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2018 DIGILAW 236 (GAU)

Joy Das v. State of Assam

2018-02-07

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This criminal revision petition is filed under Sections 397/401 of the Cr.P.C., challenging the legality, propriety and correctness of the judgment and order, dated 12.3.2014, passed by the learned Sessions Judge, Jorhat, in Criminal Appeal No. 29/2013, convicting the accused- petitioner to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1,000/- under Section 376 (2) (f) of the IPC with a default clause, by upholding the judgment and order, dated 19.7.2013, passed by the learned Assistant Sessions Judge, Jorhat, in Sessions Case No. 119 (J-J) /2012. 2. I have perused the appeal memo as well as the annexures furnished therewith including the judgment put to challenge in this petition. 3. I have also heard Mr. B.C. Das, learned counsel for the revision petitioner as well as Mr. B. Sarma, learned Additional Public Prosecutor for the state respondent. 4. The fact leading to the prosecution case is that, on 5.6.2009, at about 1:00 pm, the accused committed rape on the 7 years old minor daughter of the informant the members of his family were absent and which his wife witnessed. The accused was chased by the wife of the informant (PW1). The bicycle used by the accused-petitioner was there in the courtyard of the informant. 5. On receipt of the FIR, on the above facts, Jorhat Police Station registered a case, being No. 245/2009 under Section 376 (2) (f) of the IPC, and after completion of the investigation, laid the charge-sheet under Section 376 (2) (f) of the IPC. 6. After exhausting all the required legal formalities, the learned trial court of Assistant Sessions Judge, Jorhat, framed a formal charge against the accused-petitioner under Section 376 (2) (f) of the IPC, to which the accused-petitioner pleaded innocence. Hence the trial commenced. 7. During the trial, prosecution examined as many as 7 (seven) witnesses to bring home the charge against the accused-petitioner whereas the defence examined none. Defence plea is of total denial. 8. After closure of the prosecution evidence, statement of the accused-petitioner was recorded under Section 313 of the Cr.P.C., and in his such statement also, he is heard denying the accusation leveled against him by the prosecution. Defence plea is of total denial. 8. After closure of the prosecution evidence, statement of the accused-petitioner was recorded under Section 313 of the Cr.P.C., and in his such statement also, he is heard denying the accusation leveled against him by the prosecution. He further raised an issue in his such statement that he went to the house of the informant/PW1 to claim the money which the informant owed to him against purchase of vegetables from him, on credit, and that he was rebuked by the PW1 and he was also threatened that scandalous allegations would be made against him with the help of the villagers. 9. I have meticulously examined the evidence on record. 10. In the instant case, the victim is examined as PW4 and her evidence is that, on the date of occurrence, the accused-petitioner came to their house in a bicycle, as usual. He used to come to their house earlier also for selling vegetables which is his business. On the date of occurrence, at the relevant point of time, her parents were not available in the house leaving the victim with her brother and sister, aged about 2/3 years respectively. The accused-petitioner, on his arrival in their house, inquired about the presence of her parents and he came to know that her parents were not there. The accused-petitioner called the victim to the out-house where there was a bed. She was pulled to the bed, removed her panty, and then, attempted to commit rape on her person. The mother of the victim, examined as PW3, arrived at her house, and seeing her, the accused-petitioner tried to flee, but he was caught by her. Thereafter, the informant also arrived at his home on receipt of the information. He got the narration of the facts of the incident from his wife/PW3. The victim was examined by doctor at Jorhat Medical College and Hospital, and her statement under Section 164 of the Cr.P.C. was also recorded by the learned Judicial Magistrate 1st Class, Jorhat, vide Ext. 3. 11. The evidence of the father of the victim/PW1 makes it appear that he has no personal and independent knowledge about the occurrence and he heard about the occurrence only from his wife/PW3. 12. 3. 11. The evidence of the father of the victim/PW1 makes it appear that he has no personal and independent knowledge about the occurrence and he heard about the occurrence only from his wife/PW3. 