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2020 DIGILAW 232 (GAU)

Soma Surin v. State of Assam

2020-02-18

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : HITESH KUMAR SARMA, J. 1. The Criminal Jail Appeal No. 100/2016, has been preferred against the judgment and order, dated 3.8.2016, in Session Case No. 14/2014, passed by the learned Sessions Judge, Golaghat, convicting and sentencing the appellant to rigorous imprisonment for 20 years and to pay a fine of Rs. 5,000 and in default, simple imprisonment for another 1 month under section 376D of the IPC and rigorous imprisonment for 3 years and to pay a fine of Rs. 1,000, and in default, simple imprisonment for another 15 days under section 456 of the IPC. 2. The prosecution case, as unfolded during the trial, is that on 12.9.2013, at about 10 : 00-11 : 00 p.m., while the victim (PW1) was sleeping in her house, the appellant and his co-accused Kon Borah entered into the house by cutting the rope of the door and dragged her out to the enclosed yard and committed rape on her under death threat. Thereafter, the appellant and his co-accused left the place of occurrence. On application of the victim, the villagers convened a “bichar” which did not yield any result due to non-participation of the appellant and his co-accused. Only after failure to hold the “bichar”, she lodged the FIR on 16.9.2013. Therefore, the delay in lodging the FIR. 3. On receipt of the FIR on 16.9.2013, the Uriamghat Police Station registered a case, being No. 42/2013, under section 457/376D of the IPC. The Police investigated into it, collected evidence, and on completion of the investigation, laid the charge-sheet against the appellant and his co-co-accused under section 457/376D of the IPC. The co-accused Kon Borah has been absconding. However, a formal charge against the appellant under section 456/376D of the IPC was framed to which the appellant pleaded innocence. Therefore, the trial commenced. 4. We have heard Mr. A. Ahmed, learned amicus curiae appearing for the appellant and Mr. M. Phukan, learned Additional Public Prosecutor, appearing for the State of Assam. Also perused the record of the learned trial court, including the impugned judgment. 5. The prosecution has examined as many as 7 witnesses, including the Medical Officer and the Investigating Police Officer. After closure of the prosecution evidence, statement of the appellant was recorded under section 313 of the Cr.PC. In his such statement, the appellant had denied the accusations and also declined to lead any evidence. 6. 5. The prosecution has examined as many as 7 witnesses, including the Medical Officer and the Investigating Police Officer. After closure of the prosecution evidence, statement of the appellant was recorded under section 313 of the Cr.PC. In his such statement, the appellant had denied the accusations and also declined to lead any evidence. 6. On perusal of the evidence on record and the impugned judgment, it is found that there is no eye-witness to the occurrence and the decision of the learned trial court is based on the sole testimony of the victim (PW1). 7. The evidence of PW1 (victim) is that at about 10 : 00 p.m. on a day in the month of “Bhad”, she was sleeping in her house and her younger brother (PW6) was also sleeping in another room of the house after taking liquor. The appellant and his co-accused Kon Borah entered into her house by cutting open the door, gagged her and dragged her out of the house to the enclosed yard and committed rape on her person. Rape was committed on her person first by the co-accused Kon Borah and thereafter by the appellant. However, she could not raise alarm as she was gagged. The co-accused Kon Borah also threatened her that she would be killed. She came back home after the incident. She felt ashamed of the incident and, therefore, did not tell about it to her younger brother (PW6). She narrated about the incident to the PW2, Manashi Gogoi, on the next day of occurrence. Her sister-in-law went to her parental home and she returned after few days of the date of the incident. On her return, the victim lodged the FIR with the Police vide Ext. 1. The victim also got her statement recorded in the court vide Ext. 2. In her cross-examination, she deposed that she lodged the FIR after 2 days of the incident. She also deposed that she has 2 paternal aunts, namely, Kuleswari Gogoi and Khaneswari and also 1 paternal uncle Moina Bora who resided in the vicinity of her house. However, she did not tell them about the incident. She got married at the age of 15 years and was deserted by her husband. She did not disclose about the incident to the family of the appellant. The house of the appellant and of this witness are intervened by two houses. However, she did not tell them about the incident. She got married at the age of 15 years and was deserted by her husband. She did not disclose about the incident to the family of the appellant. The house of the appellant and of this witness are intervened by two houses. She narrated about the incident of rape to the mother of the co-accused Kon Borah. She denied that appellant did not commit rape on her. 8. The PW2, Smti Manashi Gogoi, deposed that the victim reported her about the incident in the next morning. The incident took place in the month of Bhad. She told her that the appellant Soma Surin and co-accused Kon Borah had committed rape on her. This witness told Manjumoni Duwarah (PW3) about the incident, who in turn, narrated the incident to her husband Niran Borah (PW6), the younger brother of the victim. She had also informed about the occurrence to the village headman and the Secretary of the village. As the accused-persons did not turn up in the village “bichar”, on the advice of the public, the victim lodged the FIR. In her cross-examination, she deposed that the victim is her distant relative. The house of the co-accused Kon Borah is near the house of the victim and her house is next to the house of the co-accused Kon Borah. The FIR was lodged after one day of the incident. 