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2015 DIGILAW 429 (GAU)

Amanulali v. State of Assam

2015-04-07

BIPLAB KUMAR SHARMA

body2015
JUDGMENT : Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of conviction dated 31.08.2013 of the learned Additional Sessions Judge No. IV, FTC, Kamrup, Guwahati in Sessions Case No. 434(k)/2012. By the said judgment, while convicting the accused appellant under Section376(1) IPC, he has been sentenced to undergo R.I. for 7 (seven) years with fine of Rs. 10,000/-. In the event of default in payment of the fine, the appellant is to undergo imprisonment for further six months. Sonapur P.S. Case No. 250/2012 was registered under Section 376 IPC on the basis of the FIR lodged by the informant who is also the victim. Ext. 1 is the said FIR. The story narrated in the FIR is that about 6 (six) months back, the victim had gone to her grant-mother's house at Kapalkata. The accused, whose house was adjacent to her grand-mother's house, accosted her and took her to his house and told her that she was in love with another boy and in the event of furnishing the said information to her father, he would leave her mother. Saying so, he gagged her mouth by a gamocha and also tied her legs with the bed so that she would not shout. Thereafter, he committed rape on her. The accused also threatened her that in the event of divulging the incident, he would kill her with dagger. 2. As stated in the FIR, she became pregnant by about 5/6 months. The FIR went on to narrate another story that on 31.07.2012, at about 8-30 p.m., while she came out of her house through the kitchen to attend the nature's call, the accused appellant surreptitiously came and caught hold of her hand. On raising hue and cry, her father arrived and caught the accused red-handed. Thereafter, the village people gathered and raised hue and cry. 3. The I.O. who was entrusted with the investigation, completed the same and submitted charge sheet. In due course, the trial Court having framed charge against the accused appellant under Section 376 IPC, the same was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 4. 3. The I.O. who was entrusted with the investigation, completed the same and submitted charge sheet. In due course, the trial Court having framed charge against the accused appellant under Section 376 IPC, the same was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 4. During trial prosecution examined 8 (eight) witnesses and the statement of the accused appellant was also recorded under Section 313 Cr.P.C. Be it stated here that during investigation, the statement of the victim was recorded under Section 164 Cr.P.C. (Ext. 2). Ext. 1 is the FIR. 5. The learned Trial Court raising the point "whether the accused committed rape on the victim against her will" having answered the same in favour of the prosecution and against the accused appellant vide the impugned judgment of conviction and sentence, he has preferred the instant appeal. Be it stated here that ever-since the judgment was delivered on 31.08.2013, the accused appellant is in imprisonment undergoing the sentence awarded to him. It is submitted by Mr. M. Sarania, learned counsel representing him that during investigation also he had undergone imprisonment for some period. 6. Referring to the evidence on record, more particularly, the delay of six months in lodging the FIR, Mr. Sarania, learned counsel for the appellant submits that the prosecution case is highly improbable and does not inspire confidence towards convicting the accused appellant. He submits that the version of the prosecutrix is not at all believable and accordingly the impugned judgment of conviction is liable to be set aside. Countering the above argument, Mr. D. Das, learned APP, Assam has submitted that the prosecutrix having stated about the incident and there being nothing to disbelieve her testimony, the impugned judgment of conviction is not liable to be interfered with. 7. As noted above, the FIR was lodged on 02.08.2012 stating therein about the incident occurred on 31.07.2012 in which the accused allegedly tried to caught hold of the victim when she came out of her house to attend the nature's call. But for the said incident the victim would not have disclosed the offence allegedly committed by the accused appellant about six months back and although she became pregnant by about 5/6 months. It is in this context, Mr. But for the said incident the victim would not have disclosed the offence allegedly committed by the accused appellant about six months back and although she became pregnant by about 5/6 months. It is in this context, Mr. Sarania, learned counsel for the appellant submits that it is highly improbable that the victim would not have disclosed the offence allegedly committed by the accused, for such a long duration to any one of the family members, coupled with the fact that six month's pregnancy would have been easily noticeable by the family members. 8. P.W. 2 is the father of the victim who in his deposition stated about the alleged offence committed by the accused appellant. P.W. 3 is the doctor who had examined the victim on 02.08.2012 and found the following:-- "Menarche - Around 1-1 1/2% years back. Menstrual cycle - 28 + 1. Last menstrual period - 6-7 around January. Genital Examination- Genital organ - Healthy. Vulva - Both labias exposed on abduction of thighs. Hymen - Old tear present at 2 O'clock, 5 O'clock, 7 O'clock position, admits tips of two fingers with difficulty. Vagina - Healthy. Uterus - Palpable 6 fingers above umbilicus. Vaginal smears taken on glass slides for laboratory investigation - From posterior fornix, and around hymeneal orifice. From Radiological investigations: Impressions : Single live intrauterine pregnancy of approx. gestational age 32 weeks 0 days i.e. cephalic presentation." On the basis of physical examination, radiological and laboratory investigation, he opined that the age of the victim was above 14 years and below 16 years. He also opined that she was pregnant at the time of examination. He proved the medical report Ext. 3. 9. P.W. 4 in his deposition stated about hearing that the accused had taken the victim forcefully. According to P.W. 5, he also heard that the accused came to the house of the victim and committed rape on her. 10. From the above, what is seen is that while in the FIR and also as per the deposition of the informant i.e. the P.W. 1, the first incident of rape occurred when she had gone to her grandmother's village but according to P.W. 4 and 5, they had heard that the accused appellant had taken the victim forcefully and that it was the accused who had gone to the house of the victim and committed rape on her. Thus, there is inherent contradictions in the evidence of P.W. 1, 4 and 5. 