Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 810 (GAU)

Dulu Kasap v. State of Assam

2018-05-16

HITESH KUMAR SARMA

body2018
JUDGMENT : Hitesh Kumar Sarma, J. 1. It is not only unimaginable, but a shameless, heartless, unpardonable and hateful act of commission of rape on a 60 years old mother by her son is being unfortunately dealt with by this Court in this judgment. A mother is never expected to be raped by her own son. It is a heinous offence, even at the zenith of a strained relationship between the mother and the son. In our society, committing of rape on mother by his son is unheard of. The son is always in a position of trust with his mother and the accused-appellant being in a position of trust with the victim/mother, committed rape on her person. This is an appeal from jail, preferred by accused/appellant, Sri Dulu Kasap, who has been convicted by judgment and order dated 30.05.2017, passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 225 (J-T)/2016, under Sections 376(2)(f) of the IPC, to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 15,000/- in default, to suffer rigorous imprisonment for further period of 6 (six) months. The period already undergone in prison by the accused-appellant is directed to be set off, as provided under Section 428 of the Cr.P.C. 2. I have heard Mr. B Baruah, learned Amicus Curiae appearing on behalf of accused-appellant, and Mr. BJ Dutta, learned Additional Public Prosecutor, Assam. 3. The victim of the case is the informant, and the mother of the accused-appellant. The prosecution case, as appears from the evidence on record, is that the PW 1 (hereinafter referred to as the victim), was raped by her son. In the previous night of 04.08.2016, her son, the accused-appellant came home under the influence of liquor, holding a dao in his hand, pressed her mouth and committed rape on her and also threatened her not to disclose the incident to anyone, else, she would be cut into pieces. 4. On receipt of the FIR, being Exhibit 1, about the above occurrence, Titabor Police Station registered a case, being Titabor Police Station Case No. 187/2016, under Sections 376 of the IPC, on the next day of occurrence, i.e., on 04.08.2016. 5. 4. On receipt of the FIR, being Exhibit 1, about the above occurrence, Titabor Police Station registered a case, being Titabor Police Station Case No. 187/2016, under Sections 376 of the IPC, on the next day of occurrence, i.e., on 04.08.2016. 5. The police investigated into the case, arrested the accused-appellant, forwarded him to the judicial custody, got the victim examined by PW 8 (Medical Officer), got the statements of the victim as well recorded under Section 164 of the Cr.P.C., visited the place of occurrence, and finally, on completion of the investigation, submitted charge-sheet, vide Charge-Sheet No. 143/2016, dated 31.08.2016, against the accused-appellant, under Sections 376 of the IPC. 6. After exhausting all required formalities, on appearance of the accused-appellant before the trial Court of learned Sessions Judge, Jorhat, he was furnished copies as required under Section 207 of the Cr.P.C. and after hearing him though his learned State defence counsel, framed a formal charge against him under Section 376 of the IPC. The accused-appellant pleaded not guilty while the charge was explained to him. 7. In this case, to bring home the guilt of the accused-appellant, the prosecution examined as many as 8 witnesses, who are, except PW 8 (the Medical Officer), subjected to cross-examined by the defence. 8. After closer of the prosecution evidence, statement of the accused-appellant was recorded by the learned trial Court, under Section 313 of the Cr.P.C. The accused-appellant, in his such statement, denied the accusation levelled against him and also declined to adduce defence evidence. After conclusion of the trial the learned trial, Court convicted and sentenced the accused-appellant as aforesaid. 9. I have meticulously examined the judgment appealed against as well as the evidence of 8 witnesses as available on record of the learned trial Court. 10. The evidence of the victim, examined as PW 1, is that the accused-appellant, is her son. At the time occurrence, she was sleeping in her house, after taking meal. The accused-appellant came home at that time intoxicated, gagged her mouth with his hand, removed her clothes and committed rape on her person. She could not disclose such facts to others as she felt mortified. She also stated that she did not drink liquor on that day although she used to drink liquor off and on. She also deposed that she never takes liquor together with her son/accused-appellant. She could not disclose such facts to others as she felt mortified. She also stated that she did not drink liquor on that day although she used to drink liquor off and on. She also deposed that she never takes liquor