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2017 DIGILAW 440 (GAU)

Atul Baishya v. State of Assam

2017-04-07

RUMI KUMARI PHUKAN

body2017
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. B.D. Konwar, learned senior counsel for petitioner. Also heard Mr. K. Konwar, learned additional public prosecutor for the state. 2. This appeal is directed against the order of the learned Addl. Sessions Judge IV(FTC) Kamrup(M) dated 6.10.2017 in sessions case 48/2015 arising from GR case 9623/2012 u/s 376/506 of the IPC whereby the appellant is convicted to r/i for 7 years with a fine of Rs 5,000 and in default to r/i for 5 months under the said Sections of law. 3. The prosecution case in a nutshell is that respondent 2, working as cook of mead-day meal at Jyoti Vidyapeeth School in which appellant was headmaster, filed an FIR with Noonmati police station on 14.9.2012 against appellant alleging that on 31.8.2012 at around 7.30 PM the appellant called her in the school and tried to outrage her modesty after closing his door but somehow she could manage to come out of the room unhurt. 4. Following the FIR, Noonmati PS case 351/2012 u/s 294/354/511 of the IPC is registered. Police officer who was entrusted with the case recorded statement of the witnesses and sketched the spot and after conclusion of the investigation submitted charge sheet before learned SDJM(S) II, Kamrup(M) against appellant u/s 354/506 of the IPC. 5. After receiving summon the appellant appeared before the trial court. He was charged u/s 354/506 of the IPC and he pleaded innocence. Finding ingredients of rape in the evidence of appellant learned trial court committed the case to the court of the Sessions Judge, Kamrup(M). 6. The learned trial court framed charge u/s 376/506 of the IPC against appellant. The defence plea is of total denial. 7. The prosecution examined 6 witnesses including medical officer and the investigating officer. The learned trial court examined the appellant u/s 313 of the CrPC. Defence also examined 2 witnesses in support of their case. On conclusion of trial the appellant was convicted under the said Sections of law. Hence this appeal. 8. Learned counsel for the appellant has vehemently argued that the case is fatal due to the delay in filing the case inasmuch as statement of the prosecutrix is highly unreliable who has twisted her case at different stages. That apart there is no medical evidence in support of her allegation and the entire facts and circumstances also indicate falsity of allegation. 9. That apart there is no medical evidence in support of her allegation and the entire facts and circumstances also indicate falsity of allegation. 9. Also heard Mr. K. Konwar, learned additional public prosecutor for the state, who has supported the order of conviction. 10. I have gone through the entire evidence on record. It is to be noted that the entire case of like nature depends upon the testimony of prosecutrix and as usual there is no eye witness to the occurrence. In the instant case the prosecutrix is a married woman having two children and husband and is working at the school of the appellant as cook. There being no eye witness to the occurrence the conduct of the prosecutrix is very relevant and from all this prospect let us appreciate the evidence on record. 11. The prosecutrix namely X/PW1 in her evidence stated that on the day of occurrence the accused called her to the school on the pretext of cleaning the school premise for holding a meeting and accordingly she went to the school on 31.8.2012 at 7.30 AM and the accused tactfully confined her in a room and forcefully raped her. She returned to her home and kept silent for 14 days without informing the matter to anybody and according to her on being asked she told the matter to her sister (PW3), Rina Kalita, and thereafter on the advice of her sister she filed the FIR. Although the first FIR was written by PW4, as it was a long one it was changed and the present FIR (exhibit 1) was written by one boy. PW3 in her evidence stated that she was told by PW1 after few days of the occurrence and accordingly the FIR was filed. Similar is the version of PW2 that she heard the matter from PW1 that she was raped by the accused (without mentioning date, time, place, etc). PW4, Deep Kalita, is husband of PW3 who advised PW1 to inform the police about the occurrence and he also wrote an FIR but it was changed as it was so lengthy and the subsequent FIR was written by someone. 12. PW4, Deep Kalita, is husband of PW3 who advised PW1 to inform the police about the occurrence and he also wrote an FIR but it was changed as it was so lengthy and the subsequent FIR was written by someone. 12. PW1 also gave a statement under Section 164 of the CrPC vide exhibit 2, and while narrating the fact she also stated that she was terminated from her job on 6.8.2012 and she and her sister PW3 went to the school on 7.8.2012 to complaint about the matter and then they were ousted from the school. 13. Medical officer, Dr RP Athpuria/PW5, on examination of PW1 on 16.9.2012 did not find any evidence of recent sexual intercourse nor any injury mark on her private parts vide exhibit 3 is the medical report. 