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Gauhati High Court · body

2014 DIGILAW 139 (GAU)

Ghana Kanta Baruah v. State of Assam

2014-02-04

C.R.SARMA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Mr. A.R. Sikdar, learned counsel, appearing for the petitioner. Also heard Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. By filing this application under Sections 397/401, read with Section 482 Cr. P.C., the petitioner, who is a convicted person in GR. Case No. 866/2002, under Sections 376/511 IPC, has challenged the judgment and order, dated 06.08.2012, passed by the learned Sessions Judge, Darrang, Mongaldoi in Crl. Appeal No. 11(D-2)/2010, whereby and whereunder the leaned Sessions Judge, while dismissing the appeal, upheld the judgment and order dated 30.03.2010, passed by the leaned Assistant Sessions, Darrang, Mongaldoi in the said G.R. Case. 2. The prosecution case, in brief, is that, on 30.11.2002 at about 11.00 a.m., taking the advantage of absence of other persons in the house of the informant, the revision petitioner visited the house of the informant and committed rape on his minor daughter, who was aged about 7 (Seven) years. Alarm being raised by the said victim girl, PW 2 rushed to the place of occurrence and thereafter informed the informant and others about the occurrence. The informant i.e. the father of the victim and her mother (PW-2) were reported by the victim about the incident. Accordingly, the informant lodged an FIR with the police. On receipt of the FIR, police registered a case under Section 376 IPC and launched investigation into the matter. 3. At the close of the investigation, police submitted charge sheet against the petitioner for the offence under Section 376 IPC. The learned Sessions Judge framed charges under Section 376 IPC. The charges were read over and explained to the accused person, to which he pleaded not guilty. 4. The prosecution examined as many as 8 (eight) witnesses, including the investigating Officer. At the end of the examination of the prosecution witnesses, the accused person i.e. the petitioner was examined under Section 313 Cr. P.C. He denied the allegations, brought against him. He pleaded that the father of the victim girl had taken money on loan from the petitioner and on the fateful night he had visited the house of the informant for demanding repayment of the said money, taken by the informant. According to the accused person, on being asked for repayment of the said money, he has been falsely implicated in this case. According to the accused person, on being asked for repayment of the said money, he has been falsely implicated in this case. Considering the evidence on record, the leaned Sessions Judge came to the findings that the prosecution could establish that the accused person committed offence under Section 376/511 IPC and accordingly convicted him under Section 376/511 IPC. The accused persons were sentenced to suffer rigorous imprisonment for 2 years and pay fine of Rs. 1,000/-, in default suffer R.I. for another period of 6 months. 5. Aggrieved by the said judgment and conviction, the petitioner, as appellant, preferred criminal appeal before the learned Sessions Judge and the learned Sessions Judge, while dismissing the said appeal, upheld and affirmed the conviction and sentence recorded by the leaned Assistant Sessions Judge, Darrang, Mongaldoi. 6. Dissatisfied with the said judgment and order, appellant, as petitioner, has come up with this criminal revision. 7. Mr. A.R. Sikdar, learned counsel for the petitioner, referring to the evidence, on recorded, has submitted that the prosecution failed to prove the charge, brought against the petitioner, beyond all reasonable doubt and as such the courts below committed error by holding the appellant guilty of the offence under Section 376 IPC. It is also submitted that there are major contradictions in the evidence of prosecution witnesses and there is no corroboration in the evidence of the prosecutrix. It is further submitted that there is no medical evidence to substantiate the allegation of rape. 8. In view of the above, learned counsel appearing for the petitioner, has submitted that the impugned judgment and order of conviction is not maintainable and as such the petitioner is entitled to be acquitted. 9. Refuting the said argument, advanced by the learned counsel for the petitioner, Mr. BJ Dutta, learned Addl. Public Prosecutor, Assam, appearing for the State respondent, has submitted that the evidence of the prosecutrix is sufficient to base the conviction in a rape case and that in the present case, her evidence remained un-demolished. It is also submitted that there is sufficient corroboration in favour of the evidence of the prosecutrix and that the learned trial Judge as well as the appellate Court committed no error by holding the petitioner guilty of the offence under Section 376/511 IPC. The learned Addl. It is also submitted that there is sufficient corroboration in favour of the evidence of the prosecutrix and that the learned trial Judge as well as the appellate Court committed no error by holding the petitioner guilty of the offence under Section 376/511 IPC. The learned Addl. Public Prosecutor has submitted that the impugned judgment and order, passed by the court below, need no interference inasmuch as the courts below committed no gross illegality, jurisdictional error or perversity in upholding the conviction and sentence, as indicated hereinabove. 