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2020 DIGILAW 148 (GAU)

Budhay Roy v. State Of Assam

2020-02-06

MANISH CHOUDHURY

body2020
JUDGMENT Manish Choudhury, J. - This appeal from jail is directed against the judgment and order dated 29.05.2018 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 50/2015. By the said judgment and order, the accused-appellant has been convicted under Section 376, Indian Penal Code (IPC) and he has been sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 3,000/- (Rupees ten thousand), in default, to undergo rigorous imprisonment for further 2 (two) months. It has been observed that the period of detention already undergone by the accused-appellant, during investigation and trial, shall be set-off from the sentence. 2. I have heard Mr. R Deb, learned Amicus Curiae for the accused- appellant and Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State. 3. Mr. Deb, learned Amicus Curiae has submitted that the prosecution has miserably failed to bring home the charge against the accused-appellant in any manner and the learned trial Court by an erroneous reading of the evidence brought in the record of the case, has arrived at the finding of guilt against the accused-appellant. He further submits that none of the witnesses, other than the victim, had witnessed the incident. In so far as the testimony of the victim is concerned, he submits that her testimony is full of inconsistencies and in view of such glaring inconsistencies, no reliance can be placed on it and based on such testimony, the accused-appellant could not have been convicted. 4. Per contra, Mr. Lahkar has submitted that in a case of this nature it is the sole testimony of the victim which can be made the basis of conviction in a charge under Section 376, IPC. If such testimony of a victim inspires confidence, the prosecution requires no other corroboration because in a case of sexual assault, the prosecutrix cannot be considered to be an accomplice. He submits that the victim has been found to be consistent all throughout and the impugned judgment and order of conviction and sentence does not call for any interference. 5. I have considered the rival submissions advanced by the learned counsel for the parties and have also meticulously gone through the testimonies of the prosecution witnesses as well as the documentary evidence exhibited by the prosecution. 5. I have considered the rival submissions advanced by the learned counsel for the parties and have also meticulously gone through the testimonies of the prosecution witnesses as well as the documentary evidence exhibited by the prosecution. In order to appreciate the rival submissions of the learned counsel for the parties, a brief narration of the background facts appears necessary. 6. It is found that the First Information Report (FIR) in the instant case was lodged by the father of the victim (PW-1) on 09.04.2015 before the In-Charge of Bilaipur Police Out Post. In the said FIR, it was, inter-alia, alleged that on 08.04.2015, at about 8-00 p.m., when he reached his house his daughter-in-law (PW-2) had informed him that his minor daughter i.e. the victim after going out of the house at about 6-00 p.m. had not returned. Immediately, they searched for her but could not find her. After making enquiry, he came to know that the accused who had been staying at the family''s village house, located in the same village, had developed a friendly relationship with his minor daughter and he suspected that the accused might have kept her concealed somewhere after kidnapping her. On receipt of the FIR, the In-Charge, Bilaipur Police Out Post registered a General Diary Entry being G.D. Entry No. 134 dated 09.04.2015 and forwarded the FIR to the OfficerIn-Charge, Lala Police Station for registering a case. The Officer In-Charge, Lala Police Station on receipt of the FIR, registered a case being Lala Police Station Case No. 16/2015 (Corresponding G.R. Case No. 658/2015) on 10.04.2015 under Section 366A, IPC. 7. During the course of the investigation, the Investigating Officer (PW-7) who was attached to Bilaipur Police Out Post, went to the place of occurrence which he has stated to be the house of the informant (PW-1). He recorded the statement of the witnesses there and drew up a sketch map(Ext.- 8) of the said place of occurrence i.e. the house of the informant (PW-1). After having recovered the victim (PW-5), she was sent for medical examination to the Civil Hospital, Hailakandi.The statement of the victim (PW-5) was recorded under Section 164,Cr.P.C. before the Magistrate on 10.04.2015. He recorded the statement of the witnesses there and drew up a sketch map(Ext.- 8) of the said place of occurrence i.e. the house of the informant (PW-1). After having recovered the victim (PW-5), she was sent for medical examination to the Civil Hospital, Hailakandi.The statement of the victim (PW-5) was recorded under Section 164,Cr.P.C. before the Magistrate on 10.04.2015. After collection the medical report (Ext.