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Gauhati High Court · body

2016 DIGILAW 5 (GAU)

Ranjit Kr. Bhattacharjee v. State of Assam

2016-01-05

C.R.SARMA

body2016
JUDGMENT : C.R. Sarma, J. This appeal is directed against the judgment and order, dated 26.11.2007, passed by the learned Additional Sessions Judge (FTC), No. 4 Kamrup, Guwahati, in Sessions Case No. 147/2007. By the impugned judgment and order, the learned Addl. Sessions Judge, FTC No. 4, Kamrup convicted the appellant for the offence under Section 304 IPC and sentenced him to suffer rigorous imprisonment for 2 years and pay fine of Rs. 1,000/- in default suffer rigorous imprisonment for 3 months for the offence under Section 304 IPC. It has also been ordered that the period of detention, already undergone by the appellant, shall be treated as set off under Section 428 Cr.P.C. 2. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. 3. The prosecution case, in brief, is that on 29.1.2014 at about 6.00 p.m. when the victim girl, who was aged about 12 years visited the residence of the appellant, who was a retired teacher, for taking tuition and the appellant, taking the opportunity of absence of other persons, touched her private part and laid her on the bed with an intention to commit rape on her. However, the victim girl could release herself from the appellant and thus, rescued herself. Her maternal uncle with whom she used to live lodged the FIR with the Officer-in-Charge of Bharalumukh Police Station. On receipt of the FIR, police registered Bharalumukh P.S. Case No. 297/2004 under Sections 376/511 IPC and launched investigation into the matter. 4. At the close of investigation, police submitted charge sheet under Sections 376/ 511 IPC. The offence being exclusively triable by the court of Sessions, the learned Addl. Sessions Judge, FTC, No. 4, Kamrup, Guwahati framed charges under Section 376 IPC. The charge was read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined as many as, 10 witnesses including the Medical Officer (PW 10) and the Investigating Police Officer (PW 8). After examination of the prosecution witnesses, the learned trial Judge examined the accused person under Section 313 Cr.P.C. He denied the allegations, brought against him and examined one defence witness, as DW- 1. His plea was a complete denial one. 6. Considering the evidence, on record, the learned Addl. After examination of the prosecution witnesses, the learned trial Judge examined the accused person under Section 313 Cr.P.C. He denied the allegations, brought against him and examined one defence witness, as DW- 1. His plea was a complete denial one. 6. Considering the evidence, on record, the learned Addl. Sessions Judge (FTC), No. 4, Kamrup, Guwahati held the appellant guilty of the offence under Section 354 IPC and accordingly convicted and sentenced the appellant, as indicated above. 7. Mr. D. Talukdar, learned counsel, appearing for the appellant, has submitted that there is no substantive evidence against the appellant. The learned counsel, referring to the medical evidence, given by the PW 10, has submitted that the age of the victim girl, at the relevant time, was 17 years and that she was habituated to sex. The learned counsel for the appellant has also submitted that the learned trial Judge based the conviction on the uncorroborated evidence of the victim girl and that the appellant, who is aged about 70 years, is entitled to be acquitted for want of sufficient evidence. 8. Controverting the said argument, advanced by the learned counsel for the appellant, Mr. K. Munir, learned Addl. Public Prosecutor, Assam has submitted that the evidence, given by the victim girl, is sufficient to hold the appellant guilty of the alleged offence and as such the learned trial Judge committed no error or illegality requiring interference by this court. The learned Addl. Public Prosecutor has submitted that, despite cross-examination made by the defence, the forceful evidence given by the prosecutrix, remained undemolished and that the evidence given by the defence witness i.e. DW 1 is not inconformity with the plea taken by the appellant i.e. the accused person. In view of the above, the learned Addl. Public Prosecutor has submitted that the impugned conviction and sentence needs no interference. 9. Having heard the learned counsel, appearing for both the parties, I have carefully perused the evidence on record. 