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Judgment
Doubting the correctness of the judgment passed in S.T. No. 03(06)
of 2014, the appellant has preferred this appeal. According to the appellant,
the learned trial court failed to appreciate the position of law as well as the
evidence of the prosecution witnesses in its proper perspectives. According
to him, the learned trial court failed to consider the factual aspects and the
probability factors.
As against the learned Counsel appearing on behalf of the state
contended that the learned trial court had considered legal aspects and all other material aspects in its proper perspectives and so the judgment
passed by the learned trial court is quite unimpeachable.
In the interest of effective adjudication, factual scenario of this case
is required to be visualised. Shorn of unnecessary details, the prosecution
case in a nutshell is such that on 17.08.2012, when the victim was sleeping
alone in her house, the accused entered into her room and committed rape
upon her forcibly. According to the victim, at that relevant point of time, her
husband was not present. He had gone to some other place for his work.
When the accused was committing rape upon her, somehow the victim had
been able to flee away and screamed for help. Thereafter, she had disclosed
the ill-episode to her brother-in-law (husband''s brother). When her brother-
in-law went to ascertain the fact from the accused, the present appellant
accused assaulted him mercilessly and for which the victim''s brother-in-law
had to take admission in a nursing home for getting medical treatment.
After a few while, the F.I.R. was lodged and in this way law was set into
motion.
The defence case as it appears to me from the trend of cross-
examination and examination of the accused under Section 313 Cr.P.C. is
his innocence and that he has been falsely implicated.
To come to a finding, I should scrutinize the evidence of the
prosecution witnesses thoroughly. The P.W. 1 in her evidence has stated
that the door of her room was made of bamboo having some gaps in between
the two bamboo pieces. There was a kerosene oil lamp in her room to get
light. Suddenly one person entered into her room and pressed her mouth by a gamchha. At that time she could not identify the accused as it was dark in
her room. Just prior to that she has categorically stated that there was a
kerosene oil lamp to have light in her room. Therefore, at that time darkness
loomed large in her room is a mystery. She further stated that after pressing
her mouth the accused appellant disrobed her. She then tried to resist at
her best. In spite of that the accused appellant had committed rape upon
her. When the accused was fleeing away, she could identify the accused
outside the said room and the said person is no other than the present
appellant Dinonath Dalui. Practically the fate of this case hinges on the
testimony of this witness mainly. In spite of having a kerosene oil lamp in
her room, she could not identify the accused. Existence of kerosene oil lamp
indicates that there is no electricity in her house. The offence took place in
the wee hours, then how the victim identified the appellant is still a mystery.
According to the victim, she caught hold of lungi of the accused and when
she started shouting, her brother-in-law came there and at that time
accused assaulted him. In the F.I.R. there is a complete departure. The
F.I.R. speaks that brother-in-law went to the accused to ascertain what
happened and at that time the accused assaulted him. But evidence is
completely different. From the cross-examination of this victim recorded on
16.08.2014,it appears that there are adjacent houses near the room of the
victim. The victim''s relations are also residing adjacent to each other. It has
been clarified in her evidence that there are existence of house of one Nandi
Sardar, Naba Gharami, Bangla Jana, Siddhaswar Jana and others. The
evidence of P.W. 2 also corroborates that they used kerosene oil lamp for
illumination of their rooms. This P.W. 2, is the brother in law of the victim, and he specifically stated that the victim lives in an adjacent room. When
the victim screamed for help, he came from his room and found the accused
standing outside her room. The story of F.I.R. is otherwise. Initially the
victim disclosed her agonies to her brother-in-law, who in turn, went to
accused to ascertain what happened.
According to the brother-in-law, the appellant assaulted him and
for which he was admitted in a nursing home. This P.W. 2 further stated
that his elder brother (victim''s husband) works at Calcutta but he does not
know where he works. The P.W. 3 stated that hearing the shouting, she
came to the spot and found the victim as well as her nephew. The evidence
of P.W. 4 and P.W. 5 are not much relevant for the purpose of adjudication
of this case. The P.W. 6, is not an eye-witness. She told about the incident
when she came to the house of the victim. Other witnesses are the doctor
and police personnel.
The victim had given a statement under Section 164 of Cr.P.C.
which speaks that suddenly one person entered into her room and forcibly
committed rape upon her. When he was fleeing away, she identified the
victim. She thereafter reported the incident to her brother-in-law (husband''s
brother). When the said brother-in-law chased the accused, he was
assaulted by the appellant. Her such piece of evidence, in course of under
Section 164 of Cr.P.C., are not in tune with her statement before the trial
court and in the F.I.R.
On perusal of the evidence it appears that the victim''s brother-in-
law resides adjacent to her room and there are many other houses in and around the place of occurrence. A village road is also there just behind the
window of the victim''s room. One has to enter into the victim''s room by
crossing some other houses of the victim''s family members. The husband of
the victim did not show any interest about the incident nor came to adduce
evidence. If kerosene oil lamp was there why the victim could not identify
the accused is required to be explained. It is not the case of the victim that
the accused had put cloth on her eyes.
While the victim was taken before the doctor for her medical
examination, she did not divulge the name of the accused and as to how she
was raped.
The learned Counsel appearing on behalf of the appellant has
referred to a decision reported in (2011) 14 SCC 671 ( Amar Bahadur Singh
vs.- State of U.P .). The factual aspect of that case is almost akin to the
present one. The Hon''ble Apex Court held that it was perhaps when the
accused and prosecutrix had been caught red-handed the story of rape had
been cooked up, to salvage some of the family honour. It seems to me that
this case may be an instance of that type of case.
Considering the circumstances, I am of the view that the
prosecution failed to establish the guilt beyond all reasonable doubts.
Accordingly, the criminal appeal is allowed. The appellant be set at liberty at
once. Judgment of the trial court is hereby set aside. The instant criminal
appeal is thus allowed.
Let a copy of this order and LCR be sent to the learned Court
below at once for information and taking necessary action.
Urgent certified photocopy of this order, if applied for, be supplied
to the parties upon compliance with all requisite formalities.