Gauhati High Court
Gogen Kr. Das vs The State Of Assam on 13 February, 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
Crl. A. 280/2005
Gogen Kr. Das,
Son of Shri Gobinda Kr. Das,
Resident of Mirza, PS- Palasbari,
District - Kamrup (Rural).
...........Appellant
-Vs-
The State of Assam,
..........Opposite Party.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the Appellant : Mr. A.K. Bhuyan, Adv.
For the respondents : Mr. Z. Kamar, PP, Assam.
Date of hearing : 13.02.2013.
Date of judgement : 13.02.2013.
JUDGEMENT AND ORDER (ORAL)
Sharma, J This appeal is directed against the judgement of conviction dated 30.11.2005 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 114(K)/2003, convicting the accused appellant under Section 376 IPC and sentencing him to undergo RI for six years and also to pay a fine of Rs. 2,000/- and in default, RI for another one year.
2. The brief story of the case is that Palasbari PS Case No. 115/2000 was registered under Section 448/376/511 IPC on the basis of the FIR dated 13.9.2000 (Ext-1) lodged by one Shri Ganesh Kalita (PW-3). He is the brother of the alleged victim girl. As per the FIR (Ext.1), on 13.9.2000, at about 10 a.m., the accused appellant taking Crl. Appl. 280 of 2005 Page 1 of 8 advantage of absence of anybody in the house of the victim girl, entered therein illegally and by closing the doors and gagging the mouth of the victim, tried to commit rape on her. The victim girl having raised hue and cry, he fled away through the kitchen door.
3. The Police carried out investigation and on completion of the same, submitted charge sheet against the accused appellant under Section 376 IPC. In the mean time, the victim girl made her statement under Section 164 Cr.P.C. (Ext.2), stating therein that the accused-appellant had committed rape on her taking advantage of the absence of anybody in the house at that point of time. Charge having been framed under Section 376 IPC, the Trial Court proceeded with the matter. During trial, the prosecution examined 12 witnesses and the defence none. However, statement of the accused-appellant was recorded under Section 313 Cr.P.C. The learned trial Court posing the following question and upon evaluation of evidence on record having convicted the accused appellant as aforesaid, he has filed the instant appeal.
"Whether the accused on 13.9.2000 at 10 A.M. did commit rape on Smti. Dulumoni Kalita, the sister of the informant Ganesh Kalita?"
4. It will be pertinent to mention here that pursuant to the aforesaid judgement of conviction dated 30.11.2005, although the accused-appellant was taken into custoy but by order dated 22.2.2006, he was allowed to go on bail in consideration of his application under Section 389(2) of Cr.PC. Mr. A.K. Bhuyan, learned counsel for the accused-appellant has submitted that the version of the victim girl is highly improbable and thus no reliance can be placed on the said version, so as to convict the accused-appellant under Section 376 IPC. Referring to the evidence on record, he submits that the alleged victim girl having stated different stories at different point of time, her version under 164 Cr.P.C statement and so also in the statement during trial, cannot be relied upon. In this connection, he has referred to the testimony of the other witnesses in which there is reference to his attempt to commit rape on the victim girl.
Crl. Appl. 280 of 2005 Page 2 of 85. Heard Mr. A.K. Bhuyan, leaned counsel for the appellant. Also heard Mr. Z. Kamar, learned PP, Assam. I have also very carefully considered the submission made by the learned counsel for the parties and have also gone through the entire materials on records.
6. Mr. Bhuyan, learned counsel for the accused-appellant has placed reliance on certain decisions, which are as reported in (2009) 11 SCC 566 (State of Uttar Pradesh Vs. Dinesh) ; (2010) 1 SCC 742 ( Sunil Vs. State of Haryana) and (2011) 7 SCC 130 ( Krishan Kumar Malik s. State of Haryana).
7. Countering the above arguments, Mr. Z. Kamar, learned PP, Assam has submitted that when the prosecutrix herself has stated about the offence committed by the accused-appellant, minor variations here and there cannot extend any help to the case of accused appellant. Emphasising the need to place reliance on the statement of the victim girl made during trial, he submits that when there is corroborative evidence by way of own statement made under Section 164 Cr.P.C., there is no question of interference with the impugned judgement of conviction.