10. Sri Gouranga Sutradhar, who lodged the FIR, deposing as PW 1 stated that the victim girl, who is his niece, was studying in Class VIII, at the relevant time and that she used to take tuition in the residence of the appellant, who was a retired teacher. The said witness stated that he, coming to know about the occurrence from his sister lodged the FIR. He exhibited the FIR as Ext. The said witness stated that he, coming to know about the occurrence from his sister lodged the FIR. He exhibited the FIR as Ext. No. 1 and his signature as Ext. No. 1(1). This witness clearly stated that the victim girl had narrated the entire story to his sister, namely Smti Punrnima Sutradhar and that Smti Purnima Sutradhar has told him about the same. 11. Smti Purnima Sutradhar, who has been examined as PW 2, supporting the evidence given by PW 1 stated that the victim girl had told her that the appellant had touched her private part and dragged her to a bed for committing rape on her. Though the PW Nos. 1 and 2 were cross examined, on behalf of the defence, their said evidence remained undemolished. 12. Smti Dolly Sutradhar, who was the aunt of the victim girl, deposing as PW 3 has stated that the victim girl told her that the appellant tried to outrage her modesty. 13. The victim girl, who was examined as PW No. 4 stated that, on the fateful evening of 29.11.2004, when she was taking tuition, alone, in the residence of the appellant, the appellant had touched her private part and dragged her to the bed and tried to undress her. She further stated that when she was laid on the bed, the telephone, available in the residence of the appellant, started ringing and, taking the opportunity that appellant had moved to receive the telephonic call, she could escape from the house of the appellant. She further stated that, earlier also, the appellant treated her in the said manner twice, but out of fear, she did not disclose the same. The victim girl further stated that she had disclosed everything to her aunt, maternal uncle and her grandmother. She has also exhibited her statement, recorded under Section 164 Cr.P.C., as Ext. No. 2 and her signatures as Ext. No. 2(1) and 2(2). This witness was cross-examined by the defence, but her evidence, regarding involvement of the appellant, remained undemolished. 14. The learned Magistrate, who recorded the statement of the victim girl under Section 164 Cr.P.C., deposing as PW 5 stated that she had recorded the statement of the victim girl. The PW 5 exhibited the same, as Ext. 2 and her signature, thereon, as Ext. 2 (3). 15. 14. The learned Magistrate, who recorded the statement of the victim girl under Section 164 Cr.P.C., deposing as PW 5 stated that she had recorded the statement of the victim girl. The PW 5 exhibited the same, as Ext. 2 and her signature, thereon, as Ext. 2 (3). 15. PW No. 6 Sri Narayan Sutradhar, who was a neighbour of the informant, stated that he came to know about the occurrence from the maternal uncle of the victim girl. 16. Sri Sowmen Bhattacharjee, who was another neighbour of the informant, deposing as PW 7, stated that he has also came to know about the occurrence from the informant. 17. The Investigating Officer has been examined as PW 8. No material contradiction could be proved in respect of the evidence given by the prosecution witnesses, more particularly, the informant and the victim girl. 18. PW 9, who was S.I. of Police, stated that the investigation was completed by PW 8 and that he submitted the charge sheet under Sections 376/511 IPC. 19. The Medical Officer, who examined the victim girl, on 1.12.2004 i.e. after two days from the date of occurrence, deposing as PW 10, stated that the victim girl was aged about 17 years and that she was habituated to sexual intercourse and that there was no recent sign of intercourse. He has exhibited the medical examination report as Ext. No. 4. In his cross-examination, he opined that no x-ray was done and that without x-ray examination, it was not possible to ascertain the age of the victim girl. He further stated that her age was determined on the basis of the physical examination, done by him. 20. From the above discussed evidence, it appears that the victim girl stated that on the fateful evening of 29.11.2004, when she attended the residence of the appellant for taking tuition, the appellant had touched her private part and dragged her to the bed with an intention to commit rape on her. From her evidence, it appears that she had disclosed the matter to her near relatives. Her said evidence has been supported by PW Nos. 1, 2 and 3, who stated that, the victim had told them about the occurrence. The said evidence, given by the victim girl, remained un-discredited. Hence, I find sufficient force in the evidence, given by the victim girl. Her said evidence has been supported by PW Nos. 1, 2 and 3, who stated that, the victim had told them about the occurrence. The said evidence, given by the victim girl, remained un-discredited. Hence, I find sufficient force in the evidence, given by the victim girl. There is nothing, on record to show that the victim, who was a minor had any reason or grudge to falsely implicate the appellant, who was her tutor. 