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2020 DIGILAW 24 (GAU)

Giridhar Hira v. State Of Assam

2020-01-07

AJIT BORTHAKUR

body2020
JUDGMENT 1. Heard Mr. D.C.C. Phukan, learned counsel for the appellant and Mr. D. Das, learned Addl. Public Prosecutor appearing for the State/respondent. 2. Both the above appeals are preferred by the same accused appellant against the judgment and order, dated 30.03.2013, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 66/2011 convicting under Section 376(f) of the IPC and sentencing him to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 5,000/- (Rupees Five Thousand) only, in default to undergo a further period of rigorous imprisonment for 6(six) months. Hence, both the appeals are heard analogously and decided by this common judgment. 3. The prosecution case, in brief, is that a complaint case was lodged on 04.02.2011, before the Court of learned Chief Judicial Magistrate, Morigaon alleging that about two months ago, on a day at about 10/11 A.M., the accused appellant entered into her house and taking advantage of absence of herself and her husband, committed rape on her minor daughter, aged bout 7 years. The accused appellant threatened the victim girl not to disclose the said incident to anybody and as such, she withheld the incident out of fear. In the meantime, the accused appellant fell ill and confessed his guilt to the villagers, for which he underwent atonement as per religion on 31.01.2011. The victims mother, when came to know about the incident, she filed the complaint in Court seeking justice. 4. The learned Chief Judicial Magistrate, Morigaon having forwarded the case, the same was registered as Dharamtul P.S. Case No. 8/2011 and after completion of investigation, the police laid a charge-sheet under Section 376(f)/506 of the IPC against the accused appellant, whereupon G.R. Case No. 152/2011 was registered. The said case was committed to the Court of learned Sessions Judge, Morigaon, on 02.09.2011 and accordingly, Sessions Case No. 66/2011 was registered. The learned Sessions Judge, Morigaon, after hearing of both sides and consideration of materials on the case diary, framed charges under Sections 376(f)/506 of the IPC against the accused appellant and on being read over and explained the aforesaid charges, he pleaded not guilty. In order to prove the charges, the prosecution examined 8(eight) witnesses. After closing the evidence of the prosecution side, the statement under Section 313 Cr.P.C. was recorded. In order to prove the charges, the prosecution examined 8(eight) witnesses. After closing the evidence of the prosecution side, the statement under Section 313 Cr.P.C. was recorded. The accused appellant denied the incriminating evidence that emerged on evidence against him and examined himself in defence. Then, on appreciation of evidence and hearing the arguments of both sides, the learned Sessions Judge, Morigaon convicted and sentenced the accused appellant as stated above. 5. Mr. DCC Phukan, learned counsel for the accused appellant, advanced his arguments on 3(three) basic aspects of the case, firstly, that the learned Magistrate, 1 st Class, Morigaon ought to have called upon the complainant to produce all her witnesses and examined them on oath, while the complaint case being C.R. Case No. 168/2011 was registered, instead of forwarding the same to the Officer In-charge of Dharamtul P.S. for investigation, in compliance of Section 202(proviso). Secondly, that the learned Sessions Judge over looked the vital contradictions in evidence and on misreading the evidence erroneously convicted the accused appellant. Thirdly, the learned Sessions Judge completely ignored the evidence that there existed enmity between the parents of the victim with the accused appellant, which clearly proved the motive behind false accusation of the appellant. 6. Per contra, Mr. D. Das, learned Addl. Public Prosecutor submits that although there is evidence of enmity between the families of the victim and the accused appellant, that ground itself is not sufficient to set aside the well reasoned impugned judgment and order. 7. I have considered the above arguments advanced by the learned counsel of both sides and perused the records. 8. It is pertinent to be mentioned that for the purpose of punishment for rape, it is necessary to prove that the accused had sexual intercourse with a woman under any of the circumstances mentioned in six clauses of Section 375 of the IPC , which defines what is rape. Penetration to any extent in vulva is sufficient to constitute the offence of rape. To speak it more clearly, even partial penetration or slightest penetration of the male organ on the labia majora or the vulva or pudenda with or without any emission of semen and even an attempt of penetration into the private parts of the victim is enough for the purpose of Sections 375 and 376 of the IPC. 9. Now, let us analyse the evidence on record. 9. Now, let us analyse the evidence on record. The F.I.R., dated 04.02.2011, lodged by the victims mother, disclosed, interalia, rape of her daughter, aged about 7(seven) years, at her home, during the forenoon time, about 2(two) months ago, by the accused appellant in absence of other family members. According to the complainant (P.W.-2), the incident came to light only when the accused appellant fell sick and confessed commission of the incident to the villagers and underwent atonement for the aforesaid sinful act. 10. A perusal of the evidence of P.W.