Gauhati High Court
Montu Kalita & Ors vs The State Of Assam on 19 April, 2011
Author: P. K. Musahary
Bench: P. K. Musahary
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA,
MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT
CRIMINAL APPEAL NO. 184/2007
1. Sri Montu Kalita
S/o Sri Haricharan Kalita
R/o village : Uzan Barbori
P.S. - Ananda Bazar, Barpeta
District - Barpeta, Assam.
2. Smti. Nilima Kalita
D/o Sri Upen Kalita
R/o village : Lakhipur Block
P.S. - Barbori, Barpeta
District - Barpeta, Assam.
......Appellants
- Versus -
State of Assam
.......Respondent
Advocates for the petitioners :- Mr. A. M. Mazumdar, Sr. advocate Ms. Dipika Borgohain, Mr. H. K. Machari Advocates for the respondents :- Mr. B. B. Gogoi, Addl. P.P. PRESENT THE HON'BLE MR. JUSTICE P. K. MUSAHARY Date of hearing :- 17.02.2011 Date of Judgment & order :- 19.04.2011 JUDGMENT AND ORDER(CAV) Heard Ms. D. Borgohain, learned counsel for the appellants. Also heard Mr. B. B. Gogoi, learned Addl. Public Prosecutor for the respondent State of Assam.
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2. This appeal has been preferred against judgment and order dated 07.05.2007 passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 30/2006 convicting the accused Montu Kalita to undergo R.I. for a period of 10(ten) years with a compensation of Rs. 50,000/-(Rupees Fifty Thousand) only to victim girl failing which he shall undergo another 5(five) years for the offence punishable u/sec. 376 IPC and sentencing accused Nilima Kalita to undergo R.I. for 7(seven) years with a fine of Rs. 1000/- I.D. further R.I. for another 2(two) months for her offence punishable under Section 109 IPC read with 376 IPC.
3. The prosecution case in short is that an FIR was lodged by one Basanta Kalita with Mosalpur Police Outpost on 18.06.2003 alleging, inter alia that accused Nilima Kalita who belonged to his own village, took his daughter Miss Heera(real name withheld), aged 15 years, on 05.01.2003, to Chaulabari village near Sarupeta to attend a particular function in the house of Smti. Kusum Kalita. Both of them spent a week there and thereafter, accused Nilima Kalita took informant's daughter to Uzan Barbori village and stayed in the house of her maternal uncle. In the second night, accused appellant No. 1 Montu Kalita, who was the son of Nilima's maternal uncle and a surrendered ULFA, was called to the room of the accused appellant No. 2 Nilima Kalita to have forcible sexual intercourse with the daughter of the informant by gagging her mouth. In the following day, both left Uzan Barbori village and came to Chaulabari village and spent two nights in the house of Kusum Kalita and thereafter, returned 3 home. At the time of occurrence when the victim girl raised objection, she was put to instant fear by the accused Nilima Kalita. On receipt of the FIR, Mosalpur Police Outpost made a G.D. Entry and forwarded the same to the Officer-in-Charge, Barpeta Road Police Station as the place of occurrence falls under his jurisdiction. A case was registered and investigation was made. The I.O. visited the place of occurrence and collected evidence. The victim was medically examined and the medical report was collected. She was produced before the court of CJM, Barpeta, to record her statement under Section 164 of the Code of Criminal Procedure, 1973. The accused Montu Kalita was arrested and the police submitted charge sheet against both the accused persons under Sections 109/376 IPC showing accused Nilima Kalita as an absconder. Subsequently, the accused Nilima Kalita was also arrested. The case was committed to the court of Sessions for trial. Based on the available materials, the court of Sessions registered Sessions Case No. 30/2006 and framed charges under Section 109 IPC read with Section 376 IPC against both the accused persons. On charges being read over and explained to them, they pleaded not guilty and claimed to stand trial.
