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2020 DIGILAW 5 (GAU)

Nara Nath Deka v. State Of Assam

2020-01-02

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. R. Dev. Learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Sarma, learned counsel for the respondent No. 1/informant and Mr. B.B. Gogoi, learned Addl. Public Prosecutor, appearing for the State/respondent No. 2. 2. This jail appeal is preferred against the judgment and order, dated 20.12.2017, passed by the learned Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 20(DM)16, whereby the appellant is convicted and sentenced to undergo rigorous imprisonment for 7(seven) years and to pay fine of Rs. 5000/- (Rupees Five Thousand) only, in default to undergo simple imprisonment for further 6(six) months for the offence committed under Section 376(2)(1) of the IPC. 3. An FIR was lodged before the In-charge of Patharighat Police Out Post, on 16.07.2014, alleging that on 14.07.2014 at around 10.30 a.m., when there was no inmate in the house of the informant, the appellant in the pretext of drinking water entered his house and forcibly committed rape on his deaf and dumb daughter, aged about 35 years. The incident was reported to the victim's father-the informant by his grand-daughter, who in turn reported the incident to the village headman. 4. Based on the above F.I.R., Pathorighat G.D. Entry No. 263, dated 16.07.2014, was made and on being forwarded registered as Sipajhar P.S. Case No. 389/2014 under Section 376 of the IPC, dated 17.07.2014. The police, after completion of investigation laid a charge-sheet against the appellant under Section 376 of the IPC. 5. On being committed the case for trial, Sessions Case No. 20(DM)2016 in the Court of learned Sessions Judge, Darrang at Mangaldoi was registered. On consideration of the material on the case diary and hearing of both sides, the learned Sessions Judge, Darrang at Mangaldoi framed charge under Section 376(2)(1) of the IPC. The appellant denied the aforesaid charge and claimed to be tried. In order to establish the charge, the prosecution examined 7(seven) witnesses including the victim. After closing the evidence of the prosecution side, the learned Sessions Judge recorded the statement of the appellant under Section 313 Cr.P.C. The appellant pleaded innocent. Thereafter, on hearing the arguments advanced by both sides and appreciating the evidence on record the learned Sessions Judge convicted and sentenced the appellant as above. 6. Assailing the above impugned judgment and order, Mr. Thereafter, on hearing the arguments advanced by both sides and appreciating the evidence on record the learned Sessions Judge convicted and sentenced the appellant as above. 6. Assailing the above impugned judgment and order, Mr. R. Dev, learned Amicus Curiae appearing for the appellant basically focuses on the aspects of delay in filing the FIR by three days and inconsistency between the evidence of P.W.-3, the victim and P.W.-6, the doctor, who examined her. 7. Per contra, Ms. B. Sarma, learned counsel for the respondent No. 1/the informant, submits that the testimony of P.W.-3, the victim deaf and dumb girl and P.W.-5, the grand-daughter of the victim's father (P.W.-1) is being very natural and confidence inspiring, the negative finding of P.W.-6, the doctor, who examined the victim after 20(twenty) days of the occurrence, is quite natural and as such, has no relevancy. Ms. Sarma further submits that the delay in filing the FIR is well explained in evidence and the defence has failed to shake the evidence-in-chief of the prosecution witnesses. 8. Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the State/respondent No. 2, besides reiterating the argument of Ms. B. Sharma, submits that the prosecution evidence is reinforced by the appellant's admission of his visit to the house of the informant (P.W.-1) at the relevant time in his statement under Section 313 Cr.P.C. 9. I have considered the above arguments advanced by the learned counsel of both sides and perused record. 10. 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. As penetration is sufficient to constitute the offence of rape, the prosecution must establish beyond reasonable doubt that there was penetration in vulva of the victim. In this regard, the victim's testimony has to be appreciated on the principle of probabilities, but if the testimony appears to be difficult to be relied on its face value, the Court should look for direct or circumstantial evidence, which may lend assurance to her testimony. 11. In this regard, the victim's testimony has to be appreciated on the principle of probabilities, but if the testimony appears to be difficult to be relied on its face value, the Court should look for direct or circumstantial evidence, which may lend assurance to her testimony. 