Gauhati High Court
Nitul Bora vs The State Of Assam Anr on 1 October, 2021
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GAHC010067522018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./115/2018
NITUL BORA
S/O SRI GUNAI BORA, R/O VILL. NO. 4 DA GAON, P.S. BOKAKHAT, PIN
785612, P.O. BOKAKHAT, DIST. GOLAGHAT, ASSAM.
VERSUS
THE STATE OF ASSAM ANR
REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM.
2:SMTI BINA BHAGAWATI
W/O LATE JATIN BHAGAWATI
R/O VILL. NO. 4 DA GAON
P.S. BOKAKHAT
PIN 785612
P.O. BOKAKHAT
DIST. GOLAGHAT
ASSAM
Advocate for the Petitioner : MR. P K MUNIR
Advocate for the Respondent : MR. B.B. GOGOI, PP, ASSAM (FOR RESPONDENT NO. 1)
Date of hearing : 01.10.2021
Date of Judgment/ Order : 01.10.2021
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BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
JUDGMENT & ORDER (ORAL)
Heard Mr. P.K. Munir, learned counsel for the appellant and Mr. B.B. Gogoi,
learned Additional Public Prosecutor, Assam appearing for the State/respondent
No. 1.
2. This Criminal Appeal under Section 374(2) Cr.P.C. is preferred against the
judgment and order, dated 05.02.2018, passed by the learned Assistant
Sessions Judge, Golaghat, Assam in Sessions Case No. (143/2016) 71/2016
arising out of G.R. Case No. 158/2016 whereby the appellant is convicted and
sentenced to undergo rigorous imprisonment for 5 (five) years and to pay fine
of Rs.3,000/- (Rupees Three Thousand) only in default to undergo simple
imprisonment for 2 (two) months for the offence under Section 450 IPC and
rigorous imprisonment for 10 (ten) years and to pay fine of Rs.7,000/- (Rupees
Seven Thousand only) in default to suffer simple imprisonment for 4 (four)
months for the offence under Section 376(1) of the IPC.
3. The prosecution case is that on 26.02.2016, the victim lady, whose
husband died, had lodged an ejahar with the Officer-in-Charge, Bokakhat P.S.
alleging that on 25.02.2016, at about 10 a.m., while she was cooking meal in
her kitchen, the appellant entered into her dwelling house in the pretext of
having water and committed rape on her.
4. Based on the above F.I.R., Bokakhat P.S. Case No. 60/2016 under Section
376 IPC was registered and after completion of investigation, a charge-sheet
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under Section 448/376 of the IPC was laid. After committal of the case, the
learned Sessions Judge, Golaghat made over the case to the Court of learned
Assistant Sessions Judge, Golaghat for trial where charges under Sections
450/376(1) of the IPC were framed. The appellant pleaded not guilty.
Thereafter, the prosecution examined as many as 7 (seven) witnesses including
the victim woman and then, the learned trial Court recorded the statement of
the accused appellant under Section 313 Cr.P.C. The appellant while pleading
innocent stated that a false case was filed against him as he stole the victim's
one hen. After hearing the arguments of both sides, the appellant was
convicted and sentenced as stated above.
5. I have considered the arguments advanced by both sides and perused
the case record including the impugned judgment and order.
6. A perusal of the F.I.R. vide Ext. 1, it is revealed that the victim woman
(P.W.-1) was allegedly raped by the appellant, while she was alone at home at
around 10 o'clock in the morning, that is, in daylight. The victim (P.W. 1) has
supported the allegations made in the aforesaid F.I.R. in evidence and in her
statement recorded under Section 164 Cr.P.C. vide Ext.-2. However, P.W. 7, Dr.
Sanjit Phukan, the doctor, who examined her on 29.02.2016 negated her (P.W.
1) allegation of rape deposing that " I did not find any injury on her body
including private part or any sign of recent sexual intercourse." The defence
declined to cross-examine the doctor. Therefore, the aforesaid discrepancy has
to be scrutinized appreciating the evidence available on record.
7. The evidence of P.W.-2, the victim's son, P.W.-3 Babul Das, P.W. 4 Raju
Das and P.W. 5 Ranu Das is heresay and their evidence simply show that both
the victim woman and the accused appellant are their co-villagers and further,
they did not witness the alleged occurrence, which took place in broad daylight
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in the house of the victim. The evidence of P.W. 6 ASI Phanidhar Basumatary,
the investigating officer is formal in nature. As such, the entire prosecution
case rests on the evidence of P.W. 1, the victim woman.
8. It is noticed from the evidence of P.W. 1 that the appellant embraced her
and after dragging her to the kitchen, she was pushed to the floor and then,
forcibly raped her. She raised alarm, but no neighbour came to her help.
Therefore, she reported the incident to the appellant's elder brother, but he did
not respond. The cross-examination part reveals that she was raped for 15 to
20 minutes and she sustained fracture of elbow joint when resisted violently
and further, that the appellant ejaculated on her. Focussing on the existence of
enmity with the appellant, she stated that the appellant, who is the immediate
neighbour, was suspected of stealing hens from her house.
9. It is not explained by the prosecution as to for what reason, the
neighbours did not know about the incident in course of continuation of the
offence she raised alarm and the doctor (P.W. 7) did not find any fracture
injury in the elbow joint as she claimed. Apart from it, the prosecution has not
examined the appellant's brother, who was reported by the alleged victim
immediately after the occurrence. There is no any answer on evidence as to
why she did not report the incident to her immediate neighbours instead of
rushing to report to the appellant's brother. Her (P.W. 1) evidence, thus, on
scrutiny does not inspire the conscience of this Court to rely on beyond
reasonable doubt.
Therefore, the impugned judgment and order is set aside and
accordingly, the accused appellant is acquitted of the charges aforementioned
and set at liberty.
Issue release order forthwith.
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Send back the L.C.R.
Appeal stands disposed of.
JUDGE
Comparing Assistant
