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2013 DIGILAW 223 (GAU)

Bijoy Mudoi v. State of Assam

2013-03-22

P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. Heard Ms. R. Devi, learned counsel for the appellant and Mr. K.A. Mazumdar, learned Addl. P.P., Assam, for the respondent State. This appeal has been preferred against the judgment and order dated 17.8.2010 passed by the learned Assistant Sessions Judge, Golaghat, in Sessions Case No. 126/2009 convicting the accused appellant under Section 376/341 IPC and sentencing him to undergo rigorous imprisonment for 7 years and pay a fine of Rs. 3,000/- and in default another R.I. for 6 months under Section 376 IPC and simple imprisonment for 6 months under Section 341 IPC. 2. Briefly stated, the prosecution case is that on 22.5.2009 at about 9-30 A.M. while the informant's daughter was proceeding to attend her school alongwith two other friends, on the way, the appellant who belongs to the same village, intercepted and forcefully dragged her away towards the jungle situated near the public road and committed rape on her. Returning home she reported the matter to her father (informant), who filed the written FIR on 27.5.2009. The police registered a case being Dergaon P.S. Case No. 63/2009 under Section 341/376 IPC against the appellant. The victim was medically examined on 28.5.2009 and her statement was recorded by Magistrate under Section 164 Cr. P.C. on 28.5.2009. On completion of the investigation the I.O. laid charge sheet and the case was committed to the Court of Sessions, Golaghat. The Assistant Sessions Judge framed charge against the appellant under Section 341/376 IPC to which the appellant pleaded not guilty and claimed to be tried. Accordingly he stood the trial. The prosecution examined 12 witnesses including the victim and the medical officer. The appellant examined none in his defence maintaining complete denial of charge. In his statement under Section 313 Cr. P.C. the appellant stated that the informant brought false allegation due to family enmity on some matters. 3. I have carefully gone through the evidence on record. It is noticed that the FIR was lodged by the informant PW 1 on 27.5.2009 i.e. after five days from the date of occurrence which took place on 22.5.2009. The delay in lodging the FIR has been explained stating that as he was alone in family, he first approached the villagers for discussion but yielded no result. This explanation was found to be very vague and not satisfactory. Such explanation of delay in casual manner cannot be accepted. The delay in lodging the FIR has been explained stating that as he was alone in family, he first approached the villagers for discussion but yielded no result. This explanation was found to be very vague and not satisfactory. Such explanation of delay in casual manner cannot be accepted. Due to delay in filing the FIR there occasioned a delay in examining the victim by the medical officer. She could be examined only 28.5.2009 i.e. after 6 days from the date of occurrence. 4. The medical officer, who examined the victim girl, was produced as PW 8. He testified that he examined the victim girl and prepared the medical report, Ext. 6. He proved the said report and his signature thereon as Ext. 6(1). The following is the relevant portion of the medical report: Identification mark: Mole over right shoulder. Build: average Height: 148 CM Weight: 38 Kg Teeth: 14/13 Breast: Developed. No any injury seen. Auxiliary hair: Moderate Pubic hair: Moderate and discrete External Genitalia: Developed, No injury seen. Introitus accommodate two fingers. Hymen: ruptured and old healed post tear seen. X-Ray of right elbow and wrist, No. 4632. Vaginal smear for spermatozoa: No spermatozoa seen Lab. No. 53 In the aforesaid report, the medical officer opined that the age of the girl was above 18 years and there was no sign of recent sexual intercourse. He also opined that there was no recent injury on her body or private part. Hymen was found ruptured and old healed post tear seen. She had the introitus which accommodates two fingers. Although the medical officer did not mention in the report-that she was habituated to sexual intercourse, she is found to be so, given the report that her introitus accommodates two fingers. 5. On close scrutiny of the evidence of PW 2 (victim girl), it is found that she was going to school in a bi-cycle alongwith two other friends (girls) and she was behind the aforesaid two girls. The appellant stopped her and dragged to nearby jungle situated near the public road. According to her own statement she was detained by him from 9-30 A.M. to 2 P.M. and she was being subjected to sexual intercourse twice. She was not allowed to come away from him. The appellant stopped her and dragged to nearby jungle situated near the public road. According to her own statement she was detained by him from 9-30 A.M. to 2 P.M. and she was being subjected to sexual intercourse twice. She was not allowed to come away from him. During this period from 9-30 A.M. to 2 P.M. she was made to lie on the ground and asked not to raise any hue and cry. She admitted that while she was dragged away by the appellant, her friends did not intervene and none came forward. 6. PW 6, Rupali Bora, in her evidence stated that she knows the victim girl as she is from the same village. On the day of occurrence at about 9-30 A.M. she was proceeding to school alongwith Dhonmoni Saikia, PW 7, and Jonali Medhi in bi-cycle. The victim girl was following them and when she was stopped by the appellant, she asked them to proceed telling them that she would be coming after them. In cross examination she has stated that on the way to school on the day of occurrence the victim girl stopped as she met the appellant. The other girl, Dhonmoni, has been examined as PW 7. She stated that the appellant belongs to their village and she knows the appellant. She further stated that on the day of occurrence, she was going to school in a bi-cycle alongwith Rupali PW 6 and the victim. The victim was following them. They saw the appellant waiting on the roadside. On the day of occurrence the victim did not go to the school. The defence declined to cross-examine this witness. 