Gopal Sarkar vs State Of Assam
2021 Latest Caselaw 1181 Gua

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GAHC010219152012




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.A./57/2012

            GOPAL SARKAR
            S/O SRI JUTLAL SARKAR, VILL. BARPAHAR, P.O. JOGIGHOPA, P.S.
            JOGIGHOPA, DIST. BONGAIGAON, ASSAM.



            VERSUS

            STATE OF ASSAM




Advocate for the Petitioner   : MR.H R CHOUDHURY

Advocate for the Respondent :




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                        ORDER

Heard Mr. M.U. Mahmud, learned counsel appearing for the accused/ appellant. Also heard Ms. A. Begum, learned Addl. Public Prosecutor for the State/ respondent.

2. This appeal under Section 374(2) Cr.P.C. is preferred against the judgment and order, dated 19.03.2012, passed by learned Additional Sessions Judge, F.T.C., Bongaigaon in Sessions case No. 1(J)/09, whereby the accused/ Page No.# 2/6

appellant is convicted under Section 376 read with Section 511 of the IPC and sentenced to undergo rigorous imprisonment for 4(four) years and to pay fine of Rs. 1,000/- in default to suffer rigorous imprisonment for 1(one) month.

3. The prosecution case, in short, is that on 28.12.2006 an ejahar was lodged with the Officer In-charge of Jogighopa P.S. alleging that on 27.12.2006 at about 2.30 p.m., while the informant girl was affixing her cow near her house, the accused hugged her from behind and after laying on the ground forcefully raped her.

4. Based on the above ejahar, Jogighopa P.S. case No. 196/06 dated 28.12.2006 under Section 376 of the IPC was registered and after completion of investigation laid a charge-sheet under Sections 341/376 of the IPC against the accused/ appellant. Learned Sub-Divisional Judicial Magistrate(M), N. Salmara, Abhayapuri committed the case to the Court of learned Sessions Judge, Bongaigaon for trial, whereupon Sessions case No. 1(J)/09 was registered. On being made over, learned Addl. Sessions Judge, F.T.C., Bongaigaon, framed a charge under Section 376 of the IPC, on 10.02.2009. The accused pleaded innocent. In order to prove the case, the prosecution examined 10(ten) witnesses while the defence cross-examine them. After closing the evidence of the prosecution side, the statement of the accused was recorded under Section 313 Cr.P.C. on 01.07.2011. The accused pleaded not guilty and declined to examine any witness in defence. Thereafter, on hearing of both sides and appreciation of evidence, learned Addl. Sessions Judge, F.T.C., Bongaigaon convicted and sentenced the accused under Sections 376/511 of the IPC as stated above.

5. Mr. M.U. Mahmud, learned counsel for the accused appellant, submits that the accused was held guilty on erroneous appreciation of evidence on record inasmuch as the trial court completely ignored the evidence of two doctors P.Ws 7 and 8 who examined the alleged victim, aged about 18 years, did not find any sign of injury on her person and the Page No.# 3/6

evidence of P.W. 10, the investigating officer clearly showed the manifest contradictions between the evidence of the victim girl in court and her statement under Section 161 Cr.P.C. giving rise to suspicion on the very foundation of the prosecution case.

6. Per contra, Ms. A. Begum, learned Addl. Public Prosecutor, submits that whatever contradictions are there those are trivial and the impugned judgment being well-reasoned no interference in appeal is warranted.

7. I have given due consideration to the submissions made by learned counsel of both sides. Perused record including the impugned judgment and order.

8. Now, let us analyse the evidence on record.

9. The evidence of P.W.6, the victim girl, is that on the date of occurrence at about 2.30 p.m. while she was going to feed water to their cattle at their paddy field, situated about 500 metres away from their house, all of a sudden the accused/ appellant appeared there. The accused embraced her and then forcibly caused her to lie down on the ground. He muffled her with a towel(gamocha) and then partly removed her wearing nighty and jangia and then put off his jangia and raped her. The said occurrence was witnessed by neighbours namely Sambari (P.W.1) and her husband Ratan (P.W.3) and thereupon, the accused fled away from the place. She reported the incident forthwith to Sambari and her parents (P.W. 5- the mother is examined). On the following day, morning, she filed ejahar. The accused also filed an ejahar against her father and others, being P.R.C. No. 199/08, which is pending in the court of learned S.D.J.M., Abhayapuri. Her statement was recorded under Section 164 Cr.P.C. She recognised M. Ext. 'A', the jangia which she was wearing at the relevant time of the occurrence. In Cross-examination, she stated, inter-alia, that she raised alarm once only. The accused gave two bites on her both cheeks without causing any injury.

