Gauhati High Court
Sonia Chouhan vs State Of Assam And Anr on 12 March, 2020
Author: Ajit Borthakur
Bench: Ajit Borthakur
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GAHC010192412013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 107/2013
1:SONIA CHOUHAN
D/O RAM LAKHAN CHOUHAN, VILL. KHAKIHLANGBARI, P.S. and DIST.
UDALGURI B.T.A.D.
VERSUS
1:STATE OF ASSAM and ANR.
2:DHANANJOY CHOUHAN
S/O LATE RAMBRISH CHOUHAN
VILL. KHANGKHALABARI
P.S. and DIST. UDALGURI
Advocate for the Petitioner : MR.B BRAHMA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER (ORAL)
Date : 12-03-2020 Heard Mr. A.K. Bhuyan, learned Senior counsel for the appellant/victim. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam appearing on behalf of the State/respondent No. 1 and Mr. A.R. Shome, learned counsel for the respondent No.2/accused.
2. This appeal under Sections 372/378 Cr.P.C. is preferred praying for setting aside the Page No.# 2/6 impugned Judgment and Order of acquittal of the respondent No. 2/accused, dated 14.02.2013, passed by the learned Sessions Judge, Udalguri in Sessions Case No. 2(U- D)/2013 under Section 376 of the IPC.
3. The appellant/victim's case, in a nutshell, is that she filed an FIR before the Officer In-charge of Udalguri P.S. on 20.07.2012, alleging, interalia, that during 'chat puja', on 02.11.2011 at around 7.00-8.00 p.m, the respondent No. 2/accused entered her aunt's house and gagging her mouth forcibly committed rape on her. Thereafter, the respondent No. 2/accused continued to threaten her with dire consequences, if she disclosed the incident to someone. She also alleged that due to rape of her, she became pregnant.
4. Based on the above FIR, Udalguri P.S. Case No. 87/2012 under Section 376 of the IPC was registered and after completion of the investigation, the police submitted charge-sheet under Section 376 of the IPC against the respondent No. 2/accused. After committal of the case, Sessions Case No. 2(U-D)/2013 was registered in the Court of learned Sessions Judge, Udalguri, Assam.
5. The learned Sessions Judge, Udalguri, on consideration of the materials on the case diary and hearing the learned counsel for both sides framed charge under Section 376 of the IPC against the respondent No. 2/accused. On reading over the charge, the accused pleaded not guilty and claimed to be tried. In order to prove the charge, the prosecution examined 3(three) witnesses including the victim girl, out of 8(eight) cited witnesses. After closing the evidence of the prosecution side, the learned Sessions Page No.# 3/6 Judge, Udalguri by order, dated 14.02.2013, dispensed with recording of the statement of the accused under Section 313 Cr.P.C and after hearing the arguments of both the sides and consideration of the evidence on record, the learned Sessions Judge by the impugned Judgment and Order, dated 14.02.2013, acquitted the respondent No. 2/accused of the charge and set him at liberty.
6. Mr. A.K. Bhuyan, learned Senior counsel appearing for the appellant/victim submits that during the course of the trial of the case, the prosecution did not exhibit the statement of the victim, recorded under Section 164 Cr.P.C and did not even examine all the witnesses cited in the charge-sheet including some of them in attendance. Mr. Bhuyan further submits that in such a serious offence against woman committed by the respondent No. 2/accused, only 3(three) P.Ws were examined out of 8(eight) cited witnesses in the charge-sheet. Mr. Bhuyan also submits that the appellant/victim filed a petition on 14.02.2013 before the Court of learned Sessions Judge, Udalguri invoking Section 153-A Cr.P.C. for DNA Test of the child, but no order was passed on it. Mr. Bhuyan submits that the impugned Judgement and Order of acquittal of the respondent No. 2/accused appears to be patently wrong and unsustainable, as the Doctor, who examined the victim girl and the Investigating Officer were not recorded in the case, not to speak of passing any order on the petition for DNA Test of the child of the victim born from the side of the respondent No. 2/accused. Mr. Bhuyan, therefore, vehemently submits that the impugned Judgment and Order is liable to be set aside and remanded back to the learned trial Court for re-trial.
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7. Mr. B.B. Gogoi, learned Addl. Public Prosecutor appearing for the State/respondent No. 1, fairly submits that in the trial for offence of rape, the prosecution was duty bound to examine all the cited witnesses in the charge-sheet to ascertain the truth of the allegations, but that was not done in the instant case. Mr. Gogoi also submits that as the prosecution did not examine all the cited material witnesses in the charge-sheet and closed the prosecution evidence abruptly after recording the evidence of only 3(three) witnesses, without even exhibiting the statement of the victim under Section 164 Cr.P.C., justice appears to have failed in the case.
8. Mr. A.R. Shome, learned counsel appearing for the respondent No. 2/accused fairly submits that if all the witnesses cited in the charge-sheet were examined, the truth or falsity of the allegations made by the victim would have established and on the other hand, even no order was passed on the petition filed by the victim under Section 153- A Cr.P.C., the matter may be remanded back for re-trial.
9. I have given due consideration to the above arguments advanced by the learned counsels for both the sides and perused the record.
10. Perusal of the record shows that the learned trial Court below did not record the evidence of all the material witnesses including the Doctor, who examined allegedly the rape victim and the Investigating Officer in the case. It has come in the evidence of P.W-1/victim that she had given a statement under Section 164 Cr.P.C. before the learned Judicial Magistrate, but the same also remained unexhibited during trial. It is further noticed that the learned trial Court dispensed with examination of the Page No.# 5/6 respondent No. 2/accused under Section 313 Cr.P.C. depriving him of valuable right to explain the prima facie incriminating material, if any that emerged on evidence against him.
11. On the other hand, the learned Sessions Judge, Udalguri omitted to pass a judicial order on the petition filed by the victim under Section 153-A Cr.P.C., whereby she prayed for DNA Test of the Child, who, she claimed to have born due to the rape committed by the respondent No. 2/accused on her. Therefore, in the aforesaid compelling reasons, this Court is of the opinion that the impugned Judgment and Order of acquittal of the respondent No.2/accused was apparently founded on patently misapplication/ no application of provisions of procedural and substantive law and as such, not sustainable.
12. Accordingly, without interfering in the reasons cited by the learned trial Court in the impugned Judgment and Order for the reasons of non-examination of the remaining material cited witnesses in the case and the omission to pass any speaking order on the petition filed by the appellant/victim on 14.02.2013 under Section 153-A Cr.P.C., the impugned Judgment and Order of acquittal of the respondent No. 2/accused is liable to be set aside.
13. Accordingly, the appeal stands allowed and the impugned Judgment and Order, dated 14.02.2013, passed by the learned Sessions Judge, Udalguri in Sessions Case No. 2(U-D)/2013, is hereby set aside and the matter is remanded back for re- trial after the stage of evidence of P.W.-3 and pass a fresh judgment Page No.# 6/6 granting adequate opportunity to both the sides.
14. Be it mentioned here that the learned trial Court shall not be influenced by any of the observations made by this Court in the course of this judgment and order.
Send back the LCR.
JUDGE Comparing Assistant