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2015 DIGILAW 441 (GAU)

Ranjit Das v. State of Assam

2015-04-09

BIPLAB KUMAR SHARMA

body2015
JUDGMENT Biplab Kumar Sharma, J. 1. Both the appeals are against the judgment of conviction dated 22.09.2011 of the learned Additional Sessions Judge (FTC) No. 2 passed in Sessions Case No. 37/2000. By the said judgment, both the appellants, namely, Ranjit Das and Dimbeswar Das have been convicted under Section 376(g) IPC and they have been sentenced to undergo R.I. for 10(ten) years with fine of Rs. 1,000/- each. In default to pay the fine they were to undergo S.I. for 1 (one) more month. While the accused Ranjit Das is the appellant in Criminal Appeal No. 222/2011, the other accused, namely, Dimbeswar Das is the appellant in Criminal Appeal No. 202/2011. Both the appeals having arisen out of the same judgment have been heard together. I have heard Mr. N.J. Das, learned counsel led by Mr. B.K. Mahajan, learned counsel for the appellants and have also heard Mr. D. Das, learned APP, Assam. I have also perused the entire materials on record. 2. Mr. N.J. Das, learned counsel representing the appellants submits that the impugned judgment of conviction primarily being based on the sole testimony of the prosecutrix, her deposition will have to be considered in the touch stone of inspiring confidence. Referring to her alleged different stand in the FIR, statement recorded under Section 164 Cr.P.C. and deposition made during trial, he submits that there being inherent contradictions, it will be dangerous to convict the accused appellant solely on the basis of her testimony. In this connection, he has placed reliance on the decisions of the Apex Court reported in (2009) 14 SCC 541 (Mussauddin Ahmed v. State of Assam); (2008) 10 SCC 69 (Lalliram & Anr. v. State of Madhya Pradesh) and (2012) 8 SCC 21 {Rai Sandeep @ Deepu v. State (NCT of Delhi)}. Mr. D. Das, learned APP, Assam on the other hand submits that minor variations in the FIR and the deposition made during trial cannot give rise to a situation in which the accused appellants can claim acquittal. According to him, the prosecutrix having vividly stated about commission of the offence by the accused appellants, the impugned judgment of conviction is required to be sustained. 3. Ext. According to him, the prosecutrix having vividly stated about commission of the offence by the accused appellants, the impugned judgment of conviction is required to be sustained. 3. Ext. 1 is the FIR dated 17.08.1999 lodged by the prosecutrix (PW-1) stating therein that at about 11-30 a.m. of 07.08.1999, when she had gone out in search of loom to weave, the accused persons along with one Shri Kabin Das took her away from the road at Kanchangaon to a house at Jyotinagar, Suakluchi, promising her to keep her as Weaver. Reaching the house, they took her inside and bolted the doors. Thereafter disrobing her, they committed rape. When she raised hue and cry, the neighbouring people came and thereafter the accused persons ran away. According to her, they were identified by PW-2, who was the owner of the house and a resident of Sualkuchi, Kanchannagar. As stated in the FIR, at the time of commission of the offence, one Smt. Jonali Bezbaruah was with her but the said Jonali was not examined by the prosecution. 4. Contrary to the above version in the FIR, the PW-1 in her statement recorded under Section 164 Cr.P.C. stated that her husband wanted to run a business by placing looms at home. She had gone to her mother's house to learn weaving. On the day of the incident, she was in search of looms to learn weaving. Accused Ranjit Das i.e. the appellant in criminal appeal No. 222/2011 called her to his grocery shop, where she sat for a while. Thereafter, he in the pretext of providing her loom took her to his vacant house to show loom inside. She was accompanied by her younger sister Jonali Bezbaruah. Inside the house, 2 (two) boys were sitting and she did not have knowledge of the same. It was only after the incident, she came to know from the neighbouring people that those two boys were Dimbeswar Das and Kabin Das. She further stated that she knew Ranjit but never talked to him. Although, she raised hue and cry and continued to weep but no one heard her voice from outside. According to her, all the accused persons committed rape on her one after another. 5. In her deposition made during trial she stated that she came to know about the accused persons from the date of the incident. Although, she raised hue and cry and continued to weep but no one heard her voice from outside. According to her, all the accused persons committed rape on her one after another. 