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2015 DIGILAW 963 (GAU)

Subal Praja v. State of Assam

2015-08-05

PARAN KUMAR PHUKAN

body2015
JUDGMENT AND ORDER Paran Kumar Phukan, J. - The learned Additional Sessions Judge No. 1, First Track Court, Tinsukia convicted the above named appellants under Sections 341/376(G)/379 of the IPC in Sessions Case No. 225(T)/2003 for committing gang rape of a girl and for committing theft of some articles from her. 2. The background facts sans unnecessary details are that the prosecutrix, a girl aged about 16/17 years, on the evening of 25.08.2002 eloped with one Khagen Karmakar and while they were proceeding towards the house of Khagen Karmakar, situated at Dhoedam Tea Estate and when they arrived near the Hospital of the Tea Estate, some boys came and assaulted Khagen Karmakar and drove him away and they lifted the prosecutrix towards the Tea Estate, tied her hands and legs with her clothes and committed rape on her one after another. After committing the crime, one of the accused stood guard while the eight others left that place, at the request of the prosecutrix, the accused untied her and on the pretext of drinking water, she fled away. With the help of "babus" of the Tea Estate, she went to the hospital of the Tea Estate. In the next morning, her husband Khagen Karmakar came and took her to his house. The accused appellants while committing rape also took away her wrist watch, one silver chain and her bag containing some clothes and cash amount of Rs. 300/-. 3. On 27.08.2002, the prosecutrix lodged a written FIR with O/C Doomdooma Police Station. Police registered the FIR and started investigation. One of the accused Subol Sarathi was identified by her husband and his name was disclosed to her by him and in the FIR also his name has been mentioned. On 29.08.2002, the appellants Subol Sarathi, Bikram Sura, Premananda Boraik and Robin Prem surrendered before police and they disclosed the name of the other appellants Sridhar Koiri, Babul Singh, Nabakanta Raotia, Prahlad Dhaniram and Munna Singh. On the same day Sridhar Koiri, Babul Singh and Nabakanta surrendered before police and they were arrested. During investigation police sent the prosecutrix for medical examination and got her statement recorded under Section 164 Cr.P.C. On completion of investigation, Charge-Sheet was submitted against the appellants under Sections 341/323/376(G)/379 IPC. 4. During trial the prosecution has examined as many as 13 witnesses including the Medical Officer and the Investigation Officer. During investigation police sent the prosecutrix for medical examination and got her statement recorded under Section 164 Cr.P.C. On completion of investigation, Charge-Sheet was submitted against the appellants under Sections 341/323/376(G)/379 IPC. 4. During trial the prosecution has examined as many as 13 witnesses including the Medical Officer and the Investigation Officer. The accused appellants took the plea of total denial and they stated that due to prior enmity with Khagen Karmakar, they have been falsely implicated. On conclusion of the trial, the learned Additional Sessions Judge found all the accused appellants guilty and they were accordingly convicted. 5. Being aggrieved by the judgment, the appellants preferred this appeal challenging the judgment of the learned Additional Sessions Judge. The learned advocates appearing on behalf of the appellants raised the following contentions:- 1. Identity of the persons committing the crime have not been established. 2. The ocular version is not corroborating the medical evidence. 3. The purported extra judicial confessions allegedly made by the appellants have not been proved. 4. Failure of the prosecution to examine the main witness of the case. 6. In the backdrop of the aforesaid contentions, let me now turn to the evidence on record to ensure whether the appellants committed rape of the prosecutrix. 7. The prosecution is mainly relying on the testimony of the prosecutrix. It is a settled law that a finding of guilt in a case of rape can be based on the uncorroborated evidence of the prosecutrix and her testimony should not be rejected on the basis of minor discrepancies and contradictions. In Radhu v. State of Madhya Pradesh (2007) 12 SCC 57 . The Apex Court in para-6 of the judgment observed as follows: "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a "rape", if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The Courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case." 8. Keeping in view the observations of the Apex Court, let me now turn to the evidence of the prosecutrix to ascertain whether her evidence inspires full confidence and whether conviction can be based on her testimony alone. Admittedly, the prosecutrix hails from Tinsukia town and she eloped with Khagen Karmakar. On the evening of 25.08.2002 after alighting from the bus at Barhabjan at about 8 pm, they were proceeding towards the house of Khagen Karmakar at Dhoedam Tea Estate situated near the hospital. 