Gauhati High Court
Bubul Tamuli vs The State Of Assam And Anr on 25 August, 2023
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GAHC010123992023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/478/2023
BUBUL TAMULI
S/O SRI PRADIP TAMULI,
RESIDENT OF JOKAI KOIBORTA, 27 GHORIA GAON, PO KHAMTIGHAT, PS
BARBARUAH, DIST DIBRUGARH, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:RAM MOHAN DAS
S/O LATE TIKHARAM DAS
RESIDENT OF JOKAI KOIBORTA 27 GHORIA GAON
PO KHAMTIGHAT
PS BARBARUAH
DIST DIBRUGARH
ASSA
Advocate for the Petitioner : MR S BORTHAKUR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 25-08-2023
1. Heard Mr. S Borthakur, learned counsel for the petitioner. Also
heard Mr. P Borthakur, learned Addl. PP, Assam.
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2. The present application is filed under section 389 Cr.P.C, 1973
praying for suspension/stay of the operation of the judgment dated
30.11.2022 passed by the Additional Sessions Judge, Dibrugarh in
Sessions Case No.129/2017 convicting and sentencing the applicant
under section 376 IPC to undergo RI for 7 (seven) years and also to
pay a fine of Rs.10,000/- and in default to undergo SI for 6 (six)
months. The further prayer made in this application is to release the
applicant on bail.
3. The connected appeal was admitted by this court on
22.03.2023 and the records were called for. The records called for are
accordingly received.
4. Mr. Borthakur, learned counsel for the petitioner while arguing
for the bail of the petitioner submits that the alleged offence of rape
was committed in the month of October 2016 however, the FIR was
lodged on 02.01.2017 i.e. after 3 (three) months. He further contends
that the accused person's specific stand is that he did not commit the
rape and refuted the allegation of the victim that out of the alleged
incident a girl child was born and accordingly to prove his innocence
the accused even filed an application to have a DNA test of the child
so as to bring out the truth. Such application was also allowed
however, the Magistrate and the Investigating Officer did not initiate
any procedure for collection and conclusion of such DNA procedure
and during trial convicted the accused only on the basis of the
testimony of the victim girl and that too without considering the
statement of the accused recorded under section 313 Cr.P.C.
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Accordingly, Mr. Borthakur submits that such course of action has
violated the right of the accused of fair trial and thus vitiated the
entire proceeding.
5. Mr. Borthakur further contends that there are vital
contradictions and improvements in the statement of the victim girl
inasmuch as, the victim girl has herself testified before the court that
she had a love affair with the accused, however, the accused refused
to marry her and therefore, she was angry with the accused.
Referring to the testimony of the accused, Mr. Borthakur further
contends that the victim herself testified that she surrendered before
the accused at the time of the incident as the accused promised to
marry her. Thus, even if it is assumed that there is commission of
sexual intercourse, it was clearly a consenting act and therefore, the
same cannot be treated as an offence under section 376 IPC.
6. Mr. Borthakur, further contends that the accused is still ready
to go for a DNA test along with the child born out of the alleged rape
and if such a procedure is done the truth will come out inasmuch as
the accused specifically took a stand in his statement recorded under
section 313 Cr.P.C that he did not commit the offence and has not
fathered the child born to the victim, however, the learned court has
ignored that even after allowing DNA test the same was not done,
however, the learned trial court ignored its own direction of DNA test
blaming it on the accused that accused has not done anything to get
the DNA test as directed. Therefore, Mr. Borthakur submits that the
petitioner has been able to make out a case for grant of bail.
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7. On the other hand the learned Addl. PP, Mr. P Borthakur has
vehemently opposed the prayer of the accused primarily on the
ground that the statement of the victim has been consistent that the
petitioner had committed rape upon her inasmuch as when the
evidence of the prosecutrix in the commission of sexual offence is
trustworthy no further corroboration is required to convict a rape
accused. He further submits that even if the petitioner is ready for a
DNA test, the same can be done in exercise of power under section
311 Cr.P.C at the time of hearing of the appeal after consideration of
the other available evidence on record. The applicant has not also
filed any application under section 311 Cr.P.C in this regard therefore,
at this stage such prayer may not be allowed inasmuch as DNA test
involves the privacy of another person.
8. Considered the materials available on record, including the
statement of the victim recorded under section 164 Cr.P.C before the
magistrate as well as her testimony before the court.
9. From the materials available on record, one fact is seen by this
court that both the accused and the victim admittedly had an affair
and from the testimony of PW-1 it is seen that according to her the
relation was broken down by the accused that's why she had anger
against the accused. On the other hand the accused in his 313
statement took a defence that he did not marry the girl though there
was an affair for the reason of her tender age, as at that point of
time, she was around 17 years and thereafter he got married to
another lady and fathered one boy who was aged about 5 years.
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10. From the deposition of the victim, it is also seen that she
depicted the incident initially to be forceful, however, she further
deposed that when the accused promised her to marry, she consented
inasmuch as at that point of time the accused was already a married
man.
11. The record also reveals that during the investigation an petition
was filed being Pet No.134/2017 before the Magistrate praying for
DNA test and such application was allowed by an order dated
28.02.2017 with a condition that the petitioner is to bear the cost,
however, the matter did not proceed further.
12. This court has also considered that even after detection of the
pregnancy, the FIR was not lodged rather from the evidence of the
mother and the victim it is seen that a attempt was made for the
abortion and when the same failed, a village meeting was called and
when in the village meeting the accused disown fathering the child,
the FIR was lodged.
13. This court also considered that the learned trial court has not
dealt with in any manner the defence taken by the accused while
recording his statement under sction 313 Cr.P.C.
14. Considering the matter in its entirety as discussed herein above,
this court is of the considered opinion that the petitioner has been
able to make out a case for grant of bail during the pendency of the
appeal.
15. Accordingly, the applicant shall be allowed to be enlarged on
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bail on furnishing bail bond of Rs.50,000/- with a solvent surety of the
like amount to the satisfaction of the learned Additional Sessions
Judge, Dibrugarh.
16. While parting with the records, it is made clear that the findings
recorded in this order is only for the purpose of consideration of the
present application and such findings shall not influence the
determination of the appeal. It is also made clear that this court in
the present application has not dealt with the verbal submission of Mr.
Borthakur that a DNA test be directed however, the applicant shall be
at liberty to file separate application under section 311 Cr.P.C and in
the event of such application is filed, same shall be considered on its
own merit.
JUDGE
Comparing Assistant
