Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 712 (GAU)

Purno Bdr. Sonar v. State of Arunachal Pradesh

2013-09-27

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment and order dated 26.12.2012 passed in Sessions Case No. 21/L/2012 arising out of Pasighat P.S. Case No. 69/2006 convicting the accused appellant under Section 376 IPC and sentencing him to undergo RI for 5 years with a fine of Rs. 10,000/- and in default to undergo further RI for 4 months. The period of detention already undergone shall be set off as per Section 428 Cr.P.C. On the basis of the FIR dated 10.8.2006 lodged by the PW-2 with the O/C Pasighat Police Station, Pasighat P.S. Case No. 69/2006 was registered against the accused- appellant under Section 448/506/376 IPC. In the FIR, it was alleged that on 16.7.2006 the accused appellant coming to the house of the first informant committed rape on her daughter aged about 13 years taking advantage of the absence of the other members of the family. According to the FIR, the accused appellant thereafter also committed rape on the victim girl on the following Sunday also. 2. Pursuant to registration of the aforesaid Pasighat P.S. Case No. 69/2006, the police carried out the investigation, during which the victim girl was examined and forwarded for medical examination to General Hospital, Pasighat. It also took the statement of the available witnesses. The accused was arrested on 10.8.2006. On completion of the investigation, the I/O submitted charge sheet against the accused on 9.10.2006 under Section 448/506/376 IPC. The case being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, 1st Class committed the case to the then Court of Sessions, Pasighat for trial and disposal. Thereafter the case proceeded in the Court of the learned Sessions Judge, East Sessions Division, Tezu, Lohit district and by the impugned judgment and order dated 26.12.2012, the accused appellant having been convicted and sentenced as aforesaid, he has preferred the present appeal. 3. In the Trial Court formal charge was framed against the accused appellant under, Section 376 and 506 IPC. The charge were read over and explained to the accused to which he pleaded not guilty. During trial, prosecution examined 5 witnesses and also exhibited 6 documents. PW-1 and 2 are the father and mother of the victim girl, while PW-3 is the victim girl herself PW-4 is the Doctor, who examined the victim girl. PW-5 is the I/O, who investigated the case. 4. Mr. During trial, prosecution examined 5 witnesses and also exhibited 6 documents. PW-1 and 2 are the father and mother of the victim girl, while PW-3 is the victim girl herself PW-4 is the Doctor, who examined the victim girl. PW-5 is the I/O, who investigated the case. 4. Mr. N. Danggen, learned counsel representing the appellant during the course of her persuasive argument referring to the evidence on record submitted that having regard to the facts and circumstances, more particularly, when the certificate pertaining to the age of the victim girl could not be proved as required under the law of evidence, the accused appellant is entitled to acquittal. In this connection, she has placed reliance on the two decisions of the Apex Court as reported in (2009) 6 SCC 681 (Ram Suresh Singh Vs. Prabhat Singh @ Shhotu Singh) and (2010) 4 SCC 491 (LICI Vs. Ram Pal Singh Bisen). In both the decisions, referring to the provisions of the Evidence Act, it was held that the documents must be proved in accordance with law. It was held that mere filing or exhibiting of a document in Court does not amount to prove its contents. These two decisions have been relied upon in view of the fact that in support of the age of the victim girl only Xerox copy of the school certificate was produced and exhibited. 5. Countering the above argument, Mr. K. Tado, learned P.P., A.P. submitted that having regard to the overwhelming evidence against the accused appellant in respect of the commission of the offence on the victim girl, the judgment on appeal is required to be sustained. 6. I have very carefully scanned the evidence on record in reference to the submissions made by the learned counsel for the parties. 7. Both the PW-1 and 2 in their depositions categorically stated as to how the accused appellant taking advantage of their absence from house committed the offence on their minor daughter. PW-1 in his deposition while stating that the victim daughter was only 13 years of age at the time of commission of the offence also stated that their said daughter narrated the incident to him. He, in his deposition stated that at the first instance, the victim did not disclose the incident due to fear, but later on she disclosed the same to them. He, in his deposition stated that at the first instance, the victim did not disclose the incident due to fear, but later on she disclosed the same to them. Referring to their children, this witness stated that while the victim girl was born in 1993, their 3rd, 4th and 5th child were born in 1995, 1996 and 1999. He also stated about seizure of the birth certificate by the police with the farther statement that the original certificate was with him at home. 8. PW-2 i.e. the first informant and the mother of the victim girl stated in her deposition as to how the incident occurred. She in her deposition stated about the age of the victim girl as 13 years at the time of commission of the offence. Narrating the incident, she in her deposition stated that the accused committed rape on her daughter on two different occasions. Initially the victim did not disclose the incident out of fear, but later on disclosed the same to her and she turn informed her husband i.e. the PW-1. 