Dipti Baruah Das vs State Of Assam And Anr

Heard Mr. BK Bhagabati, learned counsel appearing for and on behalf of the petitioner and Mr. K. Saikia, learned counsel for the respondent No.2 and Mr. D. Das, learned Additional Public Prosecutor, Assam, for the State/respondent No.1.

Present revision is preferred against the judgment and order dated 04.08.2009 passed by the learned Sessions Judge, Kamrup in Sessions Case No. 332(K)/2007 whereby the learned Sessions Judge has acquitted the accused/respondent No.2 from the charge under Sections 448/376 IPC.

Briefly stated, the prosecution case is that on 14.05.2000, the victim girl was alone in the house, when her mother went for official duties and on her return home at about 10:30 AM, she found that the door of the house was locked from inside and the door was not opened despite she knocked. Thereafter, she saw through the windows and found that accused/ respondent No.2 committing rape upon her daughter inside the room. On the aforesaid facts, she lodged an FIR before the Dispur Police Station and the same was registered as Dispur PS Case No. 608/2005 under Sections 448/376 IPC. The case was investigated by police and victim was medically examined and statement of the victim was also recorded by the Investigating Officer as well as by the court under Sections 161 CrPC and 164 CrPC. At the conclusion of investigation, charge-sheet was submitted against the accused under the aforesaid Sections of law. Accused entered his appearance before the court and denied the charge under Sections 448/376 IPC and claimed to be tried. Plea of defense was of total denial.

The prosecution examined as many as 6 witnesses in support of the case including the Medical Officer and the Investigating Officers. On conclusion of trial, learned trial court acquitted the accused by its judgment and order dated 04.08.2009.

The said judgment is now impugned in this petition on the ground that learned trial court has erred in law while appreciating the evidence and has come to an erroneous finding whereby the order of acquittal has been rendered.

I have heard the submissions advanced by the learned counsel for the petitioner as well as the learned Addl. PP and learned counsel appearing on behalf of accused/respondent No.2. I have also gone through the evidence on record and the annexures appended herewith including the impugned judgment and order.

Insofar as the evidence of the victim girl is concerned (PW.4), she has stated in her evidence that on the fateful day i.e. 14.05.2005 at about 10:30 AM when her mother went out for her office and her brothers were also went for school and while she was alone at home, suddenly the accused person entered into the house by opening the door and committed rape upon her. According to her, she could not raise alarm due to the threatening by the accused and that there was music played in loud voice in the neighbouring/adjacent houses. It is her evidence that at the time of occurrence, her mother returned home and then the accused opened the door and went away by showing threatening to her. She also given similar statement before the Magistrate vide Exht.3.

Her (victim) mother (PW.1)/informant has stated in her evidence that on the day of occurrence, on her return to home, she called her daughter (PW.4) to open the door but the door was not opened and when she peeped through the window, she saw that the accused committing rape upon her daughter. Thereafter, the accused opened the door and went away. According to her, she reported the matter to her neighbouring persons and thereafter, she went to the police station and lodged the FIR.

PW.3, the neighbor of the PW.1 has stated nothing about the occurrence except the fact that she heard some commotion in the house of the informant. She heard that accused used to visit the house of the informant. So, the testimony of the informant that she reported the matter to her neighbours is not supported by PW.3. Save and except PW.3, there was no any other witness to support the case of the informant as well as the victim.

Although the informant in the FIR has stated that the victim was a minor and student of Class-IX, but no specific proof as regards the age of the victim was produced, nor in her evidence, the informant/PW.1 could boldly state that victim was minor at the relevant time. On the other hand, medical evidence of PW.2 (Medical Officer) reveals that the victim girl was major and more than 18 years and below 19 years at the relevant time and peculiarly, on examination of the victim, the Medical Officer did not found any mark of injury on the person of the victim nor he found there any mark of recent sexual intercourse. That being so, there was no any supporting evidence to the effect that any sort of sexual assault was made upon the victim.

Other witnesses were Investigating Officers of the case (PW.5 & PW.6).  PW.5 has proved the vital contradiction in the statements of the informant and the victim and stated that said PW.1(informant) did not state before him that she saw the accused while committing the offence and that the accused himself opened the door and went out. Similarly, PW.4 (victim) has also did not state before him that at the time of occurrence, she was suffered from throat pain and could not raise hue and cry as music was played at the nearby houses and that the accused physically tortured her.

Learned trial court has appreciated the evidence of the informant in all details and has come to a finding that such a conduct of the victim, who made no hue and cry at the time of incident, rather she was found in the house by locking the room from inside coupled with the fact that the accused had earlier assess to the house being a regular visitor and that she was found to be major, all indicates that she was consensus to such sexual conduct made by the accused. The learned trial court has also took note of the fact that had there been any forceful rape upon the victim girl, there must be certain injury on her person and she could resist him by raising hue and cry, but both the aspect is found to be negative, in view of the opinion of the Medical Officer to the effect that there was no mark of sexual assault upon the victim and also the fact that she made no hue and cry nor she made any resistance to the conduct of the accused person. Furthermore, it was also noted by the trial court that neighbouring persons also not supported the case of the informant even though she claimed that she informed her neighbours immediately after the occurrence.

Another vital and important point that was considered by the trial court is that the victim was found inside her house and the door was found to be locked from inside when the accused indulging in such act upon her. It is also indicative of the fact that she was very much consenting party to the above affair, being a major girl.

There being material contradictions in the evidence of the informant as well as the victim, which is proved by the Investigating Officer and considering all other aspects that have been discussed above, the learned trial court came to a conclusion that the evidence of the victim is not at all convincing to warrant conviction of the accused and thereby extending the benefit of doubt, has acquitted the accused from the charge.

On careful scrutiny of the materials on record and the impugned judgment and order of acquittal, it is to be noted that the learned trial court has rightly appreciated all aspects of the matters on record while arriving at the above findings. Nothing emerges to interfere with the judgment and order of acquittal that has been rendered by the trial court.

For rendering a conviction under Section 376 IPC, the evidence of the victim concerned must be free from any sort of doubt and the entire evidence must indicate the complicity of the accused person in the offence. But, as has been discussed above, due to serious inconsistencies in the evidence of the informant and the victim and other attending circumstances, no reliance can be given to the testimony of the victim (PW.4) as well as the mother/informant (PW.1).

There being no irregularity or illegality found in the decision rendered by the learned trial court, the present revision petition stands dismissed.

Return the LCR.