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2018 DIGILAW 860 (GAU)

Raben Mandal v. State of Assam

2018-05-24

HITESH KUMAR SARMA

body2018
JUDGMENT : Hitesh Kumar Sarma, J. 1. This criminal appeal has been preferred by the appellant against the judgment and order dated 07.06.2014, and the sentence dated 11.06.2014, passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No. 58 of 2008, under Sections 376 (2) (f) of the IPC, to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 5,000/- in default, to suffer rigorous imprisonment for further period of 2 (two) months. I have heard Mr. K. Sarma, learned counsel appearing on behalf of accused-appellant, and Mr. BJ Dutta, learned Additional Public Prosecutor, Assam. I have also perused the record of the learned trial Court including the evidence. 2. The prosecution case, as unfolded from the evidence on record, including the FIR, is that there was a picnic party arranged in the field in front of the house of the PW 5, Silpa Singh. The picnic was arranged in the late evening and it was over little after in the midnight. At the instance of PW 6, the mother of PW 5, the PW 5 and the victim PW 2 came to the house of PW 5 and slept on the same bed there. In the wee hours of the next morning, at about 2.00/2.30 a.m., the accused-appellant entered into the house by pushing the door and thereafter committed rape on the person of the victim, PW 2. The victim screamed following which the nearby people arrived at the place of occurrence. On such facts, the FIR, Ext. 4 was lodged with the Kokrajhar Police Station by Sri Sushil Ray, the father of the victim, PW 4. 3. On receipt of the FIR, being Exhibit 4, about the above occurrence, Kokrajhar Police Station registered a case, being Kokrajhar Police Station Case No. 04/2008, under Sections 376 (f) of the IPC. 4. The police visited the place of occurrence, prepared sketch map, got the victim admitted in the RNB Civil Hospital, Kokrajhar, got the statements of Smti Silpa Singh (PW 5), Smti Moina Singh (PW 6) and one Smti Sanu Barman recorded under Section 164 of the Cr.P.C and, finally, on completion of the investigation, submitted charge-sheet against the accused-appellant, under Sections 376 (f) of the IPC. 5. 5. After exhausting all required formalities, on appearance of the accused-appellant before the trial Court of learned Sessions Judge, Kokrajhar, 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(2)(f) of the IPC. The accused-appellant pleaded not guilty while the charge was explained to him and claimed to be tried. 6. In this case, to bring home the guilt of the accused-appellant, the prosecution examined as many as 10 witnesses, who are, except PW 3, subjected to cross-examination by the defence. 7. After closure 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. 8. I have meticulously examined the judgment appealed against as well as the evidence of 10 witnesses as available on record of the learned trial Court. 9. The evidence of Dr. Jahiruddin Ahmed, PW 1, who examined the victim, PW 2, is that the victim was admitted in the RNB Civil Hospital, Kokrajhar in the Maternity Ward, on 02.01.2008, at about 12.15 p.m. in semi conscious state due to bleeding per vaginal for perineal tear with severe anaemia. She was examined after blood transfusion under general anaesthesia and it was found that the vagina was full of blood clot and after removing the clot, it was seen that there were linear tear on each side of the vaginal wall extending upto the fornix and there was second perineal tear which are repaired with chromic catgut. She was discharged from the hospital on 22.01.2008 after recovery. The victim was 18 kgs of weight. She did not develop pubic auxiliary hair and breasts also not developed. She had 20 numbers of teeth on the date of examination. The doctor opined that the victim was about 7-9 years of age and she might have been exposed to vigorous sexual intercourse within 24 hours. During cross-examination, the doctor/PW 2 deposed that he prepared the report, Ext. 1, and that he regularly visited the patient/victim as she was an indoor patient. The history of the incident has not been mentioned in the report. 10. During cross-examination, the doctor/PW 2 deposed that he prepared the report, Ext. 1, and that he regularly visited the patient/victim as she was an indoor patient. The history of the incident has not been mentioned in the report. 10. The victim, examined as PW 2, is found to be a girl of about 12 years of age as recorded by the learned trial Court while she was examined as witness on 16.10.2012. The occurrence in the instant case was in the wee hours on 02.01.2008 or in the intervening night of 01.01.2008 and 02.01.2008. She has categorically stated, in her evidence, that about 4 years ago, she attended a new years' day picnic and spent that night in the house of PW 5, Silpa Singh, which was located near her house. They slept together on the same bed. While sleeping, somebody pressed her mouth, held her shoulders and then committed bad act on her person. She recognized the man, who committed rape on her person, as the present accused-appellant, Raben Mandal. She raised alarm. The people, who attended the picnic came and enquired from her as to what had happened. She failed to recollect what she told to the people. Her father, PW 4, Sushil Roy and her brother, Dipak took her to the hospital, where the doctor treated her. She was in the hospital for 20 days. In her cross-examination, she stated that she had not come across the word 'rape'. She heard the word from 'Bhumika Baideo'. She was accompanied to the Court by her parents, PW 5, Silpa and the aforesaid Bhumika Baideo, who hails from Machpara at Titaguri. Bhumika also came to her house to discuss the matter with her father. She also discussed the matter with her. She could recognize the accused as he was going out of the room. There was no light in the room in which she had been sleeping along with PW 5. She denied the defence suggestion that she did not tell the police that she could recognize the accused while he was going out of the room after committing rape on her and that she had adduced false evidence. 