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2022 DIGILAW 532 (GAU)

Shan Kumar Chakma v. State of Arunachal Pradesh

2022-05-23

KALYAN RAI SURANA, ROBIN PHUKAN

body2022
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. G. Tarak, learned amicus curiae, appearing for the appellant. Also heard Mr. G. Tado, learned Addl. Public Prosecutor, appearing for the State. As per office note dtd. 2/3/2022, notice has been served on the informant/ complainant, through the Court process, served through the Court of Chief Judicial Magistrate, Changlang, but none appears on call. 2. The appellant, namely, Shan Kumar Chakma @ Rango Suli Chakma, who is currently lodged in District Jail, Tezu has preferred this appeal against the judgment dtd. 25/9/2019 and consequent order of sentence dtd. 17/10/2019, passed by the learned Sessions Judge, Tirap, Khonsa in connection with KSA Sessions Case No. 22/2019, arising from Diyun P.S. Case No. 22/2012, by which the appellant was convicted for commission of offence punishable under Sec. 376 of the Indian Penal Code (IPC for short) and sentenced to undergo rigorous imprisonment for 14 (fourteen) years and to pay a fine of Rs.25,000.00, with default clause of undergoing a further sentence of 6 (six) months. 3. The prosecution case was set rolling by the father of the minor victim that while his minor daughter, then aged 11 years, was going home from Dumpathar agriculture field, at about 17.30 hours, the appellant had raped her by putting cloth on her mouth and also by putting her fear of hurt. Accordingly, the above referred police case was registered and the case was investigated. The victim girl was sent for medical examination and the appellant was arrested with one small pocket knife, shown by him, as a weapon used for threatening the victim. The I.O. recorded the statement of witnesses and also got the statement of the victim girl recorded by the Judicial Magistrate under Sec. 164 (5) of the Code of Criminal Procedure (CrPC for short). On completion of investigation, charge-sheet was submitted against the appellant. After compliance of initial formalities, the learned Court below had framed charge against the appellant under Sec. 376(2)(f) I.P.C. and on being read over, he pleaded not guilty to the same. The prosecution had examined 6 (six) witnesses, viz., (i) Shri Dakto Ribo, Judicial Magistrate, First Class; (ii) mother of victim; (iii) father of victim (informant/ complainant); (iv) victim; (v) brother of the victim; and (vi) Shri Pradeep Kalita in support of the charge. The prosecution had examined 6 (six) witnesses, viz., (i) Shri Dakto Ribo, Judicial Magistrate, First Class; (ii) mother of victim; (iii) father of victim (informant/ complainant); (iv) victim; (v) brother of the victim; and (vi) Shri Pradeep Kalita in support of the charge. Thereafter, the learned trial Court had confronted the appellant with incriminating material that had appeared against him and recorded the same under Sec. 313 CrPC. The appellant took the defence of total denial and declined to examine any defence witnesses. 4. The learned trial Court had relied on the statement made by the PW-1 that on 26/6/2012, while he was posted at Diyun as JMFC-cum-Executive Magistrate, he had recorded the statement (Ext.1) of the minor victim girl, who was 11 years old, as per declaration of her father, and forwarded the said statement to the I.O. He had also exhibited his signature. In cross-examination, the PW-1 had admitted that he had not administered oath to the victim girl. He had also stated that the statement of the victim was not recorded by way of audio and video recording. 5. The Court had also relied on the statement of PW-2, the mother of the victim, who had stated that she knew the accused on the dock and that about 4 years ago, her daughter was with them in the paddy field and had left before them and when they arrived at their home, she found her daughter crying. Her daughter had stated that the appellant had given her his cycle and caught hold of her and forcibly raped her. It was stated by the PW-2 that she had seen injury on victim's private part and lower part of her body. She had taken the daughter to Gaonburah , who suggested them to take her to medical. Thereafter, she took the victim to hospital and then to police station. She had stated that at the time of incident, the victim was minor but could not say the age and had stated that she was not studying in any school. In course of her cross-examination, she had stated that the victim had left paddy field perhaps at 5.00 pm., and denied that the victim was having an affair with the appellant. 6. The PW-3 was the father of the victim and the informant in the case. In course of her cross-examination, she had stated that the victim had left paddy field perhaps at 5.00 pm., and denied that the victim was having an affair with the appellant. 