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2015 DIGILAW 144 (GAU)

KESHAB PATHAK v. STATE OF ASSAM

2015-02-09

B.K.SHARMA

body2015
ORDER (ORAL) 1. None has appeared for the appellant on call. It appears that on the earlier occasion also there was no appearance on behalf of the appellant. In such a situation, Mr. S.K. Medhi (II) learned counsel was requested to assist the Court as Amicus Curie. As will be evident from the order passed on 16.02.2012, he is also absent. Situated thus, this Court requested Mr. S.K. Medhi (II), learned Counsel to assist the Court. He readily accepted the request, but prayed for time to go through the records. He was allowed time and thereafter he has made submissions on behalf of the accused/appellant. Mr. D. Das, learned Additional Public Prosecutor has also made his submission. Both the learned counsels have advanced their arguments in reference to the evidence on record. 2. This appeal is directed against the judgment of conviction dated 15.06.2009 of the learned Additional District & Sessions Judge (FTC) Kamrup, Guwahati, in Sessions case No.180(K)/2006. By the said judgment, while the accused/appellant has been convicted u/s 376(2)(f) IPC, he has been sentenced to undergo rigorous imprisonment for 10(ten) years with fine of Rs.2000/- (Rupees two thousand) and in default, to undergo further rigorous imprisonment for 01(one) year. As reflected in the judgment, the accused/appellant was in custody from 28.02.2004 to 29.05.2004 and thereafter from the date of judgment dated 15.06.2009. 3. The incident occurred when the victim girl aged about 09(nine) years, went to the house of one Sri Nakul Mazumdar (PW-6) on 27.02.2004 at about 12.30 P.M to deliver milk. When it was found that Nakul Mazumdar was not present, she went to the nearby room of another Home Guard i.e. the present accused/appellant to leave the milk there. Taking advantage of the loneliness of the surroundings, the accused/appellant called the minor to his room and closed the door. Thereafter, he committed rape on her. After the incident the minor girl returned home crying and reported the incident to her parents. Immediately, neighbouring persons went to the house of the accused and searched him. The accused also confessed his guilt. Narrating the incident, an FIR was lodged within 03(three) hours. PGR P.S Case No. 12/2004 was registered against the accused/appellant u/s 342/376(2)(f) IPC. The victim girl was examined by PW-8 (doctor) and as per his opinion the girl was aged about 8/9 years. The accused also confessed his guilt. Narrating the incident, an FIR was lodged within 03(three) hours. PGR P.S Case No. 12/2004 was registered against the accused/appellant u/s 342/376(2)(f) IPC. The victim girl was examined by PW-8 (doctor) and as per his opinion the girl was aged about 8/9 years. He found mark of one abrasion with contusion on inner side of the labia majora on the right side. He opined that the injury on the genital organ was suggestive of attempted forceful sexual intercourse. 4. During investigation, the Investigating Officer seized the “Gamocha” from the accused which he was allegedly wearing at the time of alleged occurrence. The undergarment of the victim containing slight blood stain was also seized. Statement of the victim was also recorded u/s 164 Cr.P.C. On completion of the investigation, charge sheet was submitted against the accused/appellant u/s 342/376(2)(f) IPC. Thereafter, the learned trial Court framed charge against him u/s 342/376(2)(f) IPC, which was read over and explained to him, but he pleaded not guilty and claimed to be tried. The accused/appellant was examined u/s 313 Cr.P.C. Defence plea was that the informant was planning to grab the land of the accused/appellant as a result of which the case was cooked up. 5. The learned trial Court raising the following points for determination, having answered the same in the affirmative with the aforesaid conviction and sentence, the accused/appellant has preferred this appeal. (1) Whether the accused wrongfully confined the victim on 27.02.2004 in his house? (2) Whether the accused committed rape on the victim on 27.02.2004? 