21. The other witnesses i.e. PW Nos. 5, 6 and 7, who also assembled in the house of the informant, after the occurrence, came to know about the occurrence from the informant. Admittedly, no sexual intercourse took place and as such absence of any sign of recent sexual intercourse, does not negate the forceful evidence given by the victim girl. 22. One person, namely, Sri Sawpan Choudhury has been examined as DW 1. Shri Sawpan Choudhury stated that, on the date of occurrence at about 4-30 p.m. he arrived at the residence of the appellant to accompany the appellant for attending a marriage party and that he found a group of students attending in the residence of the appellant for taking tuition. He further stated that after the tuition was over, he accompanied the appellant for attending a marriage party. Though the DW 1 stated that he attended the residence of the appellant in the evening i.e. at the relevant time for the purpose of attending marriage party, the appellant, in his statement recorded under Section 313 Cr.P.C., did not whisper anything regarding visit of the said DW 1 and also about attending marriage party. The plea of the appellant was a complete denial one. Hence, I find no force in the evidence, given by DW 1 to believe that he had attended the residence of the appellant in the evening of 29.11.2004. 23. In view of the above discussion, I find no reason to disbelieve the evidence given by the victim girl. Her statement has been supported by other members of the family namely, PW 1, 2 and 3. If the appellant had not misbehaved with the victim girl in the said manner, there was no reason to falsely implicate him by the victim. 24. In view of the above, considering the entire aspect of the matter, I find that the prosecution could successfully establish the case against the appellant. If the appellant had not misbehaved with the victim girl in the said manner, there was no reason to falsely implicate him by the victim. 24. In view of the above, considering the entire aspect of the matter, I find that the prosecution could successfully establish the case against the appellant. The learned trial Judge has properly appreciated the evidence, on record and based the conviction on the evidence on record. Therefore, I have no hesitation in holding that the learned trial Judge committed no error or illegality by recording the conviction under Section 354 IPC. 25. Hence, I find no reason to interfere with the conviction and accordingly, the conviction aforesaid is upheld. The learned trail Judge has sentenced the appellant to suffer rigorous imprisonment for 2 (two) years and pay fine of Rs. 1,000/- (Rupees one thousand) in default to suffer imprisonment for 3 (three) months. 26. Admittedly, the appellant is on bail granted by the trial Judge as well as this court. The learned counsel, appearing for the appellant, referring to the statement recorded under Section 313 Cr.PC, has submitted that the present age of the appellant is 70 (seventy) years and that he being a retired school teacher, no fruitful purpose would be served by sending him to jail to suffer imprisonment for a short period of two years at this stage. 27. It is also submitted that the petitioner, being a retired teacher, has already suffered detention for a period of 30 (thirty) days with effect from 1.12.2004 to 30.12.2004 and that he has suffered much hardship both mentally and financially, in facing the proceeding before the trial court as well as the appellate court. The occurrence took place on 29.11.2004 i.e. about 11 years ago. 28. In view of the above, considering period of detention already undergone by the appellant and the hardship and suffering undergone by him, I find it to be a fit case to take lenient view, in respect of the sentence. In my considered opinion, this is a fit case to reduce the period of sentence i.e. imprisonment. Accordingly, considering the entire aspect of the matter, while upholding the conviction aforesaid, the sentence of imprisonment, is modified to the period, already undergone by him. However, no interference is made in respect of the sentence of fine. 29. With the above modification, this appeal is partly allowed. 30. Return the LCR. Accordingly, considering the entire aspect of the matter, while upholding the conviction aforesaid, the sentence of imprisonment, is modified to the period, already undergone by him. However, no interference is made in respect of the sentence of fine. 29. With the above modification, this appeal is partly allowed. 30. Return the LCR. 31. The appellant shall pay the fine within thirty days from this date.