- 2), X-Ray Report (Ext.- 3) and Laboratory Report Form (Ext.- 4), he submitted the Charge-Sheet (Ext.- 7) under Section 173,Cr.P.C. finding a prima-facie case well established against the accused under Section 366A, IPC. On submission of the Charge-sheet, the learned Additional Chief Judicial Magistrate, Hailakandi secured the presence of the accused from custody and complied with the procedure prescribed under Section 207,Cr.P.C. by furnishing copies of the case to him. As the offence under Section 366A, IPC is exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Hailakandi committed the case to the Court of Sessions,Hailakandi by his order of commitment dated 20.05.2015 with due notice to the learned Public Prosecutor. On receipt of the case records of G.R. Case No. 658/2015 by the Court of Sessions, Sessions Case No. 50/2015 was registered. After hearing the learned Public Prosecutor and learned defence counsel and upon perusal of the materials on record, the learned Sessions Court framed separate charges under Section 366, IPC and under Section 376, IPC respectively against the accused. After framing the charges, the same were read over, interpreted and explained to the accused to which he pleaded not guilty and claimed to be tried. 8. The learned trial Court after examination and appreciation of the evidence on record, had not found the charge under Section 366 IPC as proved and the accused was acquitted from the charge under Section 366, IPC, though in the impugned judgment the same has been mentioned as Section 366A IPC. Finding the accused person guilty for the offence under Section 376, IPC, the learned trial Court has convicted and sentenced him as above, by the impugned judgment and order. Assailing the same the present appeal has been preferred. 9. Finding the accused person guilty for the offence under Section 376, IPC, the learned trial Court has convicted and sentenced him as above, by the impugned judgment and order. Assailing the same the present appeal has been preferred. 9. To appreciate the rival submissions of the learned counsel for the parties and as to whether the prosecution has been able to establish the charge under Section 376, IPC, a discussion on the prosecution story and the defence story on the basis of the evidence on record is called for. Before embarking on a discussion on the testimonies of the other witnesses it is apt to canvass and examine the testimony of the victim herself. In the testimony of the victim who has been examined as PW-5, she stated that she knew the accused. At the time of the incident, she was aged about 13 years. Her father has a shop at Lalcherra. On the date of the incident, during the evening hours, she was returning home from the shop of her father. The accused then met her on the way and asked her to elope with him but on her refusal he forced her to jungle and committed rape on her twice in the jungle. It was at about 4 a.m. he left her there and thereafter, she went to the house of her sister at Robinala. She disclosed the entire incident to her sister and her sister informed the same to her father (PW-1). Accordingly, PW-1 lodged the F.I.R. She exhibited her statement recorded under Section 164, Cr.P.C.,as Ext.- 1. During her crossexamination, she stated that the distance of her house and the house of her sister is around 5 miles. PW-2 is her sister-in-law. The shop of her father at Lalcherra is at a distance of 2 miles from her sister''s house. She was unable to mention the distance between her sister''s house and the place of occurrence. Before the occurrence, she had never gone to her sister''s house alone. She stated that when she walking towards her house, reached at a place wherefrom the jungle starts the accused forcefully took her away from there. In the cross-examination, it was put to her as to whether she knew about the lady who used to reside in the land of her uncle to which she replied in the affirmative. She stated that when she walking towards her house, reached at a place wherefrom the jungle starts the accused forcefully took her away from there. In the cross-examination, it was put to her as to whether she knew about the lady who used to reside in the land of her uncle to which she replied in the affirmative. She further stated that after her marriage she heard that the lady had left the place. She denied the suggestions that the accused is the brother of that lady and that her uncle in order to oust the lady from his land, had filed the case falsely. She further deposed that the police recovered her from the house of her sister on that very day when she came from the jungle. The wearing apparels which she was wearing at the relevant time of occurrence at her sister''s house were not seized by the police. She further stated that she sustained injuries in her private parts as well as in the back, chest and other parts of her body. The semen fell on her wearing apparels. She denied the suggestion that the accused did not take her in the jungle forcefully and committed rape on her. She was not taken to the place of occurrence during the course of investigation and except her, none could identify the said place. She was confronted with her previous statement made before the police by the defence side by stating that she did not state earlier that while she was returning home from the shop of her father, the accused took her. It was elicited from her that she stated before police that while she was returning home from her sister''s house her father along with police from Bilaipur Police Out Post recovered her from Robinala. 