6. PW-3 is the victim. As recorded in the impugned judgment of conviction, because of her tender age, she was not administered the oath while recording her evidence. She in her deposition categorically stated about the incident as to how she had gone to deliver milk to Sri Nakul Mazumdar and in his absence wanted to deliver the same to the accused/appellant, who taking advantage of the situation committed the offence punishable u/s 376 IPC. It is in her testimony that at that moment she raised cry and also noticed that blood was oozing out of her private part. Coming out of the room, she narrated the entire incident to her parents and they took her to the nearby police station. It is in her testimony that at that moment she raised cry and also noticed that blood was oozing out of her private part. Coming out of the room, she narrated the entire incident to her parents and they took her to the nearby police station. She also stated that she was taken to the Court and her statement was also recorded u/s 164 Cr.P.C. Ext.4 is the statement and Ext.4(1) and 4(2) are her signatures. The seized undergarment was also exhibited as MExt.1 and the “Gamocha” that was worn by the accused/appellant was also exhibited as M.Ext.2. 7. Victim’s parents PW-1 and PW-2 substantially corroborated her testimony. Both of them deposed as to how their daughter narrated the incident to them. The medical examination of the victim was done on the next morning i.e. within 24 hours. The doctor was examined as PW-8 and his report was exhibited as Ext.5. As to what was his opinion has been noted above. 8. Forensic Expert, Pw-9, who chemically examined the seized undergarment of the victim and the “Gamocha” of the accused, did not find any blood stain on the undergarment of the victim nor did she finds presence of any spermatozoa on the “Gamocha” seized from the accused. Non existence of blood stain on the undergarment of the victim was inconsequential inasmuch as the doctor found abrasion with contusion on the inner wall of the private part of the victim. Coupled with this, the oral testimony of the victim duly supported the prosecution case. 9. PW-4, is the witness who knew both the parties. Narrating the incident, he in his deposition stated that he noticed gathering near the training centre and he peeped in there. He was informed by the informant (PW-1) about the commission of the offence by the accused/appellant and requested him to accompany to police station. He went to the police station along with PW-1 and became the seizure witness. 10. PW-5 is a Home Guard constable. He in his deposition stated that on 27.02.2004 at about 1.00 P.M, he noticed gathering of several people near the house of the accused/appellant. Both the parties were known to him and he also stood as a seizure witness in respect of the seizure of the undergarment. 11. PW-6 is a Havildar of the training institute, who was declared hostile. 12. Both the parties were known to him and he also stood as a seizure witness in respect of the seizure of the undergarment. 11. PW-6 is a Havildar of the training institute, who was declared hostile. 12. DW-1 in his deposition stated that there was some land dispute between the parties. A certified copy of the writ petition being WP(C) No.7223/2002 was exhibited as Ext. A. Ext. A writ petition was filed before this Court by 43 persons and both the informant and the accused/appellant were petitioners. Thus, it did not reflect any conflict of interest, rather, they were parties to the same cause. 13. In the case of an offence u/s 376 IPC, the testimony of the prosecutrix/victim is like that of an injured person. Conviction can be based on the sole testimony of a victim. In the instant case, the victim was a minor aged about 8/9 years. She consistently stated about the rape committed on her both in her statement u/s 164 Cr.P.C and in her deposition during trial. There is nothing to disbelieve her testimony, more so when the same is duly corroborated by the testimonies of PW-1 and PW-2, her parents. 14. In view of the above, I do not find any merit in this appeal and accordingly it is dismissed. 15. Before parting with the case record, I place on record my words of appreciation for the services rendered by Mr. S.K. Medhi (I), for readily agreeing of the request to act as Amicus Curie 16. It is also provided that the victim girl will be entitled to the compensation in terms of the notification dated 18.02.2012 of the Political Department, Government of Assam in the event of her filing application to the District Legal Services Authority(M), Guwahati and following the procedures laid down therein. 17. Registry shall send down the case record along with a copy of this judgment and order to the learned trial Court.