Gauhati High Court
Krishna Bordoloi vs The State Of Assam on 7 June, 2012
Equivalent citations: 2012 CRI. L. J. 4099, (2012) 115 ALLINDCAS 775 (GAU), (2013) 5 GAU LR 86, 2012 (115) ALLINDCAS 775, 2012 (78) ALLCRIC 17 SOC, (2012) 3 GAU LT 610
Author: A.C. Upadhyay
Bench: A.C. Upadhyay
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR:
TRIPURA: MIZORAM & ARUNACHAL PRADESH
CRIMINAL APPEAL NO. 83 (j) OF 2006
Krishna Bordoloi.
----- Accused-Appellant
-Versus-
The State of Assam
----- Respondent
BEFORE THE HON'BLR MR.JUSTICE I.A. ANSARI THE HON'BLE MR. JUSTICE A.C. UPADHYAY For the appellant : Mr. SK Talukdar, Advocates.
For the respondents : Mr. Z Kamar, Public Prosecutor, Assam.
Date of hearing : 28th May, 2012
Date of Judgment : 07.06.2012
JUDGEMENT AND ORDER
(Ansari, J)
This is an appeal against the judgment and order, dated 15-05-2006, passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 74 of 2005, convicting the accused-appellant under Sections 448, 506 and 376 IPC and sentencing him, for his conviction under Section 448 IPC, to undergo rigorous imprisonment for one year and to serve, for his conviction under Section 376 IPC, rigorous imprisonment for a period of 10 years and pay a fine of Rs. 15,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of three years and also to undergo, for his conviction under Section 506 IPC, rigorous imprisonment for a period of one year, all the sentences having been directed to run concurrently with further direction that if the fine is deposited by the convict, the same shall be paid to the victim as compensation. Page 2 of 16
2. I have heard Mr. SK Talukdar, learned Amicus Curiae, and Mr. Z Kamar, learned Public Prosecutor, Assam.
3. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 21.03.2005, when PB (PW5), minor daughter of the informant DB (PW4), was at home and her parents were away from home, accused Krishna Bordoloi, who was brother-in-law of the landlord of the said house, where PW4 used to live with her family, came and carried PB (PW5) to his house, removed there her churidar, i.e., the trouser, and entered his penis into the vagina of the minor child and passed semen. PB suffered pain in her vagina and her wearing apparels got stained with semen of the accused. While the accused was still in his act of having sexual intercourse with PB, her brother, AB (PW6), who was younger than PB, saw the accused, on the top of PB, committing the act of sexual intercourse. PB (PW5) vomited as she had been made to consume liquor, whereupon PB raised alarm. Having committed sexual intercourse with PB, the accused drove her away. When PB's mother, DB (PW4), returned home, PB narrated the incident to her, her mother (PW4) beat PB (PW5) and, thereafter, taking along with her, DB (PW4), PB (PW5) and her younger brother, AB (PW6), DB (PW4) went to Jagiroad Police Station and lodged there a written Ejahar. Based on this Ejahar and treating the same as First Information Report (in short, FIR), Jagiroad Police Station Case No. 48 of 2005, under Sections 448/376/506 IPC, was registered against the present accused-appellant. During the course of investigation, police got PB (PW5) medically examined, she was also produced before a Magistrate, where her statement was recorded. On completion of investigation, police laid charge-sheet against the accused-appellant under Sections 448/376/506 IPC.
Page 3 of 16
4. To the charges framed against him, at the trial, under Sections 448, 376 and 506 IPC, the accused pleaded not guilty.
5. In support of their case, prosecution examined as many as 7 (seven) witnesses including the doctor (PW3) and the Investigating Officer (PW7). The accused was, then, examined under Section 313 Cr.P.C., and, in his examination aforementioned, the accused denied that he had committed the offences, which he was alleged to have been committed, his case being that of total denial. No evidence was adduced by the defence.
6. Having, however, concluded that the accused had been proved guilty of the offences, which he stood charged with, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences passed against him, the convicted person has preferred this appeal.
7. Before entering into the discussion of the evidence of the informant, the alleged victim and her brother, it is apposite to take note of the medical evidence on record. It may be noted, in this regard, that according to the doctor, (PW3), he examined PB (PW5) on 21-03-2005 and found as follows:
"1. Physical examination.
(1) Secondary sex character not developed. (2) No injury mark seen in her body. (3) Teeth 6/6 6/6.
