Gauhati High Court
Dipen Dutta vs The State Of Assam on 1 August, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
Criminal Appeal 189/2008
Dipen Dutta
Vs
State of Assam
BEFORE
HON'BLE MR. JUSTICE HITESH KUMAR SARMA
Advocate for the Appellant : Mr. R Ali, Mr. M H Ahmed &
Ms. S Kanungoe.
Advocate for the Respondent : Mr. P S Lahkar, ld. Additional PP.
Date of hearing & Judgment : 01.08.2017
JUDGMENT AND ORDER (Oral)
This is an appeal, under Section 374(2) Cr.PC, against the judgment and order dated 26.09.2007, passed by the learned Sessions Judge, Dhemaji, in Sessions Case No. 30(DH)/2006, convicting the accused appellant under Sections 448/376 IPC, and sentencing him to undergo Rigorous Imprisonment for 3 (three) months and 7 (seven) years, respectively, and to pay a fine of Rs. 2,000/- (rupees two thousand), in default to undergo Rigorous Imprisonment for 1 (one) month.
Page 1 of 9 Crl.A.189/2008
2. The case for the prosecution is that, on 1.10.2005, the accused appellant went to the house of the victim, at about 3:00 pm, while she was alone, the accused forcibly committed rape on her. At the time of commission of rape, the elder sister and the brother of the victim came home, and the accused fled away. On the above facts, the victim herself lodged the FIR.
3. On receipt of the FIR, the Dhemaji Police Station registered a case against the accused, and after completion of the investigation of the case, submitted charge-sheet against the accused under Sections 448/376 IPC.
4. On receipt of the case, on being committed by the learned Chief Judicial Magistrate, after hearing both sides, the learned Sessions Judge framed a formal charge against the accused under Sections 448/376(1) IPC, to which the accused pleaded innocence.
5. In his statement, recorded under Section 313 Cr.PC also, the accused pleaded innocence and denied the accusations.
6. In this case, the prosecution examined as many as 7 (seven) witnesses, who were cross-examined by the defence. Defence examined none.
7. I have heard learned Additional PP for the state respondent. None appeared for the appellant.
8. This appeal is listed before this court in the hearing list, commencing from 10.7.2017 till 1.9.2017. The court has given enough opportunities to the appellant to take part in the hearing calling him several times till last few days. Page 2 of 9 Crl.A.189/2008
9. Since none appeared for the appellant, even after opportunity was given, the appeal is taken by this court for disposal on merit on perusal of the evidence on record, the judgment of the learned trial court and also and after hearing learned Additional PP for the state, Mr. P S Lahkar.
10. Let us now scan the evidence on record to find out whether the accused trespassed into the house of the victim/informant with a view to commit an offence, and, whether he committed rape on the victim ?
11. The evidence of PW1, who herself is the victim, deposed that on 1.10.2005, while she was alone at her home, at about 3:00 pm, the accused, whom she knew from before came to their house, caught hold of her hands, took her inside the room, undressed her, laid her on the bed and committed rape on her, after putting her to threat. She felt pain on her vagina and her vagina was bleeding. Her elder sister/PW2 and brother/PW2, who were not present in the residence, came home back and found the accused fleeing from their house. The victim reported the fact of commission of rape on her person to her elder sister and brother, i.e. PW2 and PW3, respectively. She also informed her parents about the occurrence. PW3, i.e. her brother, went to the house of the accused next day in search of him, but he did not find the accused in his house. Then she went to the Machkhowa Police Outpost and lodged the FIR. But, the police refused to accept the FIR. Thereafter, she approached the Superintendent of Police, Dhemaji, and on being advised, she lodged the FIR at Dhemaji Police Station on 8.10.2005 vide Ext.1. The police, during investigation, Page 3 of 9 Crl.A.189/2008 got her examined by the doctor and her statement was also recorded by the learned Magistrate, vide Ext.2.
12. The evidence of PW1/victim to the effect that the accused appellant committed rape on her in her own house and then fled away from her house, was witnessed by PW2 and PW3, remained intact. Even in her cross- examination, the defence has not brought anything to discredit her such evidence. Her evidence, so far commission of rape on her person by the accused appellant, could not be impeached by the defence in view of her consistent evidence as well as failure on the part of the defence to discredit her such evidence. In her statement, recorded under Section 164 Cr.PC also, makes it clearly appear that the accused visited their house and enquired as to whether anybody was there in the house, and when he came to know that none, except the victim was available in the house, he caught hold of her, dragged her to inside the house, gagged her, and thereafter, committed rape on her person after undressing her. He also threatened her not to call anybody, failing which she would be cut. She was laid on the bed, tore off her clothes, touched her breast and then committed rape by the accused. In her such statement, she has narrated the sequence of events from the accused appellant coming to her house till commission of the rape. In her evidence on oath, before the learned trial court also, she maintained the consistency in respect of commission of rape on her person by the accused appellant. The evidence of PW2 and PW3 are found to have supported her evidence, as both of them are found to have stated in their evidence that the victim/PW1 reported the occurrence to them immediately Page 4 of 9 Crl.A.189/2008 after the occurrence and also in respect of the fact that both of them saw the accused appellant fleeing from the place of occurrence on their arrival at their house. The medical evidence of Dr. Tikendrajit Taid, examined as PW7, is that he examined the victim/PW1 in Dhemaji Civil Hospital on police requisition. His findings, on examination of the victim are, as follows :
General Examination : Young stout girl, fully conscious, well oriented consented for examination.
