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Gauhati High Court · body

2014 DIGILAW 823 (GAU)

Bhaskar Gogoi v. State of Assam

2014-08-28

P.K.SAIKIA

body2014
1.This appeal is directed against the judgment and order dated 26.9.2007, passed by the learned Addl. Sessions Judge (FTC), Sivasagar, Circuit Court , Charaideo at Sonari in Sessions Case No.68(S-C) 2005 convicting the accused/appellant of the offence, under section 448/376, IPC and sentencing him to undergo R.I. for 8 years and to pay fine of Rs. 2,000 only and in default further R.I. for 4 months under section 376, IPC and also sentencing to undergo R.I. for 4 months for offence under section 448, IPC. 2. Being aggrieved and dissatisfied with the judgment and order aforesaid, appellant, Sri Bhaskar Gogoi ('the accused person') has preferred this appeal citing several infirmities in the judgment, under challenge. 3. The facts, necessary for disposal of the present appeal, in brief, are that one Sri Durlav Gogoi, PW 1 has a grocery shop and such grocery shop is in his house. On the first day of Bohag, 2004 in the evening, after closing the shop, when he (PW 1) came home, he learnt that his young daughter was not in the house which is why he went to the house of his neighbours to locate his daughter. 4. As he reached the house of his neighbour he found his daughter there. By that time, there was heavy rain for which he got stuck in the house of his neighbour. He, therefore, came to his house when the rain was over. On arriving his home, he found his wife in a very disturbed condition and her wearing apparels were in untidy condition. He, however, learnt from his wife that the accused person had raped her taking advantage of absence of her husband in the house. 5. In that connection, Sri Durlab Gogoi, husband of the victim woman, lodged an FIR with the Officer-in-charge, Borhat Police Station on 16.4.2004. On receipt of the FIR, the Officer-in-charge registered a case, vide Borhat P.S. Case No.9/2004 under section 376, IPC and ordered investigation. During investigation, the I/O got the victim examined by doctor. He also had her statement recorded by the Magistrate. 6. Persons acquainted with the facts and circumstances of the case were also examined as per provision of section 161, Cr.PC, did other needful and on completion of investigation, he submitted charge sheet under section 448/376, IPC against the accused person and forwarded him to the court to stand trial. He also had her statement recorded by the Magistrate. 6. Persons acquainted with the facts and circumstances of the case were also examined as per provision of section 161, Cr.PC, did other needful and on completion of investigation, he submitted charge sheet under section 448/376, IPC against the accused person and forwarded him to the court to stand trial. The learned Magistrate before whom charge sheet so laid, committed the case to the Court of Sessions since the offence under section 376, IPC is exclusively triable by the Court of Sessions. 7. On receipt of the case on commitment, the learned Sessions Judge, Sivasagar transferred the case to the file of learned Addl. Sessions Judge (FTC), Sivasagar for disposal in accordance with law. On receipt of the case on transfer and on hearing the learned counsel for the parties, the learned Addl. Sessions Judge (FTC), Sivasagar framed charge under section 448/376, IPC against the accused person and charges, so framed, on being read over and explained to the accused, he pleaded not guilty and claimed to be tried. 8. During trial, the prosecution side examined as many as eight witnesses including the Medical Officer and also the Investigating Officer. The statements of the accused person were also recorded under section 313, Cr.PC. His case was that on the evening in question, he went to the shop of PW 1 to purchase a cigarette. However, the prosecutrix told him that there was no cigarette but she called him to her house and offered betel nut. 9. As he was having some discussions with the prosecutrix, the PW 1, the husband of the prosecutrix, came there and suspected something wrong on the part of his wife and the accused person. He, therefore, slapped her out of suspicion. When such conduct was protested by the prosecutrix (PW 2), the P.W 1 had badly beaten his wife and in that process, various household articles got damaged. 10. The accused person, however, did not adduce any evidence in support of his plea. On conclusion of trial and on hearing the learned counsel for the parties, the learned trial court convicted the accused person of the offence under section 448/376, IPC and imposed punishment on him as aforesaid. It is that judgment which has been assailed in the present appeal citing several infirmities therein. 11. On conclusion of trial and on hearing the learned counsel for the parties, the learned trial court convicted the accused person of the offence under section 448/376, IPC and imposed punishment on him as aforesaid. It is that judgment which has been assailed in the present appeal citing several infirmities therein. 11. According to the learned counsel for the accused person, the judgment under challenge could not be sustained since it overlooks some serious infirmities in the prosecution case. In that context, it has been submitted that the evidence of prime prosecution witness was riddled with inconsistencies, contradictions and discrepancies of very serious nature. That apart, the stories projected by the PWs had hardly inspired confidence since such stories run counter to the normal human behaviour. 