11. The evidence of PW 1 and PW 2, taken together, as discussed above, makes it appear that there was rape committed on the victim and that she was a minor at the relevant time of occurrence. 11. The evidence of PW 1 and PW 2, taken together, as discussed above, makes it appear that there was rape committed on the victim and that she was a minor at the relevant time of occurrence. During the course of hearing also, the learned counsel for the appellant has submitted that the rape might have been committed on the victim, but it was not committed by the accused-appellant, as according to him, the victim could not identify the accused-appellant for the reasons to be discussed in the later part of this judgment. But the fact remains that the rape was committed on her and that she was minor on the date of occurrence, are facts not disputed at the Bar in view of the evidence on record. 12. The learned counsel for the accused-appellant has submitted that there is no eye witness-to the occurrence and the victim also could not identify the accused-appellant in the absence of any light in the room where the alleged offence was committed. He has further submitted that no independent witness has been examined by the prosecution. The dragger, which was held by the accused-appellant at the relevant time of occurrence, as per the evidence of PW 5, was also not seized. Apart from that, the mother of the victim was not examined by the prosecution. 13. The evidence of PW 3, Sri Rabi Charan Roy has absolutely no relevance in the case as his evidence is to the effect that he did not know about the occurrence. 14. PW 4, Sri Sushil Roy, the father of the victim, is the informant of this case. It has come out from his evidence that in the night of the incident, his co-villagers had arranged a picnic, which he did not attend, and he stayed at his own house. His daughter/victim attended the picnic. At about 12.00 midnight/1.00 a.m., in the intervening night, he could hear the scream of his daughter and sent his wife, Sanu Roy, to the picnic spot. After half an hour, his wife came back and reported him that their daughter had been in a morbid state in the house of PW 5 and that the accused-appellant had committed rape on her. He was also told by his wife that the wearing cloths of the victim were blood stained at that time. After half an hour, his wife came back and reported him that their daughter had been in a morbid state in the house of PW 5 and that the accused-appellant had committed rape on her. He was also told by his wife that the wearing cloths of the victim were blood stained at that time. He went to the house of PW 5, saw his daughters wearing clothes become ted with blood and she was not in a position to say anything. He, then, carried his daughter, on his lap, to his house and in the morning took her to the RNB Hospital, Kokrajhar, where she spent 26 days. He, then, lodged the FIR. After recovery, the victim told him that on the night of the picnic while she was sleeping on the same bed with PW 5 in the house of PW 5, the accused-appellant committed rape on her. According to him, she was about 7 years at that time. In his cross-examination, he is heard saying that the police recorded his statement as he was taken to the police station from the hospital on the day after the incident. He has admitted, in his cross-examination, that he did not state to the police about the time of the occurrence. He has also admitted that he did not tell the police that he heard about the occurrence from the victim after she recovered. He discussed the incident with one Bhumika is also admitted by him subscribing the evidence of PW 2/victim. He denied that he has filed a false case. So, it appears from the evidence of PW 4 that he was told about the occurrence by the victim only after she recovered. 15. PW 5, Smt. Silpa Singh, with whom the victim was sleeping at the relevant time of occurrence, deposed that the occurrence took place in the night of 1st of January, about 5 years ago from the date of her deposition, i.e. 16.01.2013. She has also deposed about the picnic, in tune with the evidence of PW 2 and PW 4. There is no issue raised about the picnic; therefore, the evidence that there was a picnic organized in the New Year's Day is a fact. It has come out from her evidence that the picnic continued till late night which was attended by the victim as well as herself. There is no issue raised about the picnic; therefore, the evidence that there was a picnic organized in the New Year's Day is a fact. It has come out from her evidence that the picnic continued till late night which was attended by the victim as well as herself. After having meals, at around 1.00/1.30 a.m., both the victim and herself were put in her house by her mother, PW 6, and thereafter, they slept together on the same bed. They closed the door of the room from inside. A little later, she saw the accused-appellant entered into the room by opening the door and as she was about to scream, the accused-appellant attempted to strike her with a dragger; therefore, she did not try to raise alarm any more. Then the accused committed rape (bad act) with the victim and ran away. Thereafter, the victim and herself raised alarm. The elder brother of the victim came to the place of occurrence. Blood was oozing out from the person of the victim and she got wet with the blood. Her mother came with other people from the place of picnic to the place of occurrence. In cross-examination, she is heard saying that the door of the room was made of bamboo mat and that the accused-appellant entered into the room by breaking open the door a little. She did not raise any alarm although she heard the sound of opening the door as she thought that her mother might have come. There was no electricity in their house. She denied the defence suggestion that she did not state the police about the dragger and even did not raise any alarm while the accused-appellant was committing rape on the victim. The police did not examine the bed. She also stated that Bhumika Baideo, referred earlier in the evidence of PW 2, also accompanied her to the Court. She denied that she adduced false evidence. Her statement was also recorded by a Magistrate. She denied that she has adduced false evidence. 