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2020 DIGILAW 206 (GAU)

Sanju Bhujel v. State Of Assam

2020-02-14

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - This appeal is directed against the judgment and order passed by the learned Sessions Judge, Dima Hasao in Sessions Case No. 21/2017, whereby the learned Sessions Judge convicted the appellant u/s 366-A/376 IPC and sentenced him to rigorous imprisonment for 2 (two) years u/s 366-A and rigorous imprisonment for 10 (ten) years u/s 376 IPC. The appellant was further sentenced to pay fine of varied amount on each count with default stipulation. 2. Prosecution case, as unfolded in the FIR (Ext.-2) was that on 09-03-2017, when the daughter of the informant (PW-4) was going to school for getting admission, the accused/appellant Sanju Bhujel took away her forcibly from the road. When she did not return home on usual time, PW-4 made search at different places and came to know, that the accused and alleged victim went to Bodo Lakhindong village. Having come to know about the whereabouts of the victim and the appellant, he (PW-4) with the help of the VDP personnel recovered the victim and handed over the accused to police and also lodged the FIR. On the basis of the said FIR, police registered Umrangso PS Case No. 8/2017 u/s 366-A IPC and on conclusion of the investigation, submitted charge-sheet against the appellant under Sections 366-A/376 IPC. Upon taking cognizance, learned Magistrate committed the case to the court of sessions and eventually the appellant stood trial before the court of Sessions. 3. In course of trial, learned Sessions Judge framed charges under Sections 366-A/376 IPC against the appellant, to which he pleaded not guilty. Six witnesses were examined by the prosecution in order to bring home the charges and upon appreciation of evidence, learned Sessions Judge convicted the appellant under Sections 366-A/376 IPC and awarded sentence as indicated above. 4. Aggrieved by the conviction and sentence, appellant preferred the instant appeal. 5. Heard Mr. A. K. Gupta, learned amicus curiae for the appellant and Mr. M. P. Goswami, learned Addl. Public Prosecutor for the State. Also scrutinized the evidence and materials brought on record. 6. Learned amicus curiae, Mr. Gupta submitted that the victim was a major girl and she eloped with the accused/appellant and had physical relation with him on her own will, and as such, no offence u/s 366-A or 376 IPC was committed or proved beyond reasonable doubt. 7. Supporting the conviction and sentence, learned Addl. 6. Learned amicus curiae, Mr. Gupta submitted that the victim was a major girl and she eloped with the accused/appellant and had physical relation with him on her own will, and as such, no offence u/s 366-A or 376 IPC was committed or proved beyond reasonable doubt. 7. Supporting the conviction and sentence, learned Addl. P.P. submitted that prosecution has been able to prove the charges beyond reasonable doubt, and as such, the impugned judgment calls for no interference. 8. The appellant having assailed the impugned judgment on the ground that evidence on record did not make out any offence, it would be apposite to have a re-look on the evidence brought on record. The informant, the father of the victim was examined as PW-4. He testified that the appellant induced her daughter to go with him, when she has gone out to fetch the calf. PW-4 further stated, that his daughter was missing for nine days and thereafter with the help of VDP personnel he managed to bring her back from the house of the appellant, where she was kept confined. He also stated that the age of the victim was 14 years at the time of occurrence. 9. Pw-5, the alleged victim stated, that on the date of occurrence, when she went out of the house to bring the cows and calf from the grazing field, the accused forcibly compelled her to accompany him. Accused had taken her to his house, who also threatened her not to disclose about the occurrence to anyone. According to her (PW-5), she stayed for seven days in the house of the accused and she was recovered by her father with the help of VDP party. She further, stated that the accused had sexual intercourse with her against her will. During the cross-examination of this witness, it was elicited, that she had dropped out of school at Class-VIII. It was further elicited that the accused was known to her from before the occurrence, as she used to visit the house of the sister of the accused, where she met the appellant. She also stated, that the accused forcibly took her from an isolated place surrounded by jungle. The statement of the victim, PW-5, recorded u/s 164 CrPC was proved as Ext. She also stated, that the accused forcibly took her from an isolated place surrounded by jungle. The statement of the victim, PW-5, recorded u/s 164 CrPC was proved as Ext. 3, wherein, the victim stated, that in the evening, while she was looking for his cows in the grazing field, an unknown person came there and took her away forcibly with him to his house. He also threatened her to keep silent. The victim also stated that she was kept confined in the house of the accused for nine days. wxyz 9. PW-1, Sonsing Pangchu stated, that about 7/8 months ago, PW-4 Balaram Sharma informed him that his daughter was missing from his house. According to him, though, they were searching the victim, they could not trace her out. However, he stated to have found the victim after nine days in the house of the appellant, wherefrom they brought the victim and handed him over to police. During cross-examination, PW-1 stated that he did not ask the victim anything about the occurrence. zyxw 10. Pw-2 stated that after one week of the occurrence, he was told by PW-4 and his wife, that their daughter has been taken away by the appellant. He further stated, that when the victim was recovered with the help of the VDP personnel, on being asked by the victim, the victim told that the accused forcibly kidnapped her. 11. Pw-3, Dr. Mousomi Bhattacharjee, who examined the victim, opined, that the age of the victim was below 18 years. According to the doctor (PW-3), no external injury on the body or on the private parts of the victim was detected. However, sign of sexual intercourse was present. 