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2014 DIGILAW 978 (GAU)

Nanda Biswas v. State of Assam

2014-11-11

PRASANTA KUMAR SAIKIA

body2014
Judgment Prasanta Kumar Saikia, J. 1. This appeal is directed against the Judgment dated 18.06.2012, passed by the learned Addl. Sessions Judge (FTC), Bongaigaon in Sessions case No. 08(B)/2010, whereby and where under, one Sri Nanda Biswas, appellant in the present appeal, (hereinafter referred to as accused person) stood convicted of offence U/s. 376 IPC and was sentenced to undergo R.I. for 8 years and to pay a fine of Rs. 2000/-, in default, of payment of fine, S.I. for another 4 months. Being aggrieved by the aforesaid judgment, the accused person preferred this appeal citing several infirmities in the judgment, under challenge. 2. I have heard Mr. K.M. Haloi, learned counsel appearing for the accused person as well as Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam appearing for the State respondent. 3. The facts, projected by the prosecution in Sessions Case No. 08(B)/2010, in brief, are that on 12.11.2009, one Madhabi Sutradhar filed a complaint before the learned Sub-Divisional Judicial Magistrate (M), Bijni alleging inter alia that on 17.09.2009 at about 8.30 P.M. while her daughter came out of her house to answer the call of natural, the accused person gagged her mouth then dragged her to a nearby school and committed rape on her in such school and shaving committed rape on her, he left her there. Before leaving such place, accused person, however, warned her not to disclose such facts to any one, or else, he would eliminate her. 4. A week later, one day in the evening, the accused person again came to her house, dragged her to the nearby school and once again, he committed rape on her. On that occasion too, he threatened her not to disclose such episode to anyone. Having been so ravished, the victim became pregnant and as such, she reported the matter to her mother. Being so informed, her mother took her to Bhetagaon Community Health Centre (in short, the CHC) and got her examined by a Doctor. The Doctor who examined her informed them that the victim was pregnant. 5. In that connection, mother of the victim lodged a complaint before the Sub-Divisional Judicial Magistrate (M), Bijni. On receipt of the complaint, the SDJM, Bijni forwarded the same to the Officer-in-charge, Bijni Police Satiation for doing needful in accordance with law. The Doctor who examined her informed them that the victim was pregnant. 5. In that connection, mother of the victim lodged a complaint before the Sub-Divisional Judicial Magistrate (M), Bijni. On receipt of the complaint, the SDJM, Bijni forwarded the same to the Officer-in-charge, Bijni Police Satiation for doing needful in accordance with law. The officer-in-charge on receipt of the complaint, treated it as an FIR and registered a case thereon vide Bijni P.S. Case No. 267/09 U/s. 376/506 IPC and ordered one Sri Achyatananda Das, S.I. of Police to investigate the case. 6. Being so required, Sri Das, (PW8), took up the investigation and in course of investigation, he visited the place of occurrence, examined the victim girl and other persons well acquainted with the facts and circumstances of the case, did other needful and on conclusion of the investigation, Sri Das submitted charge sheet under section 376 IPC against the accused person and forwarded him to Court to stand trial. 7. The Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Sessions at Bongaigaon since the offence under section 376 IPC is exclusively triable by Court of Sessions. On receipt of the case on commitment, the learned Sessions Judge, Bongaigaon, transferred the case to the file of learned Addl. Sessions Judge (FTC), Bongaigaon for disposal in accordance with law. 8. On receipt of the case on transfer and on earring the learned counsel for the parties, learned Addl. Sessions Judge (FTC) Bongaigaon framed charge under section 376 IPC against the accused person and the charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. During trial, the prosecution side had examined as many as 8(eight) witnesses including the Medical Officer and the Investigating Officer (I.O.). 9. The witnesses were cross examined at length. The statements of the accused person were also recorded under Sec. 313 CrPC. In his statement, the accused person claims that he is innocent and was falsely implicated with the case aforementioned. The accused also adduced evidence of one witness to support his case. 10. 9. The witnesses were cross examined at length. The statements of the accused person were also recorded under Sec. 313 CrPC. In his statement, the accused person claims that he is innocent and was falsely implicated with the case aforementioned. The accused also adduced evidence of one witness to support his case. 10. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel appearing for the parties, the learned court below found the accused person guilty of offence u/s. 376 IPC, convicted him there-under and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in this present appeal. 11. Sri K.M. Haloi, learned counsel appearing for the accused person contends that the judgment, under challenge, cannot be sustained since it suffers from several infirmities of serious nature. In that connection, it has been submitted that the allegation to the effect that accused person committed rape on the victim on two occasions, and that too, after dragging her from her house to a nearby school cannot be accepted as a truthful claim for reasons more than one since such allegation totally defies normal human behavior and conduct. 