Gauhati High Court
Babul Deka vs The State Of Assam on 1 August, 2013
Author: P. K. Saikia
Bench: P. K. Saikia
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal
Pradesh )
Crl. Rev. P. No. 25 of 2013
Shri Babul Deka
S/o Shri Putul Deka
R/o Vill. Gaganibori, P.S. Morigaon,
Dist. Morigaon, Assam
........Appellant
-Versus-
The State of Assam
...... Respondent
PRESENT
HON'BLE MR. JUSTICE P. K. SAIKIA
For the Appellants ... Mr. P.R. Borah, Advocate
For the respondents ...Mr..B. Dutta, learned Addl. PP,
Assam
Date of Hearing ... 01.08.2013
Date of judgment ... 01.08.2013
JUDGMENT AND ORDER (ORAL)
The appeal is directed against the judgment passed by the learned Assistant Sessions Judge, Morigaon in Session case No. 60/2009 convicting one Sri Babul Deka under Section 366/376 IPC and sentencing him to RI for 7 years and fine of Rs. 1,000/- in Crl. Rev. P. 25 of 2013 Page 1 of 11 default, RI for another one month for each of those offences as well as the judgment dated 15.2.2011 passed by the learned Sessions Judge, Morigaon in Criminal Appeal No. 9/2011 maintaining the conviction recorded by the learned trial court as far as offence under section 376 IPC is concerned.
2. Being agreed by the aforesaid judgments, Sri Babul Deka, herein after referred as accused person, has been preferred this criminal revision petition citing several infirmities in those judgments.
3. The brief facts necessary for disposed of the present proceeding are that on 21.11.2008, one Sri Gajendra Deka of village Gaganibori under Morigaon Police Station in the district of Morigaon lodged an FIR with O/C, Morigaon Police Station alleging inter alia that on 10.11.2008, in the evening, accused Shri Babul Deka of Lathabari (Gaganibori) village of Morigaon kidnapped his minor daughter, hereafter referred prosecutrix, aged about 16 years.
4. The complainant and his family members made a search for the missing girl and were able to locate their daughter in the house of one Gabbar Singh of Bhomoraguri. They also came to know that accused Babul Deka took the daughter of Sri Gajendra Deka to such place. The family members of the victim girl recovered her as well as the accused person and were handed over to police
5. On receiving FIR, O/C, Morigaon Police registered a case, vide Morigaon P. S. Case No. 325/09 under Section 366 IPC ordered investigation and entrusted one Sri Chatindra Kakoty, S.I. of police to investigate the case. During the course of investigation, the I/O Crl. Rev. P. 25 of 2013 Page 2 of 11 visited the place of occurrence, got the girl examined by doctor, had her statement recorded by Magistrate and on completion of investigation, he submitted charge-sheet under Section 366/376 against the accused person and forwarded him to the court to stand his trial.
6. The learned Magistrate before whom the charge-sheet was so laid, committed the case to the court of Sessions since the offences under Section 366/376 IPC are exclusively friable by court of Sessions. On receipt of the case on commitment, learned Sessions Judge transferred the case to the file learned Assistant Sessions Judge for disposal in accordance with law. The learned Assistant Sessions Judge on receipt of the case on transfer, framed charges under Section 366/376 IPC and explained and read out the charges to the accused person.
7. The accused person on being read over and explained the charges, so framed against him, pleaded not guilty to the charge and claimed to be trial. During the trial the prosecution has examined as many as 7 witnesses including the informant, victim as well as the I/O of the case. The statement of the accused person under Section 313 CrPC was recorded. Accused plea was of denial. He, however, declined to adduce any evidence of his own.
8. On the conclusion of the trial and on hearing the arguments advanced by the learned counsel for the parties, the learned trial court convicted the accused of offence under Section 366/376IPC and sentenced him to punishment as aforesaid. Being aggrieved, the Crl. Rev. P. 25 of 2013 Page 3 of 11 accused preferred an appeal before the Sessions Judge, Morigaon. The learned Sessions Judge, on hearing the parties, while acquitting the accused of offence under Section 366 IPC, maintained the conviction under Section 376 IPC and reduced the sentence, imposed upon the accused person to 5 years.
9. Still being aggrieved, the accused person has preferred this revision petition stating that judgments, impugned in this proceeding are not sustainable in law since the learned trial court and appellate court recorded the a verdict of guilt under Section 376 IPC although there were no materials on record to do so. He, therefore, submits this Court to acquit the accused person offence under Section 376 IPC on setting aside the judgment of the courts below.
10. I have heard the arguments, advanced by the learned counsel for the parties, having regard to the evidence on record as well as the judgment under challenge. Here it may be noted that a revisional court ordinarilly does not scrutinize the evidence on record to ascertain if the order/judgment under challenge is sustainable in law. Revisional court would not do such an exercise unless it is proved that the judgment/ order, rendered by court below are perverse which occasions prejudice and injustice to the parties.