6. The PW-3 was the father of the victim and the informant in the case. He had also deposed that about four years ago, the victim was at home and she had told him that while on way from paddy field to home, she was raped by the appellant. He had stated that the victim left the field before them and that the victim was aged 11 years. He had also stated that when the condition of the victim daughter became worse, he took her to hospital where the doctor advised him to report the matter to police and he then took the victim to police station and lodged the FIR. He had stated having seen the injuries on both thighs and backside of victim girl. He had stated that as per the victim, the incident took place at Modokoma area. He had exhibited the FIR (Ext.2) filed by him with his signature. In his cross-examination, he had stated that there was no birth certificate and that the victim had left the place before sunset, before about 3.00 pm., and that the place, where the incident took place, was about half a kilometre away from their village. He had stated that the FIR was drafted as per his instruction, however, the same was not read over to him and he was not aware of the contents of the FIR. He had stated that he was aware that the appellant was married and having children. He had denied that someone, after seeing the appellant and the victim, had informed him about the same. 7. The Court had also relied on the deposition of the victim, who was examined as PW-4. The victim recognized the appellant on the dock as he had raped her. The victim had forgotten the date, month and year and stated that on that day, she along with her parents were at the paddy field at Dumpathar and in the evening, her parents had sent her to look after their cattle at home located at Mudakka Nallah. The victim recognized the appellant on the dock as he had raped her. The victim had forgotten the date, month and year and stated that on that day, she along with her parents were at the paddy field at Dumpathar and in the evening, her parents had sent her to look after their cattle at home located at Mudakka Nallah. She had stated that while she was going towards home, the appellant suddenly appeared from jungle at Sukha Nallah and caught hold of her and tried to gag her mouth and that when she had managed to run away by biting the hand of the appellant, he also ran after her and again caught her and she was forcefully subjected to rape. She had stated that at the time of committing the offence, the appellant was having a knife and threatened her with dire consequences and that he had inflicted injury on her thigh from where blood was oozing out. Her parents had taken them to Police station, from where she was again taken to hospital and that the incident was immediately reported to the Gaonburah and that her statement was also recorded by the Magistrate, Diyun. During her cross-examination, she had admitted that she did not remember her exact age on that day and that there was no village near the place of occurrence. She admitted that she had stated about the incident to her aunt and denied that she did not tell the police that the appellant was having a knife. She denied that she had not shouted for help at the time of offence and she had denied that she had not stated to the police that she had shouted for help. She had stated that her statement recorded by the police was not read over to her and that she was acquainted with the appellant. 8. The Court had also relied on the statement made by the PW-5, who had stated that after committing rape on his sister, the appellant had absconded and that the appellant was apprehended by him. In his crossexamination, he had stated that he had given his statement before the police and that he had no idea when, how and where the offence was committed. 9. The PW-6, who was the I.O. had stated that he can recognize the appellant standing on the dock. In his crossexamination, he had stated that he had given his statement before the police and that he had no idea when, how and where the offence was committed. 9. The PW-6, who was the I.O. had stated that he can recognize the appellant standing on the dock. He had stated that while posted as the Officer-In-Charge of Diyun P.S., on 25/9/2012, he had received an FIR lodged by father of the victim to the effect that his victim daughter was subjected to rape by the appellant on the same day at about 17.30 hours, and accordingly, he had registered Diyun P.S. Case No. 34/2017, under Sec. 376 IPC and that he had taken up the investigation himself and on 26/9/2012, and that he had visited the place of occurrence and had recorded the statement of the victim and other available witnesses. He had stated that during investigation, the appellant had admitted to have committed the offence. He had forwarded the victim to hospital for her examination and the report was gathered and put up in case record. He had also forwarded the victim to the Magistrate for recording her statement and having found that the appellant had committed rape upon the victim while she was on way to her house located at Mudakka Nallah, he had submitted charge-sheet under Sec. 376 IPC and he had exhibited the medical report of the victim (Ext.3), seizure memo (Ext.4) and charge-sheet (Ext.5) filed by him with his signature. He had admitted that he had drafted the FIR on being instructed by the informant and he had denied that after drafting the FIR he did not read over the same to the informant. He had submitted that the victim was brought to the police station at about 5.15 pm and that he had not collected any document to prove the age of the victim. He had denied that the victim girl had consented for sex and admitted that the victim girl knew the appellant. 