12. To give life and blood to such a claim, it has been contended that the victim girl is a healthy and grown up woman, aged about 17/18 years and her house is situated in a very thickly populated area. Therefore, it is almost unbelievable that the victim could have been taken away from her own house to a nearby school to commit rape on her again and again, unless she was a consenting party to all those sexual encounters, more so, when there is evidence on record to show that there are several households in the close vicinity of her house. 13. Learned counsel for the accused/appellant pointed out that victim claims that she reported the incident, under consideration, to one Bina Nayak and she did so on the night itself when she was subjected to rape for the first occasion. However, such an important person was not made witness in the case and that too, without assigning any reason about the inability of the prosecution to make her a witness in such a case. This, in turn, casts a serious doubt on the prosecution case. 14. However, such an important person was not made witness in the case and that too, without assigning any reason about the inability of the prosecution to make her a witness in such a case. This, in turn, casts a serious doubt on the prosecution case. 14. According to the learned counsel for the appellant, the claim of victim that she reported Bina Nayak about her being ravished by the accused person after dragging her from her house to the nearby school was not corroborated even by her own mother. These further show that the case of the prosecution was founded on lies alone. The fact that such vital incident did not find its place in the FIR as well as in her statement U/s 164 CrPC makes such a conclusion inevitable. 15. The learned counsel for the accused/appellant again submits that there was delay of several months in lodging the FIR. However, such delay was not properly explained. The delay in lodging the FIR once again shows that there is hardly any truth in the case, initiated against the accused person. On all those counts, the learned counsel for the appellant urges this court to acquit the accused person of offence u/s. 376 IPC on setting aside the judgment under challenge. 16. On the other hand, Mr. B.J. Dutta, learned Addl. P.P. Assam submits that the evidence on record shows that the victim was a minor girl on the date of incident. But there is indisputable evidence to show that the accused person had sexual intercourse with her against her will at least on two occasions which ultimately made the victim pregnant for which she subsequently gave birth to a child. Even one assumes for one reason or other that the accused had sex with the girl as aforesaid with her consent, such consent is no consent in eye of law since she was minor on the dates on which the accused had reportedly sex with her. 17. Situation being such, according to learned Addl. PP, the learned trial court was right in holding that the accused person had committed rape on the victim and it had, therefore, rightly convicted him u/s. 376 IPC and adequately punished him for committing the offence in question. As such, the judgment, under challenge, invites no interference from this court of appeal and he, therefore, submits this court to dismiss the appeal. 18. As such, the judgment, under challenge, invites no interference from this court of appeal and he, therefore, submits this court to dismiss the appeal. 18. I have considered the rival submissions advanced by the learned counsel for the parties having regard to the evidence on record and the judgment under challenge. However, before I proceed further, I find it necessary to have a look at the evidence on record and the evidence of doctor who examined the victim girl is first taken up for consideration. The doctor, who examined the victim in connection with the aforementioned case, was Dr. Rabi Ram Wary and was examined as PW7. His evidence is as follows:-- "Examination "1) Hymen was absent. No sign of violence on her private part. 2) No other sign of violence on her private part 3) She was pregnant, which was ascertained by urine test. As per X-Ray done from Bose X- ray centre, her age was less than 17 years. Impression. A girl of less than 17 years of age with pregnancy with history of intercourse, which was confirmed by absence of hymen" 19. The evidence of doctor reveals that on the day on which he examined the victim, she was a girl of less than 17 years of age and was carrying pregnancy. Now, the question is whether alleged rape made the victim pregnant. Before one gets an answer to the above query, he would find it necessary to have a look at the evidence of other witnesses examined from the side of prosecution. 20. The victim girl was examined as PW3. According to her, one evening in the month of September, 2009, while she was going out of her house to answer the call of nature, the accused person suddenly appeared in their courtyard and gagged her mouth with a gumusa and dragged her to a nearby school and then committed raped on her. After keeping her there for an hour, the accused left such place. Soon thereafter, the victim came home and reported the matter to one Bina Nayak. 21. One week thereafter, one day in the evening, the accused again came to her house and caught hold of her from behind and took her to the aforesaid school, where he committed rape on her against her will. After committing rape on her, the accused person left such place. 