12. While conceding that in a case under section 376, IPC, a positive medical report may not always be necessary to convict the accused person charged with such crime, it has been contended that in the present case the medical report ruled out any sexual violence on the prosecutrix on the night in question which goes a long way in establishing the innocence of the accused person. This important aspect of the prosecution case was overlooked by the trial court. 13. In lodging the case in hand, there was delay of 3 days. Such delay remains totally unexplained. Unexplained delay, and that too, in a case involving an offence as serious as rape may be fatal. Since in the instant case there was delay of 3 days and such delay remains unexplained, it casts serious doubt about the authenticity of the case initiated against the accused person. For all those grounds, the accused person urges this court to set aside the judgment under challenge and to acquit the accused person of the offences aforementioned. 14. Mr. K. Munir, the learned Add. Public Prosecutor, appearing on behalf of the State respondent, however, contended that the learned trial court had properly appreciated the evidence on record and on appreciating the evidence on record in proper prospective, it concluded that the prosecution has successfully proved the charge under section 448/376, IPC against the accused person and accordingly convicted the appellant under section 448/376, IPC and sentenced him to punishment as aforesaid. 15. 15. Since the judgment under challenge was rendered on the basis of legal evidence which does not suffer from any infirmity whatsoever, learned trial court has rightly convicted the accused person of the offences aforementioned and adequately punished having regard to the nature of offence and its impact on the society . He, therefore, submits this court to dismiss the appeal. 16. I have considered the rival submissions having regard to the evidence on record as well as the law holding the field. .However, in order to appreciate the evidence on record, I find it necessary to have a look on the evidence of principle PWs, more particularly, PW 2 and PW 1 who are prosecutrix and her husband respectively. In her evidence, the prosecutrix (PW 2) states that on the 1st day of Bohage of 2004, her husband went to one of their neighbours in search of her young daughter. 17. It was about 6.30 p.m. At that time, the accused came to her house and asked for a Cigarette from the victim to which the victim replied that Cigarette is not available in her shop on that evening. The accused then asked the victim to open the doors and to give him batelnut. On such request, the victim gave the accused batelnut. Soon thereafter, the appellant bolted the doors of the house from inside. Since the victim tried to open the doors, the accused pressed her neck and tried to commit rape on her by uttering some slang words. 18. Having found herself in such a situation, she tried to free herself from his clutches but in vain. When she tried to hide herself, in various places of the rooms of their house, the mosquito stand, and cover of the T.V., etc., were got broken. At one point of time, the victim pushed the accused out of their house through the rear doors and also succeeded in closing the same. But the accused entered into her main room through an extra door of their house. 19. In order to save herself, the victim once again took shelter under the bed. The accused, however, found her out and tried to drag her out therefrom. Since she got herself armed with a dao in the mean time, she tried to inflict a dao blow on the accused person which unfortunately missed the target and fell on her instead injuring her. The accused, however, found her out and tried to drag her out therefrom. Since she got herself armed with a dao in the mean time, she tried to inflict a dao blow on the accused person which unfortunately missed the target and fell on her instead injuring her. Thereafter, the accused committed rape on her. 20. When the accused was so committing atrocities on her, her husband arrived home and on seeing the articles lying scattered hither and thither, he asked her who entered in his house on that evening. However, due to fear, she replied that a thief entered into their house on that evening and threw the household articles at six and seven. According to the victim, she had to resorted to falsehood since the accused threatened her that he would cut her and her husband to pieces if she disclosed his entry to their house on that night. 21. Her husband went out screaming and scolding. Hearing hue and cry, her brother-in-law arrived at such place and started looking out the miscreant who had done so much of mischief to their house and household on the night aforesaid. In the meantime, she discovered the accused inside their kitchen where he was hiding at that point of time. She, therefore, called her husband whereupon the accused left her house through its rear doors. 22. Following day, she was taken to hospital where she was examined by doctor. In course of investigation, her statement was recorded by the learned Magistrate (Ext. 2). In her cross-examination, she admitted that the appellant could not commit rape on her at the first time. She also admitted that on returning home, her husband found the things inside the house lying scattered hither and thither. 