10. It is in the backdrop of the aforesaid testimony of the victim evidence of the other witnesses are to be seen. PW-1 i.e.the father of the victim had deposed to the effect that on the date of the incident, he was at Lalcherra market and when he returned to his house, his daughter in-law (PW-2) reported to him that one boy who worked in the house of Babu Lal and Usha Rani had perhaps taken the victim as she had noticed that the said boy used to talk with his daughter. After lodging the F.I.R. at the Bilaipur Police Out Post, the police recovered the victim from Moticherra.He saw her in the Police Station. In the cross-examination, PW-1 failed to say anything about the date of birth of her daughter. He stated to have heard that his daughter was recovered from the house of his elder daughter, located in the same village. It is, thus, evident from the testimony of PW-1 that he was neither present when the victim had gone missing nor he was present when the victim was recovered by police on the next day. PW-1 had said nothing to the effect that the victim daughter on the date of the incident, had gone to his shop at Lalcherra and during evening hours, she was returning from his said shop before she went missing. 11. Pw-2 is the sister-in-law of the victim who knew the accused also. As per her testimony, on the date of the incident, the victim went out for a stroll. When she did not return to the house, they made a search for her. Later on, when she was not found PW-1 lodged the FIR. She further stated that at the time of the incident, the victim was aged about 18 years. During investigation, the police recovered the victim. At that stage, the prosecution declared PW-2 to be hostile one and on being permitted to cross-examine her, PW-2 was cross-examined by the prosecution. During cross-examination, she denied that she stated before police that at the relevant time, the accused called the victim from their house and took her with him. But for the purpose of proving any contradiction, her such purported previous statement was not put to the Investigating Officer (I.O.) of the case, who was examined as PW-7. During her cross-examination by the defence, PW-2 stated that she did not know the accused and did not see any incident. She further denied that she had stated before the police that the accused called the victim and took her with him. Thus, on a reading of the deposition of PW-2 it is noticeable that as per PW-2, the victim on her own had gone out of her house. PW-2 did not depose that the victim had gone to the shop of her father at Kalacherra and in the evening hours she was returning from her father''s shop. Thus, on a reading of the deposition of PW-2 it is noticeable that as per PW-2, the victim on her own had gone out of her house. PW-2 did not depose that the victim had gone to the shop of her father at Kalacherra and in the evening hours she was returning from her father''s shop. This part of the testimony of PW-2 runs contrary to the testimony of the victim in that the victim had stated that the accused waylaid her when she was returning from the shop of her father. The testimony of PW-2 also runs contrary to the testimony of the victim as regards the age of the victim. PW-2 stated that the victim was aged about 18 years whereas the victim deposed that at the time of the incident she was about 13 years. On the other hand, P.W.-1 i.e. the father of the victim was not aware of the dated of birth of the victim. 12. Pw-3 is the brother of the victim who stated that about one year ago, he saw one day that the accused was talking with her sister and one week thereafter, the accused kidnapped his sister. In his cross-examination, it has been confirmed by the defence by putting the previous statement of the PW-3 that PW-3 did not state before the police that he saw the accused talking with his sister about a week prior to the incident. In view of his categorical admission that he did not see any incident and the above contradiction, no credence can be given to the testimony of PW-3. PW-4 was only a hearsay witness who stated that he knew nothing about the incident and had heard that the victim was taken from the police station. 13. Pw-6 is the Doctor who was serving as the Senior Medical & Health Officer at the Civil Hospital, Hailakandi when he examined the victim on police requisition. After the examination of the victim, he found no sign of recent intercourse and no marks of violence in her private parts. Exhibiting Ext.