21. One week thereafter, one day in the evening, the accused again came to her house and caught hold of her from behind and took her to the aforesaid school, where he committed rape on her against her will. After committing rape on her, the accused person left such place. On both the occasions, the accused person threatened her not to disclose such episodes to any one, or else, he would kill her. 22. Some time thereafter, she stopped having her monthly course (in short, MC) for which she reported the matter to her mother. Her mother thereafter took her to the nearby hospital for examination. On examination, the doctor found that she was pregnant Then her mother lodged an FIR. In that connection, Magistrate also recorded her statements under Section 164 CrPC which she proved as Ext. 1. In course of time, she also gave birth to a child. 23. Smti. Madhabi Sutradhar, mother of the victim, was examined as PW1. According to her, one day in the evening while her daughter had gone out of her house to answer the call of nature, the accused person caught her from behind and forcibly took her to a nearby school and committed rape on her in such place. Having committed rape on her, the accused threatened her not to divulge such episode to anyone. 24. About a week later, the accused again came to their house in the evening and once again he forcibly took her to the nearby school and committed rape on her for which she became pregnant In her cross examination, she admitted that her daughter did not report the incident in question to her out of fear and shy. In her cross examination, she further deposes that the victim read up to class IV but thereafter she stopped going to school. 25. PW 2 Sri Polan Sutradhar is the grandfather of the victim. According to him, one day, he came to know that her granddaughter was pregnant. In that connection, a village bichar (extrajudicial trial) was convened which, however, yielded no result. PW 2 further says that at the time of incident, the victim was a girl of about 13 years of age. 26. According to him, one day, he came to know that her granddaughter was pregnant. In that connection, a village bichar (extrajudicial trial) was convened which, however, yielded no result. PW 2 further says that at the time of incident, the victim was a girl of about 13 years of age. 26. The testimonies, rendered by PW4 Sri Dhiran Mahanayak, PW5 Sri Akhil Ray and PW 6 Sri Jiban Krishna Das do not throw much light on the matter under scrutiny since they simply depose that a village bichar was convened in connection with the dispute between the victim and the accused person. However, such bichar could yield no result. 27. PW8 is Sri Achuta Nanda Das. He is also the I.O. of the case. According to him, on 16.11.09, O/C Bijni PS ordered him to investigate Bijni P.S. Case No. 267/09. Being so entrusted with the investigation, he went to the place of occurrence, examined the witnesses, drew a sketch map of such place, did other needful and on conclusion of the investigation, he submitted charge sheet under Section 376 IPC against the accused person. In his cross examination, he admitted that there are so many households in and around the house of the victim. 28. Above being the evidence on record, let me see how far such evidence makes out the allegations brought against the accused person. One may note here that the age of the victim girl at the relevant time has a huge bearing on the allegation under scrutiny which is why I find it necessary to ascertain her age on the date of incident. I have noticed that mother and grandfather of the victim claim that at the time of incident she (the victim) was a girl of about 13 years of age. PW 4, PW 5 and PW 6 too had stated that during the time under consideration, victim was a girl of about 13 to 15 years of age. 29. However, in their cross examination, PW 4 and PW 5 admitted that they had no direct knowledge about the age of the victim and what they had stated in regard to the age of the victim, they had done so on the basis of assumption and presumption. 29. However, in their cross examination, PW 4 and PW 5 admitted that they had no direct knowledge about the age of the victim and what they had stated in regard to the age of the victim, they had done so on the basis of assumption and presumption. Therefore, in my considered opinion, the evidence of PW4 and PW 5 that during the time under consideration, victim was a girl of about 13 to 15 years of age cannot be accepted as a truthful one. 30. Similarly, though mother and grandfather of the victim claim that victim was a girl of about 13 years of age when the incident in question occurred, their evidence also cannot be accepted as wholly reliable since materials on record clearly show that they are totally illiterate rustic village people who can hardly give any information about their own age, much less about their rendering information as to the age of other persons. 31. In such a scenario, I find it necessary to read in between the lines the evidence rendered by Doctor on the age of the victim. In his evidence, the Doctor opined that when he examined her, he found the victim to be a girl, less than 17 years of age. Unfortunately, such evidence of the Doctor too appears to be vague since his finding on the age is not backed by any scientific data But then, when his evidence is considered in the totality of the facts and circumstances of the present case, one would find that at the time relevant, the age of the victim hovers around 17 years. 