Gauhati High Court
Page No.# 1/15 vs The State Of Assam And Anr on 19 November, 2024
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/15
GAHC010186502018
2024:GAU-AS:11259
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./295/2018
SRI RAMDHAN NAMASUDRA @ MANORANJAN
S/O LATE ROSHOMAI NAMASUDRA, R/O VILL. NO. 2 SARISHABARI, P.S.
SAMAGURI, DIST. NAGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP, ASSAM.
2:SRI NITAI NAMASUDRA
S/O LATE NIPENDRA NAMASUDRA
R/O VILL.NO. 2 SARISHABARI
P.S. SAMAGURI
DIST. NAGAON
ASSAM
PIN 78213
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE MITALI THAKURIA
Advocate for the appellant : Ms. A. Devi, Legal Aid Counsel
Advocate for the respondents : Ms. B. Bhuyan, Sr. Advocate & Addl. PP, Assam.
(Assisted by Ms. R. Das, Advocate).
Date of hearing : 24.10.2024, 29.10.2024
Date of judgment : 19.11.2024
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JUDGMENT & ORDER
(S.K. Medhi, J)
1. The present appeal has been preferred under Section 374 (2) of the Code of
Criminal Procedure, 1973 against the judgment and order dated 24.04.2018 passed by
the learned Special Judge, Nagaon, Assam in Special Case No. 48 (N) of 2016. By the
aforesaid judgment, the appellant has been convicted and sentenced to undergo
rigorous imprisonment for life and also to pay fine of Rs. 10,000/- in default R.I. for
another 6 (six) months under Section 302 IPC and to undergo rigorous imprisonment
for life and also to pay fine of Rs. 10,000/- in default R.I. for another 6 (six) months
under Section 6 of the POCSO Act concurrently.
2. The case involves the brutal killing and rape of a seven-year-old child who would
be referred to as the victim in the judgment.
3. The criminal law was set into motion by lodging of an Ejahar by PW-3, the
cousin of the deceased. As per the Ejahar which was lodged on 27.12.2015, the
appellant had lured the deceased on the pretext of buying chocolate by giving Rs. 10/-
to her. Thereafter, as she did not return, her mother PW-2 made a search and the
body of the deceased was found in an abandoned latrine. The Ejahar had specifically
named the appellant as the accused person.
4. After completion of the investigation, the charge sheet was submitted whereafter
charges were framed. As the appellant had denied the charges, the trial had begun. In
the trial, 15 nos. of prosecution witnesses were examined along with the aspect of
proving certain documents and exhibits. After completion of the evidence of the PWs,
the appellant was examined under Section 313 of the Cr.P.C. wherein he had denied
the allegations. It may be mentioned that it was thereafter that the defence had
adduced evidence through 2 (two) nos. of witnesses in which certain aspects were
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revealed.
5. After completion of the evidence and other procedures established by law, the
matter was considered which culminated in the aforesaid judgment.
6. We have heard Ms. A. Devi, learned Legal Aid Counsel. We have also heard Ms.
B. Bhuyan, learned Senior Counsel & Addl. Public Prosecutor, Assam assisted by Ms. R.
Das, learned counsel.
7. Ms. Devi, the learned Legal Aid Counsel has submitted that the case is based on
circumstantial evidence and the materials on record would not constitute a complete
chain to come to a definite conclusion of complicity of the appellant. She has
highlighted that apart from the fact that there was no eye-witness or any direct
evidence, even the forensic evidence collected was not in accordance with law. She
has also submitted that the requirement of having a DNA examination under Section
53-A of the Cr.P.C. was done away with and therefore there was no conclusive material
to connect the appellant with the offence. She has submitted that though the offence
in question is a heinous one, without conclusive materials to connect the appellant
with the same, the learned Sessions Court had committed error in law in convicting
the appellant. On the other hand, the learned Addl. Public Prosecutor has submitted
that the impugned judgment is based on relevant materials and the conclusion arrived
at is on the basis of the allegation being proved beyond all reasonable doubts.