- 2, Ext.- 3 and Ext.- 4 he opined that she was found to be aged about 16 to 17 years. He denied that the findings in respect of the age of the victim were incorrect. After the examination of the victim, he found no sign of recent intercourse and no marks of violence in her private parts. Exhibiting Ext.- 2, Ext.- 3 and Ext.- 4 he opined that she was found to be aged about 16 to 17 years. He denied that the findings in respect of the age of the victim were incorrect. PW-7 was the Investigating Officer of the case, who deposed that on 09.04.2015, PW-1 came to the Bilaipur Police Out Post and lodged the F.I.R. (Ext.-5). He stated to have visited the place of occurrence about which mention has already been made above. Vide Ext.-8, sketch map he drew the sketch map of the house of the victim whereas the place of occurrence, according to the victim, was inside the jungle. During cross-examination, he stated that the victim was found at Robinala by him. On getting information that the victim was loitering on a road at Robinala he proceeded there and found her. He further stated that the road on which he found the victim was a motorable road. He admitted that he did not seize any material in connection with the case. When the testimonies of the victim (PW-5) and the Investigating Officer (PW-7) are read together, it is noticed that the victim had stated that police recovered her from the house of her sister whereas the Investigating Officer had stated that she was found loitering on a road at Robinala. PW-7 had further stated that the accused was residing in the house of one Usha Rani but he did not examine Usha Rani. He also did not examine Aparna who is the elder sister of the victim to whose house the victim stated to have gone after coming out from the jungle. The wearing apparels of the victim were not seized by the I.O. Though the victim had stated that the semen fell on her wearing apparels,it is not stated by her that she had informed about the same to police. 14. Pw-8 is the Officer In-Charge of Lala Police Station who after going through the case diary of Lala P.S. Case No. 161/2015, had only submitted the charge-sheet on 30.04.2015 (Ext.-7). In cross-examination, he stated that he did not take part in the investigation. 15. 14. Pw-8 is the Officer In-Charge of Lala Police Station who after going through the case diary of Lala P.S. Case No. 161/2015, had only submitted the charge-sheet on 30.04.2015 (Ext.-7). In cross-examination, he stated that he did not take part in the investigation. 15. From examination of the depositions of the prosecution witnesses, it has emerged that other than the victim, none of the prosecution witnesses had seen the victim with the accused. It is only the victim who had stated that she was stopped by the accused when she was on her way back to her house from her father''s shop during the evening hours on the date of the incident. She further projected that she was thereafter taken inside the jungle by the accused forcefully and the accused committed rapes on her twice inside the jungle. If such was the case that she was forcefully raped inside the jungle for 2 (two) times, some injuries should have been found on her person. Though she had claimed that she sustained injuries in her private parts as well as in her back, chest and other parts of the body the doctor who had examined her, did not find any such kinds of injuries. The doctor on the other had, found no sign of semen in her private parts and also no sign of recent sexual intercourse. 16. The learned trial Court after a detailed discussion had come to a finding that the victim''s age at the time of the incident had to be treated as 18 to 19 years. To arrive at such a finding learned trial Court had taken into the consideration the entire evidence including the medical evidence. In view of the same, the learned trial Court had found that the victim was a major at the time of the incident. I find no good and sufficient reason to differ with the said finding reached by the learned trial Court as regards the age of the victim. 17. The sole question which has, thus, arisen in the case is whether on the basis of the sole testimony of the victim, who has been found to be a major at the time of the incident the accused can be convicted for the charge of committing rape on her. 17. The sole question which has, thus, arisen in the case is whether on the basis of the sole testimony of the victim, who has been found to be a major at the time of the incident the accused can be convicted for the charge of committing rape on her. The testimony of the victim in the light of the testimonies of the other witnesses, is found to be vacillating on many aspects. The evidence of the victim as regards commission of rape and sustaining injuries in her person is belied by the medical evidence. The victim''s testimony as regards her coming back from