11. P.W. 6 is the mother of the victim who in her deposition stated that one day the victim complained of abdominal pain and on being asked she narrated the first incident that occurred when she visited her grandmother's house. She tried to explain the delay stating that on being asked as to why she did not disclose the incident, the victim told her that she was threatened by the accused showing a knife. This is a further developed story from the one of P.W. 1. While according to P.W. 1, she was threatened that in the event of divulging the incident, she would be killed by dagger but her mother i.e. P.W. 6 in her deposition stated that the victim was shown a knife by the accused appellant which was never the case of P.W. 1. P.W. 7 in his deposition referred to the second incident in which the accused was caught red-handed. On being asked, the people gathered told him that the accused had entered into the premises of P.W. 2. P.W. 8 is the I.O., who in his deposition generally stated about the investigation and submission of charge sheet under Section 376 IPC. 12. As noted above, the statement of the girl was also recorded under Section 164Cr.P.C. In her said statement also she stated about the first incident allegedly happened with her about six months back. She in her said statement stated as to how the accused had gagged her mouth and tied her legs and hands with the nearby bed and thereafter committed rape on her. In her said statement contrary to the deposition made during the trial she stated that she was threatened not to divulge the incident to anyone with the threat of killing her with the further threat that her father would leave her mother. She never said anything about threatening her with dagger. She also never said that like that of P.W. 6 that she was threatened with a knife. 13. As noticed above, but for the second incident, the victim would not have uttered anything about the first incident. By the time the FIR was lodged she was pregnant by about six months. The incident of rape allegedly occurred about six months back. 13. As noticed above, but for the second incident, the victim would not have uttered anything about the first incident. By the time the FIR was lodged she was pregnant by about six months. The incident of rape allegedly occurred about six months back. There is absolutely no evidence that there was consistent threat on the part of the accused appellant because of which the prosecutrix i.e. the PW-1 did not lodge the FIR. In the FIR itself, no explanation for the delay in lodging the same was furnished. In the case of Promod Das (Pathak) Vs. State of Assam reported in 2008 (2) GLT 682, under similar circumstances, when there was no proof of persistent threat over the months, allowing the appeal, it was held that the delay in lodging the FIR was fatal to the prosecution case. 14. Much has been emphasized about the age of the victim girl. According to the doctor's evidence, she was above 14 years and below 16 years of age and was pregnant at the time of examination on 02.08.2012. For the offence punishable under Section 376 IPC, the ingredients towards establishing the said offence will have to be proved. Merely because the victim was a minor, on that count alone, it cannot be said that the accused appellant committed rape on her. Mr. Sarania, learned counsel for the appellant, however, submits that having regard to the opinion of the doctor i.e. the P.W. 3 that the victim was above 14 years and below 16 years, with the permissible variation either side, it was possible that the victim was of 18 years of age. 15. Above aspect of the matter need not be gone into in view of the findings recorded that there was unexplained delay in lodging the FIR. The FIR was lodged on 02.08.2012 narrating the incident allegedly occurred six months back. By the time the FIR was lodged alleging commission of the offence by the accused appellant punishable under Section 376 IPC, the victim was pregnant by about six months. During this long period of six months, no effort was made to bring the incident to the notice of her family members. Coupled with this there was also no evidence led by the prosecution to show that there was continued and persistent threat on the part of the accused appellant to the victim. During this long period of six months, no effort was made to bring the incident to the notice of her family members. Coupled with this there was also no evidence led by the prosecution to show that there was continued and persistent threat on the part of the accused appellant to the victim. In such circumstances, I am of the considered opinion that it will be totally unsafe to convict the accused appellant under Section 376 IPC and he is entitled to benefit of doubt. 16. This now leads us to the involvement of the accused appellant in the second incident. As discussed above, there is overwhelming evidence towards establishing the offence punishable under Section 354 IPC, inasmuch as the accused appellant tried to outrage the modesty of the victim. Accordingly, while interfering with the impugned judgment of conviction by which the accused appellant has been convicted under Section 376 IPC, he stands convicted under Section 354 IPC, for which the punishment prescribed is not less than 1 (one) year extendable upto to 5 (five) years and shall also be liable to find. 17. As noted above, the accused appellant is in imprisonment undergoing the sentence ever-since the impugned judgment was delivered on 31.08.2013. Prior to that also he was in imprisonment for about 3 (three) months. Thus, by now he has undergone imprisonment for about 20 (twenty) months. I am of the considered opinion that ends of justice would be met if the accused appellant is awarded the sentence of imprisonment for the period already undergone with fine of Rs. 5000/- to be deposited in the learned trial Court and in default to pay the fine, he will have to undergo R.I. for another 3 (three) months. 18. Appeal is allowed to the extent indicated above. The Registry shall send down the LCR to the learned court below along with a copy of this judgment and order. The accused appellant shall be released forth with subject to depositing the aforesaid fine amount and if not wanted in connection with any other case. The amount of fine, if deposited by the accused appellant, shall be paid to the victim.