14. PW6/IO Sri BC Konwar stated about the FIR on 15.9.2012 and also about recording of statement of the victim/PW1 under Section 164 of the CrPC wherein the victim stated about the commission of rape. However, the said PW1 did not state about the occurrence that is narrated before the court in detail that her hand and mouth were tied at the time of occurrence etc. It is also stated that only one FIR was found by him and nothing is disclosed to him that as the earlier ejahar was long so it was shortened by another boy. Similarly both PW1 and 3 did not state about the threat posed to them by the accused. That apart the PW3 stated to him that she could not remember about any rape committed by the accused. As there was no mention of rape in the FIR, he submitted charge sheet under Section 354 of the IPC. 15. On scrutiny of the evidence on record it is to be noted that the conduct of the prosecutrix/PW1 is something unusual. There was nothing to show that she made any complaint against the alleged conduct of accused. She being an adult woman could have resisted such conduct and in that case there might be injury to her as well as the sign of forcible sexual conduct. Moreover, immediately after the occurrence she did not inform anybody about the occurrence and her husband is also not examined as to what she reported him about the occurrence. She being an adult woman could have resisted such conduct and in that case there might be injury to her as well as the sign of forcible sexual conduct. Moreover, immediately after the occurrence she did not inform anybody about the occurrence and her husband is also not examined as to what she reported him about the occurrence. Moreover, her statement in cross-examination that her husband resides separately from her and she resides alone with her two children is also assumed importance in view of such unusual conduct. Her other witnesses also stated that she reported the matter after several days of the occurrence and then only the FIR was filed after 14 days of the occurrence. That apart in present FIR there is allegation of attempt of rape whereas in her statement u/s 164 of the CrPC as well as in course of trial she stated about the commission of rape which in itself is contradictory. There is no evidence as alleged by PW1 that she was kept under threat by the accused from filing such FIR. That being so the filing of FIR after a long delay without proper explanation and that too with two different versions obviously cannot be accepted as an authentic version of the prosecutrix. The only fact that the victim woman/PW1 used to work under the accused/appellant cannot be a ground for not raising protest against the conduct of the appellant on the part of PW1. Her silence for a long period after the incident is another doubtful aspect. Over and above, her own statement given under Section 164 indicates that she was ousted from her job on 6.8.2012 and she and her sister went to meet the appellant on 7.8.2012 is another blow to the prosecution case. If at all she was ousted from her job on 6.8.2012 then there can be no occasion on 31.8.2012 on the part of appellant to call her to attend duty. Such statement as well as the conduct of PW1 has made her case more and more doubtful and difficult to inspire confidence in the mind of the court. 16. Although in a case under Section 376 of the IPC, delay alone is not a ground to disbelieve the case. But the court is to assure such explanation for delay and to satisfy the truthfulness of the person put forward. 16. Although in a case under Section 376 of the IPC, delay alone is not a ground to disbelieve the case. But the court is to assure such explanation for delay and to satisfy the truthfulness of the person put forward. As has been discussed above, in the given circumstances, delay in lodging the FIR erodes the credibility of the prosecution version. 17. It is a settled position of law that only on the basis of sole testimony of the prosecutrix a conviction can be based if the same is unimpeachable and beyond reproach. But in the given case the delay in filing FIR, non-examination of the husband of the prosecutrix, the inconsistent testimony of the prosecutrix, her silence for long days and the associated circumstances leave a mark of doubt to treat the testimony of the prosecutrix as natural and truthful to inspire confidence. It can be gainfully stated with certitude that the evidence of prosecutrix is not of such quality which can be placed reliance on. 18. The appellant in this case by adducing two witnesses (DW1 Moniram Kalita and DW2 the accused himself) has testified that no such incident has happened in their school and the accused is a man of repute and DW1 who had a shop nearby the school of the appellant has stated that on the fateful day the school was locked. As DW2 the appellant stated that the service of PW1 was terminated on 31.8.2012 and on 7.9.2012 she along with her sister came to the school and claimed for the job which was refused and thereafter the case was filed. 19. Irrespective of what has been adduced by the defence it is to be noted that the prosecution case itself is wholly clouded with the shadow of doubt about its authenticity and therefore the charge under Section 376 of the IPC cannot be said to have been proved beyond all reasonable doubt and hence the accused is entitled to get acquittal on benefit of doubt. Accordingly he is acquitted of the charge being given the benefit of doubt. He be released forthwith if not wanted in any other case. 20. Return the LCR forthwith.