9. Evidence of the prosecutrix, PW8 is that when they arrived near the hospital two persons came in a bicycle and knocked her husband and they were followed by six other persons in three bicycles and they came and assaulted her husband which compelled him to flee away. They lifted her towards the garden, tied her hands and feet with her own clothes and committed rape on her one after another. Another person also came and he also committed rape on her. They lifted her towards the garden, tied her hands and feet with her own clothes and committed rape on her one after another. Another person also came and he also committed rape on her. Some of the boys had taken away her wrist watch, silver chain, silver payel and Rs. 300/- with her bag. After committing crime eight persons left the place and one stood as a guard. When she requested for water, he untied her hands and legs, she fled away on the pretext of taking water and went to the house of a garden staff and when she arrived there, the inmates of the house shouted "thief thief" which compelled her to go to the house of the another staff member who showed her the garden hospital and while she was proceeding towards the hospital, she noticed some of the boys sitting in a culvert near the hospital. She returned to the house of the staff and after sometime two staff members took her to the hospital. In the hospital one lady patient gave her a chadar and one of the workers of the hospital took her to his house. Her husband came in the next day and took her to his house. 10. She lodged Ext. 1, FIR and in the FIR, the date, time and manner of commission of the crime has been clearly spelt out. In the FIR, she has named the accused Subol Sarathi which was disclosed to her by her husband Khagen Karmakar. No doubt there was some delay in lodging the FIR but considering the facts and circumstances of the case, no adverse inference could be drawn. A host of circumstances like the mental and physical condition of the prosecutrix, nature of injuries sustained by her etc. should be taken into consideration. Usually, in rape cases, the victims do not want to go to the Police Station to lodge FIR and before doing so, they discuss about the matter with their close relatives and well wishers which take time to file the FIR, delay in such cases cannot be said to be fatal. Because of the delay, it cannot be held that the story given by the prosecutrix was improbable. I find no reason to suspect embellishment or after thought. 11. Because of the delay, it cannot be held that the story given by the prosecutrix was improbable. I find no reason to suspect embellishment or after thought. 11. On scrutiny of the evidence of the prosecutrix which is corroborated by the medical evidence and the other circumstantial evidence, there is no doubt that rape was committed on the prosecutrix by some persons on that fateful night. Now the most pertinent question is whether the accused appellants committed gang rape on her or whether only some of them were involved. Admittedly, the prosecutrix did not know the accused appellants from before and for the first time she saw them in the Tea Estate. Her husband only disclosed the name of the accused appellant Subol Sarathi. Evidence on record reveals that trial identification parade was held for identification of the culprits involved in the case. 12. Evidence of PW8 is that she identified eight accused persons in the course of TIP and she has proved Ext. 3, TIP report. Her evidence is that the occurrence took on the day of full moon and all the accused persons present in the court committed rape on her. It is seen from her evidence that before holding of the TIP, the Investigating Officer asked her to identify the accused persons arrested in connection with this case in the police lockup and accordingly, she saw the accused in the lockup. Her evidence is that there were none, except the accused persons in the lockup at that time and police after arresting them asked her to identify them and accordingly, she identified them. 13. Learned advocate appearing for the appellants strenuously submitted that since the appellants were already shown to her in the lockup by police, the TIP held for their identification was meaningless. The argument cannot be thrown out of consideration. 14. In, the Supreme Court held as follows: "When there are sufficient materials to prove that there was strong possibility of the accused being shown to the witnesses before test identification parade, conviction of the Trial Court based on their evidence of identification on the witness box is not justified because such identification before Court is meaningless. For the same reason their identification in Court was also meaningless." 15. For the same reason their identification in Court was also meaningless." 