Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 446 (GAU)

Sarukon Chetia v. State of Assam

2014-04-21

A.K.GOSWAMI

body2014
JUDGMENT Arup Kumar Goswami, J. 1. Heard Mrs. R. Phukan, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. This appeal is directed against the judgment and order dated 19.01.2010 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 44/08, convicting the appellant under Section 376(2)(f) I.P.C. and sentencing him to suffer RI for 10 (ten) years and to pay a fine of Rs. 2,000/-, in default of payment of fine, to suffer RI for a period of further 6 (six) months. 2. One Ajit Gogoi, who is a maternal uncle of the victim, herein after referred to as 'X', lodged an ejahar before the Officer-In-Charge, Khowang Police Station on 19.12.2007, stating that the appellant, a co-villager had enticed his niece, who was aged about 11 1/2 years, to his house by tempting her with offering of olives from his orchard and then committed rape on her. Consequently, upon registration of Khowang P.S. Case No. 95/07 under Section 376 IPC, investigation was started and the appellant was arrested on that very day. 'X' was medically examined in the Department of Forensic Medicine, Assam Medical College on 20.12.2007. The statement of 'X' was recorded under Section 164 Cr.P.C. on 27.12.2007. Statement of her mother was also recorded under Section 164 Cr.P.C. on that date. 3. Charge-sheet was submitted against the appellant under Section 376 I.P.C. The case being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 1st Class committed the case to the Court of the learned Sessions Judge, Dibrugarh, whereupon Sessions Case No. 44/2008 was registered. Charge under Section 376(2)(f) I.P.C. was framed and charge being explained, the accused/appellant pleaded not guilty and claimed to be tried. 4. During trial, prosecution examined 6 (six) witnesses including the doctor and Investigating Officer as PW 5 and PW 6, respectively. 'X' was examined as PW 1. The mother and the informant were examined as PW 2 and PW 3, respectively, and one uncle of the accused was examined as PW 4. Defence adduced no evidence. 5. Section 164 Cr.P.C. statements of 'X' and her mother (PW 2) were exhibited as Ext-1 and Ext.-2, respectively. The ejahar was exhibited as Ext.-3. The Medical Examination Report, Sketch Map of the place of occurrence and the Charge-Sheet were exhibited as Ext-4, 5 and 6, respectively. 6. Defence adduced no evidence. 5. Section 164 Cr.P.C. statements of 'X' and her mother (PW 2) were exhibited as Ext-1 and Ext.-2, respectively. The ejahar was exhibited as Ext.-3. The Medical Examination Report, Sketch Map of the place of occurrence and the Charge-Sheet were exhibited as Ext-4, 5 and 6, respectively. 6. The learned Trial Court held that the evidence of PW 1 deserved to be accepted. The learned Trial Court also found that the evidence of PW 1, PW 2, PW 3 had remained unshaken. Three days delay in lodging the ejahar was held to be not material as the cause of delay was explained in the ejahar as well as in the evidence of PW 2 and PW 3 to the effect that there was an attempt for settlement of the matter. The learned Court also opined that in a situation like the one which confronted the family, some deliberations amongst the family members were inevitable before going to police to lodge an ejahar. 7. Accused/appellant is referred to as an uncle by PW 1. In her deposition, she stated that while she was at home alone on a particular day in the month of "Aghun" (Nov-Dec), at around 12 noon, the accused had taken her to his house on the pretext of offering her olives and once inside the house, he put her on a "Chang" (a raised platform) by grabbing her and removed her under garments. He removed his under wear and rolled up his dhoti and pushed his sexual organ into her sexual organ by mounting over her and after a short while withdrew it. She also deposed that she could escape somehow by dealing kicks to him and in the evening when her mother had come home, she had narrated the incident to her. 8. In her cross-examination, she had denied the suggestion that her mother had caused injuries to her sexual organ before she had gone to the police station and that a false case was lodged only to settle score as the wife of the accused had caught her red-handed while she was found stealing facial cream. She categorically stated that there was no dispute with the accused. In her Section 164 Cr.P.C. statement also she had narrated more or less the same version. 9. PW 2, in her evidence had re-produced the version given by PW 1. She categorically stated that there was no dispute with the accused. In her Section 164 Cr.P.C. statement also she had narrated more or less the same version. 