SHRI HEMANTA PHUKAN vs THE STATE OF ASSAM

This criminal revision petition is filed, under Section 397, read with Section 401 of the Code of Criminal Procedure, against the judgment and

order, dated 25-07-2008, passed by the learned Sessions Judge, Jorhat, in Criminal Appeal No. 39 of 2007 upholding the judgment and order,

dated 28-09-2007, passed in Sessions Case No. 94(JJ)/2005, by the trial Court of learned Assistant Sessions Judge, Jorhat, convicting the

accused-petitioner under Sections 342/376 of the IPC and sentencing him to rigorous imprisonment for 5 years and a fine of Rs. 10,000/-, in

default, to undergo simple imprisonment for 6 months, for the offence under Section 376 of the IPC and to undergo rigorous imprisonment for 6

months for the offence punishable under Section 342 of the IPC.

I have heard Mr. D Talukdar, learned counsel for the revision petitioner and Mr. B Sarma, learned Additional Public Prosecutor, Assam.

The prosecution case, in brief, is that the victim, along with 4 other girls, aged ranging from 10 to 14 years, was on the way to school, on foot,

on the date of occurrence, i.e., on 17-05-2004. They were stopped by the accused-petitioner when they reached near his house. The accused-

petitioner called the victim to his house telling her that he would deliver a letter. She followed the accused to his house and, then, the accused

closed the door and committed rape on her. She came out of the house and joined her friends waiting outside. She was found crying. One of her

friends, Arpona (PW3) enquired about the reason of her weeping to which she replied that the accused committed rape on her person. Thereafter,

all the girls including the victim went to the school. At a later point of time, she informed her parents about the occurrence.

On the basis of the above facts, Smt. Purnima Mirdha, mother of the victim, on 19-05- 2004, lodged an FIR with Teok Police Station. Teok

Police Station registered a case, being No. 42/2004, under Sections 342/376 of the IPC, investigated into it, collected evidence, and submitted

charge-sheet under Sections 342/376 of the IPC against the accused-revision petitioner.

After exhausting all the legal formalities, charges under Sections 342/376 of the IPC were framed, to which the present accused-revision

petitioner pleaded not guilty. It deserves a mention here that statement of the victim was recorded by the learned Magistrate under Section 164 of

the Cr.P.C. The statements of the girls, who accompanied the victim at the relevant point of time, were also recorded.

In this case, the prosecution examined as many as 13 witnesses including the informant, victim, the friends of the victim, the Medical Officer and

the Investigating Police Officer. The defence examined none. In the statement recorded under Section 313 Cr.P.C. also, the accused-revision

petitioner denied the accusations levelled against him.

After completion of the trial, the accused-petitioners were convicted and sentenced by the Courts below as indicated above.

It appears from the evidence of PW2, the informant, who is the mother of the victim is, that she came to know about the occurrence on the next

day of the date of occurrence. On coming to know, she enquired about the occurrence from her daughter/victim and after coming to know that the

accused committed rape on her, she lodged the FIR. It has also come out from her evidence that the victim was accompanied by Aparna Kunwar

(PW3), Puja Bhumiz (PW6), Putali Bhumiz (PW5) to their school. She was taken by the accused-petitioner to the house on the pretext of

delivering a letter to her inspite of her unwillingness and then committed rape on her person after closing the door of the room.

The evidence of PW1/victim is that while she was proceeding to her school along with her friends, named by PW2 in her evidence, she was

taken to the house of the accusedpetitioner on the pretext of handing over a letter to her while her companions were waiting outside. There in the

house of the accused-petitioner, she was raped by the accusedpetitioner. She also found to have stated in her evidence that the accused-petitioner

gagged her mouth so she could not raise any alarm. She also felt pain in her private parts. Only after taking assurance from her that she would

come back again, she was allowed to leave the house of the accused-petitioner. Corroborating the evidence of her mother, PW2, she has stated

that her mother enquired about the occurrence and then she narrated the incident to her. She also narrated the incident to her friends, who were

accompanying her.

PW3, Smt. Aparna Konwar, who was accompanying the victim to the school at the time of occurrence, is heard saying in her evidence that

after coming out from the house of the accused-petitioner, on being asked, she told that the accused-petitioner committed rape on her.

PW4, Smt. Ritamani Rajput also found to have stated that she was accompanying the victim along with PW5, Smt. Putali Bhumiz and PW3,

Smt. Aparna Konwar on the day of occurrence to the school. While they were proceeding to the school, the accused-petitioner called the victim

to his house. After about 5/10 minutes, she came out weeping, and on being asked, she told them that the accused-petitioner committed rape on

her.

