Gauhati High Court
Sanjib Sonowal vs The State Of Assam on 2 March, 2015
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Crl.A(J) 102/2014
1. Sanjib Sonow al
S/o- Lt. Tarun Sonowal
Resident of Dangari Chiring Gaon
P.S- Doomdooma
District- Tinsukia, Assam.
......... Appellant
-Versus-
1. The State of Assam
............ Respondent
BEFORE
HON'BLE MR. JUSTICE B.K. SHARMA
For the appellant : Mr. I.H. Hazarika,
Amicus Curie
For the respondent : Mr. D. Das, Addl. P.P.
Date of hearing : 02.03.2015
Date of Judgment : 02.03.2015
JUDGMENT & ORDER (ORAL)
1. This appeal is directed against the judgment of conviction dated 22.07.2014 of the learned Sessions Judge, Tinsukia in Sessions Case No.134(T)/2012, by which the accused/appellant has been convicted u/s 376/506 IPC. Upon such conviction, he has been sentenced to undergo rigorous imprisonment for 10(ten) years with fine of Rs.5000/- (Rupees five thousand) and in default to suffer rigorous imprisonment for further 01(one) month for the offence u/s 376 IPC and as regards the offence u/s 506 IPC, he is to suffer rigorous imprisonment for 01(one) year with fine of Rs.500/- (Rupees five 2 hundred) and in default to suffer further rigorous imprisonment for 15(fifteen) days. Both the sentences are to run concurrently. Previous detention, if any, in course of investigation and trial is to be set off from the sentences.
2. Doomdooma Police Station Case No.74/2012 was registered 376/506 IPC against the appellant on the basis of the FIR lodged on 21.03.2012. As per the story narrated in the FIR, about 06(six) months prior to 21.03.2012, the accused/appellant committed rape on the victim girl showing a dao. It was also stated that rape was committed on her on four consecutive days and the accused threatened her with dire consequence, if she divulged to anybody about the incident. Consequent upon such offence committed by the accused/appellant, the victim became pregnant and accordingly the FIR was lodged.
3. In due course, the police completed investigation and upon submission of charge sheet, charge was framed against the accused/appellant for the offence u/s 376/506 IPC. The charges being read over and explained to him, he denied the same and claimed to be tried.
4. During trial, prosecution examined 09(nine) witnesses and the defence also examined two witnesses. The accused/appellant was also examined u/s 313 Cr.P.C.
5. PW-1 is the Medical Officer, who examined the victim girl on 22.03.2012. He in his deposition stated that X-ray could not be done to determine the actual age of the victim as she was carrying 24 weeks intra uterine pregnancy. Referring to the report of the medical examination, he also stated that no evidence of external injury could be detected. As per the said medical report the victim was carrying 06(six) months pregnancy.
6. PW-2 is the victim girl who in her deposition stated that on the day of the incident while she was returning from her work (domestic help in the Bunglow of Garden Manager), she was caught by the accused/appellant and committed improper act on her. She did not raise any hue and cry as she was threatened by the accused/appellant that she would be cut in case of raising hue and cry. Four months later when she became pregnant, she informed the matter 3 to her mother. She also stated that the accused/appellant committed rape on her for four consecutive days.
7. PW-3 is the mother of the victim, who in her deposition stated that the victim was about 16 years of age and she used to work in the garden Manager's Bunglow. She used to finish her work at about 5 P.M. The accused/appellant was working as Chowkidar in the same Bunglow. After three months of the incident, the victim told her about the incident. In the cross examination, she stated that she did not bring any document regarding age of her daughter. She also stated that she did not give any document to the police regarding age of her daughter.
8. PW-4 is of no help to the case of the prosecution. She only stated that she knew that the victim had become pregnant before getting married. PW-5 also stated the same thing.
9. PW-6 in his deposition stated that he knew the accused/appellant and that the incident took place about one year back. He was a student leader and on receipt of complaint from some ladies of the village, a public meeting was convened in which the accused did not turn up. In the cross examination, he stated that he did not speak to the prosecutrix or the accused and he came to know about the incident from co-villagers.
10. PW-7 in his deposition stated that he was VDP Secretary and he knew the victim and the accused/appellant. Referring to the meeting that was convened towards resolution of the dispute, he in his deposition stated that he had attended the meeting in which the victim told the public that she was raped by the accused/appellant showing a dagger. However, the accused/appellant denied the said fact.
11. PW-8 is the Garden Manager, who in his deposition stated that both the victim and the accused used to work in his Bunglow. He in his deposition stated that the victim never made any complaint to him regarding commission of offence by the accused/appellant.
