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Gauhati High Court

Sri Sanjay Tappo vs The State Of Assam on 20 February, 2013

Author: Hrishikesh Roy

Bench: Hrishikesh Roy

                                                                                 1




                     IN THE GAUHATI HIGH COURT
            (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA
            MANIPUR: MIZORAM: TRIPURA & ARUNACHAL PRADESH)

                              Crl.Appl.(J) No. 89/2009.


              Sanjay Tappo                                ... Appellant.

                         -Versus-

              The State of Assam.                         ... Respondent.


                                   BEFORE
                  THE HON'BLE MR JUSTICE HRISHIKESH ROY.

For the appellant                   : Ms. N.A. Chandak.     ... Amicus Curiae

For the respondent                  : Mr. K.A. Mazumdar     ... Addl. P.P.. Assam.

Date of hearing &
delivery of Judgment                : 20.02.2013.


                          JUDGMENT AND ORDER (ORAL)

This Appeal is presented against the judgment dated 30.6.2009 in Sessions Case No. 83(BGN)/2009, whereby by the learned Addl. Sessions Judge (FTC), Bongaigaon has convicted the accused/appellant under Section 376(1) of IPC and sentenced the accused to rigorous imprisonment of 7 years with fine of Rs.3,000/- and in default of fine, further R.I. for 5 months.

2. I have heard Ms. N.A. Chandak, learned Amicus Curiae for the appellant and Mr. K.A. Mazumdar, the learned Addl. Public Prosecutor.

3. The informant Punebala Karji lodged an F.I.R. on 29.6.2008 with the allegation that on 28.8.2009 at about 2 p.m. while she was returning after collecting firewood from the Nagkati Hill, the accused Sanjay Tappo accosted and proposed her for sexual intercourse and on refusal by the informant, the accused threw away the firewood loaded on the victim's head and forcibly raped her in the jungle. The victim after returning to her village informed her co- villagers and thereafter the villagers apprehended the accused and handed him over to the police. The Bongaigaon P.S. Case No.248/2008 was then registered under Section 376 of IPC and the criminal process was set on motion. The police took the accused into custody on 29.6.2008 and arranged for recording Crl. A(J). No. 89/2009 Page 1 of 4 2 the victim's statement under Section 164 of Cr.P.C. and her medical examination. After investigation was completed, the case was committed to the Court of Sessions.

4. In the Sessions Court, the charge under Section 376 was framed and when the accused pleaded not guilty, the case was put to trial. During the trial, 8 witnesses were presented by the prosecution while the defence did not adduce any evidence.

5. P.W.1 Punebala Karji is the victim herself. She stated that she earns her livelihood by selling firewood collected from the nearby Nagkati hill. She stated that on the day of incident she had gone alone to collect firewood and when she was returning with the collected firewood, the accused accosted her. The accused threatened her with a Dao and pressed her down and forcibly raped the victim and left her abandoned. The victim suffered injury on her chest region and her private parts and after she returned to her village, she informed her co-villagers about the sexual assault.

In her cross-examination, the victim denied the suggestion that a false case was lodged as because, the accused told her not to destroy forest property.

6. P.W.2 Smt. Sonati Roy was a co-villager. She was informed by the victim about the sexual assault and the injuries suffered by the victim on her person. She knew the accused to be a buffalo grazer under Tarun.

In her cross-examination, she denied that a false case was lodged against the accused as because, he opposed the collection of firewood from the Nagkati hill by the victim.

7. P.W. 3 Santa Roy is also a co-villager. He and few other villagers were informed by the victim about the forcible sexual assault. Then the witness along with 20/25 co-villagers went searching for the accused and after accosting him in the buffalo firm of Tarun, the accused confessed his guilt and then the witness and the other villagers, handed him over to the police.

In his cross-examination, the witness denied that a false case was lodged against the accused.

P.W.4 is Manoj Kr. Roy, who is also a co-villager of the victim. His evidence is similar to the evidence of P.W.3.

8. P.W.5 is not a material witness. P.W.6 Anupam Nath was entrusted with the case after the original I.O., Shri S.N. Das was transferred.

Since all works of the investigation was complete, P.W.6 filed only the charge sheet in the case.