8. As noted above, in the FIR lodged by the PW-3, it was stated that there was attempt to commit rape on the victim girl taking advantage of absence of other members of the family. The FIR was lodged on the basis of the information furnished by none other than the victim girl. However, when the girl was examined on the next day i.e. 14.9.2000, she made a completely different story stating that the accused-appellant forcibly entered into her house and gagging her mouth, committed the offence under Section 376 IPC. During trial also, she deposed in the same manner. Par contra, in the testimony of the PW-2 i.e. the mother of the victim, it was stated that she came to know that the accused committed rape on her daughter in absence of other family members and when she was alone. Referring to the FIR lodged by her son (PW-2), she also stated that on the basis of the said information gathered, the FIR was lodged. However, the fact of the matter is that in the FIR, there was no disclosure of commission of any rape by the accused-appellant. What was disclosed was the alleged attempt to commit rape on the victim girl.
Crl. Appl. 280 of 2005 Page 3 of 89. PW-3 is the brother of the victim who had lodged the FIR, who in his deposition stated that on his return to home, the victim had informed as to how the accused-appellant had tried to rape her. PW- 5 is the Doctor, who had examined the victim girl on 13.9.2000, who in his deposition stated about examining the victim girl and not detecting any mark of violence on her body. Thereafter, she was referred to the Gauhati Medical College and Hospital (GMCH) for further examination. In his cross examination, he stated that as per the statement of the victim, her age was 13 years. PW-6 is another doctor who had also examined the victim girl on 13.9.2000. At that point of time, he was posted at GMCH in the department of Forensic Medicine. Narrating the physical examination and Genital Examination, the doctor in his deposition stated thus :-
"The case history :
Her name is Miss Dulumoni Kalita. She has per parents and two brothers. All of they stayed in Mira Lachitnagar village under Palasbari P.S. One boy Sri Gagan Kumar S/o Sri Gabinda Kumar resided near her house in the same village. Today morning at about 10 AM Mr. Gagan Kumar came to her house and tried to perform sexual intercourse with her with consent.
But suddenly her sister-in-law came to her house and they could not do the same and he fled away. During this period her parents and two brothers wet for their respective works and she was alone in the house.
Physical Examination :
Height - 138 cm, Weight - 40 Kgs, chest girth - 87 cm. Abodmen irth - 72 cm. Total teeth 32, all permanent. History of puberty - she attained menarche - 5 years back (approx) Menstural -
Regular. Last mestrual period 4 days.
Genital Examination :
General organs - Developed, Vulva - Healthy. Hymen - old tears at 3, 6 and 11 clock positious, Orific admits two finger easily. Vagina - Healthy, evidence of menstrual bleed present. Cervix - healthy, evidence of menstrual bleed present. Utterus - healthy. Evidence of veneral disease - clinically not detected. Evidence of injury on her body or private part - not detected. Vaginal smears taken on glass slids for laboratory investigations - 2 Crl. Appl. 280 of 2005 Page 4 of 8 glass smears taken for laboratory investigation. Mental condition - Nothing abnormality detected.
Radiological investigation : No. 7225 dtd. 13.9.2000.
X-Ray Reports : Wrist joint, Elbow joint and shoulder joint - Epiphysial union of bones around the wrist joint and shoulder joinet have completed. Pelivis - Illia crest epiphysial unionis yet to be completed".
10. As regards the result of the laboratory investigation and his opinion, the said witness stated thus :-
"Result of laboratory investigation :
Vaginal smear does not show spermatozo and gonococici.
OPINION
On the basis of physical examination,
Radiological investigation and laboratory
investigation of Miss Dulumoni Kalita, I am of the opinion that -
(1) No injury detected on her body and private parts.
(2) Evidence of recent sexual inter course with the girl is not found. She is used to sex.
(3) Her age is above 18 years (eighteen years) and below 19 years.
Ext. 4 is my report in three sheets. Ext. 4(1), 4(2) and 4(3) are my signatures.
The case history as stated by the victim herself reveals that accused Gagan Kumar tried to have sexual intercourse with her consent."