The prosecution, in order to prove its case, examined as many as 7 witnesses including the I.O. and M.O. The defence examined none and took the plea of total denial as per statement made under Section 313 Code of Criminal Procedure, 1973. After conclusion of trial, the learned Sessions Judge convicted and sentenced the accused appellants, as stated earlier. 4
4. The mother of the victim girl, Smti. Debojani Kalita, was examined as PW-1. She deposed that her victim girl was brought by the accused Nilima Kalita to Chaulabari village as her companion to attend a function of ear-holding. After attending the said function, she was taken by accused Nilima Kalita to Borbari village where she stayed 2 days and returned home. Her daughter attained puberty only 2 years before the said incident but she did not have menstruation thereafter. It stopped and she became worried. When enquired, her victim daughter disclosed the fact that while she was in the house of Nilima's maternal uncle, she saw accused Nilima Kalita indulging in sexual intercourse with Montu Kalita and accused Nilima Kalita got frightened when she sensed that Miss Heera had come to know about it and she may disclose it to others. Then, accused Nilima Kalita insisted Montu Kalita to commit sexual intercourse with Miss Heera and thus, accused Montu Kalita committed rape on Miss Heera with the help of accused Nilima Kalita who tied the mouth of Miss Heera. Accused Nilima Kalita threatened Miss Heera not to disclose the occurrence to anybody. Due to rape, Miss Heera got pregnant and a child was born who was aged 3 years at the time of recording her evidence. In the cross-examination, this witness stated that she never visited the house of Montu Kalita. The prosecution tried to demolish the evidence of PW-1 by bringing on record that her husband is not living with her as he is having another wife and her second daughter is having illegitimate child but the defence put no specific suggestion to PW-1 that her daughter Miss Heera did not 5 accompany accused Nilima Kalita and did not visit and stay in the house of her maternal uncle.
5. The victim's father Basanta Kalita was examined as PW-3. He deposed before the court in similar way as deposed by PW-1. He was also not given specific suggestion as regards the visit and stay of his victim's daughter to the house of Nilima's maternal uncle. From the evidence of victim's parents, it is found that the fact of visit of Miss Heera with accused Nilima Kalita has been proved beyond all reasonable doubt.
6. The victim girl was examined as PW-6. She categorically deposed that accused Nilima Kalita brought her to the house of her sister at Chaulabari on the occasion of ear holding function and after spending one night thereat, accused Nilima Kalita took her to the house of her maternal uncle where she spent two nights. On the second night, while she was sleeping with accused Nilima Kalita on the same bed, Montu Kalita had sexual intercourse with accused Nilima Kalita. Miss Heera saw the said incident. Accused Nilima Kalita then told Montu Kalita that as Miss Heera has seen their illicit sexual intercourse, she would disclose it to others and as such, accused Nilima Kalita insisted Montu Kalita to commit sexual intercourse on her too and accordingly, Montu Kalita committed forcible sexual intercourse with her against her will. At that time, when Miss Heera cried, accused Nilima Kalita tied her mouth. Both the accused person told her not to disclose the occurrence. After the said incident, 6 accused Nilima Kalita and Miss Heera returned home. The victim Miss Heera did not report her mother as accused Nilima Kalita asked her not to disclose it. Her mother interrogated victim Miss Heera when her menstrual cycle did not take place. After 4 months, a quarrel took place between accused Nilima Kalita and Miss Heera when she became pregnant and she was not allowed to disclose the matter to her mother. Ultimately, victim Miss Heera disclosed the matter to her mother and then FIR was lodged by her mother. In the cross-examination, Miss Heera stated that it was her first visit to the aforesaid places. She also stated that at the time of making her statement before the Magistrate, she was pregnant of 8 months but she does not remember the date on which she was examined by the Magistrate. She also does not remember as to when her child was born. The defence tried to demolish her evidence by putting suggestion that she did not state before the police nor before the Magistrate that while she was sleeping with accused Nilima Kalita on the same bed, she saw sexual intercourse that took place between accused Nilima Kalita and Montu Kalita and she was asked by them not to disclose the occurrence and that accused Nilima Kalita insisted Montu Kalita to commit sexual intercourse with Miss Heera also. It was also suggested by the defence that she did not state before the police that accused Nilima Kalita caught her mouth while she was crying and that accused Nilima Kalita restrained her from disclosing the fact of stoppage of menstrual cycle.
