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2017 DIGILAW 923 (GAU)

Prasanta Bora S/o Kala Bora v. State of Assam

2017-07-14

HITESH KUMAR SARMA

body2017
JUDGMENT : Mr. Hitesh Kumar Sarma, J. This appeal has been preferred by accused/appellant, Sri Prasanta Bora, who has been convicted by judgment and order dated 18-06-2014, passed by the learned Additional Sessions Judge No. IV (FTC), Kamrup (M), Guwahati, in Sessions Case No. 33(K)/2013, arising out of GR Case No. 9436/2008, under Section 376 IPC, and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for further period of 2 months. 2. The prosecution case is that, on 29-10-2008, at about 3.30 pm, while the victim/PW1 was returning home from the house of her aunt, at a solitary hilly place, the accused-appellant on the pretext of asking something to her, took her to his house and committed rape on her. 3. On the above facts, the informant, father for the victim, examined as PW4, lodged an FIR, on 30-10-2008, which was registered as Bhangagarh Police Station Case No. 80 of 2008, under Section 376 IPC, investigated into it, collected evidence, and finally, submitted charge sheet against the accused/appellant, under Section 376 IPC. 4. On appearance of the accused, charge against the accused-appellant, was framed under Section 376(1) of the IPC, to which the accused-appellant pleaded innocence. 5. The case was tried by learned Additional Sessions Judge No. IV (FTC), Kamrup (M), Guwahati. During the trial, prosecution examined 8 witnesses and the defence 2. The defence plea is of denial. 6. The statement of accused-appellant was recorded as required under Section 313 Cr.P.C., 1973 The accused-appellant denied the accusations levelled against him. In his statement, he had also put up a case that on the date of occurrence, as he was at his house, the victim went to his house at about 3.00 p.m. and expressed to him that she loved him and wanted to marry him. The accused-appellant refused and asked her to leave the place. Thereafter, on the same day, at about 5.00 p.m., the informant/PW4 and Sri Kunjalata Kalita/PW5 came to his house and asked him to come out. When he came out, they assaulted him and dragged him to the house of PW5. Thereafter, at 8.00 p.m., they took him to the police station and handed over him to the police. He denied commission of rape as alleged. 7. I have heard Mr. When he came out, they assaulted him and dragged him to the house of PW5. Thereafter, at 8.00 p.m., they took him to the police station and handed over him to the police. He denied commission of rape as alleged. 7. I have heard Mr. AM Bora, learned senior counsel, appearing on behalf of accused-appellant, and Mr. NJ Dutta, learned Additional Public Prosecutor, Assam. 8. The point for determination, before this Court, on the basis of the accusations and evidence on record is, Whether, on 29-10-2008, at about 3.30 p.m., the accused-appellant committed rape on the victim, who was below 18 years of age on that day ? 9. In this case the victim has been examined as PW1. It is her evidence that while returning home from the house of her aunt, the accused-appellant had taken her forcibly to his house, gagged her, undressed her and committed rape on her person. He also threatened the victim/PW1 not to disclose the incident else she will be injured in her neck by a dao. She returned home thereafter. She was weeping at her home. Her mother enquired about the reasons of her weeping. Her father came later on and also enquired about the reason of her weeping. She did not disclose the reason. Thereafter, her father/PW4 called his sister, i.e. the aunt/PW5 of the victim, and then only, the victim disclosed the fact of commission of rape on her. After coming to know about the commission of rape on his daughter, PW4 lodged the FIR with the Bhangagarh police station, vide Ext.3. It has also come out from her evidence that during the course of investigation, her statement was recorded by learned Magistrate, under Section 164 Cr.P.C., 1973 vide Ext.1. On her such statement, under Section 164 Cr.P.C., 1973 also, she appears to have been consistent with her evidence in the Court. Further, she was also medically examined during the course of investigation. 10. PW3/Dr. Risha Pandey, Demonstrator, Department of Forensic Medicine, Guwahati Medical College and Hospital examined her in connection with the police case, referred to above, on 30-10-2008. On examination of the victim, the PW7 furnished his report, vide Ext. 2, which he proved in his evidence. Further, she was also medically examined during the course of investigation. 10. PW3/Dr. Risha Pandey, Demonstrator, Department of Forensic Medicine, Guwahati Medical College and Hospital examined her in connection with the police case, referred to above, on 30-10-2008. On examination of the victim, the PW7 furnished his report, vide Ext. 2, which he proved in his evidence. The opinion of the PW3/doctor, on examination of the victim, is as follows: "On the basis of physical examination, radiological and laboratory investigations done on Champa Pathak, we are of the opinion that- 1. There is no evidence of recent sexual intercourse present on her person, however, findings are suggestive of recent forceful penetration. 