Pulse : 74/mm
Blood Pressure : 110/70 m.m.
Temperature : Normal
Dehydration : Nil
No any external injury seen.
Systemic Examination :
Chest : Bl. Clear, no added sounds
CVS : S1S2 - Normal, no added sounds
P.A. : Soft, no tenderness
CNS : Normal
Examination of Genitalia :
Patient was asked for removal of clothing. No any foreign particle (or object) or staining in the clothes seen.Page 5 of 9 Crl.A.189/2008
On Inspection : Slight bleeding coming out of vagina seen.
No injury or scar seen over vulva including perineum.
No staining seen in the pubic hair.
No injury seen in the clitoria and labia minor.
Hymen is annular, too loose for one finger but no irregularity seen.
Vaginal wall healthy with corrugation and cavity roomy.
Cervix - healthy with slight bleeding through canal.
Bineameal Examination : Revealed normal sized anteverted uterus with normal adrexa.
Vaginal swab from introitus, vaginal wall and cervix taken, sent for laboratory analysis - Report not produced.
Radiological Age Determination : Advised, report not produced.
13. It appears from such evidence of the doctor, which the defence failed to discredit during the cross-examination, read with the evidence of the victim that there was bleeding from her vagina. In the opinion of the doctor/PW7, there was a rupture of hymen without any signs of injury in the genetalia which raises probability of vaginal penetration. In her evidence, as PW1, the victim has very categorically stated that the accused had penetrating sexual intercourse with her, which received corroboration from the medical evidence of the doctor. The medical examination report of the victim, marked Ext.4, is not a matter of Page 6 of 9 Crl.A.189/2008 discord in the case in view of the fact that the same remained unassailed by the defence as against the positive evidence led by the PW7/doctor. The evidence of PW4 is not of much relevance in view of the fact that he has not narrated anything relating to the occurrence. The evidence of PW5 is that he did not know the accused, and one day, he heard that somebody was crying in the house of the victim although he did not go to see that. Next day, he heard that the victim wanted to go with a boy but the boy did not take her with him. Such evidence of PW5 cannot be correlated with offence alleged in the case, and therefore, his evidence is of no relevance. The evidence of PW6 is that he investigated into the case. He has narrated various stages of the investigation, and finally, submitted the charge-sheet against the accused appellant.
14. As discussed above, the consistent evidence of PW1/victim, her elder sister/PW2 and her brother/PW3 regarding commission of rape and the sequence of events including witnessing the accused appellant fleeing from the place of occurrence at the time of occurrence coupled with evidence of the doctor that there is probability of penetrating sexual offence committed on the person of the victim as well as the evidence of PW1 that the accused had penetrating sexual occurrence with her, unerringly points to the fact of commission of rape on the person of the victim/PW1 by the accused appellant.
15. The evidence of PW1/victim is found to be reliable being consistent all along, from the stage of recording her statement, under Section 164 Cr.PC to the stage of recording her evidence before the court, and also the support lent to her Page 7 of 9 Crl.A.189/2008 by PW2 and PW3 to the effect that they saw the accused appellant fleeing from the place of occurrence. Further corroboration from the medical evidence leaves this court with no doubt that rape was committed on the person of the victim and it was none but the accused who committed rape.
16. There is no necessity of seeking corroboration of any eyewitnesses or any independent witness in this case for the reasons that the occurrence took place at the house of the PW1/victim while none was there except herself and also due to the fact that the evidence of the victim/PW1 is found to be reliable, and therefore, further corroboration would have been necessary had there been any doubt about the veracity of the evidence of the victim/PW1 supported by the evidence of PW2 & PW3. This court relies upon the decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh -vs- Sanjay Kumar alias Sunny, reported in (2017) 2 SCC 51, in paragraph 31 observed as follows:
"31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondents, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons, which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without Page 8 of 9 Crl.A.189/2008 corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P). Notwithstanding this legal position, in the instance case, we even find enough corroborative material as well, which is discussed hereinabove."
17. In view of the above, the appeal is dismissed.
18. The accused is directed to surrender before the learned trial court to serve out the sentence.
19. Send back the LCR along with a copy of this judgment to the learned trial court.
JUDGE Basumatary Page 9 of 9 Crl.A.189/2008