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2017 DIGILAW 92 (GAU)

Geeta Duarah v. State of Assam

2017-01-19

RUMI KUMARI PHUKAN

body2017
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr J Laskar, learned counsel for petitioner and Mr T.J. Mahanta, learned senior counsel for respondent 2. Also heard Mr B Sarma, learned additional public prosecutor for the state. 2. Petitioner challenged the judgment and order dated 31.5.2007 of the learned JMFC, Golaghat in GR case 1105/2005 whereby the accused is acquitted of the charges u/s 448/354 of the IPC. 3. Petitioner lodged an FIR on 3.11.2005 stating inter alia that at 6.30 PM on 17.10.2005 in the absence of her husband the accused came to their house when she was preparing dinner and took her to the nearby bathroom by gagging her mouth and attempt to rape her but some how she managed to escape and then the accused fled away. It is explained that since the matter was informed to local people for settlement and as the matter was not resolved the FIR was filed belatedly. 4. Based on the said FIR Golaghat PS case 537/2005 u/s 448/376/511 of the IPC was registered and after completion of the investigation charge-sheet was filed u/s 448/354 of the IPC. The accused faced trial and denied the charges. In support of charges prosecution examined 7 witnesses including the investigating officer. The plea of defence was of total denial. After completion of the trial the accused was acquitted of the charges by the learned trial court. Aggrieved by such order the victim/informant filed this revision on the ground that such finding of the learned trial court is perverse and was recorded without appreciating the evidence in proper perspective of law and facts. Accordingly prayer is made to convict the accused under the said Sections of law. 5. I have considered rival submissions. 6. According to learned counsel for petitioner, in view of the testimony of the victim woman supported by eye witnesses the learned trial court could have awarded the conviction rather than to acquit the accused. 7. On the other hand, learned counsel for respondent has submitted that the conduct of the victim woman is very relevant as it goes to show that being a consenting party she did not protest to the said conduct of accused/respondent and the testimony of the PW3/daughter of the informant also has lent support to the inference that the petitioner/informant was a consenting party to the whole affairs. 8. I have gone through evidence on record. 8. I have gone through evidence on record. Petitioner as PW1 has given evidence that on the day of incident the accused respondent caught hold of her by hand gagging her mouth and took to the bank of a nearby pond and also derobbed her when she was in menstruation, however she managed to unshackle his clutch crying for her daughter. 9. But from evidence of PW3/daughter of informant it is found that she saw the accused catching hold the hand of her mother and then her mother told that she could not do because she was in menstruation. However, accused respondent took her to the backside of the bathroom then she peeped through a whole towards the bathroom and saw her mother returning holding her clothes and thereafter the accused fled away. In cross-examination she has stated that the respondent used to come to their house in the absence of her father and talked to her mother. It is also stated that her mother did not make any hue and cry in the bathroom nor did make any cry. 10. From the totality of the evidence of the PW1 and 3 it emerges that the accused used to come to their house and the implication of the word uttered by PW1 that "she cannot due to menstruation" is indicative of the fact that she knew the intention of the accused for which she was caught hold by him but only because of menstruation she was denied for the same. That apart, according to PW3, PW1 made no hue and cry even when she was taken to the backside of the house/bathroom nor did even when she returned from the bathroom. 11. It can be inferred that only because the grown up child/PW3 saw the occurrence the petitioner/PW1 chose to reveal the facts otherwise. Even after such conduct the silence of the petitioner/informant for several days without filing any FIR is another vital aspect. As disclosed by the petitioner that she referred the matter for bichar to local people is also not supported by any of the witnesses examined. PW2 is the husband of the informant although he has stated that he was told by PW1 about the incident and it is also stated by him that the accused misbehaved with his wife on earlier occasions also and the matter was informed to the local people and nothing was discerned. PW2 is the husband of the informant although he has stated that he was told by PW1 about the incident and it is also stated by him that the accused misbehaved with his wife on earlier occasions also and the matter was informed to the local people and nothing was discerned. Other witness viz. PW4 to 6 are independent witnesses. They have not supported the contention of the petitioner that the matter was referred to local people for bichar and it was reported to the witnesses after several days of the occurrence. 12. In the given circumstances we cannot lose sight of the conduct of the petitioner/victim woman while raising the allegation. The conduct of the prosecutrix is always very relevant particularly when the victim woman is an adult and a married woman. No married woman will tolerate such indecent conduct on the part of a person/accused if she was not a consenting party, at all. In the given circumstances it is very difficult to place exclusive reliance on the evidence of the informant/victim woman and the learned trial court has arrived at the conclusion that the accused deserves acquittal as the ingredient of the offence is not proved beyond reasonable doubt. The scope of revision against the acquittal is very limited. Only because the revisional court can give a different opinion against the opinion given by the trial court cannot be a ground to interfere in the order of acquittal. 13. As discussed above, in the instant case I find no irregularity or illegality in the findings arrived at by the learned trial court to interfere in the impugned order. Accordingly the petition is disposed of by upholding the order passed by the learned trial court. Return the LCR forthwith.