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2020 DIGILAW 260 (GAU)

Paban Kumar Nath v. State Of Assam

2020-02-24

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. S. Islam, learned Amicus Curiae appearing for the appellant and Mr. D. Das, learned Additional Public Prosecutor, Assam appearing for the State respondent No. 1. None appeared for the respondent No. 2/informant, although the notice was duly served. 2. This jail appeal is filed against the Judgment & Order, dated 19.12.2017, passed by the learned Sessions Judge, Darrang, Mangaldai in Session Case No. 54(DM) of 2013, whereby the appellant is convicted and sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5000/-, in default to undergo further simple imprisonment for 3 months under Section 376 of the IPC. 3. The prosecution case, precisely, is that an FIR was lodged by the father of the victim girl, with the Officer-in-charge of Mangaldai P.S., on 02.07.2012, alleging, inter-alia, that on 29.06.2012, he along with his minor victim girl, aged about 13 years, went to his brother-inlaw''s house to take stock of the health condition of the daughter of his brother, who was suffering from some serious illness. He along with his brother-in-law had taken his brother-inlaw''s daughter for medical treatment in Guwahati leaving his victim daughter at the house of his brother-in-law to look after his house. While the victim daughter was alone in the house of his brother-in-law, on that day, at around 5:00 PM, the appellant taking advantage of absence of any other family member in the house, committed rape on her by gagging her mouth. At that time, the son of his brother-in-law namely, Shri Pankaj Das arrived at the place of occurrence and having witnessed the incident chased him away with a ''dao''. The appellant managed to escape leaving his bicycle in their house. On the 02.07.2012, when the appellant came to take back his said bicycle, at that time, the local people apprehended him and handed over him to the police. 4. Based on the above FIR, Mangaldai P.S. Case No. 410/12 under Section 376 of the IPC was registered and after completion of investigation, the Investigating Officer laid a charge sheet against the appellant under Section 376 of the IPC. The learned Chief Judicial Magistrate, Darrang at Mangaldai committed the case to the Court of learned Sessions Judge, Darrang at Mangaldai for trial, as charge-sheeted offence was a Session triable one. The learned Chief Judicial Magistrate, Darrang at Mangaldai committed the case to the Court of learned Sessions Judge, Darrang at Mangaldai for trial, as charge-sheeted offence was a Session triable one. The learned Sessions Judge, Darrang at Mangaldoi, after perusal of the case diary and hearing the learned counsel for both the sides framed a charge under Section 376 of the IPC against the appellant. The appellant pleaded innocent. Thereafter, in order to bring home the charge aforementioned, the prosecution examined as many as 9 (Nine) witnesses including the informant/victim girl, the Medical Officer and the Investigating Officer of the case. After closing the evidence of the prosecution side, the statement of the appellant was recorded under Section 313 Cr.P.C. The appellant reiterated his innocence and declined to examine any witness in defence. Thereafter, on hearing the arguments advanced by the learned counsels for both the sides and appreciation of the evidence, oral and documentary, the learned Session Judge convicted and sentenced the appellant, as stated above. 5. In order to establish the charge of ''rape'', defined in Section 375 of the IPC, the prosecution must prove that the accused had sexual intercourse with a woman under any of the circumstances mentioned in six clauses therein and as such, penetration in vulva, even to a slight extent, is necessary to constitute the offence Section 375 of the IPC, as amended, is extracted hereinbelow:.. wxyz "[375. wxyz "[375. Rape.- A man is said to commit "rape" if he,- zyxw wxyz (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or zyxw wxyz (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or zyxw wxyz (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or zyxw wxyz (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- zyxw wxyz First.- Against her will. zyxw wxyz Secondly.- Without her consent. zyxw wxyz Thirdly.- With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. zyxw wxyz Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believe that he is another man to whom she is or believes herself to be lawfully married. zyxw wxyz Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequence of that to which she gives consent. zyxw wxyz Sixthly.- With or without her consent, when she is under eighteen years of age. zyxw wxyz Seventhly.- When she is unable to communicate consent. zyxw wxyz Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora. zyxw wxyz Sixthly.- With or without her consent, when she is under eighteen years of age. zyxw wxyz Seventhly.