9. The PW3, Smti Monjumoni Dowarah deposed that the victim is the elder sister of her husband (PW6). The incident took place on 12.9.2013. The victim lived with them as she was deserted by her husband. This witness was at her parental home and returned home after 3 days of the date of occurence. She further deposed that the PW2 had told her that the co-accused Kon Borah and the appellant Soma Surin had entered in her house by cutting open the door and dragged her out of the house and committed rape on her in the enclosed yard. This witness told her husband (PW6) about the incident, and thereafter, the PW6 had approached the villagers for holding a “bichar”. But, the appellant was not at home and the co-accused Kon Borah did not attend the “bichar”. Thereafter only, the victim lodged the FIR. This witness told her husband (PW6) about the incident, and thereafter, the PW6 had approached the villagers for holding a “bichar”. But, the appellant was not at home and the co-accused Kon Borah did not attend the “bichar”. Thereafter only, the victim lodged the FIR. She deposed that at the time of the incident, her husband (PW6) was at home and was sleeping in a separate room and the victim was sleeping in a separate room in the verandah. In her cross-examination, she deposed that at the time of the occurrence, she was not at home. The victim did not disclose about the incident to her husband (PW6). This witness returned home 3 days after the incident. She did not go to the house of the co-accused-persons to tell their mother about the incident. She also deposed that they had no good rapport with the family of the co-accused from before. She denied the suggestion made by the defence that the victim filed the case against the appellant and his co-co-accused Kon Borah on false grounds. 10. The PW4, Sri Durgeswar Gogoi, is the village headman. The victim submitted an application on 16.9.2013 for convening a “bichar” over the issue of commission of rape on her by the appellant Soma Surin and his coaccused Kon Borah. The Police seized the said application from him vide Ext. 3 which was exhibited in evidence vide M. Ext. 1. He further deposed that after receipt of the application, he called the appellant Soma Surin and his coaccused Kon Borah to attend the “Bichar”. But, they did not turn up. The victim attended the bichar. In the meeting, the victim stated that she had told about the incident only to Manashi (PW2) and did not disclose to others that while she was sleeping, the appellant Soma Surin and the co-accused Kon Borah had entered into her room by untying the rope of the bamboo door and brought her outside gagging and thereafter committed rape on her near the grove of plaintain and betel nut trees. Since the accused-persons did not attend the “bichar” they suggested the victim to lodge the FIR. Police arrested the appellant Suma Surin and seized the rope used for closing the door and the wearing apparels of the victim. Ext. 4 is the seizure list, M. Ext 2 is the jute rope. M. Ext. 3 and M. Ext. Since the accused-persons did not attend the “bichar” they suggested the victim to lodge the FIR. Police arrested the appellant Suma Surin and seized the rope used for closing the door and the wearing apparels of the victim. Ext. 4 is the seizure list, M. Ext 2 is the jute rope. M. Ext. 3 and M. Ext. 4 are respectively the red “mekhela” with yellowish floral design and the white “chadar” wore by the victim at the time of occurrence. The police also seized the original resolution passed in the meeting, vide M. Ext. 5. In his cross-examination, the PW4 stated that the M. Ext. 1 was written by the Secretary in the L.P. School field but it does not contain his signature. He has also expressed his ignorance as to after how many days prior to the application for convening the “bichar”, the incident had taken place. According to him, the co-accused Kon Borah and the victim share the same boundary. 11. The PW5, is the Medical Officer, who examined the victim on 17.9.2013, and found as follows:- “Identification Mark: Black mole over the back side of chest Built : Average. Height : 145 cm. Weight : 43 kg. Teeth : 16/16. Breasts : Healthy and well developed. No injury seen. Axillary and Pubic hairs: Plenty in Nos. External genitalia : Vulva and vagina healthy and well developed. No injury found. Introitus: accommodate two fingers. Hymen: ruptured. Internal Genitalia : Uterus normal in size, antiverted and non-gravid. X-Ray of the right wrist and elbow joint vide No. 4222, dated 17.9.2013 shows completed epiphyseal fusion of the upper and lower ends of radius and ulna. Hence, age is above 18 years. Vaginal smear for presence of spermatozoa vide Laboratory No. 165 shows no spermatozoa.” He has also opined that:- (1) The age of the girl is above 18 years. (2) Sign of recent sexual intercourse not seen. (3) No injury found on her private parts or body. The defence declined to cross-examine him. 12. The PW6, Sri Niren Ch. Dowarah, is the younger brother of the victim. He deposed that he