32. It has been held again and again that ordinarily, the school certificate is the best evidence of age. In the instant case, there is indisputable evidence to show that the victim was a school going girl and therefore, the prosecution could have collected the school certificate to ascertain the actual age of the victim girl during the time under consideration. However, for the reasons, best known to the prosecution, it made no attempt to collect such a vital document having enormous implications on the outcome of the case in hand. 33. However, for the reasons, best known to the prosecution, it made no attempt to collect such a vital document having enormous implications on the outcome of the case in hand. 33. The failure of the prosecution to collect the school certificate of the victim raises serious doubt about the authenticity of the claim of prosecution that at the time relevant, the victim was a girl about 13 to 15 years of age. Quite contrary to it, when all those aspects, which I have narrated herein before, are considered together, it would appear clear that at the time relevant, the victim was a girl about 17 years of age. In other words, she attained the age of discretion. 34. So situated, let me see whether on the fateful day, the victim was taken away from her house to a nearby school by the accused person against her will. I have already found that the house of the victim is situated in a thickly populated area The victim is also found to be a grown up girl with sound health. Therefore, it is unbelievable that she could have been lifted from her house unless she was a consenting party to such an episode. 35. The fact that she did not report the alleged sexual assault on her to any one over a long period of time, despite her having been subjected to sexual assault by the accused person on occasions more than one as well as the fact that she reported such incidents to her mother only when she became pregnant again serve to show that the alleged sexual encounters between the accused and the victim, if any, were all consensual ones. 36. One may note here that the victim reportedly told Bina Nayak about the incident in question and she reportedly did so on that night itself when she was subjected to rape for the first time. However, such an important person was not made witness, and that too, without assigning any explanation. Keeping such a person beyond the arena of the case in hand, once again shows that the story that victim was subjected to rape by the accused person on the nights aforementioned is an afterthought tale. 37. One more factor throws its weight behind the above conclusion of mine. Keeping such a person beyond the arena of the case in hand, once again shows that the story that victim was subjected to rape by the accused person on the nights aforementioned is an afterthought tale. 37. One more factor throws its weight behind the above conclusion of mine. Though the victim claims that she reported her being subjected to sexual assault by the accused person to one Bina Nayak, yet, such important episode was not recorded either in the FIR or in the statement of the victim recorded under Section 164 CrPC. More importantly, such episode did not find support from other PWs, more particularly, from PW1. These revelations do not auger well to advance the cause of prosecution in the case in hand. 38. I have found that the incident in question was reported to the police after a gap of two months. I have also found that the delay in lodging the case was not properly explained. Therefore, the delay in lodging the FIR, together with other infirmities, which I have narrated herein before, clearly demonstrate that the allegation of victim being subjected to sexual assault by the accused person against her will again and again is nothing but a cook and bull story. 39. It may be noted here that in a trial of a person or persons, charged with having committed sexual offences, the victim occupy a place of primacy and her evidence may be accepted without corroboration so long her evidence inspire confidence. However, where her evidence is found to be inherently improbable, she ceases to have that kind of dominance. In such situations, her evidence needs to be scrutinized with enormous caution. 40. I have already found that the victim was a major girl or she attained the age of discretion when the incident in question took place. I have also found that sexual encounter, if any, which the victim had with the accused person, were all consensual ones 41. Above being the situations, in my consider opinion, it cannot be said that prosecution had proved the charge U/s. 376 IPC against the accused person beyond all reasonable doubt and as such, the learned court below ought to have acquitted the accused person on giving him the benefit of doubt. 42. Since it was not done, the judgment aforesaid becomes unsustainable and as such, same is liable to be quashed and set aside. 42. Since it was not done, the judgment aforesaid becomes unsustainable and as such, same is liable to be quashed and set aside. 43. Consequently, the appeal is allowed. 44. Resultantly, the judgment under challenge is set aside and the accused accordingly stands acquitted of offence U/s 376 IPC. 45. He is ordered to be released forthwith, if he is not required in connection with any other case. Send down the LCR forthwith. Appeal Allowed.