2. Her age is above 14 (fourteen) years and below 16 (sixteen) years). 3. Evidence of injury present on her private part as described in Page (11) Column 17(c)." 11. During cross-examination of PW3/doctor, the he is found to have asserted that the injury present on victim indicated that it was done by human organ. He further asserted in his cross-examination that the tear present on the hymen, orifice admits tip of one finger with difficulty. The evidence of PW3 remained unshaken even in his cross-examination; so far the findings recorded by him in Ext. 2 are concerned. 12. PW2 and PW4 are respectively the mother and the father of the victim. The evidence of PW2 is that the victim, who went to her sister-in-laws house at about 10.11 am on 29-10-2008, did not return home till 5.00 p.m. She rang up her sister-in-law, i.e., PW5 and enquired about the victim. Then PW 5 told her that the victim had already left her house at about 3.30 p.m. The victim returned home thereafter weeping. She enquired about the reason of her weeping and also called PW5 to her house. The victim disclosed the commission of rape on her by accused-appellant. The evidence of PW4/father of the victim appears to be in tune with the PW2, in respect of the fact of visiting the house of PW5 by the victim on 29-10-2008 and coming back late, necessitating to collect information from PW5 whether she had left her house or not. 13. PW5, Kunjalata Kalita is the aunt of the victim and sister of her father, whose house the victim visited on the date of occurrence. 13. PW5, Kunjalata Kalita is the aunt of the victim and sister of her father, whose house the victim visited on the date of occurrence. According to her, the victim left her house at about 2.30/3.00 pm and she got a call at about 4.30/5.00 pm from PW2 to the effect that the victim did not reach home. Then she came to the house of the informant. In the meantime, the victim also appeared at her house. Then, on her query, the victim narrated to her about the incident of commission of rape on her person by the accused-appellant. 14. PW6 and PW7, Namita Das and Bina Bora respectively are the witnesses, who only heard about the occurrence. There is no evidence led by both these PW6 and PW7 as to their source of knowledge about the commission of rape on the person of the victim and as such their evidence remained hearsay having no evidentiary value. 15. PW8 is the Investigating Police Officer. His evidence relates to the investigation of the case from receipt of the FIR till filing of the charge-sheet including examination of the victim by the doctor and also recording of her statement by learned Magistrate under Section 164 Cr.P.C., 1973 16. It appears from the evidence of the witnesses that admittedly there is no eye witness of the commission of rape on the person of the victim by the accused-appellant. The evidence of PW2, PW4 and PW5 leaves this Court with no doubt that on the fateful day of occurrence, the victim went to the house of PW5, and when she returned late, there is an enquiry made by PW2 and then they came to know that the victim/PW1 left the house of PW5 at about 2.30/3.00 p.m. The victim came home back at about 4.30/5.00 p.m. Their evidence is also unequivocally clear on the facts that the victim was weeping at her home after coming back from the house of PW5 and that she narrated about the commission of rape on her person to PW5, who, in turn, informed PW2 and PW4 about the occurrence. 17. Now, let us scan the evidence of PW1 and PW3. PW1/victim very categorically deposed in her evidence that rape was committed on her person by the accused-appellant in the house of the accused-appellant. 17. Now, let us scan the evidence of PW1 and PW3. PW1/victim very categorically deposed in her evidence that rape was committed on her person by the accused-appellant in the house of the accused-appellant. She was forced to go to his house by the accused-appellant; she was gagged there before commission of rape on her person and also threatened by the accused-appellant not to disclose this fact to others. In her statement under Section 164 Cr.P.C., 1973 also, the victim/PW1 appears to have not deviated from what she had stated before the Court as PW 1; rather, her evidence and her statement under Section 164 Cr.P.C., 1973 are found to be consistent on the core issue of commission of rape on her person. 18. The evidence of the doctor and his opinion on examination of the victim, vide Ext. 2 is that his findings are suggestive of recent forceful penetration and that injury was present on the private part of the victim. The injuries are as follows: "1. Grazed abrasion present on the ventral aspect of left forearm of size 4 cm x 4 cm, red in colour 7 cm below elbow joint and 5 cm. About writ joint. 