12. PW-9 is the Investigating Officer, who in his deposition generally stated about the investigation that was carried out. In his cross examination, he 4 stated that the victim did not disclose the exact date of the occurrence, but only stated that the incident occurred about six months ago. He also stated that the victim never disclosed to any person that she was raped by the accused/appellant consecutively for 4/5 days. She also did not disclose the incident to the Manager of the Garden. In her statement, she also did not tell the Investigating Officer that at the time of commission of the offence, she sustained injury on her person and that her clothes were torn.
13. DW-1 is the accused/appellant, who in his deposition stated that he is a married person having children and he did not commit the offence as alleged against him.
14. DW-2 in his deposition stated that he knew the accused from his childhood. He heard about the meeting that was convened towards resolution of the dispute. In the cross examination, he stated that he heard that the victim was pregnant before marriage because of illicit relationship with the accused/appellant.
15. Above are the evidences, on the basis of which the learned trial Court has convicted the accused/appellant. Mr. I.H. Hazarika, learned Amicus Curie appearing for the accused/appellant submits that when there is no conclusive proof regarding age of the victim, it will be totally unsafe to convict the accused/appellant for the offence punishable u/s 376 IPC. According to him, the victim was a consenting party and it was only when her pregnancy was detected, she made out a story of commission of an offence by the accused/appellant punishable u/s 376 IPC.
16. Mr. D. Das, learned Additional Public Prosecutor, Assam, on the other hand, submits that irrespective of determination of age of the victim girl, there is nothing to disbelieve the testimony of the victim.
17. PW-1 in his deposition categorically stated that the age of the victim girl could not be determined as she was carrying 24 weeks intra uterine pregnancy. The FIR also did not disclose the age of the victim. PW-2 (victim girl) in her deposition stated that she was raped by the accused/appellant for four consecutive days, but she did not raise any hue and cry allegedly due to the threat of the accused/appellant. It is in such circumstances, Mr. I.H. Hazarika, 5 learned Amicus Curie, submits that the victim girl could have very well narrated the incident to her mother instead of waiting for four months when she became pregnant. As per her own version she was raped by the accused/appellant for four consecutive days. It is surprising that she did not inform about the same to anyone including the Garden Manager and more particularly to her mother. The prosecution also never claimed that the victim was a minor girl. The learned Trial Court has held that she was aged about 15 years at the time of commission of the offence. Such finding is on the basis of the age declared by the victim at the time of recording her statement u/s 164 Cr.P.C and also the doctor who had examined her. However, in the opinion of the doctor, her age could not be determined because of the 24 weeks intra uterine pregnancy. In such a situation, it will be dangerous to hold that the victim girl was a minor at the time of commission of the offence. PW-3 on being asked as to whether there is any documentary evidence as to prove the age of the victim, she answered in the negative. She also did not bring any paper to prove the age of the victim. Other witnesses referred to above have not stated anything significant regarding the commission of the offence by the accused/appellant.
18. Going by the narration of the story of the victim, it appears that she was a consenting party. In this connection, Mr. I. H. Hazarika, learned Amicus Curie has placed reliance on the decision of the Apex Court as reported in (2011) SCC 385 [Alam elu and another -vs- State represented by Inspector of Police] , in which noticing the fact that there was no satisfactory evidence to indicate that the victim was a minor coupled with the fact that she did not make any complaint to anyone after commission of the alleged offence, the Apex Court reversed the judgment of conviction.
19. In the instant case, there is no concrete proof regarding the age of the victim girl. As regards the alleged commission of the offence by the accused/appellant, it is in the evidence of the victim that she was allegedly raped by the accused/appellant for four consecutive days, but she did not narrate the incident to anyone, which is wholly unnatural. She kept on waiting for four months when the pregnancy was detected. It was only at that point of time, she took the plea of rape being committed on her by the accused/appellant for four consecutive days.
620. In the above circumstances, I am of the considered opinion that the accused/appellant is entitled to benefit of doubt and accordingly this appeal is allowed by setting aside the impugned judgment of conviction dated 22.07.2014 passed by the learned Sessions Judge, Tinsukia in Sessions Case No.134(T)/2012. The accused/appellant shall be released forthwith, if not wanted in connection with any other offence.
21. Registry shall send down the LCR along with a copy of this judgment and order to the learned Court below.
22. While appreciating the services rendered by Mr. I. H. Hazarika, learned Amicus Curie, it is hereby provided that he will be entitled to hearing fee of Rs.5000/- (Rupees five thousand) upon production of a copy of this judgment, which shall be provided to him by the Registry free of cost. The hearing fee shall be paid by the District Legal Services Authority.
JUDGE Alam