9. PW-3 is the victim girl, who in her deposition categorically stated about the incident. She stated that the accused committed the offence taking advantage of absence of the family members and while other children were playing outside. She in her deposition also stated about that the accused appellant after committing rape asked her not to disclose the same to her parents and threatened her that in the event of disclosing the same, he would kill her. 10. The aforesaid categorical statements of the PWs could not be contradicted in the cross examination. The variation and the purported contradiction pointed out by the learned counsel for the accused appellant are inconsequential, which are bound to be there in a criminal proceeding. The factum of commission rape on the victim girl stood clearly established on the basis of the testimony of the aforesaid three witnesses including the victim girl herself. 11. PW-4 in his deposition referred to his findings recorded on examination of the victim girl. The factum of commission rape on the victim girl stood clearly established on the basis of the testimony of the aforesaid three witnesses including the victim girl herself. 11. PW-4 in his deposition referred to his findings recorded on examination of the victim girl. As regards the opinion rendered by him that the victim was habitual to the act of sexual intercourse, he in his cross examination clarified that such opinion was in the context of the particular examination on the victim girl and as submitted by the learned P.P., A.P., the same was in view of the rape committed by the accused appellant on her. PW-5 is the I/O who in his deposition generally stated about the investigation carried out. Referring to the opinion of the doctor regarding age of the victim, he in his deposition stated that her age was in between 14 to 16 years. 12. The statement of the accused appellant was also recorded under Section 313 Cr.P.C. In the said statement, he denied the offence to have been committed by him and stated that he used to visit the house of the victim girl demanding return of Rs. 5,000/- which was due to him. According to him, there was quarrel between him and PW-2 because of which the FIR was lodged. However, no evidence was adduced by him to prove the said allegation and it remained a mere statement made under Section 313 Cr.P.C. 13. During trial, it was argued that there was delay in lodging the FIR and that there being no eye witness to the alleged offence, it was not a case for conviction. Dealing with the said pleas, the learned Sessions Judge has held that mere delay in lodging the FIR itself cannot lead to the inference that the incident stated in the FIR is concocted one. As discussed by the learned Trial Court, the offence was committed twice i.e. on 16th and 23rd July, 2006. However, the FIR was lodged on 10.8.2006. Such delay in lodging the FIR was due to the reasons that at the first instance the victim girl did not disclose the fact to her parents out of fear. However, subsequently on commission of the offence for the second time, she disclosed the fact to her parents. It was in such circumstances, learned Trial Court has held that the delay was sufficiently explained. 14. However, subsequently on commission of the offence for the second time, she disclosed the fact to her parents. It was in such circumstances, learned Trial Court has held that the delay was sufficiently explained. 14. It was argued by the learned counsel for the appellant that Xerox copy of the school certificate could not have been relied upon to testify the age of the victim girl. On being asked that even if the victim girl was more than 13 years of age, the same could not have permitted the accused appellant to commit an offence punishable under Section 376 IPC, she submitted that although it is the case of the accused appellant that he did not commit the offence, but even if it is assumed that he had committed the same, the victim being a consenting party, the correct assessment of the age of the victim girl would have been decisive. I am afraid such an argument is self contradictory. That apart, there is nothing to disbelieve the testimony of the PWs as regards her age, which was also duly corroborated by the school certificate and the opinion of the doctor. True it is that, Xerox copy of the school certificate was exhibited during trial, but the learned Trial Court was inclined to accept the declared age of the victim girl, more particularly when no dispute was raised regarding her age during trial by the accused appellant. 15. In the impugned judgment, the learned Sessions Judge has meticulously discussed the entire evidence on record and has also referred to the decisions of the Apex Court to the points raised. As regard the purported enmity with the family of the victim girl, the accused did not adduce any defense witness inspite of granting adequate opportunity. Mere making a statement under Section 313 Cr.P.C., cannot prove the purported enmity with the family members of the victim girl. There is nothing to disbelieve the testimony of the victim girl, who in her deposition categorically stated as to how the accused appellant committed the offence on her punishable under Section 376 IPC. 16. For all the aforesaid reasons, I do not find any merit in the appeal and accordingly it is dismissed. Send down the LCR along with a copy of the judgment and order. Appeal dismissed