Anirudh Dhanda and Another vs State of Assam

This Revision Petition is directed against the order dated 12.9.1995 passed in Sessions Case No. 54(S)/95 whereby the learned Additional Sessions Judge framed charges against both the petitioners u/s 376/326/201 of the Indian Penal Code.

I have heard Shri A.K. Bhattacharya, the learned senior counsel for the revision petitioners and Mrs. K. Deka and Shri J. Singh, the learned PPs, Assam.

This case has a chequred history. It would appear that the case was initially investigated on two occasions by the State police and on both the occasions the police submitted final report. The matter was also referred to the CID for investigation and the CID also submitted final report. Eventually, the learned Chief Judicial Magistrate, Sonitpur by order dated 21.4.1995 rejected the third final report submitted by the C.I.D. and decided to proceed with the case. Accordingly, process was issued to both the petitioners. Eventually, the learned Additional Sessions Judge framed charges as stated above.

It would appear that the charge u/s 376 IPC was framed against petitioner No. 1 for committing rape on Smti Sunita Bhuyan on 17.8.1991 Simultaneously, charge was also framed against the wife Smti Sangita Dhanda us/326 and 201 Indian Penal Code.

Shri Bhattacharya, the learned senior counsel submitted that there is no prima-facie case against the petitioner and, as such, the proceedings in the aforesaid Sessions Case initiated by the learned courts below ignoring the three final reports has to be quashed. According to Shri Bhattacharya, petitioner No.1 was an officer in the State Bank of India at the relevant time and petitioner No.2, the wife of the petitioner No. 1 was as the relevant time an Advocate practising in the District Court at Tezpur. Both of them stayed in a rented house at Tezpur where the prosecutrix was engaged as a domestic helper. The allegation of rape, according to Shri Bhattacharya, ex-facie appears to be subsequent concoction and stands belied by the medical reports on record. Shri Bhattacharya further submitted that the victim was 16 years old and her belated statement that she has been consecutively raped by petitioner No. 1 for 4/5 cannot be treated as prima facie evidence because of surrounding circumstances and the medical report. The learned Counsel also expressed his concern for the consequences that may follow if an innocent citizen is made to stand trial in a false charge of rape.

Before I proceed further it would be appropriate to place on record the limitations within which this court is to proceed while dealing with a prayer for quashing a charge. The Supreme Court in a recent Judgment in State of M.P. v. S.B. Johari 2000 AIR SCW 189 ruled that the High Court in Criminal Revision cannot appreciate and weigh the materials on record for coming to the conclusion that charge against the accused could not have been framed. It would be relevant to quote herein below the observation of the Supreme Court :

"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, after considering the provisions of Sections 227 and 228, Cr. P.C. court posed a question whether at the stage of framing the charge trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must be necessarily be limited to deciding If the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may persue the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof.".

Keeping in mind the above limitations, I have examined the documents annexed with the revision petition, the materials in the record of the Sessions Case No. 54(S)/95 and the Case Diary. It appears that charge of rape against the petitioner No. 1 rests on the solitary uncorroborated statements of the prosecutrix. Even the medical reports available in the Case Diary also do no not lend any support to her claim of rape and assault. The prosecutrix in her statement to the police stated as follow :-

There were three rooms in the above mentioned house. The Sahib and his wife slept in one room was dining room and in the third one 1 used to sleep. While we were staying at Mazgaon Dhanda Sahib got up from his sleep at mid night and raped me for four days consequentially. Right from the first day I tried to stop him, but he did not listen to me and threatened me and continued to rape me. On the fourth night at about 10 O''clock he came into my room and while he was raping me his wife Smt. Sangita Dhanda came into my room pulled him away from the room. That day Maim Sahib did not say me anything. And I went off to sleep. While I was being raped 1 had experienced great physical pain but my hymm was not ruptured nor was there any bleeding. On the fourth occasion when I was raped it was Friday, on Saturday morning Sahib had his meal and went to office and Maim Sahib did not go to the court but stayed at home. In the afternoon at about 2 O''clock Maim Sahib gave a glass of sharbat to drink. 1 did not want to drink it but she forced me and I drank it. After some time I saw darkness around me and became unconscious and fell down. There four days after the above incident when I regained concisousness I found that I was lying on the bed at Tezpur Civil hospital. When I wanted to urinate, I found that my thighs vagina and buttocks were burnt.".