knows the appellant Soma Surin and the absconding co-accused Kon Borah. He also deposed that the incident had occurred on 12.9.2013 at night while he was sleeping in his house. The victim used to sleep in the room situated in the verandah of his house. Dowarah, is the younger brother of the victim. He deposed that he knows the appellant Soma Surin and the absconding co-accused Kon Borah. He also deposed that the incident had occurred on 12.9.2013 at night while he was sleeping in his house. The victim used to sleep in the room situated in the verandah of his house. His wife was at her parental home and returned home on 14.9.2013. He also deposed that the appellant Soma Surin and co-accused Kon Borah had raped his elder sister/victim in the night of 12.9.2013. The wife of his neighbour Keshab Bora (PW2) told his wife (PW3) about the said incident and thereafter his wife (PW3) narrated the incident to him. Then, he appealed to the public to convene a “bichar”. The appellant and the co-accused did not turn up for the “bichar”, and on being advised, the victim lodged the FIR. The village headman (PW4) was present in the “bichar”. 13. The PW7, Sri Deben Borah, is the Investigating Police Officer. He deposed about various stages of investigation of the case from receipt of the FIR till completion of the investigation and laying of the charge-sheet against the appellant Soma Surin and co-accused Kon Borah. The co-accused Kon Borah was absconding and was shown absconder in the charge-sheet. He had also recorded the statements of the witnesses. He also got the statement of the victim recorded under section 164 of the Cr.PC. In his cross-examination, he deposed that the seized articles were handed over to him by the victim after about 4 days from the date of the incident. He also deposed that he did not send the seized garments for examination by the FSL as the victim told him that she had already washed the garments. 14. As indicated above, there is no eye-witness to the occurrence and the judgment of the learned court is based entirely on the sole testimony of the victim. The victim (PW1) deposed that the appellant and the co-accused Kon Borah entered into her house while she was sleeping at about 10:00-11:00 p.m. on the date of occurrence, gagged her and dragged her out and thereafter committed rape on her one by one, the co-accused Kon Borah being the first one. She could not raise alarm as she was gagged and also put to death threat by co-accused Kon Borah. She could not raise alarm as she was gagged and also put to death threat by co-accused Kon Borah. The co-accused Kon Borah has not faced the trial since he is absconding. The record shows that he was declared absconder by the court after observing the due procedure. Admittedly, the FIR was lodged on 16.9.2013 although the occurrence took place on 12.9.2013. 15. The learned amicus curiae, Mr. A Ahmed, appearing for the appellant, has submitted that the evidence of the victim does not inspire confidence. He has submitted that 4 days delay in lodging the FIR and the fact that the opinion of the Medical Officer (PW5), that there is no sign of recent sexual intercourse and no injury was found on her private parts or the body raises doubt about the veracity of the accusation. He has also submitted that for commission of the offence of gang rape, as provided in section 376D of the IPC, the rape must be committed by one or more persons constituting a group or acting in furtherance of common intention. According to him, since the co-accused Kon Borah is absconding and has not faced the trial in this case, the appellant alone cannot be tried and punished for an offence of gang rape in the absence of proof of common intention of the appellant with his co-accused. 16. The learned Additional Public Prosecutor, Mr. M Phukan has submitted that the delay in lodging the FIR in the instant case is not fatal and the same has been explained satisfactorily. He has also submitted that the opinion of the doctor is of no significance. 17. The learned trial court, in para 13 of the impugned judgment, has dealt with the aspect of delay in lodging the FIR and held that the delay has been duly explained by the victim. The victim filed an application before the village headman for a “bichar” in the village in respect of the incident of commission of rape on her person. While the “bichar” did not take place due to non-participation of the accused-persons, on the advice of the villagers, she lodged the FIR on 16.9.2013. We have also noticed that although the victim told about the occurrence to the PW2, yet, the things started moving with her sister-in-law (PW3) returned home 3 days after the occurrence. While the “bichar” did not take place due to non-participation of the accused-persons, on the advice of the villagers, she lodged the FIR on 16.9.2013. We have also noticed that although the victim told about the occurrence to the PW2, yet, the things started moving with her sister-in-law (PW3) returned home 3 days after the occurrence. Her evidence is very categorical that she did not disclose the fact of the incident immediately as she was ashamed of it. We are not unmindful of the fact that if a woman prize anything above all, it is her chastity. The delay, therefore, is not such that it can be attributed to any afterthought with ulterior motive to implicate the appellant and his co-accused falsely with the commission of rape on her person. The learned trial court has appreciated this aspect in its proper perspective and held that the delay in lodging the FIR was natural and justified in the facts and circumstances of the case. Accordingly, this court is not inclined to accept the plea of the appellant that the delay is fatal for the prosecution. 