10. In order to appreciate the argument, advanced by the learned counsel for both the parties, I feel it necessary to, briefly, scrutinize the evidence, on record. 11. PW 1 (Shri Daneswar Deka) i.e. the father of the victim, who lodged the FIR, stated that he came to know about the incident from the victim. He has exhibited the FIR as Ext. No. 1 and his signature as Ext. No. 1(1). 12. PW 2 (Shri Makani Deka) is the mother of the victim. She also stated that, at the time of occurrence, she was not in their house and that she was informed by her daughter about the occurrence. 13. The victim deposed as PW-3. From her evidence it appears that, at the time of occurrence, she was alone in their house. She clearly stated that when she had approached the petitioner, who visited their house at the relevant time, for offering tamul-pan (betel nut), he forcefully removed her undergarment and pushed his penis into her vagina. She also stated that hearing hue and cry raised by her, her cousin rushed to the place of occurrence. She further stated that she had informed her parents, and other persons, who gathered in the place of occurrence immediately after the occurrence. She also exhibited her statement as Ext. No. 1. Though this witness was crossed examined, on behalf of the defence, no material contradiction could be elicited to render her evidence dis-believable. 14. Supporting her evidence, her sister (PW No. 4) stated that she had visited the house of the victim and found the accused person over the body of the victim girl. She also stated that she immediately reported the incident to the parents of the victim. 15. PW No. 5 (Shri Bijoy Kumar Deka and PW No. 6 (Shri Anil Kumar), who were the independent villagers, corroborated the evidence of PW 4. She also stated that she immediately reported the incident to the parents of the victim. 15. PW No. 5 (Shri Bijoy Kumar Deka and PW No. 6 (Shri Anil Kumar), who were the independent villagers, corroborated the evidence of PW 4. Both of them stated that PW 4 had informed them about the incident. From the evidence of the said witnesses, it appears that a Panchayat meeting was held in connection with the said incident and the accused person denied the allegations, brought against him. Though the accused had taken the plea that he had visited the house of the informant for demanding repayment of the money, taken by the informant, as loan, no evidence has been adduced to substantiate the said plea. 16. From the above discussed evidence, it appears that the petitioner had visited the house of the informant at the relevant time. This circumstantial evidence lends sufficient support in favour of the prosecution version. 17. Admittedly, the victim was a minor girl, aged about 7 (seven) years. There is nothing, on record, to find that the victim or her parents had any reason to falsely implicate the petitioner with a rape case, that too taking the risk of family honour and future prospect of the said minor girl. 18. As held by the learned trial court, though the defence cross-examined the said witness, no contradiction could be brought out to demolish their evidence. 19. Carefully perusing the evidence given by the prosecution witnesses, more particularly PW Nos. 3 & 4, I find that both the witnesses clearly stated about the involvement of the accused person. 20. It is hard to believe that any girl or her parent would falsely implicate a person in a rape case, involving the honour and dignity of their daughter as well as the family, in the society. Admittedly, there is no medical evidence to show that there was sign of rape or violence. In the present case, the conviction has been recorded under Section 376/511 IPC. In view of the evidence of the victim and her cousin (PW-4), the absence of medical evidence is not fatal for the prosecution case. That a part, in a case involving sexual assault, the evidence of the prosecutrix if found to be trustworthy and reliable can be the sole basis for conviction. 21. In view of the evidence of the victim and her cousin (PW-4), the absence of medical evidence is not fatal for the prosecution case. That a part, in a case involving sexual assault, the evidence of the prosecutrix if found to be trustworthy and reliable can be the sole basis for conviction. 21. In the case at hand also there is nothing on record to discredit the evidence rendered by the prosecutrix. Rather, there is sufficient corroboration in favour of her evidence. 22. In view of the above, considering the entire aspect of the matter, I find no sufficient reason to take a view other that the view taken by the courts below. In my considered opinion, both the courts below arrived at the findings aforesaid on the basis of the evidence available on record. Therefore, the impugned judgment and conviction aforesaid do not suffer from any illegality, perversity or jurisdictional error. In view of the above, I find no merit in this petition, requiring exercise of powers under Section 397/401 read with Section 482 Cr. P.C. Accordingly, this criminal revision petition is dismissed. Petition dismissed.