It is to be decided whether the petitioner-should go for trial of the charges of rape and assault on the basis of above statement only. The day of occurrence was 17.8.1991 when she after drinking sarbat fell sick. The matter was reported to the police on 21.8.1991 at 2 P.M. The FIR was submitted Shri Sanju Bhulya the father of the girl. The information regarding rape given in ejahar reads as follows :

".... Yesterday the Tuesday ejaharkari''s daughter came to consus and Informed him that she was given sarbat and since thereafter she could not say as to what happened and how her secret part of the body was burnt. She was brought to Civil Hospital from Tezpur Mission Hospital by the opposite party. Her secret part of body was burnt severely by pouring some acid like substance. At the time of urination she cries aloud due to which leaves of plants fall down. I suspect that the ejaharkari''s daughter was made unconscious, raped and for removing signs of intercourse some acid-like substance was poured in her secret part of the body.''.

It would appear that the ejahar was lodged after the prosecutrix regained her sense in the hospital and she did not make any statement to the ejaharkari or to any other person including her mother about the rape. It is evident that the allegation of rape was made on suspicion. The father lodged the ejahar after he had met his daughter in Hospital. Obviously, no allegation of rape on the previous nights was made to him or to anybody else. The police recorded the statement of the prosecutrix on 23.8.1991 i.e. after 5 days of occurrence and it was only then she first made the statement that she was raped for four consecutive nights. Thereafter, the learned Magistrate recorded her statement u/s 164 Cr.P.C. where she reiterated the allegation of rape. On this background a decision has to be taken whether there is a prima facie case or not to direct the petitioners to go for trial and assault.

It would be relevant to have a look at the statements of the medical officers who have been examined by the police. The petitioner were tenants of Dr. Sandhya Rani Sharma and stayed in the upper floor of her house. Dr. Sharma was having a Nursing Home in her residence. Her statement is that the petitioners had a two year old daughter and a maid servant iie. the prosecutrix on 17.8.1991 at about 3 O''Clock. Mrs. Sangita Dhanda, wife of the petitioner No. 1 came down and informed that her maid servant was sick. Dr. Sharma was not well. So she requested her to invite Dr. Sudhir Kr. Saha. When Dr. Sana arrived, she also came down and found that the maid servant was lying on the floor, forth was coming out of her mouth. She assumed that the prosecutrix had an epileptic fit. Dr. Saha examined the girl and prescribed medicine. She further stated that she had given a calmpose injection on her buttocks. At that tune she and Dr. Saha did not see any burn injuries on her person. She also stated that neither she nor Dr. Saha saw any burn injuries on the thighs and buttocks of the prosecutrix. She further stated that the patient might have got her burn injuries at the Mission hospital. Dr. Sudhir Saha in his statement reiterated what is stated by Dr. Sandhya Rani Sharma. According to Dr. Saha, he thought that the patient had pulmonary oidema. He had given her injection and advised the petitioner No. 1 to admitted the patient to any good hospital. He found the prpsecutrix in an unconscious state lying on the floor and also noticed a lot of water on the floor. He further stated that none informed him that the prosecutrix sustained any burn injury. But the petitioner No. 2 informed him that the girl had fallen down and that was the reason for her being in that state. After examining the prosecutrix. Dr. Saha also examined the two year old daughter of the petitioners. Dr. Rose Sema, a doctor of Baptist Christian Hospital where the prosecutrix was initially shifted stated before the police that Mr. Dhanda, petitioner No. 1, brought the girl to the hospital for treatment. Mr. Dhanda informed her that she had become unconscious while playing with daughter and had breathing trouble. As there was no complaint about the burn injuries on her private parts, Dr. Sema did not examine her private parts. It was on the next day she came to know from the attending Nurse that while trying to help the girl to urinate, she saw some burn injuries on her private parts. On 18.9.1991 i.e. on the following day, the girl was shifted to Tezpur Civil Hospital. The Nurse Mrs. Lily Bhengra in her statement stated that in the mid-night while helping the prosecutrix to urinate, she saw bum injuries on her private parts. Dr. Anil Dutta of Tezpur Civil Hospital admitted the prosecutrix to the hospital on 18.8.1991. He stated that a nurse who was helping her to urinate noticed bum injuries below the stomach. He further stated when asked about the burn injuries, she could not give any definite reply. Shri Biren Goala, Dresser of Civil Hospital stated that there was burn injuries on her thigh and upwards. But he did not notice any injuries of her vagina Dr. G.N. Kalita, Superintendent of Civil Hospital stated that he found her inner thigh and a part of her buttock burnt. But there was no injury on the vagina and vulva. He further stated that after complete examination it could be seen that she had burnt injuries with hot water or hot liquid substance or hot oil and not by any acid or corrosive substance. He further stated that the vulva and vagina were healthy. It was not torn and the tissue was not damaged. The hymn was not ruptured and it was intact. He further stated that there was no stain of supermatozoa on the girl''s private parts. The vaginal passage was narrow and there was no sign of it having been broad. Hence, there was no proof of rape or any sexual intercourse. There is nothing in the statement of Dr. P.K. Khaklari and Dr. Mrs. R. Thorn about the rape. Besides the above statements recorded by the police, the medical report given by Dr. A.K. Khaglari of Baptist Christian Hospital does not refer to rape. The report given by the Superintendent of Tezpur Civil Hospital is quoted below :-

