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2017 DIGILAW 1335 (GAU)

Arup Gogoi v. State of Assam

2017-10-23

HITESH KUMAR SARMA

body2017
JUDGMENT & ORDER : This is an appeal from jail, preferred by accused/appellant, Sri Arup Gogoi, who has been convicted by judgment and order dated 21-07-2012, passed by the learned Assistant Sessions Judge, Jorhat, in Sessions Case No. 55(JJ)/2009, under Sections 376 (2) (f) of the IPC, to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for further period of 6 (six) months. The period already undergone in prison by the accused-appellant is directed to be set off, and the fine, if realised, is directed to be paid to the prosecutrix. 2. I have heard Ms. B Sarma, learned Amicus Curiae appearing on behalf of accused-appellant, and Mr. PP Borah, learned Additional Public Prosecutor, Assam. 3. The prosecution case, as appears from the evidence on record, is that the PW2 (hereinafter referred to as the victim), was raped by her home tutor, on 27-07-2008, at about 8.00 p.m., in her house. The fact of the case is that the family of the PW1, the father of the victim, consists of PW1 himself, his wife, his three daughters including the victim, his son and one of his brothers, staying together in the same house. The accused-appellant was the home tutor of his three daughters. The accused-appellant used to do tuition in the evening time. On the date of occurrence, while the accused-appellant came to the house of the informant/PW1, for doing the tuition, there was no electric light in his house due to short-circuit. His wife, his son and his youngest daughter were not at home at that time. As there was no light, the accused-appellant left the house of the victim at about 6.30 p.m. without doing the tuition. But he again came at about 7.30 p.m. The father of the victim/PW1, his two brothers, his mother and his two daughters along with the accused-appellant were talking in the veranda of the house. The informant/PW1 requested the accused-appellant to fill up a form of bank loan, which he started doing in the drawing room. Then, the brother of the informant (PW5) wanted the elder daughter of the informant (PW3) to prepare tea for them and, then, the elder daughter (PW3) and her grandmother, i.e., mother of informant/PW1 went to the kitchen for preparing tea and others were sitting in the veranda. Then, the brother of the informant (PW5) wanted the elder daughter of the informant (PW3) to prepare tea for them and, then, the elder daughter (PW3) and her grandmother, i.e., mother of informant/PW1 went to the kitchen for preparing tea and others were sitting in the veranda. After preparation of the tea, they were called to come inside the house for taking tea, and as such, the PW1, his brother (PW5), PW3 and her grandmother went inside the house for taking tea. The victim and another brother of informant/PW1 remained in the veranda and the accused-appellant was filling up the bank loan form in the drawing room. The other brother of the informant left. The victim went to the drawing room where the accused-appellant was filling up the bank loan form. Then, the accused-appellant gagged her mouth, brought her out to the veranda, made her sit on a wooden chair and then penetrated his penis in her private part, resulting in bleeding and also pain. Immediately after the occurrence, the victim went inside the house and told her elder sister (PW3) and grandmother about the commission of rape on her person by the accused-appellant by penetrating his penis in her private part. The informant also saw blood on the lower part of the victim. There was blood on her panty. Initially they thought that she might have attained puberty, but after hearing the narration of the occurrence from the victim about commission of rape on her person by the accused-appellant, the informant took the victim to the nearby police station along with PW3, PW4, PW5 and PW6 and lodged the FIR there, vide Ext. 1. 4. On receipt of the FIR, being Exhibit 1, about the above occurrence, Pulibor Police Station registered a case, being Pulibor Police Station Case No. 86/2008, registered under Sections 376(f) of the IPC, on the date of occurrence itself, i.e., on 27-07-2008. 5. 1. 4. On receipt of the FIR, being Exhibit 1, about the above occurrence, Pulibor Police Station registered a case, being Pulibor Police Station Case No. 86/2008, registered under Sections 376(f) of the IPC, on the date of occurrence itself, i.e., on 27-07-2008. 5. The police investigated into the case, arrested the accused-appellant, forwarded him to the judicial custody, got the victim examined at Golaghat Civil Hospital by PW8 (Senior Medical and Health Officer), got the statements of the victim as well as of PW3 and PW5 recorded under Section 164 of the Cr.P.C, visited the place of occurrence, seized the blood stained clothes of the victim, and finally, on completion of the investigation, submitted charge-sheet against the accused-appellant, under Sections 376 (f) of the IPC, vide Ext. 10. 6. In this case, the prosecution examined as many as 9 witnesses, who are, except PW8 (the Medical Officer), examined in cross by the defence. After closer of the prosecution evidence, statement of the accused-appellant was recorded by the learned trial Court under Section 313 of the Cr.P.C. The accused-appellant, in his such statement, not only denied the accusation levelled against him, but also declined to adduce defence evidence. After conclusion of the trial the learned trial Court convicted and sentenced the accused-appellant as aforesaid. 7. Now, let us examine the evidence on record to find out whether the accused-appellant, the home tutor of the victim, committed rape on her person on 27-07-2008, as alleged? 