Examination of private parts-
(1) Hymen is torn, redness and tenderness found in the introits. (2) streaks of blood found in the introits. (3) Semen found in the vulva introits.
X-ray Radiological age vide x-ray No. Nil date 23.3.05 (A/P Eray clinic Morigaon).
Page 4 of 16Opinion of Honorary Radiologist : age of victim girl is 7 to 8 years. Inference :
(1) injury found in the introits.
(2) Semen found in the vulva introits.
(3) Her age is about 7 to 8 years.
(4) No injury mark found in her body."
The doctor has proved the medical examination report as Ext. 3.
8. In his cross-examination, the doctor (PW3) has clarified that hymen can be torn by self and that redness and tenderness inside introits may be caused by the same process. The doctor (PW3) has denied that the medical examination of the alleged victim girl was not properly conducted.
9. Interestingly enough, the findings of the doctor (PW3), with regard to the age of the victim, the injuries, which had been found on her person, namely, tear of hymen with redness and tenderness in the introits and streaks of blood in the introits, semen in the vulva-introits remain wholly unchallenged by the defence. More importantly, the defence, while cross-examining the doctor (PW3) had not even faintly suggested to the doctor (PW3) that the hymen of PW5 was not found torn nor did the defence, while cross-examining the alleged victim (PW5), even suggested to PW5 that redness and tenderness inside her introits had been caused by PW5 herself and not by the accused and/or that the hymen of PW5 was self-torn.
10. From the findings of the doctor (PW3), what can be clearly seen is that the hymen of PW5 was found torn and there was redness and tenderness inside introits. This apart, semen was present in the vulva.
11. Considering the fact that the doctor's finding, that semen was found on the wearing apparels of PB (PW5), has remain undisputed by the defence, the inference would be that the doctor's finding, that semen Page 5 of 16 was found on the person and wearing apparel of PB (PW5), is correct. However, whether the semen was or was not of the accused-appellant is not answered by the medical examination.
12. The doctor (PW3) has also opined that the age of PW5 was around 7/8 years. The doctor's finding, as regards the age of PW5, is also not in dispute. There can, in such a situation, be no escape from the conclusion that PB (PW5) was a minor at the time, when the occurrence, as alleged by the prosecution, took place. If, therefore, the evidence on record proves that the accused-appellant had caused penetration within the meaning of Section 375 IPC, then, such an act would mean „rape‟ within the meaning of Section 375 IPC irrespective of the fact as to whether consent of PB was or was not available to such sexual intercourse.
13. Whether the allegations of criminal trespass, rape and criminal intimidation are or are not true, are the questions, which, now, need to be determined and, for this purpose, let us, first, come to the evidence of PB (PW5).
14. In the light of the above medical evidence on record, when we turn to the evidence of PB (PW5), we notice that according to her, her family used to live, as tenant, in the house of accused Krishna Bordoloi's elder sister's husband.
15. Describing the occurrence, PW5 has deposed that on the day of the occurrence, in the morning, her mother (PW4) went to Jagiroad for treatment of her younger sister, Mampi, but her brother Ganesh, Amar (PW6) and Tilak were at home and her father, at that time, used to work in a hotel at Amoni. In the afternoon, on that day, according to the evidence of PW5, the accused came to their house, carried her to his house, took off her churidar (i.e., trouser), made her drink alcohol and, Page 6 of 16 then, he got up on her, entered his penis into her vagina and, then, passed urine. It is in the evidence of PW5 that she suffered pain in her vagina and that she vomited, because she had been made to consume liquor, and that she raised alarm. It is also in the evidence of PW5 that her younger brother, Amar (PW6), arrived there and saw the accused committing sexual act and, immediately after doing sexual act, the accused drove her away. PW5 has deposed that when her mother (PW4) returned home, she (PW5) reported to her mother (PW4) what the accused had done to her (PW5), whereupon her mother beat her (PW5) and, then, taking her (PW5) along with Amar (PW6), her mother (PW4) went to police station and lodged a complaint there. PW5 has also deposed that police got her examined in the hospital.
16. In his cross-examination, PW5 has deposed that accused Krishna's daughter is younger than her and she plays along with her and go to their house also. The fact, that PW5 used to play with the daughter of the accused-appellant and also used to visit his house, were never denied by the defence, nor was it suggested to PW5 by the defence that there were some serious disputes between her family and family of the accused. It may be noted that in her cross-examination, PW5 has deposed that at the time of incident, accused Krishna's wife was away from home. While considering the evidence of PW5, what cannot be ignored is that her evidence that at the time of the occurrence, wife of the accused was away from her house and that the accused came to the house of PW5, when her mother was away from home, the fact that the accused carried PW5 to his house and removed her churidar, have all remained wholly unchallenged and undisputed by the defence. What the defence, Page 7 of 16 however, disputed was that the accused had sexual intercourse with PW5.