together with her son/accused-appellant. It has further come out from the evidence of the victim/PW 1 that on one occasion, the accused-appellant attempted to commit rape on her granddaughter, Sushila, which could somehow be averted as the said Sushila herself fled to the house of their neighbour. Ext. 1 is the FIR, written by a scribe, wherein the Ext. 1(1) is her signature. The FIR was written as per her dictation, as stated by her. 11. In her cross-examination, she is heard saying that when not under the influence of liquor, the accused-appellant used to behave properly and that the accused-appellant did not commit rape on her before the present incident of rape on her. She denied the defence suggestion, in her cross-examination, that she consumed liquor on the date of the occurrence. 12. PW 2, Sri Manual Kasap, niece of PW 1 is a witness, who heard about the commission of rape on PW 1, on being told to him by PW 1 herself. It has also come out from her evidence that when under the influence of liquor, the accused-appellant is not under his self-control. It has further come out from his cross-examination that the accused-appellant used to consume alcohol taking loan from others. 13. The evidence of PW 3, Sri Mahendra Saikia, is that he is a village headman. In the next morning of the date of occurrence, the victim went to his house and told him that the accused-appellant committed rape on her person on the previous night while he was under the influence of liquor. This witness also deposed that the present accused-appellant committed rape on another woman about a year back from the date of occurrence for which a case has been registered against him. 14. It has, of course, come out from the cross-examination of this witness that there uses to be a quarrel between the victim and her son, the accused-appellant, in respect of selling of a plot of land. Although he denied the suggestion of the prosecution that the accused-appellant did not commit rape on the victim. 15. 14. It has, of course, come out from the cross-examination of this witness that there uses to be a quarrel between the victim and her son, the accused-appellant, in respect of selling of a plot of land. Although he denied the suggestion of the prosecution that the accused-appellant did not commit rape on the victim. 15. The evidence of PW 4, Smt. Kalpana Kasap, is not of much relevance in the case as she has no knowledge about the occurrence and she was only informed by the victim that she had lodged the FIR against the accused-appellant, while police came to their village. But it has come out from her cross-examination that the accused-appellant used to create nuisance while under the influence of alcohol and Bhang in his house. The accused-appellant also threatened, as stated by her in her evidence, that the he would sale the land of the victim. The victim/PW 1 herself was not deposed that she told about the incident or about lodging of the FIR to her. Therefore, as stated above, her evidence is not of any significance for the decision of this appeal. 16. PW 5, Sri Phuleswar Ganju is heard saying in his evidence that the victim stayed in their house one night for the reason that the accused-appellant threatened to cut her. 17. PW 6, Sri Anil Ind is the brother of the victim. According to him, the victim came to their house on 18.07.2016 for taking shelter and while enquired about the reason of coming to their house, the victim informed him that on the date of occurrence, she was raped by her son, i.e., the accused-appellant, while he was in a drunken state. 18. PW 7, Sri Birendra Bordoloi, the Investigating Police Officer, who has narrated various stages of investigation from receipt of the FIR till filing of the charge-sheet. Apart from examining the victim by the doctor, he also got the statement of the victim recorded under Section 164 of the Cr.P.C., which is marked as Ext. 2. 19. PW 8, Dr. Amrita Nath is the doctor, who examined the victim on 05-08-2016 and opined that the victim is above 25 years of age and that no sign of recent sexual intercourse was not detected on her person and no evidence of violence and injury mark detected at the time of examination. 2. 19. PW 8, Dr. Amrita Nath is the doctor, who examined the victim on 05-08-2016 and opined that the victim is above 25 years of age and that no sign of recent sexual intercourse was not detected on her person and no evidence of violence and injury mark detected at the time of examination. The medical report is exhibited and marked as Ext. 4. but, she was examined after 2 days of the occurrence is evident of the Ext. 4 itself. 