-1, the victim girl, reveals that the accused appellant is a neighbour and on the relevant day, when she was alone at home, he called her to his house. Accordingly, she went to his house. The accused appellant took up her on her lap and touched her private part and then started rubbing her private part with his male organ. Thereafter, she returned home and disclosed the said incident to her parents, when the latter came back in the evening. On receipt of the complaint from their daughter (PW-1), they along with some people went to the house of the accused appellant after few days. The accused appellant confessed his guilt to her uncle Manijan Hira (P.W-3). Her evidence further reveals that a case was filed against her father for inflicting cut injuries on his brother, that is, her uncle, where the accused appellant deposed as a witness and that the accused is an old and sickly bed ridden person. She gave a statement before the Magistrate and Ext.1 is her said statement. 11. By the above evidence, PW-1, the victim girl contradicted her statement under Section 164 Cr.P.C., recorded on 22.02.2011 vide Ext.1 where she indicated the place of incident at her home, whereas in evidence stated that the incident took place at the accused appellants home and that due to the threat posed to her life, she did not disclose the incident to her parents and further, indicated that during the paddy cultivation season, the appellant used to visit their home when her parents were away in the paddy field and every day, he committed the same offence on her, which fact she has not stated in evidence. According to her, she reported the incident to her parents (P.W.-2, mother and PW-7, father) on the same day evening, whereas PW-2 and 7 stated that after about 3(three) months, they came to know about the incident from PW-3 Moniram Medhi, when the accused appellant confessed his guilt before him. This fact had come in the statement of PW-2 under Section 164 Cr.P.C., dated 22.02.2011 vide Ext.3. PW-1, the victim girl, stated that on being reported about the incident her parents (PWs-2 and 7) accompanied by some villagers immediately went to the house of the accused appellant, whereas PW-2, her mother, stated that after about 3(three) months of the incident, when they came to know, she (PW-2) and her husband accompanied by Gaonburah (PW-6), VDP Secretary, Rajat Medhi, Memba Medhi, Sanu Singh Medhi and Manijan Medhi (PW-3) etc. went to the house of the accused appellant. PW-7, her father contradicted PW-2, his wife, deposing that on the following day morning, at around 9.30 am, he accompanied by Kanusing Medhi, Mileswar Medhi (PW-4), Sosen Medhi, Rajat Medhi and others, total 11/12 persons, went to the house of the accused appellant. PW-2 stated that on being asked about the incident, the accused appellant agreed to abide by the village bichar, on the first day, but on the second day, as he refused and misbehaved with the villagers, the case was filed. Contradicting her (PW-2) evidence, her husband (PW-7) stated that when the villagers asked him to come to a settlement, he and his brother refused to come to a settlement and after about 5(five) days therefrom, his wife (PW-2) filed the ejahar. It is surprising to note that the defence omitted to bring to the notice of the apparent contradictions/ embellishments between the evidence of PWs-1 and 2 with their statements recorded under Section 164 Cr.P.C., which were, of course, not a substantive evidence and as such, used only to corroborate and contradict them to appreciate their evidence, as a whole. 12. The evidence on record show that there was no eye witness to the alleged occurrence. However, the prosecution has led evidence of extra-judicial confession of the accused appellant allegedly made before some of the villagers, after about 3(three) months of the occurrence to corroborate the testimony of PW-1, the victim girl. 12. The evidence on record show that there was no eye witness to the alleged occurrence. However, the prosecution has led evidence of extra-judicial confession of the accused appellant allegedly made before some of the villagers, after about 3(three) months of the occurrence to corroborate the testimony of PW-1, the victim girl. In accepting extra-judicial confession, it needs to be mentioned that court must have due regard to the person to whom confession is made; the connection of the person, if any, with the accused; the occasion or reason for the confession and circumstances in which confession is made. It certainly requires the test of reproduction of exact words, the reasons or motive for the confession and the person selected in whom confidence is reposed. A credible and voluntary extra- judicial confession can undoubtedly form basis of conviction in a case. 13. In State of Rajasthan -vs- Raja Ram, reported in (2003) 8 SCC 180 , the Supreme Court considered the importance of extra-judicial confession and pointed out when the same can be accepted. The apex Court held as under: 'An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.' 14. In the instant case, PW-1, the victim girl stated that after some days of the incident, the accused appellant confessed his guilt before her uncle PW-3 Monijan Medhi. PW-2, her mother stated that after calling PW-3 Monijan, the accused appellant confessed his guilt before him. According to PW-7, her father, PW-3 Monijan reported him about the confession made by the accused appellant in regard to the commission of the aforesaid offence about 3(three) months before at his (accused) residence. PW-3 Moniram in his examination-in-chief stated that the accused appellant although defied the villagers, he confessed his guilt before them, but in cross-examination stated that the accused confessed before him only, without knowing the reason for the said confession. PW-4 Mileswar Medhi stated that the accused appellants brother married his sister and in the village bichar, the accused appellant confessed that he raped the PW-1, but did not accept the bichar and that he underwent atonement calling a