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7. The M.O. Sri Poresh Kalita was examined as PW-2. According to him, on 21.06.2003, he was serving as Senior Medical & Health Officer at Barpeta Civil Hospital and on that day, on police requisition, and on being identified by a constable, he examined one Miss Heera, daughter of Basanta Kalita of village Lakhipur, assisted by a female attendant. He recorded his findings in a report, Ext.-1, which are as under:
" Build :Average
Height :5'1"
Weight :48 KG
All the secondary sex characters well developed. Breast :Engual. Secretion from the nipple present.
Areola :Blackish, striae Gravid present over abdominal wall.
Per Abdominal Examination : Uterus -24 weeks size. Foetus movement present. Foetus heart sound positive.
Hymen :Absent and no tear, abrasion or seminal staining found in the pereneal in the vaginal region.
Vaginal intrude accommodates two fingers.
Investigation :Vaginal swab does not show spermatozoa done at Barpeta Civil Hospital.
Ultra sonography of lower abdomen was advised but report not submitted till date. X-ray of right wrist, elbow and hip joint for age were advised but report not received till date.
OPINION : In my opinion, at the time of
examination, there was no sign of forceful sexual
intercourse and she is carrying 24 weeks of pregnancy. Regarding age, opinion is reserved as the related investigation report not received till date. Ext. 1 is my report and Ext.1(1) is my signature."
8. In a case of rape, the evidence of victim bears the maximum importance for the purpose of conviction or acquittal. Here is a case where the alleged offence was committed about 5 ½ months before the FIR was lodged on 18.06.2003.
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9. The appellants' counsel submitted that the prosecution case is to be disbelieved for the inordinate delay in filing the FIR. This point needs consideration. The informant tried to explain the delay by saying that the victim girl, due to threat given by the accused persons, could not disclose the incident to others. She did not relate the matter to anybody until her mother insisted upon her to tell the reason of stoppage of menstrual cycle. In a normal case, the said explanation is liable to be rejected but it is to be noted that the rapist once belonged to an extremist organization and it created an adverse impact on the mind of the victim girl after she was threatened by him. Moreover, the victim is an illiterate young girl coming from a rustic family whose parents are also illiterate. They belong to a tradition bound society and they did not like to face disgraceful situation that may come after initiation of the criminal proceeding. The illiterate victim girl, afraid of being ostracized and condemned in the society once the incident of her being raped become public, could not gather courage to lodge the FIR immediately. If the miserable story of the victim girl is rejected outrightly on the ground of delay in lodging the FIR, it would amount to denial of justice to her and it would provide safe escape for the perpetrators. Such situation has been discussed by the Apex Court in State of H.P. -vs- Prem Singh reported in (2009) 1 SCC 420 wherein it has been held that the delay in filing FIR in a case of sexual assault cannot be equated with case involving other offences. There are several factors which weigh in the minds of the victim girl and her family members before coming to police station to lodge a complaint. Therein, it has further been held that in a 9 tradition bound society prevalent in India more particularly, in rural India, it would be quite unsafe to throw out the prosecution case merely on the ground of delay in lodging the FIR. The aforesaid case lends enough support to the instant case and therefore, I would refuse to entertain the demand of the defence to reject the case on the ground of delay in lodging the FIR.