10. The learned Sessions Judge had specifically relied on the evidence of the prosecution witnesses as well as on the medical examination report of the victim by the doctor and the statement recorded by the Judicial Magistrate First Class under Sec. 164 (5) of the CrPC. 10. The learned Sessions Judge had specifically relied on the evidence of the prosecution witnesses as well as on the medical examination report of the victim by the doctor and the statement recorded by the Judicial Magistrate First Class under Sec. 164 (5) of the CrPC. The learned Court had also observed that the provisions of Sec. 154(1)(B) CrPC was incorporated vide Act 13 of 2013 w.e.f. 3/2/2013, but the present occurrence took place on 25/9/2012 and the statement of the victim was recorded on 26/9/2012, as such it was held that the question of audio-video recording of the statement of the victim did not arise. Thus, the learned Court concluded that there was nothing to disbelieve the statement of PW-1 and statement of the victim under Sec. 164 CrPC. It was also held that there was total corroboration of the FIR, statement of the victim recorded under Sec. 164 CrPC, and the statement of the witnesses. The learned Court held that though the drafting of the FIR was made by police personnel and that the contents having not been read over to the informant, but the statement by the informant (PW-3) fully corroborated with the FIR, as such the Court had held that it did not find any infirmity. The learned Court had also held that as per the medical report (Ext.3), the victim was having cut mark on the right thigh just above one inch of her knee joint and that she was having injury on the vulva and torn hymen with active bleeding and that she was having pain while walking and urinating and thus, the learned Court had concluded that such corroborative evidence proved beyond reasonable doubt that the appellant herein had committed rape upon the victim. Therefore, as the petitioner was in a position of trust, and had committed forceful sexual assault, he had committed rape, which was punishable under Sec. 376(2)(f) of the IPC. However, by taking recourse to Sec. 222 CrPC, it was held that the prosecution could not prove the charge under Sec. 376(2)(f) IPC and therefore, held that the appellant herein could be punished under Sec. 376 IPC, which was a lesser offence. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for 14 (fourteen) years and to pay a fine of Rs.25,000.00, with default clause of undergoing a further sentence of 6 (six) months. 11. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for 14 (fourteen) years and to pay a fine of Rs.25,000.00, with default clause of undergoing a further sentence of 6 (six) months. 11. The learned amicus curiae had meticulously read out the impugned judgment, evidence of the witnesses, statement of the victim recorded under Sec. 164 CrPC, examination of the appellant under Sec. 313 CrPC, contents of the medical report as well as of the other exhibits including the FIR. 12. The learned amicus curiae had submitted that the appellant was entitled to benefit of doubt because the doctor, who was the author of the medical examination report of the victim had not been examined, which according to him, was fatal. It was also submitted that the pocket knife was not sent for forensic examination and therefore, the appellant could not have been convicted. However, the learned APP had made his submission to defend the impugned judgment. 13. As already discussed herein before, in this case, except for the Judicial Magistrate First Class (PW-1) and the I.O. (PW-6), the other witnesses are the victim (PW-4) and her immediate family members, out of which the PW3, i.e. the father of the victim, was the informant. 14. From the perusal of the statement of the victim, as recorded under Sec. 164 CrPC (Ext.1), it is seen that the victim, while deposing as PW4, had fully corroborated her previous statement which was recorded by PW-1 under Sec. 164 CrPC. Her evidence could not be demolished during her cross- examination. Moreover, no suggestion was given to the victim (PW-4) that she was not subjected to sexual assault or that any injury that she might have suffered, was not due to sexual assault. The victim had stated that she was threatened with a pocket knife, which was recovered and seized from the appellant. 15. It is not in dispute that there was no eye-witness in this case. The medical report (Ext.3) was exhibited by PW-6, i.e. the I.O. The defence did not put any suggestions to the said witness regarding non-arraying of the doctor who had authored Ext.3. Therefore, the Court does not find that the non-examination of the doctor, who had authored Ext.3, was fatal for the prosecution, so as to entail the acquittal of the appellant. Therefore, the Court does not find that the non-examination of the doctor, who had authored Ext.3, was fatal for the prosecution, so as to entail the acquittal of the appellant. Thus, when from the evidence of the victim, the offence of rape was fully corroborated, the omission to send the knife for forensic examination cannot be said to be fatal to the prosecution case. 16. On the point as to whether non-examination of the doctor who had authored medical report of the victim of rape was fatal for the prosecution, we may refer to the case of Wahid Khan vs. State of Madhya Pradesh (2010) 2 SCC 9 : 2010 STPL 3111 SC, wherein the Supreme Court of India had observed as follows (extracted from 2010 STPL 3111 SC): “19. It was also contended by learned counsel for the appellant that since hymen of the prosecutrix was found to be intact, therefore, it cannot be said that an offence of rape was committed on her by the appellant. This contention cannot be accepted as offence of rape has been defined in Sec. 375 of the IPC. Explanation to Sec. 375 reads thus: “Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” It has been a consistent view of this Court that even a slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. 