8. To appreciate the rival contentions, it would be necessary, as an Appellate Court
to look into the materials more specifically, the depositions of the witnesses. As
mentioned above, 15 nos. of prosecution witnesses were examined which included 2
(two) numbers of Doctors and the Investigating Officer. PW-12 is the Doctor who had
conducted the post-mortem over the body of the deceased and PW-14 is the Doctor
who had examined the appellant.
9. PW-1 is a seizure witness. PW-2 is the mother of the deceased and her
deposition is of significance. She narrates that on the fateful evening of December,
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2015, while the deceased was warming herself by sitting beside a fire, the appellant
had come to their place and sat near her and was conversing with her whereafter, he
had left. Thereafter, the deceased had told her that the appellant would give her
chocolates and therefore, she wanted to go to the appellant's house which the PW-2
had resisted. However, on the pretext of going to the house of the elder brother of
PW2, the deceased had left. Since about half an hour had passed and the deceased
did not return home, the PW-2 had gone to the house of her brother who was
examined as PW-11 and asked for her daughter which was replied that she had not
come to their house. Thereafter, PW-2 had gone to the house of the appellant and
asked his younger sister and she had replied that the appellant had gone somewhere
by keeping his bicycle at home and she did not know where he had gone. While the
search was going on, PW-10 told PW-2 that she could hear the sound of a child crying
near the latrine in the backside of their house. On such information, PW-2, along with
other villagers had gone near the latrine and found her daughter naked inside the
latrine and was bleeding through her urinary organ. Though she was tried to be taken
to the hospital, it was detected that the daughter had already passed away. The
matter was accordingly informed to the Gaon Burah- PW5, who had consequently
informed the police. Thereafter, police had come and made certain seizures and had
taken the body of the deceased for post-mortem. In the cross-examination, a
suggestion was given to her that some passerby on the road had abducted the
daughter and committed bad act on her which was negated.
10. PW-3 is the informant, who had lodged the Ejahar, PW- 4 is the father of the
deceased, who is a seizure witness as well as inquest witness, PW- 5 is the Gaon
Burah, who had arrived at the place of occurrence and had informed the police. PW-6
is the shopkeeper from whose shop the deceased had purchased chocolates and
biscuits who deposed that such purchase was made by the deceased by giving Rs.
10/-. PW-7 is another seizure witness who had also stated that he had gone to the
house of the appellant, who, however was not found there. PW-7 had covered the
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body of the deceased with a white cloth. He had also stated that the wife of the
appellant had told him that the appellant had come to their house with a girl. PW-8 is
a resident of the village and had submitted that the appellant lives in the house of his
elder sister and that near the place of occurrence there was a Health Sub-Centre
wherein persons reside. PW-9 had stated that she was sitting with her husband- PW-
11 and another person Kanu Namasudra- PW-7 near a fire. It may be mentioned that
the period was an evening of late December in the year, 2015. Then the appellant had
come and asked for water and thereafter proceeded to the house of the deceased.
The timing which has been stated by the said PW-9 matches with the timing of the
incident stated by the other witnesses. PW-10 is the wife of PW-8. PW-11 is the
husband of PW-9 who had also stated that the appellant had come to their place and
had water and went away towards the house of the deceased and after half an hour,
the mother of the deceased had come to their house in search for the deceased.
11. PW-12 is the Doctor who had conducted the post-mortem on the deceased. He
opined in the following manner regarding the death:
"In my opinion the cause of death was (homicide due to) asphyxia due to
compression of wind pipe of neck. Signs of sexual assault is present in the body,
the time of death is within 24 hours of post-mortem done. Signs of throttling is
present in neck.
Ext. 6 is my report and Ext. 6 (1) is my signature. It is a case of brutal murder
besides wild sexual harassment. Sexual assaulment (supra) was so forceful so
there was rectal injury causing complete perineal tear."