12. Cw-1, the headmaster of Bodo Lakhindong village M.E. School proved two transfer certificates as Ext.-7 and Ext. 8 in support of the age of the victim at the time of occurrence. According to him, as per the admission register (Ext.-6), the date of birth of the victim was 01-02-2000. As per Ext. 8,the age of the victim was nine years six months one day, on 15-12- 2013. However, during the cross-examination of CW-1, it was elicited that the date of birth, as recorded in the admission register (Ext.-6) was on the basis of another transfer certificate from a different school, which was not proved. 13. As per Ext. 8,the age of the victim was nine years six months one day, on 15-12- 2013. However, during the cross-examination of CW-1, it was elicited that the date of birth, as recorded in the admission register (Ext.-6) was on the basis of another transfer certificate from a different school, which was not proved. 13. A dispassionate scrutiny of the oral testimony of all these witnesses would show, that in the FIR lodged by PW-4, it was stated, that while the victim was going to school in the morning hours, she was taken away by the appellant, Whereas, during their examination as witness, both the informant (PW-4) and PW-5, the victim stated that she was taken away in the evening, while she was going to fetch cow and calf from the grazing ground. In her previous statement recorded u/s 164 CrPC, the victim stated, that the accused was not known to her. However, in her evidence in court, she admitted that the accused was known to her since before the occurrence and they used to meet in the house of the sister of the accused. It is also evident from the oral testimony of PW-2 and PW-4 that they were aware, that the victim was with the accused, but, the FIR was lodged after nine days of the occurrence, however no explanation was given as to the delay of seven days in lodging the FIR nor any explanation is discernible from the materials brought on record. True it is, delay in lodging FIR, per-se, is not fatal. What is fatal is the delay being not explained satisfactorily. In the instant case, it was the case of the prosecution as deposed by the PW-4, the father of the victim, that the victim was missing for nine days. It is also in the evidence of PW-2 and PW-4, that they came to know that the victim was with the appellant. But surprisingly, when the victim was missing and she did not return home, even a missing entry was not lodged with the police. It is understable, that having regard to the nature of offence and the trauma suffered by the prosecutrix and also considering the future of the victim and the question of social stigma, the victim or her family members may be reluctant to lodge the FIR. It is understable, that having regard to the nature of offence and the trauma suffered by the prosecutrix and also considering the future of the victim and the question of social stigma, the victim or her family members may be reluctant to lodge the FIR. However, it is difficult to comprehend, why even a missing entry was not lodged, when the victim was missing for about nine days. Therefore, in the facts and circumstances of the case, in my considered view the unexplained delay of nine days in the facts and circumstances of the case cannot be overlooked. 14. It is also evident from the oral testimony of PW-4 & PW-5 and the FIR (Ext. -1), that initially it was stated that while the victim was going to school, she was forcibly taken away from the road. However, while deposing in court, PW-4 stated, that the accused induced the victim to go with him. Again PW-4 (informant) and PW-5 (victim) stated that the victim was taken away in the evening when she was going out to bring cows from the grazing field. Although, PW-4, the informant alleged in the FIR, that the victim was taken to Bodo Lakhindong village, where she was allegedly kept in captivity by the appellant, while deposing in court, PW-5 stated that she was taken to Meghalaya. Evidently PW-5, the victim, though, remained for nine days with the accused and was allegedly subjected to rape by him against her will, she never disclosed anything to any of the family members or to any other person. Although, she stated that she did not disclose about the occurrence to anybody, as she was threatened by the appellant, from the evidence on record, it appears that the victim was taken by the appellant and kept in a neighbouring village. It is also evident from the testimony of PW-2 and PW-4, that it was within the knowledge of PW-4 that the victim was with the appellant. There is no evidence on record to show, that the victim was kept confined. Rather from the evidence