11. In the instant case, there is no direct eye account of the incident that allegedly occurred in the house of the informant (P.W.-1), when there was no inmate except the victim girl, aged about 35 years and who is deaf and dumb. 12. The evidence of P.Ws 1 and 2, the father and mother of the victim respectively, show that they did not witness the alleged occurrence and they expressed unwillingness to see any punishment for the offence being awarded to the accused/appellant as the matter was amicably settled outside the Court. 13. However, P.W.-3, the victim, implicated the accused appellant deposing that although he came to her house, on her call, in the relevant morning, he removed her wearing cloths, touched her private parts and laid her on the floor and then committed sexual intercourse with her. She further deposed that the said incident occurred when her parents (P.Ws 1 and 2) were away from home. It is noticed that she (P.W.-3) had given her statement before the Magistrate, but the said statement remained unexhibited during trial and on the other hand, her evidence was recorded based on the interpretation of one Shyam Prasad Sarma, a Graduate Teacher of Govt. B.D.S. Deaf and Dumb School, Kahilipara, Guwahati, without administering oath to him and also without any certificate as to the trial Court's satisfaction on the accuracy of her evidence as interpreted by the interpreter. It may be mentioned that a deaf and dumb witness is competent and his signs and gestures are admissible piece of evidence and can be relied on under Section 119 of the Indian Evidence Act, subject to satisfaction of the Court. In the instant case, however, in absence of any such certificate of satisfaction on the evidence of P.W.-3 (the Victim) so recorded and also that of any statement of the interpreter, namely, Shyam Prasad Sarma to the effect that he understood the signs and gestures of P.W.-3, the victim, her (P.W.-3) evidence cannot be accepted as a whole. In the instant case, however, in absence of any such certificate of satisfaction on the evidence of P.W.-3 (the Victim) so recorded and also that of any statement of the interpreter, namely, Shyam Prasad Sarma to the effect that he understood the signs and gestures of P.W.-3, the victim, her (P.W.-3) evidence cannot be accepted as a whole. P.W-6, Dr(Mrs) B. Hazarika, the doctor, who examined the victim (P.W.-3), did not find any sign and symptoms of forceful sexual intercourse vide Ext.-2, the medical report. It is also interesting to note that the statement of the victim under Section 161 Cr.P.C. could not be recorded as she is deaf and dumb as stated by P.W.-7, S.I. N. Kalita, the Investigating Officer, whereas her statement under Section 164 Cr.P.C. was recorded as interpreted her signs by her mother (P.W.-2), which she (P.W.-2) could not remember during evidence. According to P.W.-2, the accused-appellant 'dragged her', which is contradicted by P.W-4, the daughter-in-law of P.W.-1 deposing that P.W.-5 reported them (P.Ws 1, 2 and 4) that the accused appellant committed forceful sexual intercourse with her (P.W.-3). This Court is of opinion that, their evidence do not satisfying any of the six clauses of Section 375 of the IPC beyond reasonable doubt. 14. Therefore, this Court finds, taking into consideration of the evidence of P.W.-3 (the victim) and P.W.-4 that the appellant committed the offence of outraging modesty of P.W.-3 and accordingly punishable under Section 354 of the IPC beyond all reasonable doubt. 15. Accordingly, the appeal stands partly allowed. The offence under Section 376(2)(1) of the IPC is modified to Section 354 of the IPC. 16. The appellant stands convicted and sentenced to suffer rigorous imprisonment for 2(two) years and to pay fine of Rs. 5000/- (Five Thousand) only, in default to undergo simple imprisonment for 3(three) months. The fine amount, if realized, shall be paid to the victim as directed by the learned trial Court. 17. The period of detention of the appellant shall be set off under Section 428 Cr.P.C. 18. The appeal stands disposed off. 19. Send back the LCR. 20. Before parting with the record, we appreciate the valuable service rendered by Mr. R. Dev, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. 17. The period of detention of the appellant shall be set off under Section 428 Cr.P.C. 18. The appeal stands disposed off. 19. Send back the LCR. 20. Before parting with the record, we appreciate the valuable service rendered by Mr. R. Dev, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. 7500/- as legal fees be paid to him by the High Court Legal Services Committee upon production of a copy of his judgment and order.