12. PW-13 is the Scientific Officer, who had done the forensic test on the samples
collected from the deceased as well as the appellant. PW-14 is the Doctor who had
examined the appellant. In his cross-examination however he had stated that no
injuries or redness were found in the private parts of the appellant. PW-15 is the
Investigating Officer who had investigated the case. He had stated that he has seized
the underwear and pant of the appellant and other articles.
Page No.# 6/15
13. As indicated above, based on the deposition of the aforesaid witnesses, the
appellant was examined under Section 313 of the Cr.P.C. where he had denied the
allegations and the evidence against him. However, thereafter on 03.01.2018 the
appellant had deposed as DW-1 in which he admits that the police took away his
clothes which he was wearing and also that there was collection of pubic hair, nail
clippings and semen from him. DW-2 is the wife of the appellant. The statement under
Section 313 of the Cr.P.C. was recorded on 23.11.2017 whereas the appellant had
deposed as DW-1 on 03.01.2018.
14. Ms. Devi, the learned Legal Aid Counsel has submitted that in a matter involving
rape there is a necessity to conduct a DNA test under Section 53A of the Cr.P.C. It is
submitted that in the instant case no such DNA test was done and therefore, there
was a lacuna in the prosecution case. As regards the forensic examination, she has
submitted that no matching of the blood stains or the semen were done with that of
the appellant and in this regard there was also a direction of this Court on an earlier
occasion even whereafter no such matching could be done. She has also highlighted
the aspect that the PW-2, mother of the victim, in her statement recorded under
Section 164 of the Cr.P.C. did not mention about any money which was said to be
offered by the appellant to the deceased to buy chocolates.
15. By relying upon the case of Rahim Beg & Another vs. State of U.P. reported
in (1972) 3 SCC 759 the learned counsel for the appellant has submitted that
presence of injuries on the male organ of a person accused of rape of a minor girl is
necessary without which there cannot be a conclusive proof of complicity of such
accused in such offence. She submits that there are lacuna in the prosecution case
and in absence of any eye-witness, the chain of events would not be complete to
involve the appellant with the offence in question. It is reiterated that the scientific
evidence is not adequate as there was no matching of the semen.
16. Per contra, Ms. Bhuyan, the learned Addl. Public Prosecutor, Assam has
Page No.# 7/15
submitted that the materials on record and the evidence are sufficient to come to the
conclusion of guilt of the appellant in the instant case. She submits that the evidence
of all the 15 nos. of prosecution witness are consistent and though it is a case of
circumstantial evidence, the depositions are such that it would lead to only one
conclusion of involvement of the appellant with the offence. She has submitted that
the appellant was directly named in the Ejahar lodged on 27.12.2015 by the PW-3.
17. The mother of the deceased who had deposed as PW-2 had given a vivid
description of the events when the appellant had come to their house in the evening
and was seen to be talking to the deceased near the fire, whereafter the deceased
wanted to go to his house as he had lured her to give chocolates for Rs 10/-. PW-2
with her motherly instinct had asked her not to go and thereafter, on some pretext the
deceased had left by saying that she would visit the house of the PW-11 who is the
brother of PW-2. Since the deceased had not return to their house, after half an hour,
a search was made in the house of PW-11, who had stated that the deceased did not
come to their house whereafter all of them had gone to the house of the appellant
where he was not found. Thereafter, it was heard from PW 10 that she could hear the
cry of a child behind their house near the abandoned latrine whereafter the naked
body of the deceased was found with injuries which has been recorded in the post-
mortem report as follows:
"Wounds, Position, Character
1) Rt. Cheek - multiple < 1 cm discrete marks of bruises present.
2) 4 in no. in same vertical plane -bruises- in left side of neck- < 1 cm.
3) 3 Nos. same size marks in right neck posteriorly.
4) Left breast -curvilinear bruise 3 in nos.
5) Vaginal injury as described.
6) Anal injury as described.
...
11) Organs of generation external and internal
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Vagina is torn, due to forceful penetration. Causing rectum injury, causing
complete perennial tear. Laceration present in vagina, causing pelvic hemotoma
and circular bruise in vulva. Rigor mortis is present.