16. The evidence of PW 6, Smt. Moina Singh, who is the mother of PW 5, is in the same line with that of PW 2, PW 4 and PW 5 in respect of the picnic. She denied that she adduced false evidence. Her statement was also recorded by a Magistrate. She denied that she has adduced false evidence. 16. The evidence of PW 6, Smt. Moina Singh, who is the mother of PW 5, is in the same line with that of PW 2, PW 4 and PW 5 in respect of the picnic. In respect of the other facts, she is heard saying that at about 1.30/1.45 a.m., she had taken her daughter, PW 5 along with the victim from the picnic ground to her house and leaving both of them there, she came back to the picnic ground. There in the picnic ground she was having conversation with the mother of the victim, and at that time, she heard commotion raised by PW 5 and the victim (PW 2). She went back home. The victim's elder brother, Dipak coupled with other people went there. She saw blood on the bed and also blood oozing out from the urinary passage of the victim. The daughter of this witness (PW 5) told her that the accused-appellant committed rape on the victim. In her cross-examination, she denied the defence suggestion, except the fact that there was no electricity line in their house, but asserting that there was light outside the house which gives some light inside their house. She has stated that the Ext. 5 is her statement under Section 164 of the Cr.P.C. 17. PW 7 is Sri Dhan Bahadur Sonar. His evidence is that people said that the accused-appellant committed rape on the person of the daughter of PW 4/informant, Sushil Roy. The people siege the house of the accused-appellant about 4/5 years ago following the incident. His evidence in respect of the commission of rape is not of much relevance except to the fact that the people siege the house of the accused-appellant after he allegedly committed rape on PW 4. 18. The evidence of PW 8, Sri Noni Gopal Mandal has no relevance as he only heard about the occurrence from the villagers. None of the witnesses deposed that they told this witness about the occurrence. That being so, his evidence cannot be acted upon being hearsay in nature. 19. PW 9, Sri Utpal Kumar Nath, is the Investigating Police Officer. The evidence of PW 8, Sri Noni Gopal Mandal has no relevance as he only heard about the occurrence from the villagers. None of the witnesses deposed that they told this witness about the occurrence. That being so, his evidence cannot be acted upon being hearsay in nature. 19. PW 9, Sri Utpal Kumar Nath, is the Investigating Police Officer. His evidence, in his examination-in-chief, is of routine nature from receipt of the FIR till filing of the charge-sheet and the stage in between including recording of statements of the witnesses. In his cross-examination, he has admitted that he has not come across the cloth wore by the victim at the time of the occurrence. He further deposed, in his cross-examination, that the victim did not tell him that she could recognize the accused-appellant while he was leaving the room, stating further that the PW 5, Silpa also did not tell him that the accused-appellant had shown her a dragger. 20. PW 10, Sri Dulal Mech, is the Chief Judicial Magistrate, Kokrajhar, who recorded the statements of the victim and others under Section 164 of the Cr.P.C. There is nothing in his evidence, including the cross-examination, to indicate the fact that he did record the statements as stated by the witnesses. Nothing could be elicited by the defence, in his cross-examination, to discard his evidence. 21. The above being the evidence, the submission made by the learned counsel for the appellant that the dragger, which was being held at the relevant point of time by the accused-appellant has not been seized is a fact and it is also a fact that the PW 5 did not state before the Investigating Police Officer that the appellant was holding a dragger. It is also a fact, apparent from the materials on record, that the mother of the victim, who went to the place of occurrence and took the victim back to her house, has not been examined as witness by the Investigating Police Officer. It is also a fact, as submitted by the learned counsel for the accused-appellant, that no independent witness has been examined in this case. 22. Now, let us see whether the facts, above, as argued by the learned counsel for the appellant, have any bearing on the merit of the prosecution case. 23. It is also a fact, as submitted by the learned counsel for the accused-appellant, that no independent witness has been examined in this case. 22. Now, let us see whether the facts, above, as argued by the learned counsel for the appellant, have any bearing on the merit of the prosecution case. 23. The principal issue required to considered in this case is the commission of rape, not any other facts. The fact that the dragger was not seized by the Investigating Police Officer has no relevance, according to this Court, in the context of the fact that the accused-appellant was holding a dragger and is also no evidence to the effect that the dragger was left by the accused-appellant at the place of