7. PW 1 is the informant Sri Deben Bora. He is the father of the victim. He stated that the age of her daughter was about 15 years on the day of occurrence. He stated that after returning from school at about 2-30 P.M. the victim girl reported the matter to him. She gave a detailed information to him about the incident of rape on her by the appellant. She approached the village headman Tulsi Saikia seeking justice and the said village headman inquired from his daughter about the incident. The village headman also went to the house of the appellant to enquire about the matter. He himself met the appellant's father and told him about the misdeed of his son. She approached the village headman Tulsi Saikia seeking justice and the said village headman inquired from his daughter about the incident. The village headman also went to the house of the appellant to enquire about the matter. He himself met the appellant's father and told him about the misdeed of his son. A meeting was held in that regard on 24.5.2009. The accused did not turn up to the meeting although his father was present. As the accused appellant did not participate in the said meeting, the villagers advised him to take the help of police. The police investigated the matter and recorded his statement. In cross-examination he stated that there was an enmity between the appellant's and informant's family over some family matters. 8. The father of the accused appellant, Bhogeswar Mudoi, was examined as PW 11. He stated, amongst other, that the village meeting was called but he was not invited and so he does not know about the said meeting. However he stated that the meeting was held as the son teased a girl. He also stated that he had enmity with the informant for a long time. They had no talking terms. He was declared hostile. 9. In his statement under Section 313 Cr. P.C., the appellant stated, amongst other, that his family had a long drawn dispute with the informant and so a false case was filed against him out of enmity. 10. From the above medical evidence it is an established factual position that the victim girl was major at the time of occurrence and there existed enmity between the two families for a long time. 11. From the evidence of PW 6 and PW 7, it has also been established that on the date of occurrence, the victim girl was proceeding to school but she was going behind them in a bi-cycle. They met the appellant on the way and the victim girl stopped on the way and had a conversation with the appellant. These two witnesses (PW 6 and PW 7) had no knowledge what happened after they left the victim girl but they had stated clearly that she did not come to the school on the day of occurrence. In the evidence of these two witnesses, it is also found that the victim girl herself asked them to proceed ahead to school. These two witnesses (PW 6 and PW 7) had no knowledge what happened after they left the victim girl but they had stated clearly that she did not come to the school on the day of occurrence. In the evidence of these two witnesses, it is also found that the victim girl herself asked them to proceed ahead to school. She told them that she would be coming to school after a while but she did not come to school after meeting the appellant on the way. 12. From the evidence of the victim girl, it is found that she was taken to nearby jungle by the appellant and she was with him from 9-30 A.M. to 2 P.M. She was more than 4 hours with the appellant and as per her own statement the appellant committed rape on her twice. She claimed to have resisted the appellant but she failed. She was asked not to make noise. She resisted the appellant because she did not feel like having sex with the appellant. But, she has not stated that she strongly resisted the appellant and made noise or hue and cry to save herself. What could be understood from the evidence of the victim is that she was reluctant to indulge in sexual intercourse with the appellant because the place where they met was nearby a public road and it was not thought proper by her to have sex at such place. However, as per her own evidence she submitted to the appellant and indulged in sexual intercourse twice during the period of long 4 hours. Reluctance to sexual intercourse does not mean that she was not a consenting party. She had, in fact, consent to the sexual intercourse with the appellant. It is noticed that the victim girl never stated that the appellant was carrying any arm and she was threatened by the appellant showing any arm if she does not agree to sexual intercourse with him. 13. As per the medical report and the evidence of the medical officer, it is more than certain that she was a consenting party inasmuch no injury was found on her private part or on any part of her person. It is found that no threat or force was used by the appellant while indulging in the sexual intercourse with her. As per the medical report and the evidence of the medical officer, it is more than certain that she was a consenting party inasmuch no injury was found on her private part or on any part of her person. It is found that no threat or force was used by the appellant while indulging in the sexual intercourse with her. Moreover, it appears from medical report that the victim was habituated to sexual intercourse. All the above evidence on record clearly indicates, rather, proves that the appellant had sexual intercourse with due consent of the victim girl and in my considered view, no charge of rape within the meaning of Section 341/376 IPC has been established. 14. In view of the above, I do not agree with the conclusion and finding arrived at by the learned trial Court. The conviction and sentence under Section 376/341 IPC as ordered by the trial Court is not tenable under the law. Accordingly the impugned judgment and order dated 17.8.2010 is quashed and set aside. The appellant is acquitted. 15. Appeal is allowed. Bail bond of the appellant who is on bail stands cancelled. Return the LCR. Appeal allowed.