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Gauhati High Court · body

2017 DIGILAW 808 (GAU)

Bitul Bhuyan v. State of Assam

2017-06-19

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : 1. This is a jail appeal, preferred by the accused-appellant from Central Jail, Jorhat, vide his application dated 02.08.2016, against the judgment and order, dated 08.07.2016, passed in Sessions Case No. 13(JJ)/2014, convicting the accused appellant under Section 376 of the Indian Penal Code and sentencing him to rigorous imprisonment for 7(seven) years and to pay a fine of Rs. 10,000/- in default, to undergo rigorous imprisonment for another six months. 2. The facts leading to this case is that the victim (PW-7), while she was alone and sleeping at her house, at about 3.30 P.M., on 13.2.2012, the accused appellant entered into her house and committed rape on her person. She was also physically assaulted by the accused appellant causing serious injuries on her person including on her private parts. 3. On receipt of the FIR of the above incident, lodged by PW-8, the son of the victim, on 14.2.2012, the Pulibor Police Station, registered a case, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused appellant under Section 376 of the Indian Penal Code. 4. The learned Court of Additional Sessions Judge, Jorhat, framed a formal charge against the accused appellant, to which he pleaded innocence. Then the trial of the case commenced as per procedure. 5. The prosecution examined 12 witnesses to bring home the guilt of the accused appellant. Out of the witnesses, examined by the prosecution, after scanning, it is found that the evidence of the victim (PW-7) and the evidence of PWs. 5, 9 and 10, are of great importance for a just decision of this case, to find out whether the accused appellant committed rape on the person of the victim (PW-7), as alleged. 6. The evidence of PW-1, Smt. Niru Bhuyan, is the mother of the accused appellant, has no bearing on the facts of the case, except that PW-3 and PW-4 visited their house on 14.2.2012 and took the accused appellant from her house to their office first and then, handed over to the police. The evidence of PW-3 and PW-4 also makes it appear that they went to the house of the accused appellant, took him out of his house and, ultimately, handed over the accused appellant to police on 14.2.2012. The evidence of PW-3 and PW-4 also makes it appear that they went to the house of the accused appellant, took him out of his house and, ultimately, handed over the accused appellant to police on 14.2.2012. PW-6 accompanied the victim to the police station when she went there to lodge the FIR about the commission of rape on her by the accused appellant. PW-8, Sri Prafulla Bhuyan-informant, is the son of the victim, who lodged the FIR after hearing about the occurrence from his mother i.e. the victim, vide Ext. 3. PW-11 is the seizure witness only and he has no knowledge about the facts of the case. PW-11 only proved the seizure made vide Ext.2. PW-12 is the investigating police officer, who investigated the case and also caused recording of the statement of the victim under Section 164 Cr.P.C. by the learned Magistrate. 7. Admittedly, the occurrence took place inside the house of the victim, PW-7 and considering the nature of the offence and also the place of occurrence, it is not expected that anybody had witnessed the commission of offence of rape. As regards allegation of rape, under the circumstances, we are bound to rely upon the evidence of the victim (PW-7). In her evidence, she is found to have narrated, with extreme clarity, that at about 3.30 P.M. about two years back, while she was sleeping at her home, the accused entered there, gagged her and thereafter undressed her. Then, he committed rape on her and had also bite on her private parts causing injuries on her vagina. When she attempted to ran away from the place of occurrence, the accused appellant dragged her inside, although she could manage to escape somehow. She raised alarm, following which, her neighbours - Keri Bhuyan and Rupali Bhuyan, examined as PWs. 6 and 5 respectively, came. In the meantime, the accused appellant fled away. She informed them about the occurrence. 8. It appears from the evidence of PW-6 Smti. Keri Bhuyan, that she came to know about the occurrence next day only, and to that extent, she is not found to have supported the evidence of the victim. 6 and 5 respectively, came. In the meantime, the accused appellant fled away. She informed them about the occurrence. 8. It appears from the evidence of PW-6 Smti. Keri Bhuyan, that she came to know about the occurrence next day only, and to that extent, she is not found to have supported the evidence of the victim. However, PW-5- Rupali Bhuyan, has corroborated the evidence of the victim PW-7, while she deposed that after hearing the alarm raised by the victim, she proceeded towards the house of the victim and, at that time, she saw the accused being fleeing away from the house of the victim. So, such facts clearly makes out that at the time of commission of the rape on the person of the victim, as alleged, the accused appellant went to the house of the victim and while leaving the house, he was seen fleeing by PW-5. 9. Let us now look into the evidence of PW-10-Dr. Ritu Saikia, the Medical Officer of Jorhat Medical College and Hospital. In her evidence, it is found that she examined the victim on 15.2.2012 and, on her examination, she found the following: “Physical examination Built average-height 5 feet 1 inch weight 38 kgs. Breast – sagging breast with injury marks Genital examination Pubic hair absent Vulva, Labia majora and minor – injury marks present. Vagina 2 fingers can be inserted – injury marks present. Description of injuries 1. Liner cut injury over chin 4 cm long. No active bleeding. Surrounding edema 4 cm x 4 cm colour bluish black. 2. Bite marks of teeth over right and left breast, few scratch marks over right nipple area. No active bleeding colour radish blue. 3. Scratch mark over pubic symphisis are with surrounding edema, having size of 3 cm x 3 cm. 4. A cut injury having size of 2 cm near pubic symphysis area. No active bleeding. 5. Scratch mark (multiple) over vulva, labia majora and labia minora. 