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2019 DIGILAW 1313 (GAU)

Ratul Tatik v. State of Arunachal Pradesh

2019-11-29

NANI TAGIA

body2019
JUDGMENT : Nani Tagia, J. 1. Heard Mr. Ninnong Ratan, learned counsel, appearing on behalf of the accused applicant/appellant Also heard Ms. Hage Laxmi, learned Addl. P.P., Arunachal Pradesh, appearing on behalf of the State Respondent. 2. This is an interlocutory application under Section 389 of the Code of Criminal Procedure, 1973, praying for suspension of sentence and grant of bail to the accused Nang Tatik, who was convicted under section 376(1) IPC to undergo R.I. for 7 years and under Section 450 IPC to undergo R.I. for 3 years, vide judgment & order, dated 12.3.2019, passed by the Court of the learned Addl. Sessions Judge, Eastern Zone, Pasighat, in PSG Sessions Case No. 18/2014. 3. Mr. Ratan, learned counsel, while praying for grant of bail to the accused, above-mentioned, has submitted that conviction of the accused is on the basis of the deposition of P.W. 2 (mother of the prosecutrix), P.W. 3 (brother of the prosecutrix), and P.W. 5 (prosecutrix herself). 4. Ms. L. Hage, learned Addl. Public Prosecutor, opposing the application, has submitted that the conviction is based on cogent evidence on record and there is no reason to disbelieve the depositions of the P.W. 5, P.W. 3, and P.W. 2. 5. The case of the prosecution in brief, is that, an First Information Report (FIR) was lodged on 17.10.2012 by the P.W. 2, mother of the prosecutrix, stating that on 16.10.2012, accused Nang Tatik visited the house of PW-2 and while she and her husband were away, the accused sexually assaulted her 14 years old daughter (P.W. 5). 6. During the trial, the prosecutrix who was examined as P.W. 5, had stated that she does not remember the exact date and year of the incident but on the day of the incident, at evening hours, while her parents had gone to market, she and one Sri Bijay Kr. Gupta, were in the house. When she was about to collect water from the neighbour's tap, the accused came to her house and insisted Sri Bijay to leave the house and collect Rs. 100/- from his wife. Accordingly, Sri Bijay left her house to collect the said amount. Gupta, were in the house. When she was about to collect water from the neighbour's tap, the accused came to her house and insisted Sri Bijay to leave the house and collect Rs. 100/- from his wife. Accordingly, Sri Bijay left her house to collect the said amount. When she was about to leave her house for collecting water, the accused asked her to stay back and thereafter, entered the house and forcefully undressed her and when she shouted for help, he gave a slap on her and gagged her mouth. Thereafter, the accused committed rape upon her inside the house in standing position by the wall. She further stated that while the offence was being committed by the accused, her brother Sri Sohum Shah entered into the house and when she shouted, the accused fled away from the house. In the meantime, her parents also reached the house and reported the matter to police. The accused was arrested after sometime. Her statement was recorded by the police and the prosecutrix also examined by the Doctor. 7. P.W. 3 who is the brother of the prosecutrix, and who had been stated to have come to her house when the offence was being committed by the accused, had deposed that the accused used to visit their house. He stated that on the day of the incident, when he along with his parents returned from the market and reached their house, he saw the accused gagging mouth of her sister and pressing her towards the wall. The clothes of her sister were open. When he called her mother, she also entered the house and beat the accused with a broom and thereafter, the P.W. 3 went to the Police Station for reporting the matter. Police then came to his house and arrested the accused and also recorded his statement. In the cross-examination, P.W. 3 had stated that he did not see the prosecutrix resisting the accused. The accused was holding and gagging her mouth. They were tightly closed to each other and the zip of the accused was open and the prosecutrix was not wearing her pants and underwear. 8. In the cross-examination, P.W. 3 had stated that he did not see the prosecutrix resisting the accused. The accused was holding and gagging her mouth. They were tightly closed to each other and the zip of the accused was open and the prosecutrix was not wearing her pants and underwear. 