priest. PW-4 Mileswar Medhi stated that the accused appellants brother married his sister and in the village bichar, the accused appellant confessed that he raped the PW-1, but did not accept the bichar and that he underwent atonement calling a priest. PW-6 Siraj Ali, the Gaonburah, deposed in examination-in-chief that in the village meeting held at Baruah Medhi in connection with the incident of rape of PW-1, the accused appellant confessed to commission of something with her before PW-3 Moniram, but in cross-examination deposed that he heard him (accused) telling PW-3, the word protest only, denying the allegation on rape on PW-1, the alleged victim girl. The accused appellant in his statement under Section 313 Cr.P.C. sharply termed the evidence of his making any extra-judicial confession as wholly not true. 15. An analysis of the above evidence of the prosecution witnesses, reveals that the exact words of confession allegedly made by the accused appellant to PW-3 and the villagers including PW-4 have not come in their evidence and the place of making such confession is contradictory. It is also not clear what prompted the accused appellant to make the confession of such a crime. The prosecution even failed to examine the priest who made him to undergo atonement for the crime committed about three months ago. It is not clear, what importance was attached to PW-3 Moniram, who was not even a member of the village management committee, which was solely responsible for trial of any offence committed in the village as stated by PW-3 himself in cross-examination. It is noticed from the cross- examination of PW-6, the Gaonburah, that the accused appellant rather lodged a strong protest against the allegation before PW-3 Moniram, whom PW-1 addressed as uncle. 16. Turning to the evidence of PW-1, the victim, PW-2, her mother, PW-7, her father, PW-3 Moniram Medhi, PW-4 Mileswar Medhi, the villagers and PW-6, Siraj Ali, the Gaonburah, respectively, it is revealed, as a whole, that the accused appellant was an old man aged about 59/60 years and sickly being admittedly a TB patient. The evidence also reveals that the accused appellant stood witness in a case against the victims father for assaulting his brother indicating uncordial relation with the family of the victim girl. 16. The evidence also reveals that the accused appellant stood witness in a case against the victims father for assaulting his brother indicating uncordial relation with the family of the victim girl. 16. PW-5, Dr.Giri Kanta Borah, the doctor, who examined the victim girl (PW-1) on 22.02.2011, that is , after about three months of the occurrence, found her to be clinically aged about 12-14 years without any sign of sexual intercourse and injury on her person vide Ext.4, the report. The evidence of doctor carries no significance in the case as the victim was examined belatedly after about three months by which time, the sign of any rape of such nature might disappear. The accused appellant, through his evidence as DW-1, attributed the instant case to a deep rooted conspiracy of Monijan (PW-3) andPW-7, the victims father. 17. On a thorough scrutiny of evidence, it appears that at the relevant time of the alleged occurrence, there were the 4(four) children of the PWs- 2 and 7, who were in the age group of 3 to 10 years and on the other hand, the accused appellant has five sons and two daughters and also grand children, all of whom reside together in his house. It is , therefore, not clear from evidence as to how the accused appellant, who is an old and sickly bed ridden person could have committed the offence of rape of a minor girl (PW-1) either at the house of the victim or at his own house far from the eyes of the inmates of the said two families. Even the place of occurrence is doubtful as PW-8 SI Basanta Baruah, the investigating Officer, in his cross-examination stated that as per the sketch map (Ext.5), the place of occurrence was 'Tin-chali' of the residential compound of accused appellant. 18. There is no satisfactory explanation in evidence in regard to delay in filing the FIR although the incident came to the knowledge of PWs-1 and 7, when PW-1 divulged the entire incident in the same evening after the alleged incident. Further, although discussions were going on, thereafter, inter-mittantly on the said incident between the parents of the victim and PW-3 Moniram, the FIR was not promptly lodged and delayed by about three months in reporting to the police after thought. Further, although discussions were going on, thereafter, inter-mittantly on the said incident between the parents of the victim and PW-3 Moniram, the FIR was not promptly lodged and delayed by about three months in reporting to the police after thought. Also existence of close family relation between the family of the informant and PW-3 cast doubt on the veracity of testimony of PW-3. 19. Thus, the discrepancies in evidence led by the prosecution in the case are not normal in nature and therefore, those discrepancies shake the basic foundation of the prosecution version of the case. The contradictions, inconsistencies, exaggerations aforediscussed lead to the only inference that the version of PW-1, the victim, aged about 6 to 17 years (vide the medical evidence of PW-5 and evidence of PW-1 etc) and the alleged extra-judicial confession made by the accused appellant and that the accused appellant, aged about 59/60 years and sickly, committed the offence of rape on PW-1, falling within the six clauses of Section 375 of the IPC, which defines the term rape beyond all reasonable doubt. 20. Accordingly, the appeal stands allowed setting aside the impugned judgment and order of conviction of the accused appellant and set at liberty. 21. Send back the LCR. Appeal stands disposed off.