10. The evidence of PW-1 and 3, parents of the victim girl, sufficiently proved the fact that accused Nilima Kalita took Miss Heera(victim girl) with her and visited and stayed in the house of her(accused Nilima Kalita's) maternal uncle. This proved fact could not be disproved by the defence. The only point to be examined is whether the incident of rape upon the victim girl took place or not? One can hardly expect an eye-witness to an incident of rape in the night time but at the same time, it cannot be said that the act of rape cannot be proved by other evidence. In this case, there is no other evidence except the oral evidence of the victim girl. The medical evidence, as the victim girl was examined by the Doctor after a long gap from the date of incident and while she was in a full blown advanced stage of pregnancy, failed to lend any help to the prosecution. As an illiterate girl, it is quite natural that the victim girl would not be able to give the exact date on which she was raped but she categorically stated that she was raped on the second night of her stay with accused Nilima Kalita in her maternal uncle's home. The fact of victim's stay in that particular night with accused Nilima Kalita cannot be disbelieved inasmuch as it has not been disproved by the defence. The presence of 10 accused Montu Kalita in his house in that particular night also should be believed unless it is proved by the defence that he was not present in his house in that particular night. The defence led no evidence to that effect and as such, it stands proved that accused Montu Kalita was present in his house during those 2 days/nights.
11. As per their statements recorded under Section 313 of the Code of Criminal Procedure, 1973, accused Montu Kalita was aged about 23 years while accused Nilima Kalita was aged about 24 years at the time of the incident. The victim girl was much younger in age to the accused persons upon whom they may exhort undue influence and submission under threat. The victim, as per evidence of PW-1 and 3(parents), never visited the house of Nilima's maternal uncle before the said incident. The victim girl herself also deposed that she never visited the house of Nilima's maternal uncle earlier to the date of occurrence. Under such situation, it is quite possible that she was subjected to rape under threat by the accused appellants. The added circumstances as found from the evidence of the victim girl is that she was not the target of sexual abuse but when the illicit sexual act between the accused appellants became known to her, she became the target with an ill-motive to keep her mouth shut. This is not an unbelievable story just because there is no corroborative evidence to this. Under such circumstances, whether conviction can be recorded against the accused persons on the basis of the evidence of the victim girl alone.
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12. It is needless to reiterate here that as per present established law, conviction can be awarded solely on the basis of evidence of the victim if her evidence is found to be consistent, reliable, trustworthy, and of sterling quality gaining confidence of the court. In this regard, suffice it to refer to (i) Ramdas -vs- Stae of Maharashtra, (2007) 2 SCC 170, (ii) Kamalanath -vs- State of T.N., (2005) 5 SCC 194, and (iii) S. Ramakrishna -vs- State represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2009) 1 SCC 133. The established law has come to an extent that corroboration is not a sine qua non for conviction. It means that an accused can be convicted on the basis of the sole testimony of the victim without any corroborative medical and/or other evidence if her evidence is found to be of abovementioned standard. There are catena of decisions in this regard and it would be sufficient if one refers to Dinesh -vs- State of Rajasthan, reported in (2006) 3 SCC 771, inasmuch as it has been held therein, inter alia, that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. The facts related in the present case are similar to the aforesaid case and the same principle can be applied to the present case. As to consistency of evidence of the victim, the court is required to refer to her statement under Section 164 of the Code of Criminal Procedure, 1973, and the oral evidence tendered during trial before the trial court. I have read the FIR along with the victim's statement under Section 164 of the Code of Criminal Procedure, 1973, and her oral evidence on record. Her statement under Section 164 of the said 12 Code, is very concise but she disclosed the material fact. She has stated that the incident took place 6 months ago when she accompanied accused Nilima Kalita to her elder sister's house and thereafter, visited the house of Nilima's maternal uncle at Borbari. She happened to witness the illicit sexual act between the cousins, accused Nilima Kalita and Montu Kalita. As she witnessed their immoral act, accused Nilima Kalita asked Montu Kalita to have similar sexual intercourse with her(victim girl) and then, accused Montu Kalita raped the said victim by force. When the victim girl cried, accused Nilima Kalita tied her mouth by a piece of cloth. Both the accused asked her not to disclose the incident and told her that they would beat her if she does so. Her oral evidence before the court has already been discussed earlier. I find no contradiction(s) in her statements in material facts. There is no inconsistency in her statements and the same are found to be as reliable as trustworthy. There is nothing on record to show that there is/was enmity between the families of the accused persons and the victim girl. At least, no suggestion was put in this regard to PW-1 and 3, parents of the victim girl, that they lodged the FIR out of grudge against the accused persons. Such suggestion was also not put to the victim girl while she was cross-examined by the defence. The defence has not suggested the victim girl that she made false deposition against the accused persons at the instance or tutoring of some other persons out of grudge, ill-motive or mala fide intention. If that is so, can it be presumed or expected that the prosecution built up a false case against the accused persons? And why should a young illiterate, rustic and unsophisticated girl 13 like the present victim who attained puberty just 2 years before the incident, make such serious allegation against them at the cost of her own future and being condemned by all.
