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2019 DIGILAW 153 (GAU)

KISHORE TAYE @ BABUL v. STATE OF ASSAM

2019-02-01

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. Z. Kamar, learned counsel appearing for and on behalf of the appellant as well as Mr. M.P. Goswami, learned Addl. P.P., Assam, representing the State. 2. The present informant/the victim is a married woman having children and husband and she filed an FIR before the Silapathar P.S. on 09-04-2014 to the effect that on 13-03-2014, while she was sleeping in her mother's house situated in the same village along with her three years old daughter, then at about 12 O'clock at midnight, the accused person along with two others with their face masked with black clothes, entered into the house by cutting the bamboo wall of the house and lifted her by gagging her mouth, took her across the Demow river forcefully and put her into an Alto Car. Thereafter she was taken to Arunachal Pradesh and after confining her in a house of GRIEF company, the accused sexually abused her. While she informed the matter to her husband over mobile phone, then she was rescued by her husband along with others on 06-04-2014, from the said place. After such recovery, she filed the FIR on 09-04-2014. 3. On the basis of the FIR, the Silapathar P.S. Case No.90/2014, under Section 448/427/366/376/34 of the IPC was registered and the statement of the victim woman was also recorded before the Court under Section 164 of the Cr. P. C and she was also medically examined. After completion of the investigation, charge sheet was submitted against the accused under Section 344/376 of the IPC, against the accused person. 4. The accused person faced the trial and denied the charges and claimed to be tired. The prosecution examined 9 witnesses in support of the case and the defence examined none. The plea of the defence is of total denial. 5. The accused was examined under Section 313 of the Cr. P. C wherein he denied the allegation. 6. At the conclusion of the trial and hearing the learned counsel for both the parties, the learned trial Court convicted the accused under Section 376(1)/344 of the IPC and sentenced him to suffer R.I. for 7 years and to pay fine of Rs. 1,000/-, in default R.I. for another one month, under Section 376(1) IPC. 6. At the conclusion of the trial and hearing the learned counsel for both the parties, the learned trial Court convicted the accused under Section 376(1)/344 of the IPC and sentenced him to suffer R.I. for 7 years and to pay fine of Rs. 1,000/-, in default R.I. for another one month, under Section 376(1) IPC. Further he was also sentenced to R.I. for two years under Section 344 of the IPC and to pay fine of Rs. 1,000/-, in default S.I. for another one month, with a direction to run the sentence concurrently. 7. Being aggrieved by the aforesaid order, the present appeal has been preferred on the ground that the learned trial Court has failed to appreciate the evidence on record and has come to a erroneous finding about the guilt of the accused, ignoring the infirmities that has been cropped up in the prosecution case. 8. I have heard the submission of learned counsel for the appellant and the learned Addl. P.P., Assam, appearing for and on behalf of the State respondent and perused the impugned judgment and the evidence on record. 9. By drawing the attention of the testimony of the victim woman it has been submitted by Mr. Z. Kamar, learned counsel for the appellant that the evidence of the victim herself is inconsistent about the entire affair who has given different versions in the FIR, in her statement recorded under Section 164 of the Cr. P. C as well as her evidence in course of trial and such an inconsistent statement cannot inspire confidence at all so as to place reliance upon the credibility of such victim woman. It has also been pointed out that she being a married woman even if she was taken by force by the accused but what prompted her to stay with the accused person for more than 21 days without any protest. Her evidence lack support from the medical evidence as well as other independent witnesses save and except the testimony of her mother. 10. On the next it is also submitted that there was vast discrepancies as regards the place of occurrence and the manner of occurrence and unexplained delay in filing the FIR. Accordingly prayer has been made that accused is entitled to acquittal for such serious discrepancies in the prosecution case itself. 11. Mr. M.P. Goswami, the learned Addl. 10. On the next it is also submitted that there was vast discrepancies as regards the place of occurrence and the manner of occurrence and unexplained delay in filing the FIR. Accordingly prayer has been made that accused is entitled to acquittal for such serious discrepancies in the prosecution case itself. 11. Mr. M.P. Goswami, the learned Addl. P.P., Assam, representing the State respondent has however tried to justify the order of conviction of the trial Court on the ground that the victim has stated that such sexual conduct was against her consent and under confinement. It is also argued that on the basis of sole testimony of the victim, the Court can convict a person even in absence of supporting medical evidence and otherwise. 12. Due consideration is given to the submission made before this Court. 13. In a case of sexual offence, the testimony of the victim being crucial, let us examine the testimony of the victim/PW.1 (name withheld). In her evidence as PW.1, she has stated that on 13-03-2014, the accused came to their house and raped her at about 7 A.M. in the morning and thereafter she was forcefully taken in a Alto car to Arunachal Pradesh and kept confined in a house wherein the accused continued his sexual assault upon her. However she informed the matter to her husband over telephone and then her husband recovered her with the assistance of other persons. Thereafter she filed the FIR. In her cross-examination she has stated that the occurrence took place in her mother's house. It is also stated that the accused used to work in the GRIEF company in the day time but she did not report anybody regarding her forceful abduction by the accused. 