- When she is unable to communicate consent. zyxw wxyz Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora. zyxw wxyz Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: zyxw wxyz Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. zyxw wxyz Exception 1.- A medical procedure or intervention shall not constitute rape. zyxw wxyz Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape]" zyxw 6. Now, in the light of the above definition of ''rape'', let us appreciate the evidence on record. wxyz P.W. 2, the victim girl, stated, inter-alia, that on the day of occurrence at around 5 p.m., while she was alone at the house of Amulya Das of Prafulla Nagar, being her father (P.W. 1), said brother-in-law and brother-in-law''s wife left for Guwahati for medical treatment of brother-in-law''s daughter. At that time, the accused came and asked for water to drink. When the victim went inside home to fetch water, the accused also followed her and disrobed and laid her on the ground. The accused then raped her. At that moment, P.W. 3, the son of Amulya Das, appeared at the place and witnessing the incident, P.W. 3, wielding a ''dao'' chased after the accused, who was running away. The villagers apprehended the accused and handed over to the police. In connection with the aforesaid incident, she gave a statement under Section 164 Cr.P.C. vide Ext. 1 and the doctor examined her. Her father is illiterate. In cross-examination, she, inter-alia, stated that the accused left his bicycle in the house of Amulya Das and on the day of occurrence at evening time, when he went to bring back his bicycle, an incident of mutual fight and altercation took place between the accused and P.W. 3 and P.W. 3, wielding a ''dao'' in hand, chased after the accused, who was running away. Police seized her wearing cloths. zyxw 7. Police seized her wearing cloths. zyxw 7. In her statement given under Section 164 Cr.P.C., dated 04.07.2012, vide Ext. 1, that is, after 5 (five) days of the alleged occurrence, she had narrated the story in more detail in regard to alleged commission of rape on her by the accused, but stated that the said incident occurred while she was alone at her home indicating her parental home and that the accused came from behind the house and further, did not state about the incident of altercation between the accused and P.W. 3, over the former''s bicycle, which he had left at her (P.W. 2) brother-in-law''s house, that is, the house of Amulya Das of village Prafulla Nagar, which followed by chasing of accused by P.W. 3 with a ''dao''. 8. Coming to the evidence of P.W. 3, it appears that he saw the accused mounting on the body of his cousin sister (P.W. 2) on the floor of his house while peeping through the hole in the wall, out of suspicion. He noticed the accused without trouser, but did not notice whether the P.W. 2''s wearing apparels were removed. He shouted at the accused and went to bring a ''dao'' and at that moment, the accused fled away and he chased him after for about half a kilometer. 9. The evidence of P.W. 1, the father of the alleged victim girl (P.W. 2) shows that as reported to him, ''one boy'' committed bad act on his said daughter gagging her mouth while she was alone in the house of Amulya Das, that is, at the house of P.W. 3. 10. A Close scrutiny of the above evidence of P.Ws 1, 2 and 3, it transpires that P.W. 3, who is the cousin brother of P.W. 2, corroborated the evidence of P.W. 2, whereas P.W. 1, the father although corroborated the evidence of P.W. 2, his victim daughter in substance, he did not disclose the name of the accused as perpetrator of the aforesaid crime. Also, it is noticed that the aggravated nature of altercations that took place between the accused and P.W. 3, the cousin brother of P.W. 2, the victim, which has come in the cross-examination of P.W. 2 as stated above, has not come in the evidence of P.W. 3. Also, it is noticed that the aggravated nature of altercations that took place between the accused and P.W. 3, the cousin brother of P.W. 2, the victim, which has come in the cross-examination of P.W. 2 as stated above, has not come in the evidence of P.W. 3. This aspect of evidence is significant in the case, because the incident of rape of P.W. 2 also took place in the same evening at the same place, that is, in the house of P.W. 3. This piece of evidence of P.W. 2 in her crossexamination, therefore, clouds the very foundation of the prosecution story, on consideration of the family relationship between P.W. 2 and P.W. 3, who are young cousin sister and brother and further, it is being not ascertainable as to what actually prompted P.W. 3 to chase after the accused to a distance of about half a kilometer. 