Details. Small bruises in the neck and cheek are like nail marks, bruises in left
breast are like teeth marks, no pubic hair is collected as it is absent. The thyroid
cartilage is fractured, vagina is torn, lacerated causing complete perennial tear
and rectal injury. Vaginal laceration inside cause pelvic hematoma."
18. The learned Addl. Public Prosecutor has submitted that the version of PW-2 has
been corroborated by the versions of PW-6, PW-7, PW-9 and PW-11. She submits that
PW-6, who is the shopkeeper had deposed that during that time the deceased had
come to his shop and purchased chocolates and biscuits for Rs 10/-. Though PW-7
had made a statement that the wife of the appellant had told him that the appellant
had come to the house with a girl, the said version will not have any adverse impact
inasmuch as, the other witnesses have consistently deposed that on their visit to the
house of the appellant at that time, he was not found and his sister and wife had told
that he had left for some place leaving behind his bicycle.
19. The learned Addl. Public Prosecutor has submitted that the medical evidence and
scientific evidence would play a significant role in the present case. By controverting
the submission that no matching being done, the learned Addl. Public Prosecutor has
submitted that in the report of the Scientific Officer, there are positive results
regarding presence of blood in the nail clippings of the appellant and spermatozoa in
his underwear. She has explained that though presence of spermatozoa in the
underwear may be possible in normal circumstance, however, the presence of blood in
the nail clippings of the appellant would prove his involvement in the offence.
20. The learned Addl. Public Prosecutor has also submitted that though in the
examination made under Section 313 of the Cr.P.C., the appellant had denied the
allegations were made against him by the PWs, he, as DW-1 had admitted that the
police had taken away his clothes which he was wearing and had also collected pubic
hair, nail clippings and semen. She has highlighted the results of the forensic test
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which was proved as Ext. 7, more specifically the following aspects pertaining to the
appellant.
Serial No. 6 with regard to gave positive test for human blood in the nail
clippings.
Serial No. 7 gave positive test for spermatozoa in the swab.
Serial No. 8 positive test for human blood in the pubic hair.
Serial No. 9 positive test for spermatozoa in the underwear and pant.
21. As regards the reliance on the case of Rahim Beg (supra), the learned Addl.
Public Prosecutor has submitted that in the subsequent case of State of Himachal
Pradesh vs. Raghubir Singh reported in (1993) 2 SCC 632 the Hon'ble Supreme
Court had distinguished the case of Rahim Beg (supra) and had also laid down that it
would be limited to the facts of the said case. She submits that the chain of events in
the present case is complete which would lead to only one conclusion of the
involvement of the appellant.
22. The learned Addl. Public Prosecutor has relied upon the case of Veerendra vs.
State of Madhya Pradesh reported in (2022) 8 SCC 668 wherein the Hon'ble
Supreme Court has laid down that each and every defect would not be fatal to the
case of the prosecution if the materials otherwise are sufficient to prove the
involvement of the accused beyond all reasonable doubt. On the aspect of the Section
53A of the Cr.P.C. pertaining to DNA Test, the following has been laid down.
"53. In view of the nature of the provision under Section 53A Cr.P.C and the
decisions referred (supra) we are also of the considered view that the lapse or
omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot
be permitted to decide the fate of a trial for the offence of rape especially, when
it is combined with the commission of the offence of murder as in case of
acquittal only on account of such a flaw or defect in the investigation the cause
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of criminal justice would become the victim. The upshot of this discussion is
that even if such a flaw had occurred in the investigation in a given case, the
Court has still a duty to consider whether the materials and evidence available
on record before it, is enough and cogent to prove the case of the prosecution.
In a case which rests on circumstantial evidence, the Court has to consider
whether, despite such a lapse, the various links in the chain of circumstances
forms a complete chain pointing to the guilt of the accused alone in exclusion of
all hypothesis of innocence in his favour."