13. I have come across a judgment rendered by the Apex Court in Vijayan -vs- State of Kerala, reported in (2008) 1 SCC 763 wherein the accused rapist was acquitted on benefit of doubt. It was a case where the prosecutrix made a complaint 7 months after the alleged commission of rape and at the time of filing the complaint, she was carrying a baby of 7 months. According to the prosecutrix, in that case, initially, she did not protest in view of promise held out by the accused to marry her but when he refused to marry her, she filed the complaint. In the said premises, it was held that the prosecutrix having waited for 7 months for filing the FIR, in absence of any other supporting evidence, it would be unsafe to convict the accused wholly on the basis of the testimony of the prosecutrix, more so, when there was no DNA test to find out whether the child was borne out of the said incident of rape and the accused was responsible for birth of the child. In the present case, the promise of marriage is absent but the prosecutrix awaited about 6 months to file the FIR. Is it not unsafe to rely on the evidence of the prosecutrix and convict the accused? If the evidence of prosecutrix in the former case who waited for 7 months due to promise of marriage, could be disbelieved; how in the latter case, in absence of promise for marriage by the accused, who also awaited similar length of time without complaining even before her parents; could be believed? In Vijayan's case(supra), the accused 14 and the prosecutrix are neighbours. They know each other well and after the incident, the accused promised her to marry. With the hope of marriage, she did not disclose or make any complaint against the accused. There was no intimidation to the prosecutrix in that case. Here in the present case, the ground situation is different. She is totally unknown to the accused appellant No. 1 Sri Montu Kalita and she was put under threat and pressure not to disclose the said incident. As an illiterate and young girl of tender age, she felt insecure and she was at a loss as to what should be done under such situation. On being noticed by her mother about her physical development due to pregnancy, on her mother's insistence, she had to disclose the incident. Then her mother lodged the FIR. The facts and circumstances of these two cases are quite different and I find no ground for applying the ratio of above noted case to the present case, throwing out the evidence of the prosecutrix on the ground of delay in filing the FIR. There is another reason for the same inasmuch as in the aforesaid case, it has been observed that "if the prosecutrix has willingly submitted herself to sexual intercourse and waited for 7 months for filing the FIR, it will be very hazardous to convict on such sole oral testimony." At least, after going through the evidence on record, I have not been able to find out an element of willingness of the prosecutrix in indulging in such sexual intercourse with the accused, except of being raped. In my considered view, the learned trial court, after proper appreciation of evidence and materials on record, rightly convicted the accused appellant No. 1 Sri Montu Kalita and there is no reason for interference with the aforesaid conviction. 15
14. However, I find the question of sentence in respect of accused appellant No. 1 Sri Montu Kalita, requires reconsideration. It is brought on record that he was a member of the ULFA, an outlawed banned organization, who subsequently joined the mainstream by surrendering the arms. No material has been brought on record that he was indulging in unlawful activities after his surrender except his unethical and immoral physical relation with her cousin sister, accused appellant No. 2 Smti. Nilima Kalita. Their illicit relation was not known to anybody until their sexual act could be witnessed by the prosecutrix while she was in the house of accused appellant No. 1, as a guest, along with accused appellant No. 2. As stated earlier, the accused appellant No. 1 had no ill-motive or intention of committing rape on the prosecutrix but for the insistence of accused appellant No. 2, he had to commit the rape on the prosecutrix just to keep her silent. He was a victim of circumstances and he committed the offence at the instigation of accused appellant No. 2, who, as a woman, was rather supposed to protect the prosecutrix. In my considered view, these are the mitigating factors which were not taken into account by the learned trial court while awarding the sentence against the accused appellant No. 1. Considering the said mitigating factors, I come to a conclusion that ends of justice would be met if the sentence of 10 years R.I. is reduced to 7 years R.I. in respect of accused appellant No. 1 Sri Montu Kalita.