11. There is also no clarification on evidence as to why P.W. 3 suspected some foul play on the part of the accused when the accused came in contact with P.W. 2, the alleged victim girl inside their house, that is, the house of Amulya Das of Prafulla Nagar, who was not examined in the case, rousing him to peep through the hole of the wall of the house, when P.W. 2 did not raise alarm. Although in her statement under Section 164 Cr.P.C. recorded after 5 (five) days of the occurrence vide Ext. 1 stated that the accused gagged her mouth, her evidence in Court does not, however, reveal that her mouth was actually gagged by the accused while she was allegedly raped. There is no explanation in any manner on evidence regarding omission of this vital aspect in her statement. According to her (P.W. 2), her wearing clothes at the time of the occurrence, were handed over to the police, but P.W. 9, S.I. Pranab Baishya, the Investigating Officer, nowhere stated in his evidence that her (P.W. 2) cloths were seized during investigation. 12. Coming to the evidence of P.W. 6, Dr. Manjula Medhi, the doctor, who examined P.W. 2, the victim girl, on 03.07.2012, at Mangaldai Civil Hospital, on police requisition, deposed as under (relevant part): wxyz "Opinion- No injury on her private part. No comment regarding rape. Age of the victim is 18 to 19 years. No pregnancy. Ext. 2 is the medical report, Ext. Manjula Medhi, the doctor, who examined P.W. 2, the victim girl, on 03.07.2012, at Mangaldai Civil Hospital, on police requisition, deposed as under (relevant part): wxyz "Opinion- No injury on her private part. No comment regarding rape. Age of the victim is 18 to 19 years. No pregnancy. Ext. 2 is the medical report, Ext. 2 (1) is my signature. zyxw wxyz Cross-examination: In case of forceful sexual intercourse there is every possibility of injury in private parts of woman. On whole body examination of the victim woman I have not seen any injury." zyxw wxyz On radiological examination, her (P.W.2) age appeared to be 18 to 19 years. zyxw 13. The question that arises whether the victim P.W. 2 was minor at the time of the alleged occurrence. The FIR, dated 02.07.2012, lodged by P.W. 1, the father of the victim, vide Ext. 3, showed that the age of the victim (P.W. 2) was 13 (thirteen) years and the victim, in her statement, vide Ext. 1, stated that she was aged about 13 years and a student of Class VIII. In evidence, recorded on 06.11.2013, P.W. 2 stated her age to be 12 (twelve) years and a student of class VIII of Dumunichowki Girls High School. This statement was, of course, in the introductory part of her (P.W. 2) evidence without oath. Her father (P.W. 1) is illiterate and he put thumb impression on the FIR. P.W. 9, S.I. Pranab Baishya, the Investigating Officer, in his cross-examination stated that he did not collect any document to ascertain her (P.W. 2) age. The prosecution, therefore, has not exhibited any document to show the actual age of the victim on the date of alleged occurrence in the case although necessary school certificate could have been collected and as such, it is not possible to ascertain her (P.W. 2) date of birth. In such a peculiar situation, this Court has to place reliance on the evidence of P.W. 6, the doctor, extracted above and infer that as per radiological and clinical reports, vide Ext. In such a peculiar situation, this Court has to place reliance on the evidence of P.W. 6, the doctor, extracted above and infer that as per radiological and clinical reports, vide Ext. 2, the medical report, she was aged about 18 to 19 years with possible variation of 2 (two) years, and on such consideration, it may be held that she was being about 16 (sixteen) years of age on the date of occurrence, comes within the clause Sixthly of Section 375 of the IPC and as such, her consent was immaterial to the alleged act of ''rape''. However, the medical evidence of P.W. 6, Dr. Manjula Medhi did not support the evidence of P.W. 2, the victim, as there was no sign of injury on her whole body, indicating that there was no resistance to the accused''s alleged forceful sexual intercourse on her. There is also no evidence that the accused was subjected to medical examination in connection with his alleged commission of rape on her (P.W. 2). It is interesting to note that P.W. 3 in his cross-examination stated that after returning home from chasing after the accused, he did not ask his cousin sister (P.W. 2) anything about the incident nor did she state anything to him. There is also no evidence that either P.W. 2, the victim and P.W. 3 sought for help of neighbors and that the neighbors came to know immediately about the ongoing allegedly two incidents, aforementioned at the relevant time although as stated by P.W. 2 in her cross-examination that around the house of her brother-in-law, that is, the house of P.W. 3, there are many inhabitants. There is no explanation on evidence as to for what reason the neighbors remained in darkness of such a serious incident, when there was hue and cry of P.W. 3 at the house Amulya Das. If the allegations made out in the FIR is considered, the accused was apprehended by villagers when he went to bring his bicycle on 02.07.2012, that is, after 2 1/2 days from the alleged incident of rape, whereas P.W. 2 victim contradicted stating that it happened on the same day evening. 