2. Multiple linear abrasions reddish brown in colour present on the front of neck placed horizontally of length 4 cm, 3 cm & 2 cm. 3. Graze abrasion of size 3 cm x 2 cm present on the ventral aspect of left arm 2 cm about the elbow joint." 19. The evidence of doctor makes it appear that his findings are suggestive of forceful penetration. There were injuries on the private parts of the victim. Therefore, the evidence of PW1/victim and the evidence of the doctor/PW5 leaves the Court with no doubt at all that there was rape committed on the person of victim/PW1, they being corroborated to each other. 20. Admittedly, there is no eye witness to the occurrence. But this Court has not found any reason to disbelieve the evidence of PW1/victim, and rather, it appears to the Court that the evidence of PW1/victim inspires confidence of this Court. 21. The evidence of the victim/PW1 is that she was a student of Class-VIII and she was 15 years of age. The evidence of her father/PW4 is also that she was about 15 years of age on the date of the occurrence. 21. The evidence of the victim/PW1 is that she was a student of Class-VIII and she was 15 years of age. The evidence of her father/PW4 is also that she was about 15 years of age on the date of the occurrence. The medical evidence is that she was above 14 years and below 16 years of age. The fact remains that the victim was below 18 years of age at the relevant time of the occurrence. There is absolutely no dispute that the age of the victim was below 18 years at the time of occurrence. That being so, the offence alleged in the instant case is clearly covered by Clause Sixthly of Section 375 of the IPC, punishable under Section 376 of the IPC. 22. The Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Sanjay Kumar alias Sunny, reported in (2017) 2 SCC 51 , in paragraph 31 observed as follows: "31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondents, has any merit. 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. 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 instance case, we even find enough corroborative material as well, which is discussed hereinabove." 23. This Court has found the evidence of victim/PW1, discussed at Para-20 above, inspiring confidence. 24. Now, the question is whether the defence has been able to disprove the prosecution story. The evidence of DW1, accused-appellant, shows that the victim was unknown to him and on the date of occurrence she went to his house, knocked the door, and while he opened the door, she told that she loved him. The DW2 does not appear to have spoken about the accusation of commission of rape on the victim by the accused-appellant and rather, his evidence is related to causing assault on the person of the accused-appellant by one PW4 and PW5. His evidence even discloses that the accused-appellant did not disclose to him about the happenings at his house. 25. It appears from the defence evidence above that the defence tried to stage a story, which is most unrealistic and unreliable, as a shield, to prove the prosecution story as a concocted one. It is absolutely unbelievable that an unknown girl would go to an unknown person and tell him that she loved him. This Court has also taken note of the fact that the victim also deposed in her evidence that she did not know the accused-appellant and the accused-appellant also deposed in his evidence as DW1 that he did not know the victim. This Court has also taken note of the fact that the victim also deposed in her evidence that she did not know the accused-appellant and the accused-appellant also deposed in his evidence as DW1 that he did not know the victim. In such circumstances, the story staged by the defence appears to be completely unrealistic. 26. In view of the above discussions, on the evidence on record, and the findings recorded therein, this Court has no hesitation to hold that the prosecution has been able to prove the guilt of the accused for commission of an offence punishable under Section 376 of the IPC. Therefore, the order of conviction recorded by the learned trial Court needs no interference. The learned trial Court, on conviction sentenced the accused-appellant to rigorous imprisonment for 7 years with a fine of Rs. 5000/-, and in default of payment of fine, further rigorous imprisonment for another 2 months. The substantive sentence imposed upon the accused-appellant by the learned trial Court, being the statutorily prescribed minimum one, no interference is called for. There is no reason to interfere with the default clause. 27. In view of above, the judgment and order passed by learned Additional Sessions Judge No. IV (FTC), Kamrup (M), Guwahati, is affirmed. 28. The appeal is accordingly dismissed. 29. Send down the LCR to the Court below with a copy of this judgment and order immediately.