15. But there is something more to be discussed in regard to conviction and sentence of accused appellant No. 2 Smti. Nilima 16 Kalita. She is a woman. A woman cannot rape a woman. The crime of rape could be committed upon a woman by a man only and it cannot be committed by a woman. It is very much clear from the language used in defining the word 'rape' under Section 375 IPC which runs with the sentence "a man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the 6 following descriptions ..........." It is not necessary to discuss about the said exceptions and circumstances for the purpose of deciding this case. The learned trial court failed to apply its judicial mind to this aspect of the matter. Moreover, as per the evidence of victim Miss Heera, accused appellant No. 2 Smti. Nilima Kalita instigated and abetted the accused appellant No. 1 Sri Montu Kalita to commit rape. A question may arise whether the appellant No. 2 is liable to conviction for abetment of the offence. No charge has been framed against appellant No. 2 for abetment in committing the offence of rape and the learned trial court did not proceed to award conviction for abetment. Consequently, both the accused appellants were convicted and sentenced under Section 376 IPC only. It may also be noted that no charge under Section 34 IPC has also been framed in this case and as such, no conviction has been awarded under Section 34 IPC. In such situation, this court would refrain from making a discussion on the possibility of awarding conviction and sentence under Section 34 IPC. For conviction under Section 34 IPC, there must be common intention and the act must be done in furtherance of the common intention to do a criminal act. The possible common intention in this case is to 17 commit rape within the meaning of Section 376 IPC but if a woman cannot be raped by a woman as per the definition under Section 375 IPC, there cannot be a common intention in the minds of the accused appellants. The principle of common intention in committing a criminal act cannot be attracted in the case of offence under Section 376 IPC. I am taking this view in the light of the Apex Courts' decision in Priya Patel -vs- State of M.P., reported in AIR 2006 SC 2639. That was a case of gang rape where the wife of the appellant facilitated commission of gang rape within the meaning of Section 376(2)(g) IPC. After elaborate discussion on the provisions under Sections 375 and 376 IPC, it was held therein, amongst other, that a woman cannot be prosecuted for alleged commission of offence of gang rape. It is imperative to quote few lines from paragraph No. 8 of the aforesaid judgment for better appreciation of all concerned.
"............... The language of sub-section(2)(g) provides that "whoever commits gang rape" shall be punished etc.. The explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who 18 has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape."
16. For the aforesaid reason, the conviction and sentence handed down upon the accused appellant No. 2 Smti. Nilima Kalita, cannot be sustained and it is liable to be set aside and quashed. She is entitled to acquittal and it is ordered accordingly. She shall be set at liberty forthwith if her further detention is not required in connection with any other case(s).
17. Resultantly, conviction of accused appellant No. 1 Sri Montu Kalita stands upheld with modification in the sentence as indicated above. He shall be entitled to set off the period he was in jail during investigation and trial. There shall be no alteration/ modification against the order of compensation amount of Rs. 50,000/- as imposed by the learned trial court to be paid to the victim girl(Miss Heera) and the default stipulation.
18. The criminal appeal stands partly allowed to the extent noted above.
19. Send down the records forthwith.
JUDGE Bikash 19