14. If the allegations made out in the FIR is considered, the accused was apprehended by villagers when he went to bring his bicycle on 02.07.2012, that is, after 2 1/2 days from the alleged incident of rape, whereas P.W. 2 victim contradicted stating that it happened on the same day evening. 14. Turning to the evidence of P.W. 4, Subhas Das, P.W. 5 Apu Saikia and P.W. 8 Amal Kalita, it transpires, as a whole, that the accused/appellant made extra-judicial confessional statement before the villagers of Prafulla Nagar Village after he was caught by the villagers on the following day of the alleged incident. The version of P.W. 4 is that on the following day of the incident, he, witnessing a gathering of people in the house of Amulya Das, went there and saw the accused/appellant interrogated by the public and pursuant thereto, he confessed before them to the effect that he committed rape on P.W. 2, on the previous day and then, the people handed over the accused to the police. The aforesaid gathering of people took place on the demise of the daughter of said Amulya Das. Among the people who were present in the gathering was one Bhabesh Deka. The said Bhabesh Deka was not examined by the prosecution in the case. The police did not record his statement. 15. P.W. 5 Apu Saikia, corroborating the evidence of P.W. 4, stated to have seen a gathering of 100/150 people in the house of Amulya Das, where ''one girl'' was also seen crying and the accused/appellant. He had seen the public asking the accused/appellant why he had done ''bad works'' to which he replied that he had committed a ''mistake''. Thereafter, the police arrived and took away the accused/appellant. In cross-examination, he stated to have not asked the accused/appellant regarding the ''mistake'' he had committed. 16. P.W. 8 Amal Kalita stated that the accused/appellant was apprehended by the public at Prafulla Nagar and then he was handed over to the police at about 9.30 a.m. The accused/appellant confessed before the public that he was guilty of the ''offence''. He however, did not ask the accused/appellant anything about the incident and could not remember, who had asked the accused/appellant about the incident. 17. The accused/appellant, in his statement under Section 313 Cr.P.C., denied the incident and the extra-judicial confession made before the public. He however, did not ask the accused/appellant anything about the incident and could not remember, who had asked the accused/appellant about the incident. 17. The accused/appellant, in his statement under Section 313 Cr.P.C., denied the incident and the extra-judicial confession made before the public. The accused/appellant stated in reply to the question No. 8 as extracted hereinbelow- wxyz "I and Pankaj used to do painting work. We had a dispute regarding Rs.1,000/-. Pankaj quarreled with me and when I went to bring my cycle from their home they caught me, assaulted me and handed over to police." zyxw 18. In Pakkirisamy v. State of T.N., (1997) 8 SCC 158 , the Hon''ble Supreme Court held that it is a rule of caution that the Court should generally look for an independent reliable corroboration before placing reliance upon the extra judicial confession. It was pointed out that it is no doubt true that the extra judicial confession by its very nature is rather weak type of evidence and it is for this reason that a duty is cast upon the Court to look for corroboration from other reliable evidence on record. 19. In Jagta Vs. State of Haryana reported in 1974 AIR 154 , the Apex Court held that for extra-judicial confession to be accepted and relied upon, exact words of extra-judicial confession are necessary. 20. In Sakharam Shankar Bansode vs State Of Maharashtra, (1994) AIR SC 1594 , the Apex Court held that when the extra-judicial confession is not consistent with the medical evidence it will not be safe to rely upon when it is retracted. 21. In Sanjay @ Kaka Etc. Etc. vs The State (Ncc.T. Of Delhi), (2001) 3 SCC 190 , the Supreme Court held that extra-judicial confession made by the accused before the prosecution witness cannot be discarded when the defence failed to prove any circumstances which could be made a basis for discrediting the testimony of such witness. However, the evidence of such witness has to be tested in the light of the other circumstances. 22. In Sahadevan & Anr. vs State Of T.Nadu, (2012) 6 SCC 403 the Honb''ble Supreme Court laid down the principles regarding extra-judicial confession as extracted hereinbelow: wxyz "The Principles zyxw wxyz i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. 