14. If we examine the FIR that was filed by herself, her statement recorded under Section 164 of the Cr. P. C and evidence in course of hearing, it will reflect that the version of the FIR is fully inconsistent with her statement given before the Trial Court. In contrast to the evidence given before the Court, in her FIR, she has stated that at about 12 O'clock at midnight, the accused person along with some others forcefully entered into their house by breaking the bamboo wall and carried her from the bed forcefully in a vehicle. In contrast to the evidence given before the Court, in her FIR, she has stated that at about 12 O'clock at midnight, the accused person along with some others forcefully entered into their house by breaking the bamboo wall and carried her from the bed forcefully in a vehicle. Obviously she has not stated about such occurrence in course of trial regarding taking her forcefully by breaking the wall etc. Further the FIR is also silent that she was raped in her house also. Surprisingly the victim has given another story in her statement under Section 164 of the Cr. P. C, which was recorded on the next day of filing the FIR i.e. 10-04-2014 (while memory was not lost) that on 13-03-2014, while she was going to deliver money to her son aged about 10 years, studied at Silapathar, she found the accused who was known to her on the bank of the river along with two other persons and thereafter the accused forcefully took her in a maruti car and took her to Arunachal Pradesh and kept her for three weeks in a campus of GRIEF company. It is stated that she was forcefully raped by the accused person while keeping her in Arunachal Pradesh and subsequently on being informed her husband, he along with her brother-in-law Bikeswar Mili, Tileswar Mili, Pabitra Mili and Token Rosong recovered her. 15. Such a statement of the victim who has given different version of the occurrence at different times no way can be held to be convincing evidence as has been held by the trial Court. As per law, although a conviction can be based upon the sole testimony of a victim but the same is to be true and authenticated version of the victim. The victim herein being a married woman, require scrutiny of her evidence, while in the given circumstances she made no any attempt to fled away from the clutch of the accused person and how a major woman can be kept in confinement by a man, is also not expressed by her. The victim woman was kept in a premises of the GRIEF company and she was in a position to complain the same to the other person also regarding such forceful confinement or the sexual abuse by the accused. The victim woman was kept in a premises of the GRIEF company and she was in a position to complain the same to the other person also regarding such forceful confinement or the sexual abuse by the accused. But there is nothing to show that she has ever complained of such an affair to any person. 16. On the next, her husband was not examined to support her contention that on being informed by the PW.1 (the victim), she was recovered from the clutches of the accused person. Peculiarly the witnesses she has referred to in her statement has given evidence in other way destroying the credibility of the testimony of the victim. The PW.4 Smti Bimali Mili, PW.6 Sri Pabitra Mili, PW.7 Sri Naba Mili and PW.8 Khagen Mili, all of them have given evidence that they have heard that PW.1 has eloped with the accused and later they were found in Arunachal Pradesh and her family members brought her back. The PW.6 has also stated that while he went to Arunachal Pradesh to bring the PW.1, they found the accused and the victim were living together by making a thatched house. Such an evidence on record itself is sufficient to show that the victim voluntarily went with the accused person out of her earlier relation and she never made any attempt to fled away and only, while the whole matter became public, she chose to file the FIR, perhaps to save her married life. 17. There is a proverb that the man may tell lie but the circumstance do not. In the present case, the above circumstances that have been discussed, indicated that the victim herself eloped with the accused person for which there appear major discrepancies in her statement at different time which has slacken authenticity of her testimony. 18. The evidence of PW.2, Smti Amarawati Payeng has not supported the case of the victim while she stated that the accused took her daughter/PW.1 from the road, while the PW.1 stated that she was forcefully taken by the accused from the house of PW.2, by breaking the bamboo wall. Similarly PW.3, Smti Kanaklata Mili has simply stated that about one year ago, the accused took the victim to Arunachal Pradesh and later on her husband took her back. PW.5, Dr. Similarly PW.3, Smti Kanaklata Mili has simply stated that about one year ago, the accused took the victim to Arunachal Pradesh and later on her husband took her back. PW.5, Dr. Malabika Taid examined the victim after her recovery on 09-04-2014 and has opined in her report that there was no injury or violation mark on her body suggesting any sort of forceful sexual intercourse upon the victim. 19. From the entire evidence on record and the findings as discussed above, it can be found that the testimony of the victim/PW.1 is not at all convincing and reliable but the learned Trial Court has placed exclusive reliance upon such uncorroborated and unreliable testimony of the victim which is not sustainable in the eye of law as well as facts. While arriving at such decision, the learned trial Court has not appreciated the entire evidence so rendered by the other witnesses, who have not supported the allegation of the victim in any manner. 20. Taking into note all the above, I am unable to persuade myself to hold that the prosecution has not been able to prove the charge under Section 376(1)/344 of the IPC, beyond all reasonable doubt and accordingly the aforesaid order of conviction is liable to be interfere with. 21. Resultantly the impugned judgment and order passed in Sessions Case No.44 (DH)/2014, under Section 376(1)/344 of the IPC is hereby quashed and set aside and the accused person is to be set at liberty forthwith. 22. Return the LCR immediately along with the copy of the judgment.