11. Since the petitioner herein complained that learned courts below in convicting him of offence under Section 376 IPC and also in punishing him as aforesaid had caused enormous injustice and hardship to him, he, therefore, urges this Court to set aside those judgments which are impugned in this proceeding and to acquit him Crl. Rev. P. 25 of 2013 Page 4 of 11 of offence under Section 376 IPC. In such a scenario, I am inclined to look into the evidence on record.
12. Before we proceed further, I have found it necessary to have a brief review of the evidence on record, particularly the victim, her father, the informant and the I/O. The victim was examined as PW2. According to her, one day, in the afternoon, she was proceeding to the residence of one Prasanta Nath, her music teacher.
13. As she reached the gateway of the house of Pransanta Nath, the accused came there in a motor cycle. He forcibly took her to his motor cycle and drove with her to Bhomoraguri, a place about 25/30 K.M. from her residence. Once they reached the house of one Gabbar Singh of Bhomoraguri, she was kept confined in his about two days. During such period, he forced her to sleep with him at night and had sexual intercourse with her against her will. Two days thereafter, the accused left such place on the pretext that he was to join his office at Numaligarh and that he would be coming back in a day or two but he never returned there from.
14. Having found no other way out, she reported such incident to her father over phone who came there and recovered her from such place and also discovered the accused in the place where he was taking shelter after abandoning her in the residence of Gabbar Singh of Bhomoraguri. Her father then handed them over to the police and also lodged an FIR to it. She was taken to the Magistrate and also had her statement recorded by Magistrate which she proved as Ext.2. Crl. Rev. P. 25 of 2013 Page 5 of 11
15. In her cros-examination, she has stated that in order to reach the place at Bhomoraguri where she was kept for several days, one needs to cross several villages fully inhabited. It is in her cross- examination, she also admitted that the accused did not gag her mouth nor did he tied her hands and feet while carrying her from her place to Bhomoraguri in the motor cycle of the accused person.
16. PW1, Sri Gajendra Deka, in his evidence has stated that on 10.11.2008, her daughter had gone missing. At that time, she was 16 years of age. Though they tried to locate her, such effort had gone in vain. After about 4 days, they came to know that her daughter was kept confined in the residence of one Gabbar Singh of Bhonoraguri. He immediately went to such place, met his daughter there and came to know that the accused had kidnapped her from their village and kept her in confinement in the residence of aforesaid Gabbar Singh. They thereafter discovered the accused person also and handed accused as well as his daughter to the police. He lodged an FIR with police intimating it what he had learnt from his daughter. In his cross- examination, he has stated that the distance between his house and Gabbar Singh of Bhomoraguri is about 25 K.M.
17. PW6 is Sri Chatindra Kakoty, S.I. of police. According to him, on 21.11.2008, he was posted as S.I. of police at Morigaon Police Station. On that day O.C., Morigaon Police Station received an FIR from Sri Gajendra Deka. Having received the FIR, O.C. registered a case thereon and entrusted him to conduct the investigation. Crl. Rev. P. 25 of 2013 Page 6 of 11
18. Being so ordered, he visited the place of occurrence, arrested the accused person, examined the victim and other persons as well acquainted with facts and circumstances of the case. He also had examined the girt by the doctor and also had her statement recorded by Magistrate. On conclusion of investigation he has submitted the charge-sheet.
19. PW7, Smti Dharmeswar Deka is the wife of the informant. According to her, one day, her daughter went to house of Prasanta Nath her music teacher to take class on music. However, on the way, she was kidnapped by some unknown persons. She, therefore, reported the matter to the Women Organization of their locality. 9 days thereafter, her daughter was recovered from Bhomoraguri. After the recovery of her daughter, her husband lodged the FIR.
20. PW3, Girin Bordoloi, PW4, Bhupen Deka have deposed that the daughter of the informant had gone missing one day when she was proceeding to the residence of her music teacher. She was, however, recovered after sometimes from Bhomoraguri. According to PW4, the accused informed her father even on the day of incident itself that he took away his daughter but he did not inform the place where she was taken to.
21. PW5, Dr. K. Barsaikia has stated that he examined the victim on police requisition. According to him, at the time of incident, the girl was about 19 years of age but after examination of the victim, he did not notice any sign of violence on any over body parts including her Crl. Rev. P. 25 of 2013 Page 7 of 11 genital. The medical report prepared in connection with examination of the victim was proved as Ext-3.
22. It may be noticed that according to the doctor, the prosecutrix was a major girl at the time under consideration and such observation was made on scientific examination. There is absolutely nothing on record to hold a view that such a conclusion arrived at by the doctor qua the age of the victim at the time of relevant is not acceptable for any reason what so ever. Being so, I have no hesitation in coming to the conclusion that at the time of relevant, the prosecutrix was a major girl.
23. Now, let us see whether the accused had performed any sex with the prosecutrix and if so, he performed such sex with the prosecutrix against her will as claimed by the prosecutrix. The evidence on record particularly the evidence of prosecutrix reveals that after taking her to the residence of one Gabbar Singh of Bhomoraguri, the accused had performed sex with her on occasions more than one.
