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2019 DIGILAW 764 (GAU)

Dipen Kurmi v. State of Assam

2019-06-18

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Both the appeals are taken together as both have arisen out of of the same judgment and order dated 07.06.2017, passed by the learned Addl. Sessions Judge, Dibrugarh in Sessions Case No. 203/2012, u/s. 341/376 (2) (g) of the IPC. 2. I have already heard Ms. N.S. Thakuria, learned counsel for the accused/appellant Lal Babu Ansari @ Buda Ansari in Crl. Appeal No. 291/2017. Today Mr. A. Ganguly, learned counsel appeared and argued for and on behalf of the accused/appellant Dipen Kurmi in Crl. Appeal No. 285/2017. Mr. B.J. Dutta, learned Addl. P.P., Assam advanced his argument for and on behalf of the State respondent. None is present for and on behalf of the informant/respondent No. 2, in both the appeals. 3. The prosecution case in brief is that on 28.01.2012, the victim girl (name withheld) while returning home after attending Saraswati Puja function at about 12:30 A.M., held at Tiloi Kinar Bongali Gaon School, the accused persons caught hold of her when she reached the gate of her house and dragged her to the nearby paddy field in the backward of her house and accused Dipen Kurmi committed rape upon her and the other accused Lal Babu Ansari @ Buda Ansari was guarding him. 4. Narrating the fact, the victim lodged the FIR on 29.01.2012 before the in-charge of the Bamunbari Police Outpost and thereafter the Moran P.S. Case No. 25/2012, u/s. 341/376(2)(g) of the IPC was registered. 5. During the course of investigation, the victim was examined by the Doctor and her statement was also recorded u/s. 164 CrPC and after examining all other relevant witnesses and on completion of the investigation, charge sheet was submitted against the accused persons u/s. 341/376(2)(g) of the IPC. 6. The case being triable by the Court of Sessions, it was committed to the Sessions Court and the accused/appellants faced the trial, denied the charge framed u/s. 341/376(2)(g) of the IPC. 7. During the trial the prosecution examined altogether six witnesses including the Medical Officer (M.O.) and the Investigating Officer (I.O.) and the defence examined none. The plea of the defence is of total denial. 7. During the trial the prosecution examined altogether six witnesses including the Medical Officer (M.O.) and the Investigating Officer (I.O.) and the defence examined none. The plea of the defence is of total denial. At the conclusion of the trial, the learned trial Court held both the accused persons guilty u/s. 341/376(2)(g) of the IPC and sentenced each of the accused persons u/s. 341 IPC to rigorous imprisonment for one month and also sentenced to rigorous imprisonment for 10 years, u/s. 376(2)(g) of the IPC along with fine of Rs. 5,000/- each, in default rigorous imprisonment for three months, with a direction that the sentences will run concurrently. There was a further direction for compensation to be awarded to the victim, which is to be assessed by the District Legal Services Authority, Dibrugarh. 8. Challenging the aforesaid findings, the present two appeals have been preferred by the accused/appellants separately. As the two appeals are related to the same findings, both the appeals are discussed and disposed of by this common order. 9. Both the learned counsels for the appellants have basically assailed the testimony of the victim herself which according to them is not at all authentic and convincing so as to inspire confidence to reach to the conclusion of guilt of the accused/appellants. It has been contended that the victim being a major girl, her evidence is to be visited more carefully, having regard to the entire facts and circumstances and it has been submitted that her entire conduct in the present case is fully clouded by the shadow of doubt, not to speak of guarantee of truth. 10. The evidence of the victim being pivotal to the entire case, the same has been placed before this Court by the learned counsels for the appellants to submit that although the victim has categorically stated that she was forcefully raped by the accused Dipen Kurmi, while the accused Lala Babu Ansari @ Buda Ansari was guarding but the entire circumstances speak otherwise. 11. The learned Addl. P.P., Assam, Mr. B.J. Dutta, has however contended that the evidence of the prosecutrix is sufficient to hold the accused persons guilty as she has fully implicated both the accused persons with the offence charged and the prosecutrix herself has filed the FIR immediately on the very next day of the occurrence. 11. The learned Addl. P.P., Assam, Mr. B.J. Dutta, has however contended that the evidence of the prosecutrix is sufficient to hold the accused persons guilty as she has fully implicated both the accused persons with the offence charged and the prosecutrix herself has filed the FIR immediately on the very next day of the occurrence. It is also contended that the M.O. who examined the victim is also supportive of the fact that there was sexual assault upon the victim. That being so, it has been urged before this Court that there is no need for interference by the Court of appeal. 