20. It has come out from the evidence of the witnesses, referred to above, that there is no eye witness to the occurrence and the whole case of the prosecution is based on the evidence of the victim. The evidence of the victim, on oath, before the learned trial Court as well as her statement before the learned Magistrate, under section 164 of the CrPC are so consistent that no deviation could be noticed in her evidence, on oath, before the Court with that of her statement under Section 164 of the Cr.P.C. 21. The fact remains that the incident took place at late night in the house of the informant/victim herself and the accusation is of commission of rape on her by her own son, i.e., the accused-appellant and that being so, it is most unlikely that there would be any eye witness. Further, the conduct of the accused-appellant that earlier also he attempted to commit rape on Sushila, granddaughter of the victim, has remained unassailed during her cross-examination by the defence. The evidence of PW 3 that the accused-appellant earlier also committed rape on another woman for which a case has been registered against him also remained unassailed during his cross-examination. The age of the victim, on the date of recording her evidence by the learned trail Court, has been recorded as 60 years. Her evidence was recorded by the learned trial court after about 4 months of the commission of the alleged offence. 22. As discussed above, it appears that the evidence of rape on her person by the accused-appellant, who is her son, remains unassailed throughout the trial except making a mere suggestion by the defence that he did not commit rape and because of some quarrel between them in respect of a land, false case has been initiated against him. 22. As discussed above, it appears that the evidence of rape on her person by the accused-appellant, who is her son, remains unassailed throughout the trial except making a mere suggestion by the defence that he did not commit rape and because of some quarrel between them in respect of a land, false case has been initiated against him. In the absence of any evidence to substantiate the suggestions and in the absence of any reason to disbelieve the evidence of the victim/informant that she was raped by the accused-appellant under the influence of liquor, there is no ground not to act upon her evidence, only to disbelieve the prosecution version of the story. 23. As stated above, the evidence of the victim remaining unassailed and consistent all along inspires confidence of this Court. 24. From the evidence on record, as discussed above, it is found that the evidence of the victim is quite reliable. In this context a decision of the Hon'ble Supreme Court, in State of Himachal Pradesh v. Sanjay Kumar @ Sunny, (2017) 2 SCC 51 , holding, as quoted below, appears to be appropriately applicable:- "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. 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 fell 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 instant case, we even find enough corroborative material as well, which is discussed hereinabove." 25. In view of the above, it is found that the judgment of the learned trial Court, convicting the accused-appellant, is based on evidence on record, which the learned trial Court thoroughly discussed leaving no scope for interference by this Court in appeal. 26. So far the sentence is concerned, the punishment for offence under Section 376(2) (f) of the IPC shall not be less than rigorous imprisonment for a term of 10 years, but which may extend to imprisonment for life, which shall mean the imprisonment for remainder of that person's natural life and shall also be liable to fine. The learned trial Court, on conviction, sentenced the accused-appellant, to rigorous imprisonment for 10 (ten) years, as a substantive sentence, and to pay a fine of Rs. 15,000/-, in default, to suffer rigorous imprisonment for further period of 6 (six) months. The substantive sentence of rigorous imprisonment imposed by the learned trial Court is the statutorily prescribed minimum one. So far the fine of Rs. 15000/- and rigorous imprisonment of 6 months in default of payment of fine is concerned, the same is found to be reasonable in the facts and circumstances of the case. Therefore, no interference in respect of the sentence is also called for in the instant appeal. 27. Accordingly, the appeal is dismissed. The judgment and order of the learned trial Court is upheld. 28. Therefore, no interference in respect of the sentence is also called for in the instant appeal. 27. Accordingly, the appeal is dismissed. The judgment and order of the learned trial Court is upheld. 28. Send down the LCR with a copy of this judgment. 29. A copy of the judgment shall also be furnished to the Superintendent, District Jail, Jorhat for furnishing a copy thereof to the accused/appellant. 30. This court records its appreciation for the assistance rendered by learned Amicus Curiae, Mr. B. Baruah. The learned Amicus-curiae be paid an amount of Rs. 7,000/- as remuneration. Return the LCR with a copy of this judgment and order.