"Height - 4 feet 8" inches

Weight-48 Kg.

Teeth - 28 total

Breast development normal

Pubic hair present

Ancillary Hair present

Marks of violence on person - NIL

Stains of seycate of the heigh are - Nil

Vagina - Narrow rugue, clitoris un-enlarged labia elastic (minor) the labia margin prominent and in close apposition. The vaginal oufice.

Valva is healthy, nor tear or tissue damage or blood clot is there. Hymen - intact and no stain of sperm in it. The aperature is small in size and not dilated or torn., No definite opinion as to rape as no sign of rape is found in Medical Examination.

X-Ray2''5 24.8.1991 - age is about seventeen years L.1524/899 - (17years) Burn - The burn Is over on medical aspect of the both thighs extending the area (10'' x 8'') in Rt thigh and both (10'' x 11'') on the left thigh both buttock are burnt centrally on the back (8'' x 8'') '' respectively burn is extending from the central buttock to the back position of the thigh on the right thigh the burn is extending from the back of the thigh to the back of knee. A few blisters and vesicutious are found. The possible cause of the burning may not be hot water or hot oil or hot liquid extending deeper to the skin with pilling cat of the stain. No sign of scorching or trickling are there. Vagina and valva are not burnt - they are healthy. The injuries are simple in nature.".

The statement of the Doctors made before the police and the medical report referred to above on the face of it does riot show that there is prima facie evidence of.rape. As against this, the solitary statement of the prosecutrix made at a belated stage asserting that despite rape her hymen was not ruptured definitely cannot be treated as prima facie evidence of rape.

Here a quotation from Modi''s Medical Jurisprudence and Toxicology, 21st Edition at Page 376 seems to be relevant to ascertain as to whether the above materials could be held to be prima facie evidence of rape :-

"4. In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more rediate tears, (more so in posterior half) the edges of which are red swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days, and after eight to ten days become shrunken and look like small tags of tissue. Frequent sexual intercourse and partuition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myritiformes.".

It would appear from above that the hymen as a result of complete and repeated intercourse Is usually lacerated. This had not been in the instant case as per medical report. A simultaneous reading of the ejahar the statement of the prosecutrix, the statement of the doctors and the medical and forensic reports would show that the evidence collected by the police, if left unassailed during the course of trial, will not end in conviction of the petitioner No. 1 u/s 376 IPC. This is, perhaps, the reason for which the State Police and the CID in their three successive reports declined to charge sheet the petitioners. Rape is a heinous offence. The offenders cannot be let off unpunished. At the same time it has to be ensured that no innocent man falls victim of motivated allegation. Over-zealous prosecution out of sympathy may often lead to abuse of process of law.

The charge against petitioner No. 2 is of assault. The medical report shows that the injuries found on the person of the prosecutrix was simple in nature. Dr. Sandhya Rani Sharma and Dr. Sudhir Saha did not see any burn injury while initially examining the girl. Dr. Sandhya Rani Sharma was of the opinion that the burn injuries might have been sustained in the hospital. The FSL report shows that the test was negative for common poison including Baygon. It shows that nothing corrosive or poisonous was found on the person of the prosecutrix. The burn injuries noticed at the Baptist Mission Hospital and, thereafter, at the Civil Hospital cannot, therefore, be said to have been caused on 17.8.1991. Nobody has seen the petitioner No. 2 doing anything foul on the person of the prosecutrix. There is nothing in the expert report to suggest that the Sarbat (drinks) given by her contained any toxic/poisonous element. Doctors who had examined the prosecutrix in the residence of the petitioner No. 2 on the day of occurrence also did not notice any kind of injury. Therefore, except inference, there is nothing on record to connect her with any criminal act. The Court is to act on the materials on record and not otherwise. In my opinion there is no prima facie evidence to compel her to go for trial.

In the result, this revision petition is allowed. The charges framed against both the petitioners and the proceedings in Sessions Case No. 54(S)/95 are hereby quashed.