23. She has also submitted that the witnesses are rustic villagers and even then,
their evidence are consistent. In this connection reliance has been made upon the
case of Pundappa Yankappa Pujari vs. State of Karnataka reported in (2014)
12 SCC 372 wherein it has been laid down that minor discrepancies are to be
overlooked wherein the witnesses are villagers.
24. The rival submissions have been duly considered and the materials placed before
this Court including the LCR have been carefully perused.
25. The evidence on record which has been discussed above would show that the
versions of the prosecution witness are consistent. The mother of the deceased who
had deposed as PW-2 had narrated the entire incident and her statement and
deposition are fully corroborated by the PW-6, PW-7, PW-9 and PW-11. PW-6, who is
the shopkeeper from whom the deceased had purchased chocolates and biscuits for
Rs 10/- at that time, PW-7, PW-9 and PW-11 were present when the appellant had
first came to them who were warming near a fire and had asked for water and
thereafter had gone to the house of the victim.
26. We have noted that though in the examination made under Section 313 of the
Cr.P.C., the appellant had denied the allegations made against him in the depositions
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of the PWs, he as DW-1 had admitted that the police had taken away his clothes
which he was wearing and had also collected his pubic hair, nail clippings and semen.
We have also seen that the Serological Report which was proved as Ext. 7 contains,
amongst others, the following items, Sl. No. 6 Nail Clippings, Sl. No. 7 - swab, Sl. No.
8 - pubic hair and Sl. 9 - underwear & pant which gives positive test for blood and
spermatozoa, the details of which have been recorded above. We have noted that the
examination under Section 313 of the Cr.P.C. was done on 23.11.2017 whereas the
appellant had deposed as DW1 subsequently on 03.01.2018.
27. The medical evidence which has been adduced by the Doctor -as PW12
pertaining to the examination of the body of the deceased and the Doctor as PW14
pertaining to the examination of the appellant would show that the subsequent
scientific examination done including the serological test are consistent with the
depositions made by them as well as by the Scientific Officer as PW-13. It is true that
PW14 in his cross- examination had submitted that no injuries or redness were found
in the private parts of the appellant. The aforesaid material however has to be
examined from the point of view of the serological and scientific test done on the
materials collected from the appellant including his clothes, pubic hair, nail clippings
and semen. As rightly pointed out by the learned Addl. Public Prosecutor, Assam, all
the aforesaid items gave positive test. Much emphasis has been made by the learned
counsel for the appellant that no matching was done. We have however noticed that
there is a clear admission regarding collection of the aforesaid items by the appellant
as DW1 which significantly was recorded subsequent to the statement made by the
appellant under Section 313 wherein he had categorically admitted of the collection of
the aforesaid items from him. There is no material or even a suggestion that the
examination of the materials done in the scientific test did not belong to the appellant.
28. The learned counsel for the appellant had relied upon the case of Rahim Beg
(supra) with regard to the necessity of injuries on the male organ wherein the victim is
a minor. As indicated above, in the subsequent of Raghubir Singh (supra) a
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distinction has been carved out in the following manner.
"7. Dr Ghatate, learned senior counsel for the respondent submitted, by
reference to Rahim Beg v. State of U.P. that the absence of injuries on the penis
of the respondent should be treated as sufficient to negative the prosecution
case. We are afraid we cannot agree. Inferences have to be drawn in every
case from the given set of facts and circumstances. There is no inflexible axiom
of law which lays down that the absence of injuries on the male organ of the
accused would always be fatal to the prosecution case and would discredit the
evidence of the prosecutrix, otherwise found to be reliable. The presence of
injuries on the male organ may lend support to the prosecution case, but their
absence is not always fatal. Rahim Beg case was based on its peculiar facts and
the observations made therein were in a totally different context and cannot
advance the case of the respondent. The observations in Rahim Beg case
cannot be mechanically pressed into aid in every case regardless of the specific
circumstances of the crime and absence of the fact situation as existing in that
case. Every case has to be approached with realistic diversity based on peculiar
facts and circumstances of that case. Doctor Sharma who had examined the
respondent had found him to be capable of sexual intercourse and according to
his opinion the absence of injury on his male organ was not suggestive of the
fact that he had not indulged in sexual intercourse with the prosecutrix, then
offender years of age. His evidence was not at all challenged on this aspect by
the defence."