18. As regards the argument of the learned amicus curiae that the medical evidence has not supported the prosecution case as the PW5 (doctor) did not find evidence of rape on the victim, this aspect of the matter has been dealt with by the learned trial court in paras 21 and 22 of the judgment, which are reproduced below for convenience of appreciation. “21. It is true that the medical evidence has not supported the version of the victim. But the thing that should not eschewed from consideration is that the victim is a married woman. She was examined by Doctor after five days of the occurrence and as such, it is natural that the Doctor found no mark of injury on her person. 22. It is to be mentioned here that absence of mark of injury does not falsify the version of the victim. It shows that there is absence of resistance of violence on her part. The occurrence took place at night caused by two young persons and as such, it is natural that she could not resist them. 22. It is to be mentioned here that absence of mark of injury does not falsify the version of the victim. It shows that there is absence of resistance of violence on her part. The occurrence took place at night caused by two young persons and as such, it is natural that she could not resist them. In holding this, we derie authority from a decision of the hon'ble Supreme Court in Guru Charan Singh v. State of Haryana, (1972) 2 SCC 749 : AIR 1972 SC 2661 and Krishna Lai v. State, (1980) 3 SCC 159 : AIR 1980 SC 1252 .” 19. It appears that the argument of the learned amicus curiae is based on the fact that the Doctor examining the victim did not find any sign of recent sexual intercourse as well as injury on the private parts or the body of the victim. But, the medical report also shows that the hymen of the victim was ruptured. 20. In this context, Mr. Phukan, learned Additional Public Prosecutor has submitted that the opinion of the Doctor is advisory in nature and he being an expert is expected to put before the court all materials which induced him to come to the conclusion and enlighten the court on the technical aspect and then it is the court, who would take a view on the matter. He has referred to the decision of the hon'ble Supreme Court in the case of Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 . Paragraph 34 of which reads as follows:- “34. A medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court.” 21. In the instant case, the victim was examined after 5 days of the commission of rape and she is a married lady of about 42-43 years of age at the relevant time of occurrence. But, in spite of that, her hymen was found ruptured by the doctor. So far the absence of injury is concerned, there was no violence noticed at the time of occurrence as the evidence on record shows that she was gagged and thereafter committed rape by two persons under death threat. That being so, in the facts and circumstances of the case, the learned trial court has correctly appreciated the evidence to hold that the victim was raped. Therefore, the argument of the learned amicus curiae, on this count, fails. 22. So far the argument of the learned amicus curiae that the co-accused Kon Borah has not been tried together with the appellant and, therefore, the aspect of gang rape as provided in section 376D of the IPC and their common intention have not been proved. The evidence on record shows that the appellant and the co-accused came together to the house of the victim at about 10 : 00-11 : 00 p.m., trespassed into her house by opening the bamboo door cutting the rope with which it was tied, gagged her and then dragged her to the enclosed yard of her house and committed rape on her by them one after the other speak volume of their design and common intention to commit the offence. The appellant and the co-accused are the neighbours of the victim and, therefore, there is no question of mistaken identity. On the other hand, the appellant and his co-accused were called to attend the “bichar” convened in the village by the village headman (PW4) at the instance of the victim. But they did not attend the same. At that point of time, no FIR was lodged against the appellant and his co-accused. Non-participation of the appellant and his co-accused in the meeting convened by the village headman is a postoccurrence conduct reinforcing the assertion made by the victim in her evidence that the appellant and his co-accused had committed rape on her. 23. At that point of time, no FIR was lodged against the appellant and his co-accused. Non-participation of the appellant and his co-accused in the meeting convened by the village headman is a postoccurrence conduct reinforcing the assertion made by the victim in her evidence that the appellant and his co-accused had committed rape on her. 23. The learned Additional Public Prosecutor has referred to the judgment of the hon'ble Supreme Court in the case of Gayasi v. State of U.P., (1981) 2 SCC 712 , particularly para 2 thereof, which is quoted below:- “2. We see no reason for commuting the sentence of death imposed upon the appellant to the lesser sentence of imprisonment for life. The fact that Daya Ram is absconding does not reduce the gravity of the offence committed by the appellant. Bhagwan Singh had but performed his ministerial duty as an Amin in putting the appellant's land to sale. He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the lands of the appellant and of Daya Ram. Such crimes committed against public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand. We, therefore, confirm the sentence of death passed on the appellant and dismiss the appeal.” It is found from the above judgment of the hon'ble Supreme Court that in the case involved therein, an accused was convicted and sentenced to capital punishment even while his co-accused was absconding. Therefore, the learned Additional Public Prosecutor, Mr. Phukan has submitted that there is no bar in proceeding with the trial and convicting the appellant while his co-accused is absconding. 