the considered view that interest of the justice would be met, if the sentence to undergo rigorous imprisonment for 2 (two) years and payment of fine of Rs. 15,000/- is reduced or converted to fine of Rs. 15,000/- only with payment of Rs. 15,000/- as compensation to the victim girl. 15,000/- is reduced or converted to fine of Rs. 15,000/- only with payment of Rs. 15,000/- as compensation to the victim girl. The appeal stands partly allowed with the aforesaid modification in the sentence. 7. The aforesaid fine of Rs. 15,000/- and compensation of Rs. 15,000/- shall be deposited by the appellant before the trial Court within a period of 4 (for) months from today. The compensation amount of Rs. 15,000/- shall be paid to the victim through the guardian. The learned trial Court shall see that the said compensation amount is deposited in the name of the victim girl in a fixed deposit or other beneficial financial scheme of a nationalized bank. Return the LCR.