12. I have considered the submission of learned counsel for both the parties and also gone through the impugned judgment and order and the entire evidence on record. 13. To begin with in a case of sexual assault, it is proper to start with the evidence of the victim herself. In her evidence, the victim girl as PW. 2 has stated that on the date of occurrence i.e. on 28.01.2012, at about 12:30 A.M., while she was returning home from her school after attending Saraswati Puja function, the accused persons caught hold of her when she reached the gate of her house and gagged her mouth. Thereafter the accused persons dragged her to the nearby paddy field in the backward of her house and thereafter accused Dipen Kurmi committed rape on her and at that time accused Lala Babu Ansari @ Buda Ansari was standing as a guard. It is her further contention that her brother who was also in the function, returned home and upon not finding her in the house, he and her aunt Birchi Barla searched for her and there was a commotion and then accused Buda Ansari gave a call to Dipen Kurmi on phone and Dipen Kurmi left her and ran away from the place of occurrence. 14. From a plain reading of her evidence, it would go to show that she was taken to the nearby paddy field by the accused persons but she has not stated that the accused persons were on a motor cycle, whereas the police seized one motor cycle of the accused Buda Ansari from near the house of the informant/victim, which she has not referred, whereas the I.O. has seized the said motor cycle in course of investigation. 15. 15. Let us also discuss the evidence of PW. 3, 4 & 5, who are reported witnesses and have no personal knowledge about the incident. It is in their evidence that they came to know about the incident when there was a commotion in the village. According to the PW. 3, he was told by the PW. 4 that the accused has committed rape upon the victim. But the same PW. 4 has not stated that he reported such matter to P.W. 3. On the contrary, he has stated that there is a commotion in the village that the victim fled away with a village boy. The evidence of the PW. 5 is also similar in nature and he has no personal knowledge of the matter. Both the PW. 3 and 4 have stated about a motor cycle lying on the road which was seized by the police, whereas the PW. 5 has stated about the seizure of a belt from the place of occurrence. 16. Now we may notice that the evidence of these three witnesses virtually offers no help to the prosecution as they have no personal knowledge about the matter and there is no whisper as to how they came to know about the incident and whatever they have stated are all contradicted. 17. Now let us appreciate the evidence of the prosecutrix herself. Admittedly the victim is a major girl and she in her evidence has stated that she was forcefully taken away by the accused persons to the place of occurrence. While stating about the place of occurrence, she has stated that she was taken to a nearby paddy field of her house but in the query made in the cross-examination of the said victim girl as well as the PW. 5, coupled with the sketch map prepared by the I.O., it is found that the said paddy field is not nearby the house of the victim but it is far away from her house. She further admitted in her cross-examination that there was around 200/300 people assembled in the school on the occasion of Saraswati Puja and the said place is hardly 100 meters away from her house and one can hear the scream made by any person. She further admitted in her cross-examination that there was around 200/300 people assembled in the school on the occasion of Saraswati Puja and the said place is hardly 100 meters away from her house and one can hear the scream made by any person. Over and above, there was light in the entire area and people were also on the road for such function and if anyone make any hue and cry the it can be heard from the school or from the road and even it can be heard from her house. 18. The said victim in her evidence admitted that there was a bamboo bari in the backside of her house and thereafter the tea garden and a nallah and then the place of occurrence i.e. the paddy field. After climbing the bamboo fencing and crossing the nallah, one can reach the paddy field. 19. Obviously as per her admission, to arrive at the paddy field, one has to cross such hurdles. Her statement is also supported by the sketch map prepared by the I.O. that to reach the paddy field, there are certain other things to be crossed, as mentioned by the victim. Now in can be found that if the victim girl was forcefully taken away by the accused person, then certainly one would sustain severe injuries on her person but the evidence of the M.O./PW. 1 reveals that he did not find any injury on her person. 