17. In other words, except disputing the fact that the accused had sexual intercourse with PB (PW5), the other material aspects of the evidence of PW5, such as, the fact that on the day of the occurrence, wife of the accused was not at his house, the fact that mother of PW5 was also not at home and the fact that the accused had carried PW5 to his house and removed her churidar have all remained wholly unchallenged, undisputed and unscathed by the defence.
18. Situated thus, it becomes transparent, and we have every reason to conclude, that on the day of the occurrence, when wife of the accused was not at his house, accused came to the house of PW5, when her mother was also not present there, and carried her to his own house and removed her churidar. This apart, from the cross-examination of PW5, nothing could be elicited, as we notice, by the defence to show that her evidence given to the effect that the accused had got up on her, entered his penis into her vagina, she suffered pain and cried out, have remained wholly unshaken by the defence. Thus, the evidence of PW5, describing the occurrence, is wholly believable, particularly, when the medical evidence on record, as already discussed above, completely supports and substantially corroborates her evidence.
19. Close on the heels of the evidence of PW5, her younger brother, PW6, has deposed that on the day of the occurrence, her mother had left home and he (PW6), his brothers, Ganesh and Tilak, and elder sister, PB (PW5), were present at home and, on that day, in the afternoon, when PW5 was sleeping, the accused came to their house, lifted PW5 from the bed and carried her to his house and, on entering into his house, he made Page 8 of 16 her drink wine, took off her churidar, which PW5 was wearing, got up on her and entered his penis into her vagina and started rubbing it. It is in the evidence of PW6 that PW5 was crying and he was looking at the incident through a hole in the wall. It is also in the evidence of PW6 that after committing the sexual act, accused drove PW5 out, who vomited and her clothes got stained, and when his mother came, his mother took him (PW6) and PW5 to police station and lodged a complaint there.
20. In his cross-examination, PW6 has clarified that at the time of the occurrence, the landlady had been away from home and accused Krishna's wife had also gone somewhere.
21. Both PW5 and PW6 denied the defence's suggestion that they had deposed falsely according to what their mother had tutored them.
22. While considering the evidence of PW5 and PW6, it needs to be noted that since PW6 was younger than PW5, who was about 7/8 years old, it naturally follows that PW6 was of the age of 5/6 years at the time of the occurrence and, for such a child, it is not unusual to be curious and look, through a hole in the wall, inside the house of the accused to see as to what was happening. Since the defence has miserably failed to elicit anything by cross-examining PW6 to show that this witness' evidence is not trustworthy and reliable, it clearly follows that this witness' evidence lends bold support and corroboration to the evidence of PW5 inasmuch as his evidence makes it crystal clear that at the time of the occurrence, his mother was not at home, whereas his brothers and sisters, including PW5, were present at home and, in the afternoon, the accused came to their house, carried PW5 to his house, and, on entering into his house, the accused made PW5 drink wine, took out her churidar, got up on her and pushed his penis into her (PW5's) vagina and started rubbing it and his Page 9 of 16 sister started crying. PW6 further goes to describe, in his evidence, that after committing the sexual act, the accused opened the door of his house and got PW5 out, who came out crying and vomited, her clothes were stained and when her mother returned home, she (PW11), taking him (PW6) and PW5 with her (PW4), went to police station and lodged there a complaint.
23. Apart from the fact that the evidence, given by PW5 and PW6, coupled with the medical evidence on record, is in itself sufficient to determine if the accused is guilty of the offence charged with, it is imperative to note that according to the evidence of PB's mother, DB (PW4), at the time of the occurrence, she, along with her family, used to live in the rented house of Joydhan Bordoloi, accused Krishna Bordoloi being the relative and neighbour of Joydhan Bordoloi, and, at that time, her husband, Putul Barman, used to work as a salesman at Santosh Hotel, Amoni, and that she used to live in the said rented house with her three sons and two daughters.