occurrence. Therefore, naturally it cannot be in the place of occurrence and in the absence of any such evidence, the same could not be seized. It has also come out from the evidence that in the house of PW 5, as stated by PW 6 in her evidence that the torch light was also not seized. There is no evidence that there was torch light at the place of occurrence; therefore, seizing or not seizing of the said torch light makes no difference in evaluating the merit of the case. As regards the evidence that no independent witness has been examined by the prosecution, it is a fact that there is no eye witness to the occurrence except PW 5 who was sharing the same bed with the victim, PW 2. The allegation is of rape. It is also not expected that keeping witness, rape will be committed. On the other hand, except PW 5, there was no eye witness. PW 4 and PW 6 appeared at the place of occurrence after hearing the alarm raised by PW 5 and PW 2; therefore, they may be the witness of the events subsequent to the occurrence only. What they have seen, on their arrival at the place of occurrence, is that the victim was bleeding and blood was oozing out form her urinary passage. What they have seen, on their arrival at the place of occurrence, is that the victim was bleeding and blood was oozing out form her urinary passage. These facts taken together with the fact, as stated by PW 2/victim in her evidence, that the accused-appellant had committed rape on her person and subscribing the evidence of PW 5, Silpa, to the effect that the accused-appellant committed rape on her person, cannot be brushed aside to be false in the face of their consistent evidence. 24. The omissions pointed out by the learned counsel, as mentioned above, are mostly the omissions on the part of the investigating police officer. But, if the other evidence is found credible, the Court should not be influenced by the omissions/lapses of the in Investigating Police Officer. In this context, the Hon'ble Supreme Court in State of Karnataka v. K. Yarappa Reddy, reported in 1999 (4) Crimes 171 SC, held as follows: "19. .......................................If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to that level of the investigating officers ruling the roost. The Court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casually for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case." This decision is appropriately applicable in the instant case. 25. The learned counsel for the accused-appellant has submitted that the victim/PW 2 or PW 5 could not identify the accused-appellant as there was no light in the room where the occurrence took place. 25. The learned counsel for the accused-appellant has submitted that the victim/PW 2 or PW 5 could not identify the accused-appellant as there was no light in the room where the occurrence took place. It is a fact admitted by PW 6 as well as PW 5 that there was none in the house where the offence was committed. However, the evidence of PW 6, the mother of PW 5, makes it abundantly clear that there was light outside, which came into the room where the victim was sleeping and this part of the evidence of PW 6 remains unassailed during her cross-examination, and even she was not subjected to cross-examination on this part of her evidence. The evidence of PW 5 is that she could identify the accused-appellant while he was going out of the room and there was light outside is not the fact disputed by the defence. There is also no evidence to show, even remotely, the victim would He to implicate an innocent person for any reason. No enmity etc. between the victim or her family with the appellant is also found in the evidence. 26. In the considered view of this Court, the evidence of the PW 5, who is a little girl of 7/8 years of age at the time of occurrence, corroborated by the evidence of the victim PW 2 and also corroborated in respect of subsequent facts, after commission of the rape, this Court is of the view that the evidence of the victim (PW 2) is inspiring confidence, there is no reason to disbelieve her evidence. If the said evidence of the victim is inspiring confidence, in view of the decision of the Hon'ble Supreme Court in State of Himachal Pradesh v. Sanjay Kumar @ Sunny (2017) 2 SCC 51 , her evidence can be acted upon. 27. The observations made in paragraph-31 of Sanjay Kumar Alias Sunny (supra) is quoted below, for the sake of brevity of the case:- "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. 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? 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 here-in-above." 28. In view of the above, it is found that the judgment of the learned trial Court, convicting the accused-appellant, is based credible evidence on record, which the learned trial Court discussed leaving no scope for interference by this Court, in appeal. 29. So far the sentence is concerned, the substantive punishment for offence under Section 376(2) (f) of the IPC shall not be less than the 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 and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for further period of 2 (two) months. The substantive sentence of rigorous imprisonment imposed by the learned trial Court is the statutorily prescribed minimum one. The learned trial Court, on conviction, sentenced the accused-appellant, to rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for further period of 2 (two) 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. 5000/-, and rigorous imprisonment of 2 months in default of payment of fine, is concerned, the same is found to be rather lenient in the facts and circumstances of the case. Therefore, no interference in respect of the sentence is also called for. 30. Accordingly, the appeal is dismissed. The judgment and order of the learned trial Court is upheld. Send down the LCR with a copy of this judgment.