15. In the instant case also the evidence of the prosecutrix reveals that the accused persons were shown to her in the police lockup after their arrest by police and subsequently, their identification in Court also became meaningless. The TIP itself has been rendered meaningless and on the basis of such identification, it cannot be held with certainty that all the accused committed rape on her. In her evidence, she has specifically mentioned that the accused Subol Sarathi committed rape on her and his name was also disclosed to her by her husband. She has not taken the names of the other accused persons and in my considered view, it would be extremely hazardous to come to the finding that all the accused persons committed rape on her. 16. On perusal of the impugned judgment of the learned Additional Sessions Judge, it appears that some of the accused confessed their guilt before the Welfare Officer and Assistant Manager of the Tea Estate. They have been examined by the prosecution and I have not found anything in their evidence to show that the accused appellants confessed their guilt before them. 17. Evidence of PW5 Welfare Officer is that while he was working in the garden, a girl came to his office and informed him that some youths of the Tea Estate misbehaved with her but she did not know the youths and he advised her to approach police. There is nothing to show that any of the accused appellants made any confessional statement before him. PW4 Assistant Manager was informed by the chowkidar of the Tea Estate that a girl has been raped by some boys. Police came to him for interrogation. He is also silent regarding any confession made before him by the accused appellants. 18. The evidence of PW12, the Investigating Officer that the youths confessed before PW4 and PW5 is not admissible in evidence since it is not supported by PW4 and PW5 before whom the accused appellants allegedly confessed their guilt. 19. The prosecutrix mentioned the name of Subol Sarathi in the FIR and her evidence shows that his name was disclosed to her by her husband. She also claims to have seen the accused and in her evidence also, she affirmed that the accused Subol Sarathi at first committed rape on her. 19. The prosecutrix mentioned the name of Subol Sarathi in the FIR and her evidence shows that his name was disclosed to her by her husband. She also claims to have seen the accused and in her evidence also, she affirmed that the accused Subol Sarathi at first committed rape on her. I find no reason to disbelieve her and it is established that the accused appellant Subol Sarathi was one of the rapist who committed rape on the prosecutrix. Although she had taken the name of Prahlad Tati in her evidence but his name has not been mentioned in the FIR and there is no evidence that his name was disclosed to her by her husband. 20. It appears from the evidence of PW12 the Investigating Officer of this case that after the accused were arrested the accused Babul Singh stated before him that the bag which he had taken away from the victim was thrown in the Tea Estate and he would be able to produce the bag and on being led by him the bag, the clothes and other articles were recovered which were seized vide Ext. 4. 21. The evidence of the Investigating Officer is corroborated by PW9 and PW10 and both of them put their signatures in the seizure. The statement of the accused Babul Singh made before the Investigating Officer after his arrest which led to be discovery of the items is admissible in evidence and there is no reason to disbelieve the evidence of the Investigating Officer in this regard, moreover, the statement of the accused followed by recovery of the items at the instance of the accused Babul Singh has been corroborated by PW9 and PW10 which also proved that the accused Babul Singh was one of the person present at the time of committing rape and his presence itself proved his complicity in the commission of the crime. 22. In Tameezuddin alias Tammu v. State (NCT of Delhi) reported in (2009) 15 SCC 566 , the Supreme Court observed as follows: "9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable." 23. In the present case on consideration of the totality of the evidence on record and keeping in view the observations of the Apex Court, the only conclusion which could be drawn is that the prosecutrix PW8 was gang raped by a number of youths including the accused appellants Subal Sarahi and Babul Singh. The TIP has been rendered meaningless as the identifying witness i.e., PW8 had the opportunity to see the accused in the police lockup a few day before the TIP. Her subsequent identification in the dock of the Court is also of no consequence. It would be too hazardous and unsafe to convict all the accused appellants for committing gang rape on her sole testimony that she identified accused in TIP and in the dock of the Court. 24. From the evidence on record, it is only established beyond doubt that the accused appellants, Subal Sarathi and Babul Singh committed rape on her. The involvement of the other accused appellants for the reasons aforesaid appears to be doubtful and benefit of doubt is to be extended to them. 25. From what has been discussed above, I am constrained to hold that the prosecution failed to prove the charge of rape against the appellants Bikram Sura, Premananda Boraik, Robin Prem, Sridhar Koiri, Nabakanta Raotia, Prahlad Dhaniram and Munna Singh beyond all reasonable doubt and consequently, they are acquitted on benefit of doubt. So far the appellants Subal Sarathi and Babul singh are concerned, the case has been established beyond all reasonable doubt and accordingly, the judgment of conviction and sentence passed against them by the learned Additional Sessions Judge, Tinsukia stands affirmed. The period already undergone by them in jail in connection with this case shall be set off. 26. Send down the LCR along with the copy of the judgment to the learned Courts below for information and necessary action. Jail authority may be informed accordingly.