20. According to the evidence of the M.O./PW. 1, there was no evidence of recent sexual intercourse but however some evidence suggest that there was forceful penetration and she is above 18 years and below 19 years. Such a findings of the M.O. obviously negates any such forceful dragging of the victim towards commission of the offence. 21. The learned counsel for the appellant has also pointed out that the victim was weighed 46 Kg and it was not feasible to drag such a heavy girl to a long distance and if so, there will certainly be mark of injury on her person but the same was not found on her body. In view of the evidence of the M.O., there is much substance in the argument put forwarded by the learned counsel for the appellants. 22. In view of the evidence of the M.O., there is much substance in the argument put forwarded by the learned counsel for the appellants. 22. So far as the other part of evidence of the victim girl is concerned, she has stated that on getting a telephone call from Buda Ansari, accused Dipen Kurmi left her and ran away from the place of occurrence. But such a factum of communication over telephone is not stated in her statement u/s. 164 CrPC. That apart, her explanation that she returned home alone at such late hours of night is also not convincing. More so, her evidence lacks credibility as none of her family members like her brother, parents and aunt, to whom she has referred, has not come forward to support her case. To substantiate her allegation, the evidence of the relatives of the victim is very much crucial as they can explain under what circumstances the victim returned to her home and what was her version to her parents/guardian after such return. This part is lacking in the present case. 23. It also cannot lose sight that there was a recovery of a motor cycle which is belonged to one of the accused person. If that be so, then it was more feasible on their part to take the victim to any other convenient place for commission of such offence, instead of taking her to the backside of her own house. In her cross-examination she has also stated that as she reached her house late, her parents scolded her for late return in the house. 24. The I.O. as PW. 6 has stated about the investigation of the case conducted by him including getting the victim examined by the Doctor, seizure of a belt and a motor cycle from the place of occurrence, examination of witnesses, preparation of the sketch map, etc. 25. Taking into note all above, it can be found that even if such occurrence took place, it was consensual between the parties, not against her will or consent. There is a proverb that "facts may lie but the circumstances never". The Court always has to be cautious in appreciating the evidence of the victim and there is catena of decisions that the evidence of the prosecutrix cannot be treated as gospel of truth. It is always safe to have corroboration of the testimony of the victim. There is a proverb that "facts may lie but the circumstances never". The Court always has to be cautious in appreciating the evidence of the victim and there is catena of decisions that the evidence of the prosecutrix cannot be treated as gospel of truth. It is always safe to have corroboration of the testimony of the victim. Although conviction can be rest on sole testimony of a victim but it must be legal, convincing and inspire confidence in the mind of Court. 26. We may refer to the decisions of 2014 (STPL Web 1991); Amarlal Vs. State of Rajasthan and 2015 STPL (Web 153 CS); Rabindra Vs. State of Madhya Pradesh, wherein it is categorically held that the Court should not solely rely on the testimony of the prosecutrix as her statement requires corroboration. It has also been held that in order to sustain conviction u/s. 376 IPC, the Court has to look forward on other relevant facts and circumstances of the case to held that such a statement is wholly true and reliable. 27. In the present case, as has been discussed above, it can be held that the prosecutrix must have suppressed the genesis of the case and after coming into light all about the incident, she chose to file the case but she failed to procure support from all the relevant facts and circumstances, as discussed above. 28. The victim being an adult girl, made no resistance against the conduct of the accused/appellants, if at all she was forcefully taken to the place of occurrence. Placing explicit reliance upon such story of the victim, it is not safe to sustain the conviction. It is discernable that the learned trial Court has placed explicit reliance upon the sole testimony of the victim which in fact, has not been supported by any of the reliable evidence and such a finding of the learned trial Court is liable to be interfered, which is not sustainable in the eye of law. 29. Resultantly the impugned order dated 07.06.2017, passed by the learned Addl. Sessions Judge, Dibrugarh in Sessions Case No. 203/2012, u/s. 341/376(2)(g) of the IPC, is hereby quashed and set aside. 30. Both the accused persons are set at liberty forthwith. 31. Return back the LCR along with a copy of the judgment.