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2019 DIGILAW 694 (GAU)

Gore Newar v. State of Assam

2019-06-03

RUMI KUMARI PHUKAN

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JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. P.D. Nair, learned counsel appearing for and on behalf of the petitioner and Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam, for the respondent/State. 2. Present revision has been preferred against the judgment and order dated 08.02.2010 passed by the learned Additional Sessions Judge, Dibrugarh in Criminal Appeal No. 30(4)/2009 upholding the conviction and sentence passed by the learned Assistant Sessions Judge, Dibrugarh, in Sessions Case No. 1/2008. 3. A criminal case was initiated on filing of an FIR by one Ramnath Panika through the Officer-in-Charge of Namrup Police Station alleging that on 11.09.2007 while his daughter was returning home at about 9:30 PM after witnessing a Kirtan, the accused forcefully committed rape upon her. Accordingly, a case was registered under Section 376 IPC against the accused (Gore Newar) as Namrup PS Case No. 75/2007 under Section 376 IPC. The victim was examined by medical officer and her statement was also recorded under Section 164 Cr.P.C. 4. On conclusion of the investigation, charge-sheet was submitted against the accused under Section 376 IPC. The case, thereafter, committed to the court of Session being triable by Sessions Court. The accused faced the trial and denied the charge. 5. Prosecution examined as many as 7 witnesses in support of the case and defence examined none. Plea of defence was of total denial. At the conclusion of trial, the learned trial court convicted the accused under Section 376 IPC to a lesser punishment due to the fact that victim urged that she has no objection if the accused is acquitted from the charge as she has already got married. The accused was convicted for rigorous imprisonment of 3 years with fine of Rs. 1,000/-, in default further rigorous imprisonment for 6 months. Against which, the appeal filed by the accused-petitioner was also dismissed by the appellate court. Hence, the present revision petition. 6. I have considered the submissions advanced by Mr. P.D. Nair, learned counsel for the petitioner, who has categorically submitted that the prosecution case is not clear and convincing and the conduct of the victim is not beyond doubt because of certain facts of the case. Hence, the present revision petition. 6. I have considered the submissions advanced by Mr. P.D. Nair, learned counsel for the petitioner, who has categorically submitted that the prosecution case is not clear and convincing and the conduct of the victim is not beyond doubt because of certain facts of the case. Evidence of the victim as well as of others have been pressed into, to submit that there is no corroboration amongst the evidence of the parents of the victim with the victim and that there is lack of supporting evidence from the entire facts and circumstances. It has also been urged before the Court that the victim is a major girl and her long absence from the house coupled with the factum of her returning home late hours of night, the evidence of the victim cannot be acted upon as true. 7. I have also considered the submissions of the learned Additional Public Prosecutor, Assam Mr. D. Das, who has submitted that there is full corroboration of statement of the victim with her earlier statement recorded under Section 164 Cr.P.C. and the same is also supported by her mother P.W.2. It has been submitted that although there is no medical opinion regarding the injury of the victim girl, but the victim has sufficiently implicated the accused-petitioner with the offence alleged and the trial court below has rightly convicted the accused-petitioner. 8. For fair adjudication of the submissions of the learned counsel for both the parties, this Court has carefully examined the evidence on record to appreciate whether there is any illegality or irregularity being committed by the courts below in arriving at the findings. This Court being a revisional court, however, can consider only the laches, irregularity etc. being committed by the court below while appreciating the evidence, which may cause miscarriage of justice. 9. On examination of the evidence on record and the evidence of the victim, it goes to show that while she was returning home from the temple after attending recital of Kirtan, one Lakhi Panika accompanied her and after leaving Lakhi Panika when she was on her way to home, the accused suddenly took her from the road towards the Dangaria temple forcefully and committed rape upon her. But the said Lakhi Panika was not examined as witness to show that at the relevant time the victim girl was returned with her. 10. But the said Lakhi Panika was not examined as witness to show that at the relevant time the victim girl was returned with her. 10. On the next, it is found that according to her and her parents (P.W.1 and P.W.2), the victim (P.W.6) reached home at about dead hours of night at 1:30 AM and her mother went in search of her. According to the mother