6. Scratch mark (multiple) covered with scale over dorsum of both hands. Epiphysis of proximal of distal ends of radius of ulna are fused. Epiphysis of lower and hemerus are fused. B/C illac crests of ischial tuberosity are fused. Epiphyses of articulacy bones of shoulder are fused. Sexual segments are fused. Laboratory examination No 13536 dated 15.02.12 No spermatozoa seen in the smear. Epiphysis of proximal of distal ends of radius of ulna are fused. Epiphysis of lower and hemerus are fused. B/C illac crests of ischial tuberosity are fused. Epiphyses of articulacy bones of shoulder are fused. Sexual segments are fused. Laboratory examination No 13536 dated 15.02.12 No spermatozoa seen in the smear. As per her opinion: (1) Her (victim’s) age is above 25 (twenty five) years as per X ray report. (2) No evidence of recent sexual activity seen as per laboratory report dated 15.02.2012. (3) The injuries on the person found is described above. She opined that as per the colour of the injuries found on the body of the victim, said injuries were caused within 72 hours form the time of her examination. In her cross-examination she deposed that after two days of the incident, the victim was examined. She admitted that the time of examination is not mentioned in her report but the date of examination is mentioned in the report.” 10. Now, it would appear from the above medical evidence of PW-10 that it corroborates the statement of the victim that she was injured in her private parts by the accused appellant while committing rape including the bites on her breast. The evidence of the Medical Officer, examined as PW-10, lends complete support to the evidence of the victim (PW-7) as regards her injuries as she found the injury marks on the vulva, labia majora and minora and vagina, and also liner cut injury over her chin of size 4 cm in length and bite marks of teeth over her right and left breast and few scratch marks over her right nipple area. Ext. 6 is the medical report. In her statement recorded before the learned Magistrate also under Section 164 Cr.P.C. the victim narrated the facts of commission of rape by the accused appellant, as has been stated in her evidence before the Court, while examined as PW-7. 11. That apart, the evidence of PW-9 Sri Arup Manta, the Senior Scientific Officer, Forensic Science Laboratory, Assam, Kahilipara, Guwahati, reveals that the “Saree” of the victim, which she was wearing at the time of the incident and which was seized by the police vide Ext. 1, got positive test for blood, which doubly confirms to the fact of commission of sexual violence on the person of the victim, who is a widow, by the accused appellant. 12. 1, got positive test for blood, which doubly confirms to the fact of commission of sexual violence on the person of the victim, who is a widow, by the accused appellant. 12. Mr. Z. Hussain, the learned Amicus Curiae, has submitted, during the course of her submission, that there is one day delay in lodging the FIR and two days delay in examining the victim by the doctor. There is no sign of recent sexual intercourse found while the victim was examined. The victim is a widow, is an admitted position. The age of the victim is stated by herself as 50 years on the date of recording her evidence. The victim was, admittedly, examined by the doctor, PW-10, on 15.2.2012 although the occurrence took place on 13.2.2012. As such, naturally, to detect recent sexual intercourse cannot be expected. However, the undisputed and corroborated evidence of the victim that, at the time of commission of rape, she sustained injuries caused to her by the accused appellant, means that there was violence at the time of commission of the rape, which is most usual in case of resistance by a victim of rape. 13. That apart, so far delay is concerned, the FIR was lodged by the son of the victim on the next day of the date of occurrence and, this delay, in the considered view of this Court, is not unnatural considering the facts, circumstances and the nature of the case. The evidence of the informant PW-8 shows that he was not at his home at the time of occurrence. While he came home back from the place of his work, Panichakuwa, he was told about the occurrence by the victim/his mother. Next day, he lodged the FIR. There is absolutely no evidence on record to suggest that the delay of one day is due to any extraneous reason. There is, in the opinion of this Court, no reason to doubt the genuineness of the prosecution case for only one day delay in lodging the FIR. This Court finds that the evidence of the victim-PW-7 is reliable and there is nothing so inconsistent which makes her evidence as regards the accusation unbelievable or improbable. There is, in the opinion of this Court, no reason to doubt the genuineness of the prosecution case for only one day delay in lodging the FIR. This Court finds that the evidence of the victim-PW-7 is reliable and there is nothing so inconsistent which makes her evidence as regards the accusation unbelievable or improbable. This Court relies upon the decision of the Hon’ble Supreme Court in State of Himachal Pradesh vs. Sanjay Kumar Alias Sunny, (2017) 2 SCC 51 , wherein it is held that: “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. 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 vs. State of H.P.). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 14. The plea about lack of corroboration has no substance (See: Bhupinder Sharma vs. State of H.P.). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 14. In view of the discussions above, and the reasons recorded therein, this Court is of the view that the prosecution has been able to establish, beyond all reasonable doubt, that the accused appellant had committed rape on the person of the victim (PW-7) making himself liable for punishment under Section 376 of the Indian Penal Code. 15. Therefore, the conviction of the accused appellant, recorded by the learned Trial Court, under Section 376 of the Indian Penal Code, and the sentence imposed upon him, as indicated above, calls for no interference. 16. Accordingly, the judgment of the learned Trial Court is up-held. 17. Send a copy of this judgment to the Superintendent of Central Jail, Jorhat for furnishing the same to the accused/appellant. 18. Send down the LCR with a copy of this judgment.