11. If go by the aforesaid testimony of the doctor (PW-6) who had examined the victim girl, what is seen is that the girl was about 18 years but below 19 years of age. As per the statement, the victim herself revealed to him that accused -appellant tried to have sexual Crl. Appl. 280 of 2005 Page 5 of 8 intercourse with her consent. This version of the doctor has gone un- controverted in absence of any cross examination. PW-7 is the Judicial Magistrate, who has recorded the statement of the victim girl under Section 164 Cr.P.C. PW-8 is the Registrar of Radiology Department in the GMCH, who had submitted the Ext.4 report. PW-9 is the father of the victim girl, who also in his deposition stated like that of the mother of the victim girl i.e. PW-2. PW-10 in her deposition stated about going to the residence of the victim girl and as to how she found the doors closed, when the victim girl came out, she allegedly told her that the accused-appellant had committed bad thing on her. However, in his cross examination to the suggestion made that she has never stated so before the IO in her statement recorded under Section 161 Cr.P.C., she did not accept the same.
12. PW-11 in her deposition also stated that rape was committed on the victim girl. In her cross examination, suggestion was made that in her statement made under Section 161 Cr.P.C., she had only stated that she was suspicious about the commission of bad thing on the victim girl. PW-12 is the IO, who in his deposition stated about conducting investigation and submission of charge sheet under Section 448/376 IPC. In his cross examination, he admitted that the victim girl had stated before him that there was attempt to commit rape on her by the accused appellant.
13. Although, Mr. Bhuyan, learned counsel for the appellant in reference to the aforesaid evidence and the decisions cited above, had submitted that the accused appellant is entitled to the benefit of doubt, Mr. Z. Kamar, learned PP, Assam submitted that the evidence being overwhelming, he is not entitled to get acquittal. He further submits that leaving aside the evidence of the victim girl, at-least the commission of the offence of attempt to commit rape has clearly been established. He has hastened to add that the submission may not be construed to be a submission made for substitution of the offence to that of attempt to rape in place of rape.
14. As noted above, in the FIR, the offence against the accused- appellant alleged was that of attempt to commit rape. Even in her statement under Section 161 Cr.P.C. the victim girl stated that there Crl. Appl. 280 of 2005 Page 6 of 8 was attempt to commit rape on her by the accused appellant. Similarly, in the evidence of PW-1, it has come out that she had stated before the Police that suspicion arose in respect of the incident. PW-12, the IO also in his statement confirmed the position that during her statement under Section 161 Cr.P.C., she had only stated that there was attempt to commit rape on her.
15. As noted above, the PW-6, the Doctor who had examined the victim girl in the GMCH also stated in his deposition that the girl was above 18 years of age and below 19 years. He in his deposition also stated that she was used to sex. He in his deposition also stated that the victim girl had revealed before him that the accused tried to have sexual intercourse with her.
16. From the above, the conviction of the accused appellant solely on the testimony of the victim girl made during trial preceded by her statement made under Section 164 Cr.P.C., in my considered view, cannot be sustained. However, at the same time, from the evidence on record including the statement of the victim girl, it has clearly been established that there was attempt to commit rape on her. In this connection, explanation to Section 375 IPC may also be referred to. The medical report having not suggested anything of this sort, it will be dangerous to convict the accused appellant under Section 376 IPC. However, it is clearly established that the accused appellant had tried to commit the offence and accordingly, he is liable for the offence of attempting to commit rape on the victim girl. Accordingly, the judgement of conviction and sentence stands substituted by the penalty of attempt to commit rape with substitution of penalty by 3 years RI with a fine of Rs. 2000/- that has already been awarded in the impugned judgement of conviction.
17. In addition to the above, the victim girl will also be entitled to the compensation of Rs. 25,000/- (Rupees twenty five thousand) only to be paid by the appellant. It is made clear that the period of conviction the accused appellant has already undergone, shall be adjusted from the penalty as per provision of Section 428 Cr.P.C.Crl. Appl. 280 of 2005 Page 7 of 8
18. Criminal appeal is partly allowed as above. Registry is directed to send down the LCR to the court below along with copy of this judgement and order. The accused appellant shall be taken into custody immediately for undergoing the sentence as above.
JUDGE Sukhamay Crl. Appl. 280 of 2005 Page 8 of 8