of the victim, her daughter (P.W.6) returned home at late night and immediately after her return, she reported to her that accused Gore Newar committed bad act upon her by gagging her mouth. According to the mother of the victim, P.W.2, immediately after the occurrence the victim disclosed the name of the accused to her. But P.W.1, father of the victim/informant in his statement has stated that the victim told him that she was taken away by two boys, whose faces were covered with black cloths and they took her towards the temple. On the following day, P.W.6 on being interrogated by P.W.4 (Ganesh Newar), the victim girl disclosed the matter that out of the two persons, she could identify the accused, who had taken her forcefully and committed bad act upon her. So the versions of P.W.1 and P.W.2, the parents of the victim are contradictory while P.W.2 stated that the victim could identify the accused and while P.W.1 stated that there was no identification of the accused persons as their faces were covered by black cloths. 11. The evidence of P.W.3 and P.W.4 has also not supported the case of the victim in true sense. In her statement, P.W.3 stated that although the mother of the victim came to her house in search of P.W.6 (victim) but she was not found and she had not stated about the incident. Her evidence shows that Kirtan was concluded at 7:00 PM and the victim girl, on the next day, did not stated anything about the occurrence while P.W.3 asked her about the matter. As per P.W.3, the Kirtan ended at 7:00 PM and then how the victim could return at 1:30 AM, if she was forcibly taken by the accused person. Prosecution is silent on the said point. She could have resist the accused by making hue and cry. 12. As per P.W.3, the Kirtan ended at 7:00 PM and then how the victim could return at 1:30 AM, if she was forcibly taken by the accused person. Prosecution is silent on the said point. She could have resist the accused by making hue and cry. 12. On the other hand, P.W.4 (Ganesh Newar) who stated to have arrive at the house of P.W.6 immediately after returning of P.W.6 at about 1:30 AM, but he did not say about the incident. His simple assertion is that he could know about the matter from another Goha Rai, to whom the victim reported but the said Goha Rai was not examined. 13. On appreciation of the evidence of P.W.6, it appears that she stated in chief that she was taken inside the temple by the accused forcefully and thereafter he committed rape upon her. But in her cross-examination, she stated that the incident took place outside the temple, which is itself contradictory one. 14. Such a statement again has come under suspicion when the Investigating Officer has stated in his evidence that at the time of investigation, he found no such temple at the place of occurrence as stated by the victim. Such a finding of the Investigating Officer is sufficient to nullify the testimony of the victim as regards the place of occurrence. 15. On the next, in view of the fact that victim was major at the relevant time and her statement to some extent that there was a love proposal by the accused coupled with the fact that she remained with the accused person for several hours without making any hue and cry and non-finding of any injury upon her on medical examination, all indicates that she was a consenting party to the whole affair and that there was a suppression of material facts on her part. Such inconsistencies and suppression of facts made in her evidence is unreliable and unconvincing. She also did not hesitate to exonerate the accused-petitioner from the alleged offence as stated in her cross-examination. 16. The evidence of the prosecutrix must be free from doubt from any corner so as to bring home the guilt of the accused beyond all reasonable doubt. Such inconsistencies and suppression of facts made in her evidence is unreliable and unconvincing. She also did not hesitate to exonerate the accused-petitioner from the alleged offence as stated in her cross-examination. 16. The evidence of the prosecutrix must be free from doubt from any corner so as to bring home the guilt of the accused beyond all reasonable doubt. So far as the present case is concerned, as discussed above, there are serious material discrepancies and suppression of facts of material aspects, which has not been appreciated by the learned trial court elaborately while arriving at the guilt of the accused. The conduct of a victim is always relevant to assess the veracity of her evidence and it is difficult task to appreciate entire facts and circumstances and one has to sift the grain from the chaff. 17. For the reasons stated above, this Court is of the opinion that the evidence on which learned trial court below has relied upon is not at all clear and convincing one to prove the guilt of the accused-petitioner beyond all reasonable doubt. The decision is not legally sustainable. 18. Accordingly, the judgment and order of conviction and sentence of the accused-petitioner is hereby quashed and set aside. The petitioner be set at liberty forthwith on benefit of doubt. 19. Return the LCR without delay.