Similar is the evidence of PW5, Smt. Putali Bhumiz. She also deposed that the accusedpetitioner called the victim to his house and they were

waiting outside the house of the accused-petitioner. After about 10 minutes, the victim came out of the house of the accusedpetitioner. On being

asked, she told them that the accused-petitioner committed rape on her person.

The evidence of PW6, Smt. Puja Bhumiz is same with that of PW3, PW4 and PW5 as she was also accompanying the victim to the school on

the day of occurrence at the relevant point of time. She echoed the statements made by PWs 3, 4 and 5 and thereby corroborated the evidence of

the victim/PWs 1, 3, 4 and 5.

PW7, Sri Niranjan Konwar, is the scribe of the FIR. He has no independent knowledge about the occurrence. He has written the ejahar at the

instruction of the informant.

The evidence of PW8, Sri Purna Kanta Gogoi, is that he went to the house of the accused-petitioner to collect money due to his brother, but

he did not meet anybody. He did not corroborate the evidence of the victim/PW1. This witness was declared hostile by the prosecution and was

subjected to cross-examination. In his cross-examination by the prosecution, he stated that he had seen a girl coming out of the house of the

accusedpetitioner. The girl was familiar to him. He also admitted that the other girls, i.e., PWs 3, 4, 5 and 6 were found standing in front of the

house of the accused-petitioner.

PW9, Sri Mantu Phukan is the witness, who heard about the occurrence and he had no independent knowledge.

PW10, Dr. Beena Bordoloi is the doctor, who examined the victim. She opined that the victim was above 16 years and below 18 years of

age. She did not notice any sign of recent rape as well as violence in the private part of the victim. The evidence of PW11 has no relevance with

the offence alleged and she has expressed that she has no knowledge about the occurrence.

PW12, Smt. Nani Bordoloi, Bench Assistant of Mr. MK Saikia, Magistrate, who has recorded the statement of the victim as well as the

witnesses PWs 3, 4, 5 and 6, and proved such statements as Exts. 1, 3, 4, 5 and 6, from records by identifying the signature of the learned

Magistrate.

It appears from the evidence reproduced that the victim has categorically implicated the accused-petitioner for commission of rape on her. Her

evidence, on three counts, received corroboration from the evidence of PW3, 4, 5 and 6:

(1) That they were accompanying the victim at the relevant point of occurrence.

(2) That the victim was called by accused-petitioner to his residence and she came out of his house after about 10 minutes;

(3) That she was coming out of the house of the accused-petitioner weeping, and on being asked, she told to PWs 3, 4, 5 and 6 that the accused-

petitioner committed rape on her.

The other most important fact coming out from the evidence of PW1 is that she could not raise alarm as she was gagged at the relevant point

of time of commission of rape on her by the accused-petitioner.

The statement of the victim appears to be inspiring confidence as her evidence, on material points, could not be assailed by the defence, in

cross-examination, and as her evidence is corroborated by the evidence of PWs 3,4, 5 and 6, so far as the points referred to above are

concerned.

In the absence of any tangible evidence on record to disbelieve the evidence of victim/PW1 and the evidence of PWs 3, 4, 5 and 6, this Court

cannot brush aside the evidence of victim as concocted or imaginary. The specific evidence led by the victim/PW1, the circumstances and the

corroboration by PWs 3, 4, 5 and 6 leave this Court with no doubt that the evidence of PW2 is not only inspiring confidence, but it is very much

reliable. That being so, this Court does not find any illegality or impropriety in the appreciation of evidence by the learned trial Court as well as the

appellate Court of learned Sessions Judge in holding the accused-petitioner guilty of the commission of alleged offence. However, when the

offence under Section 376 of the IPC is established to have been committed by the accusedpetitioner, this Court is of the opinion that there should

not be any punishment imposed upon the accused-petitioner under Section 342 of the IPC as the accused-petitioner has been held guilty and

convicted for the principal offence under Section 376 of the IPC.

Since the punishment imposed under Section 376 of the IPC is apparently lesser than the statutorily prescribed minimum punishment, in the

absence of any appeal by the State, this Court is of the view that no interference is called for in respect of the punishment imposed under Section

376 of the IPC.

In view of above, the punishment imposed upon the accused-petitioner under Section 342 of the IPC is set aside and the punishment imposed

upn the accused-petitioner under Section 376 of the IPC is upheld. Accordingly, the appeal is partly allowed.

The revision petitioner will surrender before the learned trial Court to serve out the sentence within one month from the date of this order.

Send down the LCR along with a copy of this judgment and order.