23. PW 1 is the husband of the victim.' According to him, on the night in question, after coming home, he found that his young daughter was not in the house. He, therefore, went out in scorching his daughter. He, however, located his daughter in the house of one of his neighbour where he took tea since it was Bihu day. While he taking tea, it started raining quite heavily for which he got confined in the house of his neighbour for about two hours. He, therefore, went out in scorching his daughter. He, however, located his daughter in the house of one of his neighbour where he took tea since it was Bihu day. While he taking tea, it started raining quite heavily for which he got confined in the house of his neighbour for about two hours. While he was so sitting in the house of his neighbour, the accused person came there and sat for some time and thereafter left such place. 24. When it ceased to rain, he returned home and he found all the house hold articles lying scattered all over the ground. He, therefore, asked his wife what went wrong inside the house. At first, she told him that a thief came there and ransacked their house. However, some time later, she admitted that the accused came to their house on that evening and forcibly committed rape on her. On being so informed, he immediately came out of his house and rushed to the house of the uncle of the accused person. 25. He also met the younger brother and sister in law of the accused person. When he (PW 1) was visiting the houses of neighbouring people soon after the incident in question, the accused person again came to their house. When the PW1 charged at him, the accused person hurriedly left such place. In that connection, he lodged an FIR (Ext.1). In his cross-examination, he denied the suggestion that he did not inform the police that the accused person came to his house soon after aforesaid incident and on being charged by him he fled away. 26. In his cross-examination, he, however, admitted that the accused person is his nephew and he used to visit his house occasionally. That his brother (the PW 4) resides at the distance of about 70 feet from his house, and that, on being enquired about the incident, under consideration, his wife could not speak properly were also admitted by the PW 1. 27. PW 4, Sri Bhupen Gogoi is the brother of the PW1. He deposes that on the fateful day, in the late evening, he was at his house. Suddenly, he heard hue and cry coming from the house of PW 1. He then went to the house of the PW 1 and then saw the accused person coming out of the house of PW 2. He deposes that on the fateful day, in the late evening, he was at his house. Suddenly, he heard hue and cry coming from the house of PW 1. He then went to the house of the PW 1 and then saw the accused person coming out of the house of PW 2. He also saw the accused person hurriedly running away from such place. As he arrived in the house of PW 1, he found the household articles lying scattered on the ground. 28. On being enquired, PW 2 told him that on that evening, the accused person committed atrocities upon her. In his cross-examination, he denied the suggestion that he did not tell the police that his elder brother Durlav Gogoi shouting "which dog has created this mess in his house. He also denied the suggestion that he told the police that he saw the household articles lying scattered inside the house of PW1. 29. PW 3, Reena Hazarika, S.D.J.M., Charaidew at Sonari. According to her, on 19.4.2004, she recorded the statements of the PW 2 under section 164, Cr.PC in connection with Borhat P.S. Case No.09/2004 under section 376, IPC (Ext 2). In her cross-examination, she admitted that the victim did not tell her that the accused person committed rape on her twice on the night in question. 30. PW 5 is Sri. Deepak Mura. According to him, one day in the evening he was taking liquor with one Minto in the house of one Putu. The accused person also came there and thereafter both of them went to the house of Bhuben. While the accused stayed back in the house of Bhupen, he left such place. In his cross-examination, he admitted that on the evening aforesaid, there was heavy rain about 15 minutes. 31. PW 6 is Dr.(Mrs) Reena Changmai. According to her, on 17.4.2004, she was posted at Civil Hospital, Sivasagar as S.D.M. & H.O. On that day, she examined the victim in connection with Borhat P.S.Case No. 9/04 under section 376. IPC and found as follows : "On examination I found as follows : General & Physical examination Built and Nutrition - Normal, Weight 54 kg. Height 56.5", Teeth- 8-1,8-1/8-8 Breast - well develop, No marks of violence. Genetalia - Normal, Internal examination -Uterus.....and normal, no injury found. IPC and found as follows : "On examination I found as follows : General & Physical examination Built and Nutrition - Normal, Weight 54 kg. Height 56.5", Teeth- 8-1,8-1/8-8 Breast - well develop, No marks of violence. Genetalia - Normal, Internal examination -Uterus.....and normal, no injury found. Opinion - in my opinion I found Smt. Rupa Gogoi to be major, married with One daughter. No any sign of external injury to vulva and vagina". 