8. The evidence of the victim, examined as PW2, is that just before the time of occurrence she went to the drawing room where the accused-appellant was filling up the bank loan form in the light of a lamp, and the other members of her family i.e. PW1, PW3, PW5 and mother of the PW1, i.e. grandmother of the PW2 were taking tea inside the house. Taking advantage of the situation, the accused-appellant gagged the victim, took her to the veranda of the house, made her sit on a wooden chair and then penetrated his penis into her private part. She could not raise alarm as she was gagged. Taking advantage of the situation, the accused-appellant gagged the victim, took her to the veranda of the house, made her sit on a wooden chair and then penetrated his penis into her private part. She could not raise alarm as she was gagged. Immediately, after commission of rape, the accused-appellant left the place of occurrence and the victim went inside the house weeping and narrated the occurrence to her elder sister (PW3) and her grandmother and also told them that it was bleeding from her private part, which also stained her panty. The police seized the clothes of the victim, vide Ext. 5. PW5 and PW6 were witness to the seizure. The red colour mini skirt wore by the victim also had blood stain and the same was also seized by the Investigating Police Officer by the same seizure list. The informant/PW1 and the PW3 initially thought that the victim might have attained puberty, but they were told by the victim that the bleeding was due to commission of rape on her person by the accused-appellant. The evidence of PW1, PW3, PW4 make it appear, beyond all reasonable doubt, being consistent, even in the minute details, that immediately after the occurrence, the victim went to them as they were sitting inside the house and narrated as to how the accused-appellant committed rape on her person. PW5 and PW6 came to the house of the victim slightly later after the occurrence and they also saw the victim weeping and blood oozing out as well as the blood stained skirt of the victim. 9. The fact remains that while the accused-appellant committed rape in the veranda of the house, the witnesses stated above, were having tea inside the house and as such they are naturally in a position to narrate about the event immediately after the occurrence. The victim led evidence to the effect that she informed the PW1, PW3, PW4 and her grandmother about the occurrence and whatever she stated in her evidence and in the statement, she made before the aforesaid PWs, remained the same, in her evidence before the Court also. Her evidence is consistent with the statement made under Section 164 of the Cr.P.C., which is exhibited vide Ext.2. Her evidence is consistent with the statement made under Section 164 of the Cr.P.C., which is exhibited vide Ext.2. PW1, PW3 and PW4 also corroborated the evidence of the victim/PW2 in such a manner that there is absolutely no inconsistency raising about any doubt the veracity of the evidence of any of these witnesses. It deserves a mention here that before recording statement of the victim under Section 164 of the Cr.P.C. as well as before recording her evidence in the Court, on oath, she was tested by the learned Court below to assess her capability to understand the questions put to her and her ability to give rational answers. 10. In the light of the evidence, tendered by the victim, let us, now, look into the evidence of PW8, the doctor. PW8 examined the victim on the next day of the date of the occurrence, on being produced by the Investigating Police Officer. The relevant part of the evidence of PW8 is reproduced below: “On examination : Physical appearance (look)- Apprehensive. Teeth upper 6+6=12. Lower 6+5=11 (on left the 03rd from midline absent). Weight- 36 kg., height= 4’8” Axillary hair present (scanty). Breasts small and developed. No any teeth marks, nail marks in the breasts or other parts of the body. Presence of semen, saliva not found on the body and cloths. Blood stain found on genitalia, thighs, legs. Examination of private parts : Pubic hairs grown (minimum) profuse bleeding from the vaginal cand present. Hymen torn. On examination of midline vaginal tear found in the posterior well (about 1”) with bleeding which is repaired in presence of the staff Nurses Bulu Chutia and Mamoni Das. Vaginal smear taken from the vaginal swabs for pathological examination. Laboratory and X-Ray findings : Lab. No. 60 (28.7.2008). Report : No spermatozoa seen in the smear examined. X. Ray done elbow and wrist joint (left). No. W 73. Dated 28.7.2008. Radiological report: Ossification is not completed in the bones around the left elbow and wrist joint. The female case is below 16 years (sixteen). The girl has been admitted in the M & G Ward for observation. Opinion : (1) There are signs of recent vaginal injury on the victim girl. (2) No any physical violence seen in the other parts of the body. (3) From the Radiological report of the X-Rays taken the victim girl is below 16 (sixteen) years. The girl has been admitted in the M & G Ward for observation. Opinion : (1) There are signs of recent vaginal injury on the victim girl. (2) No any physical violence seen in the other parts of the body. (3) From the Radiological report of the X-Rays taken the victim girl is below 16 (sixteen) years. (4) There is no evidence of presence of semen, salvia on any parts of the body. There is no evidence of presence of semen, saliva on any other parts of the body. Hymen is torn due to penetration. The age of the girl may be 10 years also. Exbt. 7 is my medical report and Exbt.1(1) & (2) are my signatures thereon.” 