8. P.W. 2 who is the mother of the prosecutrix, and who had been stated to have come to the house while being called by the P.W. 3, had deposed that she had lodged a complaint against the accused for committing rape upon her daughter, aged 13 years old. The offence was stated to have committed at her house in Saw Mill area, Pasighat. On the day of the incident, when she was returning from the market, her son who had entered her house, called her and accordingly, when she entered her house, she saw both the accused and the prosecutrix without clothes and the accused pressing the prosecutrix towards the wall. Having seen that, she hit the accused with a broom. Thereafter, after sometime, she sent her son (P.W. 3) to call for the wife of the accused and also sent him to the Police Station to report the matter to the police and after sometime, the police came and arrested the accused. The police recorded her statement and her daughter was taken to the hospital by the police for medical examination. 9. P.W. 6 who is the Doctor who had examined the prosecutrix on 16.10.2012, had deposed that the laboratory examination as regards the presence of spermatozoa by Dr. T. Ering, whose signature he had identified and that, P/Ext. 3 and 4 are the laboratory reports and as per the opinion of the P.W. 6 (Doctor), there was no sign of recent sexual intercourse. In the cross-examination, P.W. 6 had stated that according to his finding, no penetration was found. 10. On perusal of the medical examination report as made available in the Photostat copy of the LCRs, which has been certified to be true copies of the original, by the Sheristedar of the Court of the learned Addl. Sessions Judge, Pasighat, it is noticed that at Pages No. 44 & 45 of the record, the opinion rendered by the Doctor is to the effect that no sign of recent sexual intercourse has been found. 11. Sessions Judge, Pasighat, it is noticed that at Pages No. 44 & 45 of the record, the opinion rendered by the Doctor is to the effect that no sign of recent sexual intercourse has been found. 11. Although while considering the appeal or the bail application, the Court ought to have relied on the original records of the learned Court below, yet the Photostat copy of the records, have been taken into consideration, by this Court, only because it has been certified to be true copies by the Sheristedar of the Court of the learned Addl. Sessions Judge, Pasighat. 12. On appreciation of the deposition recorded of the P.W. 3 P.W. 2 and P.W. 5, who are the Doctor, brother, mother of the prosecutrix and the prosecutrix herself, respectively, it is noticed that on the day of the incident, the accused had undressed the prosecutrix and had pushed the prosecutrix towards the wall in furtherance of commission of the offence alleged yet, from the conjoint reading of the depositions of P.W. 3, P.W. 2 and P.W. 5, it does not conclusively establish that the accused had finally committed rape upon the prosecutrix. What has been conclusively established on a conjoint reading of the depositions of P.W. 3, P.W. 5 and P.W. 2, is that the accused had assaulted the victim and had also undressed the prosecutrix towards commission of the offence alleged. 13. Even if the narration of minute details by the of P.W. 5, P.W. 3 and P.W. 2, are ignored, and the medical examination report as well as the deposition of P.W. 6 i.e. the Doctor who had examined the prosecutrix, are looked into, the medical examination report as well as the deposition of the Doctor (P.W. 6), does not lend support to the prosecution evidence, namely, P.W. 5, P.W. 3 and P.W. 2. 14. Needless to say, the view taken, hereinabove, by this Court, is of course, a tentative view of this Court for the purpose of consideration of an application u/s. 389 of the Code of Criminal Procedure, 1973. It must not be understood in any manner as a final opinion expressed by the Court which would, of course, be considered at the time of hearing the connected appeal. 15. It must not be understood in any manner as a final opinion expressed by the Court which would, of course, be considered at the time of hearing the connected appeal. 15. In view of the above facts and circumstances of the case, this Court is of the tentative view that the accused has a fair chance of success in the appeal. Accordingly, the accused Nang Tatik who was arrested on 12.03.2019 in pursuance of the judgment & order, dated 12.03.2019, passed by the Court of the learned Addl. Sessions Judge, Pasighat, in PSG Sessions Case No. 18/2014, shall be released on bail on furnishing a bail bond of Rs. 25,000/- with one surety of like amount subject to the satisfaction of the Court of the learned Addl. Sessions Judge, Pasighat, pending hearing and final disposal of the connected appeal. 16. With the above directions, the interlocutory application stands disposed of.