of PW-2 & PW-4 it transpires, that when they went to bring the victim, she was found in a very normal condition and was not in confinement. There is no evidence on record to show, that the victim was kept confined. Rather from the evidence of PW-2 & PW-4 it transpires, that when they went to bring the victim, she was found in a very normal condition and was not in confinement. When the victim was not kept in confinement and was in the neighbouring village, which was also known to the parents of the victim, it is difficult to believe, that she did not disclose about the occurrence out of threat given by the accused. From the attending facts and circumstances it also gains significance that the victim remaining in a neighboring village, did not make any attempt to flee or tried to come back home, when evidently she was staying with the appellant freely without any restriction. Therefore, the circumstance that the victim was not kept in confinement and she stayed in the house of the accused/appellant for nine days comfortably and did not complain to anyone about the accused having subjected her to rape or kidnapping her, clearly suggests that the victim was a consenting party to accompany the accused/appellant. If the evidence of the prosecutrix in court and her statement recorded u/s 164 CrPC coupled with the allegations made in the FIR are read together, it would be abundantly clear, that the victim cannot be considered as a witness to be fully relied upon, inasmuch as, her version as to the occurrence suffers from glaring inconsistencies. 15. True it is, there is no bar in basing conviction in a case of non-consensual sexual offence solely on the testimony of the victim, whose position is considered to be at a higher pedestal, than that of an injured witness. But then only rider is that the court must satisfy itself that the prosecutrix is an unimpeachable witness of starling quality. Therefore, whether the sole testimony is sufficient to record the conviction would depend upon the veracity and credibility of the testimony of such witness. The conduct of the prosecutrix and glaring inconsistencies in her statement made at various stages, speaks loud and clear that the prosecutrix in the present case does not fall in the category of an unimpeachable witness to be relied upon fully. This apart, the attending circumstance also, do not lend support to the testimony of the prosecutrix. 16. The conduct of the prosecutrix and glaring inconsistencies in her statement made at various stages, speaks loud and clear that the prosecutrix in the present case does not fall in the category of an unimpeachable witness to be relied upon fully. This apart, the attending circumstance also, do not lend support to the testimony of the prosecutrix. 16. It would be beneficial to refer, what the Apex Court observed in Mohammad Ali @ Guddu Vs. State of U.P., (2015) 7 SCC 272 , regarding the sole testimony of the prosecutrix. The Apex Court held that - wxyz "Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval to the same." zyxw 17. Another aspect of this case is that the father of the victim, PW-4 stated, that the age of the victim was 14 years at the time of occurrence, whereas, the victim stated that her age was 15 years. Another aspect of this case is that the father of the victim, PW-4 stated, that the age of the victim was 14 years at the time of occurrence, whereas, the victim stated that her age was 15 years. The documents produced with regard to age of the victim, shows that as per Ext.-8 the victim was above 17 years at the time of occurrence, whereas, as per Ext.-6, her age was about 13 years. Evidently neither the birth certificate, nor the original documents, on the basis of which, the age was recorded in Ext.-8 was produced and proved. According to doctor, the age of the victim was below 18 years. The medical evidence does not show the basis of such opinion. The evidence adduced by the prosecution with regard to the age of the prosecutrix, transpires that the prosecution has not been able to prove beyond reasonable doubt that the victim was minor at the time of occurrence. This apart, if an error of atleast two years is considered along with the medical opinion, the age of the prosecutrix would be more than 18 years at the time of occurrence. 18. When the prosecution evidence was not consistent with regard to the age of the victim and the evidence and materials brought on record suggests that the victim was major and went with the accused on her own will, prosecution can by no stretch of imagination be held to have proved the charge u/s 366-A or 376 IPC against the appellant beyond reasonable doubt, and as such the appellant, on the attending facts and circumstances, is atleast entitled to benefit of doubt. 19. Thus, having regard to the facts and circumstances of the case, I am of the considered opinion, that prosecution has not been able to prove the guilt of the appellant u/s 366-A or 376 IPC beyond reasonable doubt, and as such, the conviction and sentence cannot be sustained. Accordingly, the conviction and sentence of the appellant is set aside. Appeal stands allowed. 20. The appellant be set at liberty forthwith if not required in any other case. 21. We appreciate the assistance rendered by the learned Amicus Curiae Mr. A. K. Gupta. He shall be entitled to professional fees of Rs.7,500/- to be paid by the Legal Service Authority on production of a copy of this judgment. 22. Send back the record.