20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) at page 495 which reads thus: “Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.” *** *** *** 23. Learned counsel for the appellant placed reliance on a recent judgment of this Court reported in Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57 , to contend that since evidence of prosecutrix was not corroborated, the appellant should be extended benefit of doubt. Even after going through the said judgment critically we do not find that any benefit can be extended to the appellant. In the said case, there were several serious discrepancies in the evidence of the prosecutrix which prompted the Court to call for corroboration. In the present case , there is consistency in the evidence of prosecutrix , which stands corroborated by the evidence of P.W.3- B.B. Subba Rao. He had no axe to grind against the appellant. 24. In this case, the version of the prosecutrix right from lodging of the FIR, till her examination by the doctor and till she deposed in court, had been absolutely consistent. Not only this, to corroborate further, the evidence of P.W.3B.B. Subba Rao is also on record who had caught the appellant red-handed which fully establishes that it was the appellant who had committed offence of rape.” 17. In this case, the evidence of the PW-2 (mother of victim) and PW-3 (father of the victim) that they had seen the injury at the thigh, back of victim and sexual assault injury, and their evidence could not be shaken during cross-examination. Hence, the Court does not find any infirmity in the finding of the learned Sessions Judge that the factum of sexual assault on PW-4 was corroborated by the witnesses and evidence on record. 18. There is one more factor which we deem it appropriate to refer to. Hence, the Court does not find any infirmity in the finding of the learned Sessions Judge that the factum of sexual assault on PW-4 was corroborated by the witnesses and evidence on record. 18. There is one more factor which we deem it appropriate to refer to. It has been observed that when PW-1 had examined the victim under Sec. 164 CrPC on 26/9/2012, the said learned Magistrate had recorded the age of the victim as 11 years, as stated by her father and therefore, the victim (PW-4) was not administered oath. However, when the learned Sessions Judge had examined the victim on 17/7/2017, she had stated her age to be 17 years, and thus, she was administered on oath at the commencement of her examination. The defence did not give any suggestion to the PW-4 that she was not a minor of about 11 years of age when she was examined by PW-1 on 26/9/2012 and moreover, no suggestion was given to the PW-4 that she was more than 17 years of age on 17/7/2017, when she was being examined as PW-4. Therefore, non- administration of oath to a minor under age of 12 years cannot be said to be fatal as per the provisions of Proviso to Sub-Sec. (1) of Sec. 4 of the Oaths Act, 1969 and the same does not render the statement as inadmissible. 19. Therefore, in this case, the prosecution has been able to conclusively prove through oral as well as documentary evidence that the appellant had raped PW-4. 20. In this case, the prosecution could not prove the age of the victim and therefore, it appears that in the absence of age-proof, the prosecution had not prosecuted the appellant under the provisions of Protection of Children from Sexual Offences Act, 2012, which had been notified in the official Gazette on 19/6/2012. The age of the minor could have been proved by way of ossification test, but be that as it may, the same cannot be remedied now. 21. Therefore, in light of the discussions above, the Court does not find any infirmity in the appreciation of evidence by the learned Sessions Judge and resultantly, the impugned judgment and sentence does not warrant any interference. 22. 21. Therefore, in light of the discussions above, the Court does not find any infirmity in the appreciation of evidence by the learned Sessions Judge and resultantly, the impugned judgment and sentence does not warrant any interference. 22. Accordingly, the conviction of the appellant under Sec. 376 IPC and sentence to undergo rigorous imprisonment for 14 (fourteen) years and to pay a fine of Rs.25,000.00, with default clause of undergoing a further sentence of 6 (six) months are upheld. 23. The appeal stands dismissed. 24. The learned amicus curiae shall be paid usual honorarium. 25. Let a free copy of this appellate judgment be served on the appellant, namely, Shan Kumar Chakma @ Rango Suli Chakma, currently lodged at District Jail, Tezu. 26. Let the LCR be sent back.