32. PW 7 Sri Upen Neog is a teacher. According to him, the incident in question took place on the day of Bohag Bihu. One day at about 12 O'Clock at night, PW 1 came to his house, woke him up and told him that the accused person had misbehaved his wife. Since it was night, he told the PW 1 that he would attend the matter next day in the morning. Next day, in the morning when he arrived in the house of victim, he was told that previous day in the evening the accused person had subjected the victim to some improper conduct. 33. However, he managed a compromise between the parties under which the accused was to pay some compensation to the victim. In his cross-examination, he admitted that he did not know when the husband of the victim had lodged the case against the accused person. The suggestion that he did not tell the police that he questioned the victim was denied by him. 34. PW 8 is Sri Jayanta Teron and he is S.I of police and I.O. of this case aforesaid. According to him, he was entrusted to conduct the investigation of the case aforementioned. During the course of investigation, he examined the witnesses including the victim and on the closure of the investigation, he submitted charge sheet under section 448/376, IPC against the accused person. In his cross-examination, he admitted that he did not find any household articles in the house of PW 1 in a broken condition. 35. The suggestion that PW 4 told him that "which dog has created this mess in his house" was denied by him. He also denied the suggestion that PW 4 also told him that he had seen various household articles lying scattered on the ground in the house of PW 1. 35. The suggestion that PW 4 told him that "which dog has created this mess in his house" was denied by him. He also denied the suggestion that PW 4 also told him that he had seen various household articles lying scattered on the ground in the house of PW 1. Similarly, the suggestion (a) that the victim told him that the accused entered into their house through an extra door, (b) that he committed rape on her twice on that evening and (c) that she had took shelter under the bed were all denied by PW 8. 36. Now, let us see how far the above evidence makes out the charges brought against the appellant. A careful perusal of the evidence of witnesses, more particularly, the evidence of PW 2 reveals that her evidence hardly inspire any confidence. This is because of the reason that her evidence runs counter to the evidence of normal human behaviour and also not in tune with the evidence, rendered by other PWs. According to PW 2, on the evening 14th April, 2004, the accused person came to her house and subjecting her to huge force, committed rape on her again and again over a prolonged period of time . 37. However such evidence of the PW 2 cannot be accepted on counts more than one. First, there are so many houses in the vicinity of the houses of the PW1. A cry for help would have brought a good number of people to such place. But there is nothing on record to show that the PW 2 had ever cried for help to bring her neighbours to the place of occurrence to save her from the alleged dire difficulties she was in on the evening in question. This is despite the incident under consideration going on for a considerably long period. 38. Rather all available materials on record show that when her husband arrived home, she behaved vey abnormally and tacitly helped the accused to hide in a safe place in her house so that he did not come to the notice of PW1. She told the truth only when it was no longer possible for her to hide such facts from the notice of the husband of the PW 1. She told the truth only when it was no longer possible for her to hide such facts from the notice of the husband of the PW 1. Such revelations are testimonies to the facts that the PW2 herself was a party to the incident which occurred in her house on the night of 14th April 2004. 39. In that connection, it may be stated that when her husband found the household articles in his house not in order, he asked his wife as to what went wrong in his house on that evening, she told him that a thief had came to their house and made everything helter and skelter. It is only when her husband about to detect the accused person in their house on that night, and when the accused person was no longer in a position to hide himself in the house of the PW1, the PW2 told her husband that she was subjected sexual assault. 40. On reading the evidence on record in between the lines, I have found reason to conclude that the house of persons like PW 4 and Sri Kaushik, etc., are situated in close vicinity of the house of the victim. The victim claims that a scuffle of enormous size and ferocity raged the household in question on the night of 14.4.2004. In spite of all those happenings, the immediate neighbours of the victim, the family of PW4 in particular, were not aware of such a disastrous incident going on in the house of PW 1 and that too over a very long period of time. Such episode becomes one more testimony of PW2 not being very truthful. 41. Although the PW 2 claims that she could not tell the truth to her husband at the very beginning since she was worried of the fact that on coming to know about such fact, her husband might have harmed her. Such explanation for not telling the truth is found to be extremely unconvincing since a lady, who was allegedly subjected to sexual assault of extremely violent nature, and that too, against her will, would have never concealed such episode but would have told everything to her near and dear ones, her husband in particular. Such revelation also requires the court to view the explanation too with equal suspicion. 