5. In her deposition made during trial she stated that she came to know about the accused persons from the date of the incident. On the day of the incident, she came out of her mother's house accompanied by her younger sister Jonali to a particular firm, namely, Gaonbura Firm. The other two accused persons, namely, Kabin and Dimbeswar were already there inside the house situated at the firm. As soon as she reached, they entered into the house and her younger sister Jonali was threatened and she made to watch out for outsiders. Inside the house, the accused persons committed rape on her by removing her wearing clothes. Although she raised hue and cry but the accused persons did not pay any heed to that. After committing the crime, the 3 (three) accused persons threatened her not to disclose to anyone. Just at that time, the owner of the house i.e. the PW-2 arrived and having come to know that rape was committed on her, he shouted at the accused persons saying "Where will you escape today". Thereafter, the accused persons ran away. In her said statement, she also stated that PW-2 had taken her to the Police Station where the FIR was lodged. 6. In the cross examination she stated that her husband had a mill of rice, oil and wheat and she had two sons-12 years and 8 years respectively. Her husband solemnized second marriage about 4 (four) years back. She also stated that she did not know how to weave. She denied the suggestion that there was a case between PW-2 and the accused persons regarding stealing of timber. Contrary to her statement under Section 164 Cr.P.C. that Ranjit was known to her, she stated that she had met Ranjit only on the day of the incident She further stated that PW-2 had threatened her to speak the truth. 7. PW-2 in his deposition stated that visiting his house where the crime was committed he saw a girl aged 10/11 years who was weeping. As soon as he reached the house, accused Dimbeswar Das and Kabin Das seeing him and fled away. 7. PW-2 in his deposition stated that visiting his house where the crime was committed he saw a girl aged 10/11 years who was weeping. As soon as he reached the house, accused Dimbeswar Das and Kabin Das seeing him and fled away. Thereafter he took care of the victim and took her to the Police Station where the FIR was lodged. In the cross examination, he denied having picked up quarrel with Ranjit and his father in connection with stealing of timbers. He also denied that he had told the villagers that the accused got him apprehended in connection with stealing of timber. 8. PW-3 is the brother of PW-2, who in his deposition stated about coming to know about the incident through PW-2. He also stated that the inner garments of the victim was seized by the police. In the cross examination, he stated that the same was seized in the Police Station. PW-4, PW-5, PW-6, PW-7; PW-8, PW-9 and PW-10 are not material witnesses for the purpose of decision in the case. 9. PW-5 in his deposition stated that except Ranjit, other 2 (two) accused persons were not known to him. He stated that about 2 years back he had heard about the incident which took place at a distance of 200 mtrs. from his factory. PW-11 is the Professor and head of Forensic Medicine, Guwahati Medical College and Hospital, who deposed that on 08.08.1999, he was working as such. He had examined the victim in connection with the case and found the following. "Physical examination - Height-149 cm., weight- 44 kgs., chest girth - (Nipples line) -86 cm. (during expiration), abdomen girth at umbilicus -74 cms., teeth - total No. 30 (upper 14 and lower 16)-all teeth permanent/space for 3rd Molar teeth not present on both sides of upper jaw, hairs - scalp haris-28 to 30 cms. Long, dark, average thick in distribution, Pubic hairs - 4 to 5 cms. Long, dark, average thick in distribution, non-matted. No foreign hairs found. Breast - developed, healthy, soft with big nipples inclining downwards. History of Puberty Her first menstruation occurred- 14/15 years back: Last menstruation occurred-about 14 to 15 days back. Shri was sterilized (Tubectomy) at Sualkuchi PHC after 3 months of both of her younger son. Genital examination - Genital organs - healthy, Vulva - Healthy. Hymen - carducule. Mystiformis present. Vagina- Healthy/Roomy. History of Puberty Her first menstruation occurred- 14/15 years back: Last menstruation occurred-about 14 to 15 days back. Shri was sterilized (Tubectomy) at Sualkuchi PHC after 3 months of both of her younger son. Genital examination - Genital organs - healthy, Vulva - Healthy. Hymen - carducule. Mystiformis present. Vagina- Healthy/Roomy. Cervix - healthy/margins of external OS - irregular, OS- Oval in shape. Uterus- healthy. Evidence of venereal disease- not detected. Evidence of injury on