12. PW3, the mother of the victim, is heard saying in her evidence that she was in the nearby field to feed water to their goats leaving the victim in the house. Her husband, PW1 was also not available in the house at the relevant point of time. When she came back from the field, after about 15/20 minutes, she noticed the bicycle of the accused in their courtyard and as she did not find the accused-petitioner in the courtyard, she went inside the house and noticed that the accused-petitioner was forcing her daughter and she was found in an undressed condition. Thereafter, noticing her, the accused-petitioner ran outside the room. She also noticed that as soon as she entered into the house, the accused-petitioner was putting on his pant by drawing the chain of the pant, and she chased him. The other witnesses, examined by the prosecution, are not the eyewitnesses to the occurrence or circumstances thereof except noticing the accused in their house after he was chased. 13. The evidence of the victim/PW4 and the PW3/the mother of the victim, makes it appear that there is a categorical accusation of commission of rape on her person by undressing her by the accused-petitioner. The victim, being minor, could not narrate the incident with legal accuracy but she meant by the words spoken in her evidence that foul acts have been committed on her person after undressing her , meaning thereby, rape was committed on her. PW3 has narrated the incident so well that it only points to the commission of rape by the accused-petitioner upon the victim/PW4. She found the accused- petitioner with the chain of his pant being closed and the victim in an undressed condition. Such facts, taken together with the evidence of the PW4, leaves this court with no doubt the accused-petitioner attempted to commit rape on the victim. It deserves a mention here that although in so many words the victim/PW4 and her mother/PW3 implicated the accused-petitioner with commission of rape, yet there is absolutely no evidence of penetrating sexual act to attract an offence under Section 376 (2) (f) of the IPC (before amendment). 14. It deserves a mention here that although in so many words the victim/PW4 and her mother/PW3 implicated the accused-petitioner with commission of rape, yet there is absolutely no evidence of penetrating sexual act to attract an offence under Section 376 (2) (f) of the IPC (before amendment). 14. On the other hand, the law is settled that the statement of the victim, if inspires confidence, there is no reason to disbelieve her. The Hon’ble Supreme Court, in the case of State of Himachal Pradesh vs. 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. 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? 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." In this regard, the decision of the Hon’ble Supreme Court as indicated above, can be usefully utilized to indicate the settled position of law. 15. However, the evidence on record, as indicated above, does not indicate that there is any penetrating sexual intercourse committed on the person of the victim by the accused- petitioner and rather the evidence, as a whole, discloses an offence of attempting to commit rape. 16. That being so, in the considered view of this court, instead of Section 376 (2) (f) of the IPC, the conviction ought to have been under Sections 376 (2) (f) read with Section 511 of the IPC. Accordingly, the order of conviction is modified to that extent. 17. So far the sentence is concerned, the punishment is one half of the term of imprisonment for the offence which was attempted to be committed. 18. The minimum punishment prescribed for commission of offence under Section 376 (2) (f) (before amendment) of the IPC is 7 years, and half of this minimum punishment prescribed, if imposed upon the accused-petitioner, will meet the ends of justice. 19. Accordingly, the conviction of the accused-revision petitioner is converted to one under Section 376 (2) (f) (before amendment) of the IPC read with Section 511 of the IPC. 20. So far the punishment is concerned, this court likes to quote para-13 of the decision rendered by the Hon’ble Supreme Court in Koppula Venkat Rao Vs State of Andhra Pradesh, reported in 2004 (3) SCC 602 . "13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and '/2 years would meet the ends of justice. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and '/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence." 21. In view of the above, in the instant case also, this court considers that if rigorous imprisonment for 3 years and 6 months under Section 376 (2) (f) of the IPC read with Section 511 of the IPC is imposed upon the accused-petitioner for attempt to commit rape, will meet the ends of justice. 22. The period of detention of the accused-petitioner during the trial and after the judgment, shall be set aside against the substantive sentence indicated above, and the revision petition is, partly allowed. 23. Send down the LCR along with a copy of this judgment.