9. PW 2, in her evidence had re-produced the version given by PW 1. She further deposed that she had noticed blood in the under garment worn by her daughter. She had informed the incident to the neighbouring relatives but as they did not take any action, she had to inform her elder brother, who finally lodged the case. In her cross-examination, she had also stated that she had found swelling injury in the sexual organ of 'X'. In her Section 164 Cr.P.C. statement (Ext.-2), PW 2 had made more or less similar statements. 10. PW 3 is the informant. He deposed that the ejahar was lodged on the basis of version given to him by PW 1. In cross-examination, he had stated that he had been informed about the incident by his sister at around 3 p.m. and that the incident had taken place at around 2/2 1/2 p.m. He further deposed that PW 1 had escaped by biting the fingers of the accused. He did not see the private parts of PW 1, but his wife had seen the injury sustained by PW 1 in her private parts. 11. PW 4 does not throw much light to further the prosecution case. He was not informed about the incident by either PW 1 or PW 2 and he came to learn about the incident from the police. 12. The opinion of doctor (PW 5) is as follows: "Opinion: (1) Her age is above 10 years and below 12 years. (2) Evidence of recent sexual intercourse not detected on her person but there is recent evidence of manipulation of genitalia. (3) No evidence of injury detected on her body." 13. The cross-examination of PW 5 is reproduced in its entirety herein below for better understanding: "No tear of hymen was detected. Manipulation may be caused by finger also. It is an external injury, may be caused by accident also. Hymen of the victim was intact. I did not find any blood stain on the private part of the victim girl. From the above report it cannot be said that there was no slightest penetration." 14. Manipulation may be caused by finger also. It is an external injury, may be caused by accident also. Hymen of the victim was intact. I did not find any blood stain on the private part of the victim girl. From the above report it cannot be said that there was no slightest penetration." 14. PW 6 in his cross-examination, had confirmed that PW 2 in her statement under section 161 Cr.P.C., had stated that the incident had taken place at around 2/2 1/2 p.m. and that she did not tell him that there was blood stain in the under garment of PW 1. He also stated that he did not seize any wearing apparel of the victim. 15. Mrs. R. Phukan, learned counsel for the appellant has submitted that there is discrepancy in the evidence of PW 1, PW 2 and PW 3 to the effect that while PW 2 and PW 3 had stated that the incident had taken place at around 2/2-30 p.m., the evidence of PW 1, on the other hand, is that the incident had taken place at 12 noon and therefore, the evidence of PW 1 is not at all reliable. She had further submitted that the prosecution case had been sought to be embellished by PW 2 in the form of introduction of presence of blood stain on the under garment. Mrs. Phukan further submits that PW 1 did not talk about any blood stain and further, PW 6 had also stated in his evidence that PW 2 did not speak about noticing any blood stain on the under garment of PW 1. According to her, the evidence of PW 1 and PW 2 is not trust worthy and therefore, conviction on the basis of such un-reliable testimony is not sustainable in law. While not disputing that there were some signs of injury on the private parts of PW 1, the learned counsel submits that if rape was really committed by the accused, he would have definitely suffered injury as the girl was a virgin of about 10 to 12 years with her hymen intact. As the accused was not medically examined, the same has vitiated the entire prosecution case and therefore, the appellant is entitled to acquittal, the learned counsel submits. As the accused was not medically examined, the same has vitiated the entire prosecution case and therefore, the appellant is entitled to acquittal, the learned counsel submits. In support of her submission, the learned counsel places reliance on paragraph 26 of the judgment of the Apex Court in the case of Rahim Beg & Anr. vs. State of U.P., reported in (1972) 3 SCC 759 . 