Private parts - Not found. Evidence of injury on body - (1) Scratch abrasion 1.5 cm. long covered by dry scabs - present on inner aspect and front of right forearm transversely at 8 cm. above styloid process of Ulna on right side. Wear clothes - she is properly dressed. Evidence of struggle - not found. Evidence of stains (blood, Semen etc.) - Not found. Her blouse and saree were used by her at the time of alleged incident, Petticoat used at the time of incident was having stains and she was wearing another petticoat. Her mental condition - Nothing abnormality was detected. Gait - normal. Co-operation and behavior - Good. Intelligence and Memory - Average. Vaginal smears taken on 2 glass slides on Microscopic examination did not show spermatozoa or gonococci." He recorded his opinion as follows:-- "Opinion On the basis of physical and from Laboratory investigation of Smti. Padumi Kalita, I am of the opinion that - 1. Evidence of recent sexual intercourse with the woman is not found. She is a deflagrated woman (as per case history). 2. Mark of violence present on right forearm (Scratch abrasion 1.5 cm. long covered by dry scabs - present on inner aspect and front of right forearm transversely at 8 cms. Above styloid process of Ulna on right side) is described above. 3. Mark of violence is not found on her private parts or other parts of the body. Ext. 5 is the medical report in three pages. Ext. 5(1) to 5(4) are my signatures with sealed." 10. In the cross examination, he stated that the incident occurred on 07.08.1999 and the victim was examined on 08.08.1999 morning i.e. within 24 hours of the alleged act. For a ready reference, the cross-examination part is also quoted below:-- "As per her statement the incident occurred on 7.8.99. She was examined on 8.8.99 on morning i.e., within 24 hours of alleged act. For a ready reference, the cross-examination part is also quoted below:-- "As per her statement the incident occurred on 7.8.99. She was examined on 8.8.99 on morning i.e., within 24 hours of alleged act. As per Laboratory finding, spermatozoa or gonococci taken detection is suggestive of nonoccurrence of sexual intercourse within 24 hours. Abrasion is a simple injury involving superficial ligature of epidemic (skin). Dried scrap means covering the scratch area by general limps at blood oozing and being dried up to cover the involved part. From this finding, the age of injury (abrasion) approximately 203 days old prior to examination. This type of abrasion can occur by contact with any pointed/rough object. On genital organ, all organs are found healthy and evidence of struggle or force is not detected. Except the scratch nowhere in the body or private part evidence of struggle is found." 11. PW-12 in his deposition stated that on 07.08.1999, he was the 2nd Officer of Sualkuchi Police Station. He in his deposition referred to the FIR that was lodged and registration of the case. He took charge of the investigation and examined the victim and her sister Jonali. He also seized her inner garment in presence of witnesses and sent for medical examination. He also stated about recording of the statement of the victim under Section 164 Cr.P.C. In the cross examination, he stated that the victim in her statement made during investigation, did not state about the insertion of sexual organ into her private part but stated about committing rape on her. He also stated that during investigation she did not state about committing rape on her by Dimbeswar Das for an hour. 12. PW-13 in the Forensic Science Laboratory expert who in his deposition proved the report in which the result of examination was recorded thus:-- "Result of the Examination - (1) Ext. I Sero 103/99 gave positive test for human semen. (2) The group of semen could not be given due to non availability of saliva sample from both the victim and accused persons. Ext. 7 is the FSL report. Ext. 7(1) is my signature. Ext. 8 is the forwarding. Ext. 8(1) is the signature of the Director Sri K. Goswami which is familiar to me." 13. In the cross examination, she stated the following:-- "Stains semen does not require any preservative. It remains same for one and half hear. Ext. 7 is the FSL report. Ext. 7(1) is my signature. Ext. 8 is the forwarding. Ext. 8(1) is the signature of the Director Sri K. Goswami which is familiar to me." 13. In the cross examination, she stated the following:-- "Stains semen does not require any preservative. It remains same for one and half hear. But liquid sample of semen even with the preservative is also perishable. The Investigating Officer did not enquire about the blood through the sample of Kabin Das and Padmeswar Das was sent. I cannot say that the said semen belongs to those persons. The stain of blood which is in the petticoat did not examine by me. As the saliva was not sent I cannot say about the group of semen." 