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2018 DIGILAW 1201 (GAU)

Ganesh Das v. State of Assam

2018-08-16

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Ms. S.K. Nargis, learned counsel for the appellant and Mr. B.B. Gogoi, learned Addl. P.P., Assam. This appeal is directed against the judgment and order dated 14.07.2014 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 60/2013. By the said judgment, learned Sessions Judge convicted the appellant under Section 376 IPC and sentenced him to imprisonment for 10 years and fine of Rs. 10,000/- with default sentence. 2. As per prosecution case, on 18.02.2013, due to inconvenience of his wife the accused took the victim, daughter of the informant PW-2, to his house for helping his wife in domestic works. On the same night, the appellant committed rape on her. In the next morning, the victim was admitted in Nagaon Civil Hospital for treatment. The accused also informed the parents of the victim, that she was ill and admitted in hospital. Having come to know, about the illness of the victim, her parents came on 20.02.2013 and met the accused along with the victim, on the way, while they were coming from hospital. Having come to know from the victim that rape was committed on the victim, the parents of the victim again took her for medical examination and eventually lodged the FIR (Ext 4). On the basis of the said FIR, police registered a case and on completion of investigation submitted charge sheet against the appellant and his wife under Section 376/109 IPC. 3. During trial, learned Sessions Judge framed charges under Section 376 IPC R/W Section 109 IPC against both the accused, which were denied by them. Nine witnesses were examined by the prosecution to establish the charges. On appreciation of evidence, learned Trial Court convicted the present appellant and awarded sentence as indicated above. However, the co-accused, wife of the present appellant was acquitted of the charge. 4. Learned Trial Court basically relying on the oral testimony of the victim and the doctor, recorded conviction of the appellant. The doctor, PW-6 who examined the victim, stated to have found the following injuries. "Identification mark one black mole on left cheek, one black mole on right cheek right below right eye. Height 120cm, weight=22kg, teeth upper jaw-13 lower jaw-13, breast not developed. Auxiliary hair absent, pubic hair absent. Hymen teat at 8 O'clock position. The doctor, PW-6 who examined the victim, stated to have found the following injuries. "Identification mark one black mole on left cheek, one black mole on right cheek right below right eye. Height 120cm, weight=22kg, teeth upper jaw-13 lower jaw-13, breast not developed. Auxiliary hair absent, pubic hair absent. Hymen teat at 8 O'clock position. Vaginal injury : present with active bleeding and tear of hymen. Clothing intact. Marks of violence absent. LMP (last menstruation period) Menarche not attained. Smear examination vide registration No. 11275 reported by pathologist Dr. J. Bory shows no spermatozoa, laboratory No. 59. X-Ray examination of the wrist, elbow and iliac crest vide plate No. 1467, 1468 & 1469 shows radiological age between 7 to 8 years. Right wrist joint ossification of the lower ends of radius and ulna have appeared but not united with respective shaft. Right elbow joint ossifications of medial epicondyle have appeared but lateral epicondyle has not appeared. Right iliac crest ossification have not appeared. Opinion: The victim girl was sexually assaulted violence mark present in her private part. Her age according to radiologist in between 7 to 8 years." 5. During cross examination, the PW-6 stated that before he examined the victim on 20.02.2013, she was admitted in civil hospital and was treated as an indoor patient and she was also medically examined. After her discharge, she was again examined by him for the second time. 6. The victim, PW-1, deposed that while she was sleeping with the accused and his wife, the wife of the appellant, who was co-accused tied her hands and the appellant gagged her mouth and thereafter the present appellant committed sexual intercourse with her forcibly and consequently, she sustained injuries. 7. Pw-2, father of the victim deposed, that he was informed by the son of the appellant on the next day, that the victim was taken to hospital for treatment as she was suffering from diarrhea. When till next day i.e. 20.02.2013, the victim was not released from hospital, the PW-2 along with his wife came to Nagaon to see their daughter and met the accused/appellant and his wife along with the victim, on the way, who were coming from Nagaon on motorcycle. According to him, the victim told that on the night, when she stayed in the house of the appellant, the appellant forcibly committed sexual intercourse with her. According to him, the victim told that on the night, when she stayed in the house of the appellant, the appellant forcibly committed sexual intercourse with her. PW-3, mother of the victim also stated in same tune. According to her, when the victim was taken to hospital for the second time for examination, the doctor opined that it was a case of rape and therefore they informed the police. Whereas, from the cross examination of both these witnesses, it appears that at the instance of one of the relatives of the victim, who happened to be police personal, the mother of the victim examined her in the vehicle itself and then the victim stated regarding accused committing rape on her. What crystallizes from the oral testimony is that the parents of the victim once stated that after knowing about incident of rape from the victim they took the victim to police station and thereafter she was taken to hospital. While mother of the victim again stated that at the first instance, the victim was taken to hospital and after knowing from the doctor that it was a case of rape, they went to police station, meaning thereby, till examination of the victim by doctor they did not know about the rape. 8. From the oral testimony of PW-9, the Investigating Officer, it appears that two GD entries were made relating to the occurrence. The first one was at the instance of some villagers, who went to the police station at about 6-30 PM and informed about the occurrence and asked the police to arrest the accused. Subsequently, another GD entry was made after half an hour, on the basis of the FIR lodged by the parents of the victim. It was also revealed from the second GD entry that previously another FIR was lodged at Mikirbheta outpost. 