BABU BORUAH vs STATE OF ASSAM

1.This is an appeal against the judgment and order, dated 20.07.2011, passed by the learned Sessions Judge, Dhemaji in Sessions Case No.

95(DH)/2009 convicting and sentencing the accused-appellant under Sections 448/376 of the IPC to simple imprisonment for 6 (six) months and to pay

a fine of Rs. 500/- with a default clause under Section 448 of the IPC and also sentencing him to rigorous imprisonment for 10 (ten) years and to pay

a fine of Rs. 10,000/- with a default clause under Section 376 of the IPC.

I have heard Mr. M Biswas, learned counsel appearing for the accused-appellant as well as Mr. PS Lahkar, learned Additional Public Prosecutor

appearing for the State respondent.

The fact leading to the case is that, on 14.09.2009, at about 4:00 pm, the accused-appellant trespassed into the house of the victim and committed

rape on her. The victim was 14 years old at that time. The informant in the instant case is the mother of the victim.

On receipt of the FIR, on the above facts, the Gogamukh Police Station registered a case, investigated into it, and after completion of investigation,

submitted charge-sheet against the accused-appellant under Sections 448/376 of the IPC.

After exhausting all the required legal formalities, a formal charge was framed against the accused-appellant by the learned Sessions Judge, under

Sections 448/376 of the IPC, which was explained to the accused-appellant to which he pleaded not guilty and claimed to be tried. In his statement

recorded under Section 313 of the Cr.PC, the accused-appellant is heard denying the allegations made against him.

The prosecution has examined as many as 7 (seven) witnesses and the defence examined none. The defence plea is of denial.

I have meticulously examined the trial court record including the evidence of the witnesses.

The victim is examined as PW1. From her evidence, it is found that she was dragged inside her house by the accused-appellant while she was

washing utensils and then had penetrating intercourse with her without her consent. The victim reported the occurrence to her uncle and mother. The

PW4, as stated by PW1 in her evidence, saw the accused-Â appellant fleeing away from the place of occurrence.

The evidence of PW1 itself shows that the informant/her mother examined as PW2, did not see the occurrence and she was reported about the

occurrence by the herself, and the PW3, the uncle of the victim who has also not seen the occurrence was also reported about the occurrence by the

victim.

The PW2, mother of the victim, stated the age of the victim to be 13 years on the date of recording of evidence by the learned trial court although

in the statement, made in the FIR, the age of the victim was stated to be 14 years by her.

The medical evidence of the Doctor, examined as PW7, makes it appear that the age of the victim was above 16 years and below 18 years. If two

years is added with the age of the victim as recorded by the Doctor, she is undoubtedly, a major at the time of the occurrence.

The evidence of commission of rape on the victim by the accused-appellant is established as the victim has specifically stated such facts which the

defence has not been able to discredit during the cross-examination.

On perusal of the evidence of the PW1/victim, it does not appear that she lied the Court and rather her evidence appears to be inspiring

confidence. In this connection, the decision of the Hon’ble Supreme Court, in the case of State of Himachal Pradesh â€"vs-Sanjay Kumar alias

Sunny, reported in (2017) 2 SCC 51 is applicable. Paragraph 31 of this judgment of the Hon’ble Supreme Court can be usefully referred to which

reads as follows:

“31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has

cleared the respondents, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are

compelling reasons, which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim

of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before

relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken

as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at

a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which

lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another

with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be

believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman

who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea

about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P). Notwithstanding this legal position, in the instance case, we

even find enough corroborative material as well, which is discussed hereinabove.â€​

Therefore, relying on the credible evidence of the victim, this Court is of the view that the findings recorded by the learned trial court holding the

accused-appellant guilty of commission of offence under Sections 448/376 of the IPC appears to have been based on evidence on record. However,

so far the punishment is concerned, it appears that the accused-appellant has been punished to rigorous imprisonment for 10 (ten) years with fine and

with a default clause under Section 376 of the IPC which is the minimum punishment prescribed for an offence under Section 376 (2)(i) of the IPC.

That provision relates to commission of rape to a minor. In the instant case, as we have already found that the victim was a major at the time of

occurrence, the offence is covered under Section 376(i) of the IPC only, and that being so, the minimum substantive sentence prescribed is 7 (seven)

years. Therefore, the substantive sentence of the accused-appellant is reduced to rigorous imprisonment for 7 (seven) years instead of rigorous

imprisonment for 10 (ten) years keeping the punishment in respect of fine and the default clause as it is.

So far the punishment under Section 448 of the IPC is concerned, it is found to be in order. However, the same will run concurrently except the

fine and the default clause.

In view of the above, the appeal is partly allowed with the modification of the sentence, as indicated above.

Send down the LCR alongwith a copy of this judgment.