14. The accused persons denied commission of any offence. Their plea in their statement recorded under Section 313 Cr.P.C. was that of false case being filed against them by the informant at the instigation of PW-2. They also stated that PW-2 had assaulted her and got the case filed out of grudge against the accused persons. 15. It is on the basis of the aforesaid evidence, the learned trial Court having convicted the accused they have preferred the appeals. As to what are the inconsistencies in the stand of the prosecutrix in her FIR, in her 164 Cr.P.C. statement and in her deposition, have been noted above. While in the FIR, she stated that she wanted a loom to weave and met the accused persons on road. According to the story narrated in the FIR, the accused persons promised to keep her as weaver and called her of the road to Kanchannagar to a house at Jyotinagar, where they committed the act. On the other hand, in her statement under Section 164 Cr.P.C., she stated that her husband wanted to run business by placing looms at home. She on her way from her mother's place met accused Ranjit who in turn called her to his grocery shop, where she set for a while. She was accompanied by her younger sister Jonali. Thereafter Ranjit took both of them to a vacant house where the other 2 accused persons were already there. After commission of the offence only she came to know that the other two accused persons were Dimbeswar Das and Kabin Das. 16. She was accompanied by her younger sister Jonali. Thereafter Ranjit took both of them to a vacant house where the other 2 accused persons were already there. After commission of the offence only she came to know that the other two accused persons were Dimbeswar Das and Kabin Das. 16. As noted above, although in her deposition during trial she stated that she came to know about Ranjit for the first time on the date of the incident but in her statement under Section 164 Cr.P.C., she stated that Ranjit was known to her but they were not in talking terms. Developing the story further, she in her deposition stated about the committing the offence repeatedly by the accused persons. It is in her cross examination that PW-2 had threatened her to speak the truth. It is not understood as to why any threat was required to be given to the victim to speak the truth. It is because of the above inconsistencies of the prosecutrix, Mr. Das has placed reliance on the decision in Rai Sandeep Alias Deepu (Supra) in which the apex Court summarizing the characteristics of the sterling witness, held thus:-- "22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and every-one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other Supporting materials for holding the offender guilty of the charge alleged." 17. In the instant case also from the aforesaid version of the prosecutrix, it is found that he Court is not in a position to accept the same on its face value without any hesitation. In Lalliram (Supra), the apex Court held that where allegation is of rape by many persons and several terms but no injury is notice, is certainly is an important factor. In the instant case also, as per the testimony of PW-11, there was no evidence of recent sexual intercourse, mark of violence as also not found in her private parts or other parts of her body. In the instant case also, as per the testimony of PW-11, there was no evidence of recent sexual intercourse, mark of violence as also not found in her private parts or other parts of her body. The decision in Mussauddin Ahmed (Supra) has been pressed into service so as to argue that the most vital witness i.e. the younger sister of the victim (Jonali) was a material witness and the prosecution having failed to examine her, has weakened the case of the prosecution. In the said case also, there was no explanation forthcoming as to why the material witness was withheld. According to the victim, her younger sister was all along present when the incident occurred. Thus, she was a very vital and material witness but the prosecution for the reasons best known to it failed to examine her. 18. Above being the position, I am of the considered opinion that the accused appellants are entitled to the benefits of doubt. Accordingly, both the appeals are allowed by setting aside the impugned judgment of conviction dated 22.09.2011 passed by the learned Additional Sessions Judge (FTC) No. 2 in Sessions Case No. 37/2000. 19. The appellants are already on bail. The bail bonds stand discharged. The Registry shall send down the LCR along with the copy of the judgment to the learned court below.