29. Apart from the fact that in the subsequent decision of Raghubir Singh (supra),
the said case of Rahim Beg (supra) has been distinguished and limited, we have
noticed that in the said case of Rahim Beg (supra), the expression used is only a
likelihood of injury and not a categorical finding of presence of such injuries.
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30. With regard to the submission that Section 53A of the Cr.P.C. has not been
complied with as no DNA test has been conducted, it would be necessary to examine
the aspect of the aforesaid provision, the relevant portion of which reads as follows:
"(1) When a person is arrested on a charge of committing an offence of rape or
an attempt to commit rape and there are reasonable grounds for believing that
an examination of his person will afford evidence as to the commission of such
offence, it shall be lawful for a registered medical practitioner employed in a
hospital run by the Government or by a local authority and in the absence of
such a practitioner within the radius of sixteen kilometers from the place where
the offence has been committed by any other registered medical practitioner,
acting at the request of a police officer not below the rank of a sub-inspector,
and for any person acting in good faith in his aid and under his direction, to
make such an examination of the arrested person and to use such force as is
reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall,
without delay, examine such person and prepare a report of his examination
giving the following particulars, namely;
(i) the name and address of the accused and of the person by whom
he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for
DNA profiling, and".
(v) other material particulars in reasonable detail."
31. The said provision is only an enabling provision which empowers the prosecution
to go for a DNA requirement and failure to make such a DNA test would not, in our
opinion, render the prosecution case bad in law.
32. The Hon'ble Supreme Court in the case of State of Punjab vs. Karnail Singh
Page No.# 14/15
reported in (2003) 11 SCC 271 has made certain significant observations on the
aspect of giving benefit of doubt. It has been explained that such doubts has to be a
reasonable one and the aspect of balancing with the plight of the victim is essential
which is also towards the cause of justice. For ready reference, the relevant portion of
the aforesaid judgment is extracted herein below:
"12. Exaggerated devotion to the rule of benefit of doubt must not nurture
fanciful doubts or lingering suspicion and thereby destroy social defence. Justice
cannot be made sterile on the plea that it is better to let hundred guilty escape
than punish an innocent. Letting guilty escape is not doing justice according to
law. Prosecution is not required to meet any and every hypothesis put forward
by the accused. A reasonable doubt is not an imaginary, trivial or merely
possible doubt, but a fair doubt based upon reason and common sense. It must
grow out of the evidence in the case. If a case is proved perfectly, it is argued
that it is artificial; if a case has some flaws inevitable because human beings are
prone to err, it is argued that it is too imperfect. One wonders whether in the
meticulous hypersensitivity to eliminate a rare innocent from being punished,
many guilty persons must be allowed to escape. Proof beyond reasonable doubt
is a guideline, not a fetish. Vague hunches cannot take place of judicial
evaluation. A judge does not preside over a criminal trial, merely to see that no
innocent man is punished. A judge also presides to see that a guilty man does
not escape. Both are public duties. Doubts would be called reasonable if they
are free from a zest for abstract speculation. Law cannot afford any favourite
other than truth."
33. In view of the aforesaid discussions and the materials available on record, we
are of the view that there is no scope for interference with the impugned judgment
and order dated 24.04.2018 and the conclusion arrived at by the learned Special
Judge, Nagaon, Assam in Special Case No. 48 (N) of 2016 are based on cogent
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materials.
34. The appeal accordingly stands dismissed.
35. Send back the LCR.
36. Before parting we would like to record out appreciation for the assistance
rendered by the learned Legal Aid Counsel and she would be entitled to the prescribed
fee.
JUDGE JUDGE
Comparing Assistant