24. As regards the occurrence, PW4 has deposed that on the day of the occurrence, at about 8 am, she went to her mother's house at West Nagaon and, then, went to Bordoloi's Homeopathic Chamber, Jagiroad, and when she returned home, at about 2/3 pm, her seven year old son, Amar (PW6), told her that his Barpita (i.e., father's elder brother), accused Krishna Bordoloi, was found lying on the top of his elder sister inside his own house. It is in the evidence of PW4 that PW6 also told her that the accused had carried PW5 from their house to his own house, where he (accused) was lying on the top of his sister. It is also in the evidence of PW4 that when she asked her daughter (PW5), PW5 told her (PW4) that while she (PW5) Page 10 of 16 was sleeping inside her house, accused came and carried her to his house, made her drink alcohol and committed sexual act on her forcibly.
25. PW4 has further deposed that PW5 was wearing churidar and her wearing apparels were stained with semen of the accused, whereupon she (PW4) informed her mother, Tapeswari, who, in turn, asked the accused as to what was being reported, but the accused told them to do whatever they could. PW4 has also deposed that thereafter, taking her son (PW6) and her daughter (PW5) with her (PW4), she (PW4) rushed to Jagiroad Thana, got an Ejahar written and lodged the same with the police at the said thana, police questioned her and they also questioned PW5 and, then, sent PW5 to Civil Hospital Morigaon for medical examination.
26. It is in the evidence of PW4 that after the accused was arrested, his wife used to rebuke them always and threaten them and, in consequence thereof, their landlady gave Rs.200/- to her and sent her to Amoni, where she (PW4) started living with her husband. In her cross- examination, PW4 has clarified that their family was the only tenant living in the house of the said landlord. PW4 has denied the suggestion of the defence that they had disputes with the accused before the occurrence, but she admits that there were, on one or two occasions, some disputes, but they were on visiting terms and after the occurrence, they never visited the house of the accused. PW4 has boldly denied that she has made false accusation against the accused, because of the disputes, which she had with the accused.
27. From a careful reading of the evidence of PW4, it becomes more than abundantly clear that her evidence substantially supports the evidence of her two children, namely, PW5 and PW6. This apart, the Page 11 of 16 conduct of PW4 was very natural inasmuch as she, as a helpless woman of a minor female child, on being reported about the occurrence, informed, first, her mother and as her mother was told by the accused to do whatever they could, she (PW4), taking along with her PW5 and PW6, went to Jagiroad Thana and lodged there an Ejahar. We do not find that anything could be elicited by the defence by cross-examining PW4, which could be taken to have shaken the credibility of her evidence. We, therefore, hold that her evidence is wholly believable.
28. What emerges from the above discussion is that the evidence of PW4, PW5 and PW6 are believable and their evidence, particularly, the evidence of PW5 and PW6, when read, in the light of the medical evidence on record, lead one to conclude, and we have no hesitation in concluding, that the descriptions of sexual act, as given by PW5 and PW6 are true. Whether the sexual act, which the accused had with PW5, could amount to rape?
29. It has been submitted, with regard to the above, by Mr. A.K. Talukdar, learned amicus curiae, that PW5 being a child, it was not possible to subject her to 'rape‟, because offence of 'rape‟ is not complete unless there is 'penetration' and, to a girl, aged about 7-8 years, it would not be possible for a man to have penetration. Undoubtedly, 'penetration' is sine qua non for the offence of rape. There must be convincing evidence on record that some part of the virile member of the accused was within the labia of the pudendum of the female person, no matter how little such part was within the labia of the pudendum.
30. What is, however, of utmost importance to note, now, is that rupture of hymen is not at all necessary for the purpose of constituting the offence of rape inasmuch as even slightest penetration, in the vulva, is sufficient to Page 12 of 16 constitute the offence of rape, though in the case at hand, hymen of PW5 was found torn with redness and tenderness in the introits, which had streaks of blood, and that even introits had sustained injuries.
31. In such circumstances, there is no difficulty in concluding that the accused-appellant did enter his penis into the vagina of PW5 and rubbed it against her vagina as has been described by PW5's brother (PW6). We must remember that vulva penetration, with or without violence, is as much rape as vaginal penetration. The statute demands evidence of 'penetration' howsoever little it may be and this may occur even with the hymen remaining intact; whereas, in the case at hand, there is clear evidence of hymen of PW5 having been ruptured. One may, in this regard, refer to the case of Aman Kumar Vs. State of Haryana, reported in (2004) 4 SCC 379, wherein the relevant observations, appearing in this regard, read as under:
"7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893). ............................ The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This Page 13 of 16 variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC."
(Emphasis is added)
32. In the light of the observations, made in Aman Kumar (supra), when the evidence on record is considered in their correct perspective, there remains no room for doubt that the accused-appellant did have sexual intercourse with PW5 as has been described by her and her brother and supported by the medical evidence on record.