the shop of her father''s shop when put against the testimonies of PW- 1 and PW-2, is found to be not of such standard on which one can rely upon without any corroboration from other evidence. With such corroboration lacking, the version projected by the victim is found to be a clouded one. 18. It is settled that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence belying the case projected by the prosecutrix, the Court may not act on the sole testimony of the prosecutrix. If the circumstances preceding, attending and succeeding the alleged incident of rape has become doubtful on a conjoint reading of the testimony of the prosecutrix qua the medical evidence and other surrounding circumstances, the Court may look for corroboration to lend assurance to the veracity of the evidence of the prosecutrix to sustain conviction of the accused. The doctor (P.W.-6) who examined her,had found no injuries on her private parts and no sign of recent sexual intercourse. Had there been commission of rape on 2 (two) occasions, as per the version of the victim here, during the intervening night inside the jungle there could have been atleastsome minor injuries in some parts of her person. Therefore, the medical report does not support the case of the prosecution. The other evidence on record, as has been discussed above, are found to be inconsistent and do not go to lend any support to the version of the prosecutrix. Therefore, the medical report does not support the case of the prosecution. The other evidence on record, as has been discussed above, are found to be inconsistent and do not go to lend any support to the version of the prosecutrix. In Abdul Sayed vs. State of Madhya Pradesh, (2010) 10 SCC 259 , the Supreme Court has observed as under :- wxyz "39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis- -vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved." zyxw 19. The accused during his examination under Section 313,Cr.P.C. had mentioned that he had been falsely implicated in the case. He projected that at the relevant time he was residing in the same village where his sister was residing and there was a land dispute between the family of the victim and his sister. When the family of the victim noticed that he had started residing in the house they had foisted the false case with the intention to put pressure upon his sister to leave the land. An indication to that effect can be inferred from the F.I.R. itself where the informant (PW-1) had made mention of the fact that the accused had started residing in the house belonging to the family of the informant located in the same village. The PW-5, the victim herself had acknowledged the fact that a lady used to reside in the land which belongs to her uncle. She further admitted that the lady thereafter, had left the place. In the light of the deposition of the prosecution witnesses belonging to the family of the victim, the explanation provided by the accused in his examination under Section 313 Cr.P.C. which was also put as a defence cannot be lightly brushed aside, more particularly, when the testimonies of those witnesses have been found to be inconsistent with each other. By providing an explanation the accused has been able toprobablisehis version. 20. By providing an explanation the accused has been able toprobablisehis version. 20. It is for the prosecution to prove its case beyond all reasonable doubts.If the prosecution fails to bring home the charge beyond all reasonable doubts and when it is found that two hypotheses are possible on the given set of evidence one of which the accused has been able to probablise then in such event, the hypothesis which is beneficial to the accused is to be adopted. The hypothesis which is beneficial to the accused is to be adopted by granting him the benefit of doubt. From the examination and analysis of the evidence on record along with the explanation by which the accused has probablised his version, I am of the considered view that the prosecution story, in the instant case, has not been proved beyond reasonable doubtsand in such view of the matter, the benefit of doubt should go in favour of the accused. Accordingly, I find the impugned judgment and order of conviction and sentence passed against the accused as not sustainable and the same is liable to be set aside. Accordingly, the impugned judgment and order of conviction and sentence passed against the accused by the learned trial Court in Sessions Case No. 50/2015 is set aside and quashed. In the result, this appeal is allowed. The accused-appellant is to be set at liberty if he is not wanted in connection with any other case. 21. Appreciating the assistance rendered by Mr. R. Dev, learned Amicus Curiae, I hereby provide that he will be entitled to professional fee of Rs. 7,500/- upon production of a copy of this judgment, Gauhati High Court legal Services Committee shall pay the fee to Mr. R. Dev., learned Amicus Curiae. wxyz Registry to return the LCR forthwith. zyxw