16. Ms. S. Jahan, learned Additional Public Prosecutor, Assam, submits that minor contradictions as referred to by the learned counsel for the appellant are of no significance. There is no reason why the evidence of PW 1 should be disbelieved, more so, when the medical evidence also discloses injuries in the private parts of the victim. The learned counsel submits that when the evidence of PW 1 is inspiring and her statement is corroborated in material points by other witnesses as also by the Medical Report, no interference is called for with the judgment under appeal. The learned counsel also highlights that there is no inconsistency with the statement of the victim before the Court as well in her Section 164 Cr.P.C. statement. The learned counsel places reliance on the judgment of the Apex Court in the case of Promode Dey Vs. State of West Bengal, reported in, (2012) 4 SCC 559 . 17. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 18. Ext-4 Medical Examination Report indicates that victim had not attained puberty and the intelligence of the girl was average. So far as genitals are concerned, the same was recorded in Ext.-4 as follows: "Genitals Genital developed. Pubic hair not appeared. Vulva: Labia majora red and tender (mild) on posterior part of both sides. Vagina: Healthy. Hymen: Intact. Admits tip of little finger. Perineum and cervix healthy. Smears taken from posterior fornix and around the cervix do not show presence of spermatozoa." 19. Paragraph 26 on which Mrs. Phukan had placed reliance is extracted herein below: "26. According to Dr. Katiyar, Medical Officer of District Jail, Rae Bareli, if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. Phukan had placed reliance is extracted herein below: "26. According to Dr. Katiyar, Medical Officer of District Jail, Rae Bareli, if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence. The examination of the two accused by Dr. Katiyar, was on August 5, 1969. The two accused, however, had been arrested, according to the prosecution, on the morning of August 4, 1969. No cogent explanation has been furnished as to why they were not soon thereafter, got medically examined by the police." 20. The accused-appellant is a related elder brother of the father of PW 1. That the PW 1 is aged above 10 years and below 12 years is not in dispute. The Medical Examination of PW 1 was done after 4 (four) days of the incident. Though the opinion of PW 4 was that evidence of recent sexual intercourse was not detected, it also speaks about recent evidence of manipulation of genitalia Hymen of the victim was also intact. Labia majora was red and tender (mild) on posterior part of both sides. Evidence of PW 2 also shows that she had noticed swelling injury in the private part of PW 1. This is consistent with the version of PW 1 as she did not say that there was complete penetration. Even slight penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. In this backdrop, PW 2 not mentioning before the police about her noticing blood stain in the under garment and police also not seizing the under garment worn by PW 1 at the time of commission of the offence is not very material. The reliance placed on paragraph 26 of Rahim Beg (supra) is misconceived as statement of the Doctor was in reference to the rape of the victim in the said case. In the said case, the victim was raped and strangulated to death. There was ½ inch long vertical tear which started from the lower portion of the junction of labia majora. In the said case, the victim was raped and strangulated to death. There was ½ inch long vertical tear which started from the lower portion of the junction of labia majora. Clotted blood was present on the margin while blood was found in the vagina. Hymen and vagina were found to be torn. In the context of the aforesaid injuries, Doctor had opined that in such a case there are likely to be injuries on the male organ. But such injuries are not present on the person of PW 1 in the instant case. 21. It appears that PW 1 had given a very natural account of how the accused had committed rape on her. There is no trace of any tutoring. When the deposition of a child witness inspires confidence, the court may safely rely upon such evidence. In the instant case, the evidence of PW 1 has inspired confidence. Medical evidence also lends credence to her testimony. In Promod Dey (supra), the Apex Court had relied on the evidence of a child witness as her evidence was found to be inspiring. The defence had not been able to impeach her evidence in any manner and she had remained unshaken during cross-examination. There is no acceptable material on record to give credence to the suggestion of the defence that PW 1 and PW 2 were inimical to the accused and the prosecution case was launched against the appellant to settle scores after PW 2 had inflicted injury upon the private parts of PW 1. 22. In view of the above discussions, I am of the considered opinion that there is no merit in this appeal and accordingly, the same is dismissed. Send back the LCR. Appeal dismissed.