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2019 DIGILAW 609 (GAU)

Hare Krishna Das v. State of Assam

2019-05-16

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard Mr. S.C. Biswas, learned counsel for the accused/appellant. Also heard Mr. D. Das, learned Addl. P.P., Assam representing the State respondent. None appears for the respondent No.2. 2. The prosecution case in brief is that on 24-04-2016, the complainant/victim filed an FIR at Borsola Police Out Post, under Dhekiajuli Police Station stating inter-alia that on 21-04-2016 at around 9 p.m., taking the advantage of absence of her family members at home, the accused Hare Krishna Das entered into her house. He gagged her mouth and raped her. The accused also threatened to kill her and her husband if the matter is disclosed to anybody else. However, she reported the matter to the villagers and a village meeting was held. Hence, there was delay in lodging the FIR. 3. On receipt of the FIR, the G.D. Entry No.426, dated 24.04.2016 was made and forwarded the FIR to Dhekiajuli P.S. for registration of the case and accordingly the Dhekiajuli P.S. Case No.239/2016, u/s.448/376/506 of the IPC was registered against the accused Hare Krishna Das. The police went to the place of occurrence and examined the available witnesses. The statements of the witnesses were recorded, medical examination of the victim was done and her statement u/s 164 CrPC was duly recorded. On completion of investigation, a prima facie case having appeared, the I.O. submitted charge sheet against the accused person u/s.448/376/506 IPC to stand trial. 4. Taking cognizance of the offence and after appearance of the accused, learned Judicial Magistrate 1st Class, Tezpur committed the case to the Court of Sessions Judge, Sonitpur (Tezpur) and thereafter the case was taken up for trial. Accordingly, considering the materials available on Case Record and in the Case Diary and prima facie case having appeared u/s 448/376/506 of the IPC, charge was framed and the contents of the offence was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. To prove the offence against the accused person, the prosecution side examined 9 witnesses in support of their case and exhibited few documents. The case of the defence was of total denial and the defence examined none in support of his plea. 5. To prove the offence against the accused person, the prosecution side examined 9 witnesses in support of their case and exhibited few documents. The case of the defence was of total denial and the defence examined none in support of his plea. 5. At the conclusion of the trial, the learned Court below found the accused u/s.448/376 of the IPC and accordingly convicted him u/s 376 IPC and sentenced him to R.I. of 8 years & also sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) in default S.I. for 5 months. He is also convicted u/s.448 IPC and sentenced to S.I. for one year. The period already spent in jail by the convicted accused person was directed to be set-of from the sentence awarded and the collected fine was directed to be paid to the victim as compensation. Further it was directed to provide compensation to the victim by the DLSA under the Victim Compensation Scheme. 6. The present appeal has been preferred challenging the validity and legality of the learned trial Court. 7. I have heard the learned counsel for and on behalf of the appellant Mr. S.C. Biswas as well as Mr. D. Das, the learned counsel for the State respondent. None appears for the respondent No.2. 8. The learned counsel for the appellant has led the Court through the entire evidence on record and has submitted that on proper appreciation of the matter, it will reflect that the statement of the prosecutrix itself is not at all convincing so as to place reliance upon her evidence. Pointing to the background of the prosecutrix that she and her husband used to work under the accused for few months prior to the occurrence and their services were terminated by the accused, it has been submitted that in view of the aforesaid background, coupled with the serious discrepancies in the evidence of the prosecutrix and other prosecution witnesses, the case of the prosecution is totally doubtful to suggest the complicity of the accused/appellant. It has been urged that the learned trial Court has failed to appreciate the evidence in proper prospective of law and fact and the whole case is doubtful coupled with delay in filing the FIR. 9. It has been urged that the learned trial Court has failed to appreciate the evidence in proper prospective of law and fact and the whole case is doubtful coupled with delay in filing the FIR. 9. On the other hand, according to the learned counsel for the State respondent, on the basis of statement of the victim being a married woman, which has been supported by other evidence on record, the learned trial Court has rightly convicted the accused/ appellant. 10. For proper appreciation of the matter, let us examine the evidence on record and start with the evidence of the victim who is the star witness in the present case and the whole case revolve around her evidence. 11. Firstly it is to be noted that the FIR was filed after four days of the occurrence, referring about the village mel. In her FIR, it is stated that while she was alone in the house, the accused person committed rape upon her at 9 P.M. Similarly in the course of trial, as PW.1 she stated that while she was alone and was sleeping in her house, the accused entered into the house and raped her by gagging her mouth and she informed the matter to one Ratin Das (PW.3) in the morning. But her evidence is totally silent regarding where-about of her husband (as she was a married woman) and also about their children. The said Ratin Das (PW.3) never stated in his evidence that he was reported about the matter by the PW.1. 