In his cross-examination, the I.O. stated that the Ejahar in the case was received on 29.6.2008 at about 2. p.m.

9. P.W.7 was the Bench Assistant in the Court of the Chief Judicial Magistrate, Bongaigaon and he proved the victim's statement (Exbt.4) recorded under Section 164 of Cr.P.C., since in the meantime, the concerned Magistrate was transferred out of Bongaigaon.

10. P.W.8 is Dr. M.N. Saikia was on duty on 29.6.2008 at the Bongaigaon Civil Hospital. He examined the victim at about 3 p.m. on 29.6.2008 and recorded the following :

".....

Tenderness felt over both breast and side of the chest wall. No other enternal injury is detected. Examination of Volva and Vagina

(i) one lacerated injury in the posterior aspect of vagina. Size = ½" X ¼" X ¼ "

Colour reddish with oedemotous (swelling) margin (2) Small abrasion with surrounding swelling and echymosis (reddish swelling) are over right inner side of the vagina. Colour = reddish." ................"

From his medical examination the Doctor concluded that the victim was subjected to recent sexual violence and according to him, the injuries mentioned in the report were of recent origin i.e. within 12 hours.

11. The statement of the accused was recorded under Section 313 Cr.P.C. and he simply denied his guilt to all the questions put by the Court.

12. The learned Amicus Curiae points out that although the F.I.R. was filed on 29.6.2008, in the body of the F.I.R., the sexual assault is stated to have been made on 28.5.2008 and accordingly the Counsel argues that the F.I.R. was belatedly lodged in June after 1 (one) month and accordingly the conviction can't be sustained. She further points out that that the victim is aged about 65 years and the accused is a young man aged about 23 years and accordingly the incident of sexual assault is not at all believable.

13. In order to clear the controversy on the month (May or June) mentioned in the F.I.R., Mr. K.A. Mazumdar, the learned Addl. Public Prosecutor refers to the original F.I.R. available in the case record. The Ejahar is shown to have been received in the Bongaigaon Police Station at 2 p.m. on 29.6.2008 with the intimation that the incident had occurred on the previous day. Although the previous day is suggested to be 28.5.2008, a close scrutiny of the month Crl. A(J). No. 89/2009 Page 3 of 4 4 written in vernacular suggests that it could either be '6' or '5' (June or May). The victim in her FIR given on 29.6.2008 clearly stated that the incident happened yesterday and immediately thereafter the date, month and year is mentioned. Therefore I am of the view that the date mentioned in the 2nd line of the F.I.R. is 28.6.2008 and not 28.5.2008 as is sought to be projected by the learned Amicus Curiae.

14. In cases under Section 376 IPC, the testimony of the prosecutrix play a key role. The victim in this case had clearly testified how she was accosted by the accused and when the victim resisted how she was forcibly raped in the Nagkati hill. The victim gave vivid description of the sexual assault made upon her and also testified that she was injured on her chest and her private parts by the forcible sexual assault of the accused. The evidence of the victim is fully corroborated on all material particulars by the medical evidence. In the medical report (Exbt.4), the Doctor noticed the injuries on the private parts as well as also on the victim's chest region. Recent sexual violence was also noticed on the victim.

15. The testimony of the prosecutrix however is required to be scrutinized for its reliability and truthfulness. As earlier recorded, the evidence of P.W.1 is consistent and her evidence couldn't be shaken in the cross- examination. There is no reason to disbelieve the victim's testimony as she was a stranger to the accused and can have no reason to foist a false case on him. The accused being a buffalo grazer can have no role to protect forest wealth as was suggested by the Amicus Curiae in her argument for the appellant. Therefore, despite the age difference between the victim and the accused, I see no reason to interfere with the impugned verdict, since the prosecution case stands proved through the evidence of the prosecutrix which is fully corroborated by the medical evidence (Exbt.4). Accordingly no merit in this Appeal is noticed and the same is dismissed.

20. Ms. N.A. Chandak, learned Amicus Curiae should be paid fee of Rs.5000/- by the High Court Legal Aid Committee for rendering assistance to the Court.

22. Send down the L.C.R. JUDGE Datta.