42. Such revelation also requires the court to view the explanation too with equal suspicion. 42. According to the some of the witnesses, PW 1, PW 2 and PW 4 in particular, they reported the I.O. some incidents having serious bearing on the issue under consideration. Thus, (i) PWI claims that he told the I/O that when he was gossiping in the house of his neighbour, the accused came there but to leave such place hurriedly and (ii) PW2 claims that she told the I/O (a) that the accused entered the house second time through the rear doors, (b) that she took shelter under the bed when the incident aforesaid was going on and (c) that the accused raped her twice on the night in question. 43. Similarly the PW4 deposes that he told the I/O that he heard his brother shouting "who dog had created a mess in my house". He also claims that he told the I/O (a) that he saw everything in the house of the PW1 lying scattered all over the ground and (b) that her sister in law told him that she was subjected to improper behaviour by the accused person and he did so on entering to their house. However, the I/O categorically claims that all those important episodes were not reported to him by those PWs. The non-disclosure of such fundamental facts to the I/O during investigation, being contradictions, raises a serious doubt about the credibility of those PWs. 44. I have found that in their evidence, the PW 1 and PW 2 and PW4 state that on arriving at the place of occurrence, he reportedly saw the household articles lying scattered all over the ground. They also found the very many house articles in broken conditions. Despite all these, when the I/O came to such place during the course of investigation on 16.4.2004, he did not find any of the household articles in broken condition. It adds more and more suspicion of the prosecution case. 45. I have found that there was delay of 3 days in lodging the case. I do not find any acceptable explanation from the side of the prosecution as to why the delay of 3 days occurred in lodging the case aforementioned. Quite contrary to it, the PW1 told that he lodged the FIR next day of the alleged incident. 45. I have found that there was delay of 3 days in lodging the case. I do not find any acceptable explanation from the side of the prosecution as to why the delay of 3 days occurred in lodging the case aforementioned. Quite contrary to it, the PW1 told that he lodged the FIR next day of the alleged incident. Such misleading statement on delay in lodging the case is another testimony of the prosecution case being premised not on facts but on falsehood. 46. One may note here that the prosecution stories, so told by PW1, PW2 and PW3, are constitutionally different. A close scrutiny of the materials on record would make it more than clear. Such variations in narrations of the prosecution stories hardly serve to advance the cause of the prosecution case. Rather such variations in the stories rendered by PWs give more and more strength to the plea of accused person that he is an innocent person. 47. In that context, I have also considered the prosecution case so narrated in the FIR (Ext.1) and the story narrated to the Magistrate by the victim during the course of investigation. Once again, the story narrated in the FIR and the story so projected in the Ext.2 does not go hand in hand. More importantly, such stories contradicted one another on some fundamental points. These are more testimonies of prosecution case being founded on conjecture and surmise. 48. The Medical Officer who examined the victim on 17.4.2004 did not find any wound either on her private part or any other body part. It is true that in order to establish the offence of rape, it is not always necessary for the prosecution to prove injury on the private part of the victim. But then, in the facts and circumstances of the present case, absence of injury on the private part of the victim or for that matter on any other body parts speaks clearly that everything was not hunky dory on the part of the prosecution side. 49. But then, in the facts and circumstances of the present case, absence of injury on the private part of the victim or for that matter on any other body parts speaks clearly that everything was not hunky dory on the part of the prosecution side. 49. In view of what I have discussed hereinbefore and what is emerge, I am of the opinion that the prosecution side could not make out the allegation against the present accused person beyond all reasonable doubt and as such, in my considered opinion, that the learned court below was not right in convicting the accused person of offence under section 448/376, IPC Instead, the learned trial court ought to have given the accused person the benefit of doubt and to acquit him of offence under section 448/376, IPC. 50. Consequently, the judgment under challenge is set aside and the accused/ appellant is acquitted of offence under section 448/376, IPC on benefit of doubt. 51. The appeal is allowed and accordingly, disposed of. He be set at liberty forthwith, if not required in connection, with any other case. 52. I appreciate the assistance rendered by Mr. A.K. Talukdar, learned amicus curiae. Concerned authority is directed to pay an amount of Rs. 7,000 to the learned amicus curiae as being his fee within a period of three months from today. 53. Send down the LCR forthwith.