33. Drawing our attention to the report of the medical examination from the Forensic Science Laboratory, Assam, which is Ext.6, Mr. Talukdar, learned amicus curiae, has submitted that the 'churidar‟ sent for examination gave negative test of human spermatozoa. Suffice it to point out, in this regard, that semen of every person need not necessarily have spermatozoa. Field's Expert Evidence and Opinions of Third Person, (23rd Edition), makes it clear that some semen may not contain spermatozoa at Page 14 of 16 all. The observations, made by Field, in his Treatise, read thus, "Some semen may not contain spermatozoa at all (azoospermia)."
34. Hence, the mere fact that the clinical examination did not give positive test for spermatozoa, it cannot be gainsaid that there was no semen on the churidar of PW5, particularly, when the evidence of the doctor, given in this regard, was that he had found semen on PW5 and this assertion of the doctor, as already pointed out above, has gone undisputed and unchallenged by the defence. This apart, and as already indicated above, the evidence on record, otherwise, also clearly establishes the fact that the accused-appellant did have sexual intercourse with PW5 and committed thereby offence of rape.
35. Before proceeding further, we may also point out that Mr. Talukdar, learned amicus curiae, has also sought to contend that there is contradiction between the statement of PW5 as recorded under Section 164 Cr.PC and her evidence in the Court. Apart from the fact that it is difficult to say that there is material contradiction between the evidence of PW5 and her statement, recorded under Section 164 Cr.PC., we must point out that the contradiction, if any, cannot be used in favour of the defence, when the defence, while cross-examining PW5, did not draw attention of PW5 to the contents of her previous statement and, hence, without giving any opportunity to PW5 to have her say, in the matter, in the manner as is suggested by Section 145 of the Evidence Act, it would not only be unwise, but highly prejudicial to prosecution if we attribute, now, any importance to the contradiction, if any, between the evidence of PW5 and her statement, recorded under Section 164 Cr.PC, when no opportunity has been given to PW5 to have her say in the matter. Page 15 of 16
36. Because of what have been discussed and pointed out above, we find that the prosecution has successfully proved, beyond all reasonable doubt, that the accused-appellant did have sexual intercourse with PW5 and as she was a minor at the relevant point of time, the said sexual intercourse amounted to the offence of rape and he is, therefore, liable for punishment under Section 376 IPC. The finding of guilt, which has been reached against the accused-appellant by the learned trial Court, under Section 376 IPC, does not call for any interference by this Court.
37. Coming to the question as to whether the accused-appellant could have been held guilty of offence under Section 448 IPC, it may be noted that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, is said to commit criminal trespass.
38. When criminal trespass is committed by a person by entering into or remaining in any building used as human dwelling, the act amounts to house trespass within the meaning of Section 442 IPC. When a person commits house trespass, he is liable for punishment under Section 448 IPC.
39. In the present case, the accused-appellant, as the evidence on record eloquently speaks, went to the house of PW4 in order to commit the offence of rape and though rape was committed not at the house of PW4, but at the house of the accused, yet the fact remains that the very entry of the accused-appellant into the house of PW4 with intent to commit the offence of rape on PW5, constituted the offence of house trespass and the accused-appellant could have, therefore, been, and has, in fact, been, rightly and legally convicted under Section 448 IPC.
40. So far as the conviction of the accused, under Section 506 IPC, is concerned, there is no evidence that the accused had intimidated PW4 Page 16 of 16 and/or the members of her family. Situated thus, it is clear that conviction of the accused-appellant, under Section 506 IPC, is without any supporting evidence on record and cannot, therefore, be sustained.
41. What crystallizes from the above discussion is that while conviction of the accused-appellant under Section 448 and 376 IPC, need to be upheld, his conviction, under Section 506 IPC, must be interfered with and set aside.
42. Because of what have been discussed and pointed out above, this appeal partly succeeds. While conviction of the accused, under Sections 448 and 376 IPC, are hereby upheld, his conviction, under Section 506 IPC, and the consequential sentence are hereby set aside.
43. Considering the facts and circumstances of the present case, we do not find that the sentences, passed against the accused-appellant, for his conviction, under Sections 448 and 376 IPC, can be treated as harsh, unreasonable or illegal. The sentences do not, therefore, call for any interference.
44. With the above observations and directions, this appeal stands partly allowed.
45. Send back the LCR.
JUDGE JUDGE njdutt