9. It was revealed during cross examination of the Investigating Officer (PW-9) and the Ext.7, the sketch map that the accused had only one room, where the accused/appellant, his wife, children and mother of the appellant used to reside together. It was also revealed from the second GD entry that previously another FIR was lodged at Mikirbheta outpost. 9. It was revealed during cross examination of the Investigating Officer (PW-9) and the Ext.7, the sketch map that the accused had only one room, where the accused/appellant, his wife, children and mother of the appellant used to reside together. Though the victim stated in her evidence that the wife of the accused tied her hands and instigated her husband for committing rape on her and charges were framed against wife of the appellant under Section 376/109 IPC, learned Trial Court disbelieved the evidence of the victim with regard to involvement of the co-accused, the wife of the accused, noticing the discrepancies in the oral evidence and also the genesis of the occurrence. 10. Evidently, the victim was initially admitted in the hospital on 19th and she was released on 20th and the discharge certificate was proved as Ext.A. The doctor who examined the victim, subsequently also admitted that the victim was admitted in hospital on 19th and she was released on 20th. It was also in the evidence of the victim that when she was taken to hospital on 19.02.2013, the appellant told the doctor that victim sustained injury on her private part due to hitting against fencing and as such, admittedly the doctor treated the victim for her injuries on the private part. Surprisingly, Ext.A, discharge certificate issued from the same hospital was totally silent about any injury on the private part as nothing was mentioned in the Ext.A about any injury, though, according to victim the injury on the private part was treated and the appellant explained the same as indicated above. Admittedly, the subsequent examination of the victim by the doctor was at the instance of the parents of the victim even before lodging the FIR. What is evident from the two medical documents seized by police i.e. Ext.2 and Ext.A is that both the reports were contradictory, inasmuch as, Ext.A which was issued at the time of discharge of the victim did not disclose about any injury on the private part, though admittedly according to the victim doctor when examined her on 19.02.2013 the appellant explained the reason of injuries on her private part as self inflicted one. Therefore, it was not the case, that the injury on the private part of the victim was concealed. Therefore, it was not the case, that the injury on the private part of the victim was concealed. When the doctor admittedly examined the victim on 19.02.2013 and admitted her for treatment and issued the Ext.A in due process, there is no reason for disbelieving the Ext.A. If the Ext.A is believed, it raises question about the veracity and reliability of the Ext.2 medical report, which was prepared on 20.02.2013 when the victim was taken to hospital for the second time. If the Ext.A is believed, it belies the entire genesis of the occurrence regarding commission of rape on 18th at night. In any view of the matter, the two contradictory medical reports obviously raises a doubt about the sanctity and veracity of the medical evidence and as such, the medical evidence on the basis of which learned Trial Court convicted the appellant does not appear to be above board. In view of the material discrepancy between the two set of medical evidence, it is difficult to attach credibility to the medical evidence as deposed by PW-6. 11. The evidence of the PW-9 and the Ext.7 discloses that occurrence took place in a room where the appellant was staying with his wife, the co-accused, children and mother. According to the victim the wife of the appellant (since acquitted) tide the hand of the victim and she was also holding her legs and instigated the appellant to commit rape on the victim and the appellant committed sexual intercourse by penetrating, in the room where his mother and children were also sleeping. The way occurrence was stated to have taken place appears to be absurd and unbelievable. The discrepancies in the oral testimony as indicated above, unreliable and fishy medical evidence, coupled with the absurdity of the prosecution story, rendered the entire prosecution case extremely doubtful. When the offence alleged to have been committed by the appellant is serious and grave one, providing for severe punishment, prosecution must provide greater assurance to the court by a strictest degree of proof that the case has been proved beyond all reasonable doubt. In view of the evidence and the facts and circumstances as indicated above, it is difficult to say that prosecution has been able to discharge its burden to prove the guilt of the accused beyond reasonable doubt and the learned trial Court is found to have rightly acquitted the co-accused. In view of the evidence and the facts and circumstances as indicated above, it is difficult to say that prosecution has been able to discharge its burden to prove the guilt of the accused beyond reasonable doubt and the learned trial Court is found to have rightly acquitted the co-accused. When the evidence and material brought on record were not found sufficient to convict the co-accused, the same set of evidence could not be held to be sufficient to convict the appellant or at least, he ought to have been given the benefit of doubt. Therefore, having considered the evidence and the materials brought on record this court is unable to persuade itself to sustain the conviction and sentence of the appellant. Accordingly, the conviction and sentence of the appellant are set aside. The appeal is allowed. 12. The accused appellant shall be released forthwith, if not wanted in any other case. 13. Registry shall send back the LCR. 14. A copy of the judgment be communicated to the concerned jail.