12. In her statement u/s.164 CrPC, the victim has stated that her two children, aged about 13 years and 9 years respectively were sleeping in another room at the time of occurrence but the same was not divulged in course of trial. She has contradicted her own statement while she stated in the cross-examination that her house has only one room having one bed, where she used to sleep along with her husband and two children and on the day of occurrence, only one child was with her. More so, none of the children of the informant has been examined in support of her contention that the accused entered into the house and committed such offence. More so, none of the children of the informant has been examined in support of her contention that the accused entered into the house and committed such offence. While she has admitted that their house is a single bedded room, then certainly she has belied while she stated in her statement that her children were sleeping in another room. 13. Her husband Chitra Das as PW.2 has stated that on his return at night, he found his wife was crying and on his query, she told him about the incident. But peculiarly the PW.1 did not inform the matter first to her husband but she reported the matter to PW.3, to which he also denied. The PW.1 and PW.2 have admitted that they used to work in the house of the accused for around six months and they were paid salary. PW.1/the victim has admitted that PW.3 Ratin Das is her brother-in-law, PW.5 Nirmal Das is her maternal uncle, PW.6 Nepal Das is her own uncle, PW.7 Bapi Das is her cousin and PW.8 Gopal Das were present in the village meeting and all of them are hearsay witnesses. 14. On scrutiny of evidence of those witnesses, it would go to show that all of them have stated that on the next day of occurrence they held a meeting in the village, about the incident that has happened to the victim, near the house of the informant and while the victim divulged, the accused person admitted about the commission of such rape. It is their evidence that as the accused admitted the commission of crime, he was asked to pay compensation of Rs.1 lac to the victim but the accused did not pay the same and went away. They also admitted that the proceeding of the aforesaid meeting was reduced to writing but no such proceeding was produced before the Court in support of their contention. 15. It is to be noted that the PW.57 have stated that the meeting was held near the house of the informant but PW.8 has stated that the said meeting was held in the Durga Mandir of the village. Their evidence appears to be parrot like statement without narrating the date and time of holding the meeting and way of confession made by the accused while admitting such occurrence. 16. Their evidence appears to be parrot like statement without narrating the date and time of holding the meeting and way of confession made by the accused while admitting such occurrence. 16. The Medical Officer as PW.4 who happened to examine the victim woman has pointed out that he found no such mark of injury on her person and there was no sign and symptom of recent sexual intercourse and no mark of injury on her private part was detected. He also stated that if there had been any forceful sexual intercourse, there would be sign of injury, which is not found on the victim woman. 17. The evidence of the Investigating Officer/PW.9 is formal in nature. 18. From the impugned judgment and order it reveals that the learned trial Court has fully relied upon the evidence of the victim to be true and convincing and also the evidence of the PWs.58 has been relied as extra-judicial confession, but while the learned trial Court has failed to take note of the discrepancies, which have been precisely discussed above. Of-course the evidence of the related witnesses can be acted upon but the same is to be scrutinized in the given backdrop of each and every case. The written proceeding of the village meeting was also not produced to show about the admission of the accused, for which an adverse inference can be drawn for not producing the relevant documents. It is not at all safe to rely upon such extra judicial confession, made before relatives of the victim. 19. The learned trial Court also erred in law and fact by relying the testimony of the victim while her evidence is clouded by serious doubt for her own conduct as indicated above. The statement of the victim given in course of trial is materially different from her statement given u/s.164 CrPC. At one time she stated that she was alone in the house at the time of occurrence and subsequently stated that her two children were in the house but none of them has been examined despite the fact that they are grown up children. 20. In the given backdrop of the case and also the fact that the victim and her husband used to work under the accused, they may have hostile attitude towards the accused/appellant for certain reasons for such false implication of the accused, cannot be denied. 21. 20. In the given backdrop of the case and also the fact that the victim and her husband used to work under the accused, they may have hostile attitude towards the accused/appellant for certain reasons for such false implication of the accused, cannot be denied. 21. In view of all the facts and circumstances, the delay in lodging the FIR appears to be fatal to the prosecution. Of-course conviction of the accused can be based upon the sole testimony of the victim in a given case but such evidence is to be tested as regards the truthfulness and genuineness of her version supported by other relevant facts and circumstances of the case. But in the instant case, for reasons and discussions as above, it can be found that no explicit reliance can be given upon such testimony of the victim to warrant conviction. 22. As a corollary of above, this Court has found and hold that the prosecution has not been able to prove the charge beyond all reasonable doubt and the impugned order of conviction is not sustainable. Accordingly the accused/appellant is hereby acquitted from the charge and set him at liberty. Release the accused forthwith. 23. Return the LCR along with a copy of judgment.