24. Such evidence finds corroboration from the statement of the victim which she detailed before the Magistrate, during the course of investigation which she proved as Ext-2. Though PW2 was cross- examined, such cross-examination could not dislodge the claim of the prosecutrix that accused had sex with her while she was kept in the residence of Gabbar Singh of Bhomoraguri.
25. Now, the question is whether such sexual encounter were done against her will. We have found that prosecutrix claimed that she was Crl. Rev. P. 25 of 2013 Page 8 of 11 forcibly taken by accused person while she was proceeding to the house of her music teacher. Having captured her at the place, in front of the house of her music teacher, the accused took her in his motor cycle to a village situated at a distance of about 25/30 K.M. from her village.
26. It is also in her evidence that she was kept there for about 4 days. There is nothing on record to show that any point of time during which she was in cofinement, prosecutrix tried to convey the family members of Gabbar Singh or for that matter any person who resides in or around the residence of aforesaid Gabbar Singh the misfortune that had befallen on her. More importantly, there is also no evidence to show that during the period when she was kept in the residence of Gabbar Singh, she was subjected to any kind of restraints what so ever.
27. When such evidence of prosecutrix in considered the facts and circumstances attending the case, there cannot be any escape from conclusion that the claim of prosecutrix that she had been forcibly taken away from the gateway of her music teacher, she was drove to Bhomoraguri in a motor cycle against her will and that she was forcibly kept in confinement in the residence of Gabbar Singh are nothing but hoax only without any element of truth therein.
28. We have already found that the prosecutrix has claimed that while she was kept in the residence of Gabbar Singh, she was forced to have sexual intercourse with the accused against her will. But when her claim aforesaid is also considered along with her other claims Crl. Rev. P. 25 of 2013 Page 9 of 11 which I have already discussed in detail herein before, there cannot be any escape from the conclusion that her claim that she was subjected to sexual assault by the accused against her will cannot be accepted without a huge grain of salt.
29. It may be noticed here that prosecutrix has stated that she reported the matter to her father after about 4 days of incident and she did so over phone. It is also in her evidence that she reported her father about her being kept in the residence of Gabbar Singh only when the accused abandoned her in the residence of Gabbar Singh. This only serves to show that the prosecutrix took offence to the conduct of the accused person only when he abandoned her in the residence of Gabbar Singh.
30. Unfortunately, this is also testimony to the fact that the prosecutrix remained a consensual party to everything the accused had done including his sexual encounters with the prosecutrix till the time of withdrawal of the accused person from the company of prosecutrix few days after her going missing from her residence. This only fortifies by conclusion that accused had sex with the prosecutrix with her consent.
31. Another factor that caught my notice is that PW4 in his evidence had stated that on the eventful day, in the afternoon, the accused reported the father of the victim that he was taking away his daughter from his residence. This is very significant because despite having such information about the accused taking away his daughter from his house on the day of incident itself, the father of the Crl. Rev. P. 25 of 2013 Page 10 of 11 prosecutrix waited till 21.11.2008 to lodge the FIR. This speaks loud and clear that the victim eloped with the accused and had sex with him with her consent.
32. The doctor, in his evidence opines that he did not notice any mark of violence on the private parts or any other body parts of the prosecutrix. Though to convict a person accused of an offence under Section 376 IPC, the finding of the doctor regarding presence of violence on the body parts of the victim is not a sign qua non, still, in the facts and circumstances of the present case, absence of such mark of violence only serves to show that prosecutrix willfully participated in the sexual encounters which she had with the accused person during the period aforementioned.
33. We have already found that the prosecutrix is a major girl when incident in question occurred. We have also found that the prosecutrix eloped with the accused on her own volition and had sex with him voluntarily. Situation being such, the decision of the learned appellate court acquitting the accused of offence under Section 366 IPC is found to be in tune with law.
34. However, his conclusion that accused is guilty of offence under Section 376 IPC is wholly incompatible with evidence on record so also with the requirement of law. Being so, his decision upholding the judgment of the trial court as far as the conviction of accused under Section 376 IPC is concerned is found unsustainable in law and as such same needs to be interfered with.
Crl. Rev. P. 25 of 2013 Page 11 of 11
35. In view of what I have discussed herein before and what have emerged there from, I am of the opinion that the conviction of accused under Section 376 IPC as recorded by trial court vide judgment dated 21.2.2011 passed by trial court which was affirmed by the appellate court vide its judgment dated 15.7.2011 rendered in Criminal Appeal No. 9/2011 are found unsustainable and they are accordingly set aside.
36. Consequently, this revision is allowed and the accused stands acquitted of offence under Section 376 IPC and is set at liberty forthwith if he is not required in other cases.
37. Return the LCR.
JUDGE naba Crl. Rev. P. 25 of 2013 Page 12 of 11