11. The evidence of PW8 makes it appear that the victim may be of 10 years of age although radiological examination discloses that the age of the victim to be below 16 years. 12. It appears from the evidence of the doctor (PW8), which was not even subjected to cross-examination, makes it more than clear that there were signs of recent vaginal injury on the victim girl and hymen of the victim was torn due to penetration. He also found profuse bleeding from the private part of the victim. Such un-assailed evidence of the doctor read together with the evidence of the victim that due to penetration of his penis by the accused-appellant to her private part, there was profuse bleeding from her private part makes it abundantly clear that rape was committed on the person of the victim. The accused-appellant although denied committing rape on the victim, in his cross-examination as well as in his statement under Section 313 Cr.P.C., yet the evidence of the victim is totally reliable and there is no reason to doubt the truthfulness of her evidence at all. Considering the consistent evidence she has led in her examination-in-chief as well as in her cross-examination and absolute failure on the part of the defence to discredit such evidence, this Court is convinced that the evidence led by the victim is truthful. That apart, the events subsequent to the occurrence i.e, reporting the occurrence to the father, elder sister, uncle, i.e. PW1, PW3 and PW4 and corroborative evidence on this aspect led by the said three witnesses is such that there is no reason to disbelieve their evidence. That apart, the events subsequent to the occurrence i.e, reporting the occurrence to the father, elder sister, uncle, i.e. PW1, PW3 and PW4 and corroborative evidence on this aspect led by the said three witnesses is such that there is no reason to disbelieve their evidence. Immediately, after the occurrence the incident was narrated to the PW1, PW3, PW4 and the grandmother is quite natural in the facts and circumstances of the case. That being so, the evidence of the prosecution witnesses is consistent with each other and corroborated the evidence of the victim making her evidence more and more truthful. 13. The defence raised issue, during the course of argument that there is no independent witness in the case to support the prosecution case. It has already come out from the evidence on record that the occurrence took place in the residence of the victim and except herself, her grandmother, father/PW1, PW2 and PW4 and the accused, there was none in the residence of the victim at the relevant point of time, being undisputed facts, expecting independent witness there is like trying to catch the skylark flying about the blue sky. Further, it cannot be expected that the offender will commit rape on a minor girl keeping witnesses. 14. From the evidence on record, as discussed above, it is found that the evidence of the victim is quite reliable. In this context a decision of the Hon’ble Supreme Court is referred in the case of State of Himachal Pradesh Vs. Sanjay Kumar Alias Sunny (2017) 2 SCC 51 , held as follows:– “31. …………….. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? The plea about lack of corroboration has no substance (See Bhupinder Sharma V. State of H.P.). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 15. On the basis of the discussions above, this Court is of the view that it was none, but the accused-appellant, who committed rape on the victim. This is also a fact that he was a home tutor of the victim and her elder sisters, and therefore, the accused-appellant committed the offence under Section 376(2) (f) of the IPC. 16. In view of the above, it is found that the judgment of the learned trial Court convicting the accused-appellant is based on evidence on record, which the learned trial Court thoroughly discussed leaving no scope for interference, by this Court in appeal. 17. So far the sentence is concerned, the punishment for offence under Section 376(2) (f) of the IPC shall not be less than rigorous imprisonment for a term of 10 years, but which may extend to imprisonment for life, which shall mean the imprisonment for remainder of that person’s natural life and shall also be liable to fine. The learned trial Court, on conviction, sentenced the accused-appellant, to rigorous imprisonment for 10 (ten) years, as a substantive sentence, and to pay a fine of Rs. The learned trial Court, on conviction, sentenced the accused-appellant, to rigorous imprisonment for 10 (ten) years, as a substantive sentence, and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for further period of 6 (six) months. The substantive sentence of rigorous imprisonment imposed by the learned trial Court is statutorily prescribed minimum one. So far the fine of Rs. 5000/- and rigorous imprisonment of 6 months in default of payment of fine also appears to be reasonable in the facts and circumstances of the case. Therefore, no interference in respect of the sentence is also called for in the instant appeal. 18. Accordingly, the appeal is dismissed. The judgment and order of the learned trial Court is upheld. 19. Send down the LCR with a copy of this judgment. 20. A copy of the judgment shall also be furnished to the Superintendent, District Jail, Jorhat for furnishing a copy thereof to the accused/appellant. 21. This court records its appreciation for the assistance rendered by learned Amicus Curiae. The learned Amicus-curiae be paid an amount of Rs. 7,000/- as remuneration. 22. Return the LCR with a copy of this judgment and order.