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Marami Sutrahar(P.W.1) is their adjacent resident at a distance of about 3 metres. She does not know how to read and write.

10. Corroborating the evidence of the victim (P.W.6), P.W.1 Marami Sutradhar @ Marami Mandal stated that she witnessed the accused doing sexual intercourse on her (P.W.6) mounting over her body under a bamboo grove. She at once reported the incident to her husband (P.W.3) and called him to the place of occurrence. Witnessing them the accused ran away towards his house. On being asked, the victim (P.W.6), who was seen weeping at the place of occurrence, replied that the accused forcibly committed sexual intercourse with her. In cross-examination, she reaffirmed her evidence in-chief. P.W.3 Ratan Mandal, her husband, corroborated the testimony of his wife P.W.1 as an eye witness.

11. P.W.2 Jamuna Mandal(aunt of victim), P.W.4 Krishna Mandal(relative of P.W.6) and P.W.5, the mother of the victim (P.W.6) were reported witnesses, who did not witness the occurrence. All these witnesses stated that they were informed about the occurrence either by the victim herself or her father(P.W.3).

12. P.W.7 Dr. Hiranmoy Adhikary, the Radiologist, opined that the age of the victim (P.W.6) was above 18 years as per radiological examination done on 29.12.2006 vide Ext. 1, his report. Likewise, P.W. 8 Dr. Arindam Bora, the doctor, who examined her (P.W.6) on the same day, relying on the radiological examination report opined that she was aged above 18 years and there was no sign and symptom of recent sexual intercourse and further, that he did not find any injury mark on her private parts vide Ext. 2, the medical report. Thus, their (P.Ws 7 & 8) evidence reveal that the victim was a major without any sign of rape on her person.

13. P.W.9 Ashok Kumar Barman, a court Assistant, deposed that on 6.03.2007, learned S.D.J.M.(M), Abhayapuri recorded the statement of the Page No.# 5/6

victim (P.W.6) under Section 164 Cr.P.C. vide Ext. 3, that is, after more than 2 months of the occurrence. P.W. 6, the victim, in her evidence corroborated her version of the incident as narrated in the said statement under Section 164 Cr.P.C.

14. A perusal of the evidence of P.W.10 S.I. Ratneswar Sarma, the investigating officer, it is revealed that he testified to the formal aspects of investigation. The cross-examination reveals that the place of occurrence was shown by the victim girl (P.W.6) and that the house of Ratan Mandal (P.W.3) is situated at a distance of about 100 feet from the place of occurrence and further, that he did not send for accused's genital examination.

15. In this case, the defence has not called for the records of P.R.C. No. 199/08 to prove either that the same was a cross-case arising out of the same incident or that the instant case was filed to save the family of the victim from legal consequences of the said pending case. The said case was not even referred to by the accused in his statement recorded under Section 313 Cr.P.C. The accused has not even adduced any evidence to prove his plea of elibi taken in his statement under Section 313 Cr.P.C. Therefore, these two vital aspects of the case were not proved by the defence. It is further noticed that the defence has not challenged the reliability of the victim's statement under Section 164 Cr.P.C. vide Ext. 3 proved by the prosecution on the ground of inordinate delay and so accepted.

16. It may be pointed out that in a case of rape, conviction of the accused can be based on the basis of the testimony of the prosecutrix alone if inspires confidence of the court. While appreciating the victim's evidence along with the evidence of other prosecution witnesses, one of the relevant considerations would be chances of false implication, which must be totally eliminated and the prosecution story as a whole has a ring of truth and the same inspires confidence. Burden of proving the guilt of the accused beyond all reasonable doubt always rests on the prosecution.

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17. In the instant case, the evidence of the victim(P.W.6) is corroborated by eye witnesses P.W. 1 and her husband and P.W.3, who are immediate neighbours and the remaining reported witnesses P.Ws 2, 4 & 5. The defence appears to have failed to demolish their evidence in cross- examination. There are also no any significant material contradictions elicited during cross-examination. The medical evidence of P.Ws 7 & 8 show that the victim (P.W.6) was a major and she manifested no sign of rape as stated above. Thus, the medical evidence of P.W.8 completely rules out all possibilities of 'rape' within the definition given in Section 375 of the IPC. The testimony of P.Ws 1, 3 & 6 do not show that the accused had committed sexual intercourse, that is, penetration which is known in legal parlance as 'rape'. Therefore, in the backdrop of facts and circumstances and as opined by the learned trial court, it is a case where the accused/ appellant, in fact, attempted to commit rape of the girl (P.W.6) beyond doubt.

18. Accordingly, the appeal stands dismissed.

19. Return the LCR.

20. The appeal stands disposed of.

JUDGE

Comparing Assistant