22. In Sahadevan & Anr. vs State Of T.Nadu, (2012) 6 SCC 403 the Honb''ble Supreme Court laid down the principles regarding extra-judicial confession as extracted hereinbelow: wxyz "The Principles zyxw wxyz i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. zyxw wxyz ii) It should be made voluntarily and should be truthful. zyxw wxyz iii) It should inspire confidence. iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. zyxw wxyz v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. zyxw wxyz vi) Such statement essentially has to be proved like any other fact and in accordance with law." zyxw 23. In the context of the above extra-judicial confession allegedly made by the accused/appellant before the P.Ws 4, 5 and 8 and other villagers, it is noticed that his confession so made was not recorded and even the exact words of the said extra-judicial confession have neither come in their evidence nor decipherable from their evidence. As stated above, P.W. 4 stated that the accused/appellant confessed to commission of rape on P.W. 2 without explaining how in the words of the accused, his conduct can be termed to have amounted to rape falling within its definition provided in Section 375 of the IPC. P.W. 5 stated that the accused confessed to have committed ''mistake'', before a gathering of 100/150 persons but, nothing was stated by the accused/appellant as to what ''mistake'' he had committed. Further, similarly, P.W. 8 stated that the accused/appellant had confessed before the public that he is ''guilty of the offence'' without indicating in unequivocal words as to what offence he had committed. 24. Further, similarly, P.W. 8 stated that the accused/appellant had confessed before the public that he is ''guilty of the offence'' without indicating in unequivocal words as to what offence he had committed. 24. On scrutiny of the evidence of P.Ws 4, 5 and 8 vis- -vis the scrutiny of the evidence of P.Ws 1, 2 and 3, it is revealed that there is sufficient scope to doubt that the aforesaid alleged extra-judicial confession of the accused was not the outcome of free will of the accused/appellant inspired by his own conscience to speak the truth and nothing but truth before a gathering of about 100/150 people in the house of Amulya Das of Prafulla Nagar, whose family was bereaved due to demise of his daughter on that day. This presumption has been reinforced by the fact that the aforesaid extra-judicial confession is not consistent with the medical evidence of P.W. 6 Dr. Manjula Medhi, who examined P.W.2 the alleged victim girl vide Ext. 2, the medical report, as stated above and suppression of the piece of evidence that has come in the cross examination of P.W. 2 to the effect that in the evening of the day of alleged occurrence, the accused/appellant went to the house of P.W. 3 to bring his bicycle, and an aggravated form of altercation took place with P.W. 3, which prompted P.W. 3 chasing him away wielding with a ''dao'' - a fact which has not come in the evidence of other prosecution witnesses including the evidence of P.W. 3. 25. It is also highly doubtful to place reliance on the extra-judicial confession so made by the accused/appellant before a gathering of people numbering about 100/150 persons at the house of the bereaved family of Amulya Das, i.e. the house of P.W. 3 on a day when his daughter, i.e. the sister of P.W. 3 expired. P.W. 7 Santoram Deka, who was declared hostile by the prosecution, stated that on a day in the year 2013, the accused/appellant was apprehended by the public and handed over to the police but, failed to say why the public apprehended him. 26. P.W. 7 Santoram Deka, who was declared hostile by the prosecution, stated that on a day in the year 2013, the accused/appellant was apprehended by the public and handed over to the police but, failed to say why the public apprehended him. 26. In regard to the quarrel that took place between P.W. 3 and the accused/appellant, the accused/appellant stated in his statement under Section 313 Cr.P.C. that the said incident occurred regarding a sum of Rs.1,000/- both of whom were painter by profession and when he went to bring back his bicycle from their house, due to quarrel, the villagers apprehended and assaulted him and then, handed over to the police although the accused/appellant has not chosen to lead some evidence in support of this plea. Therefore, in the considered opinion of this Court, the alleged extra-judicial confession having been suffered from material discrepancies in the backdrop of the facts and circumstances explained above, cannot safely be relied on and consequently, the prosecution case that the accused/appellant committed ''rape'' on P.W. 2 that falls within the definition of ''rape'' given in Section 375 of the IPC also cannot be relied on beyond all reasonable doubt. 27. In the above facts and circumstances, that emerged from the evidence on record, this Court finds that the allegation of rape of P.W. 2 is not inspiring and proved beyond reasonable doubt. A close scrutiny of the evidence reveals two stories of the incident mutually opposed, giving rise to two views as discussed above. In Bihari Nath Goswami Vs. Shiv Kumar Singh and Ors., (2004) 9 SCC 186 , the apex Court held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. 28. For the reasons set forth above, the appeal stands allowed setting aside the impugned Judgment and Order, dated 19.12.2017, passed by the learned Sessions Judge, Darrang at Mangaldai, in Sessions Case No. 54(DM)/2013 and the accused/appellant is accordingly acquitted of the charge and set at liberty giving the benefit of doubt. The appeal stands disposed off.