24. It appears from the trial court record that after recording evidence to that effect the co-accused Kon Borah was declared absconder. Recording of evidence and trial in the case proceeded against the appellant. Such recording of evidence in a trial has been provided in section 299 of the Cr.PC as an exception to the general rule that evidence has to be taken in presence of the accused. As the co-accused, in the instant case, has chosen to be absent, the trial commenced against the appellant only and he was also convicted, as indicated above. As the co-accused, in the instant case, has chosen to be absent, the trial commenced against the appellant only and he was also convicted, as indicated above. But, if the necessary ingredients to constitute an offence is satisfied by the evidence, there is no bar in recording conviction of an accused while co-accused is absconding. The procedure for trial of absconding accused, on arrest, has been provided in section 299 of the Cr.PC itself. Therefore, we do not find force in the submission of the learned amicus curiae that the trial in the case at hand is vitiated so far an offence under section 376D of the IPC is concerned. 25. The learned amicus curiae has also referred to the evidence of the victim (PW1) that the occurrence had taken place in the enclosed yard and the evidence of the PW4 is to the effect that the rape was committed in the grove of plaintain and betel nut trees. Thus, he submits, there is contradiction in respect of the place of occurrence in this case. The evidence of the PW7 (Investigating Police Officer) shows that he had prepared the sketch map of the place of occurrence vide Ext. 6. On perusal of the Ext. 6, the sketch map, it is found that the place of occurrence has been marked therein as ‘K’ where the plaintain grove and betel nut trees are there. So far the place of occurrence is concerned, there is minor variation in the evidence of the PW1/victim with the evidence of PW4 as well as the sketch map. But, the place of occurrence, as per the evidence of PW4 tallies with the place of occurrence marked in the sketch map (Ext. 6). The victim/PW1, PW4 and the PW7/Investigating Police Officer are not found to have been cross-examined on this aspect to put a dent in their evidence. On the other hand, on appreciation of the variation, we find that it does not touch the root of the prosecution case. 26. The evidence of the victim, if inspires confidence, the court can rely and act on her solitary evidence is a settled legal position. During the course of discussions of the evidence on record, we do not find anything to disbelieve the evidence of the victim and we have also not found any reason to believe that she had fabricated a story to falsely implicate the appellant. During the course of discussions of the evidence on record, we do not find anything to disbelieve the evidence of the victim and we have also not found any reason to believe that she had fabricated a story to falsely implicate the appellant. The hon'ble Supreme Court, in the case of State of Himachal Pradesh v. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 held in para 31 thereof as follows:- “31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 27. The plea about lack of corroboration has no substance. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 27. We have already found that the evidence of the victim (PW1) inspires confidence and, therefore, we hold that the appellant committed gang rape on the victim punishable under section 376D of the IPC. So far the offence punishable under section 456 of the IPC is concerned, we have already found that the appellant along with his co-accused entered into the house of the victim while she was asleep after opening the door by cutting the rope with which the door was tied, dragged her out and committed rape on her and as such committed house trespass into the house of the victim at night in order to commit an offence punishable with imprisonment. We have already held that an offence punishable under section 376D of the IPC has been committed in this case. 28. Therefore, the conviction of the appellant under section 376D/456 of the IPC as well as the sentences require no interference in exercise of appellate jurisdiction of this court. However, we are of the considered opinion that the substantive sentences of imprisonment imposed upon the appellant, if run concurrently, shall meet the ends of justice. Therefore, we order that the substantive sentences shall run concurrently. Accordingly, with the said clarification in respect of the sentences, the appeal is dismissed on merit. 29. Send down the LCR with a copy of this judgment. 30. This court appreciates the assistance rendered by the learned amicus curiae, Mr. A. Ahmed and directs that an amount of Rs. 7,500 be paid to him as honorarium for his assistance.