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GAUHATI HIGH COURT
Rumi Kumari Phukan, J.
Ajay Bardhan and Anr. —Appellants
versus
The State of Assam —Respondent
Criminal Appeal No.75 of 2014
Decided on 4.9.2017
Counsel for the Parties:
For the Appellants:Mr. H.R.A. Choudhury, Sr. Advocate
For the Respondent: Mr. Bidyut Sarma, Addl. P.P. Assam
IMPORTANT POINT
Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience.
Headnote:Indian Penal Code, 1860—Sections 448, 376(2)(g)—Gang rape—Two accused appellants trespassed into the house, forcibly drag out prosecutrix, gagged her mouth, took her to jungle situated in backside of house and appellant committed sexual intercourse with victim by force and caused bite injury or her right breast—Other accused was guarding the spot—Appeal against conviction—Evidence of victim showed that she had been ravished sexually by force and her testimony was supported by medical report—It was not a case of consensus sexual affair, proof of age of prosecutrix was irrelevant—Nothing emerged to discredit evidence of victim girl—Sole testimony of prosecutrix in an offence of rape could be accepted to sustain conviction if it inspired confidence—Second accused having guarded the scene of crime and acted in furtherance of common intention with appellant, was rightly convicted for offence of gang rape though he did not commit rape. (Paras 21, 22, 24 and 27)
Result: Appeal dismissed.
JUDGMENT (CAV)
Rumi Kumari Phukan, J.—Heard Mr. HRA Choudhury, learned sr. counsel appearing for the appellants as well as Mr. Bidyut Sarma, learned Addl. Public Prosecutor, Assam, for the Respondent State.
2. This appeal has been preferred by the appellants against the judgment and order dated 25.11.2013 passed by the learned Assistant Sessions Judge, Karimganj in Sessions Case No. 37 of 2010 convicting the accused appellants U/Ss 448/376(2)(g) IPC and sentencing them to undergo rigorous imprisonment for one years under Section 448 of the India Penal Code, 1860 and further sentencing them to undergo rigorous imprisonment for 10 (ten) years each under Section 376 (2)(g) IPC and fine of Rs.5000/- each in default to undergo further rigorous impressments for two years. Both the sentences will run concurrently.
3. The prosecution case in brief is that on 7.9.2008 during evening time at about 6.00 pm, accused Ajay Bardhan and Mukul Bardhan in absence of informant Nidhu Nath and his wife of village Goalpur abruptly trespassed into their house and they forcibly dragged out the daughter of the informant after gagging her mouth with cloth and showing dagger to her, while she was refilling kerosene oil in the hurricane lamp. They dragged her to the jungle situated in the backside of the house of the informant, and thereafter, accused Ajay Bardhan having removed wearing ‘saloar pant’ of the victim girl forcibly committed sexual intercourse with her. He also caused bite injury on her right breast after removing her top cloth. During that time accused Mukul Bardhan was guarding with a dao on his hand. As soon as PW 2 Runubala Nath being the mother of the victim girl heard alarm raised by her minor child, she immediately rushed from the rivulet down their tilla homestead. The moment she arrived at the place of occurrence both the accused persons run away. At night when the father of the victim Nidhu Nath/informant (PW 1) returned home, the occurrence was reported to him by his wife Runubala Nath. Thereafter the informant lodged an ejahar against the accused at Patherkandi Police Station on 9.9.2008.
4. After receiving the ejahar the Officer-in-Charge of the Patherkandi Police Station registered a case being Patherkandi Police Station Case No.138/2008 U/S 448/376/34 IPC. Thereafter the wheel of criminal investigation put into motion and after completion of the investigation the investigating officer of the Patherkandi Police Station case no. 138/08 submitted charge-sheet under Section 448/376 IPC against the accused persons.
5. The case was committed by the learned Judicial Magistrate, 1st Class, Karimganj to the Court of learned Sessions Judge, Karimganj who in turn transferred the records of the G.R. Case No.783/08 to the Court of learned Assistant Sessions Judge, Karimganj for trial. Both the accused persons stood the trial before the Court of Assistant Sessions Judge, Karimganj in Sessions Case Noi.37/2010 U/S 448/376 IPC.
6. Thereafter the learned Assistant Sessions Judge, Karimganj framed charge against both the accused persons U/S 448/376/34 IPC after hearing learned counsel for both sides. The charges having been read and explained to the accused persons both of them pleaded not guilty and claimed to be tried.
7. The prosecution examined as many as 8 (eight) witnesses and exhibited altogether six documents. The defence examined 3(three) witnesses. Upon closure of evidence of prosecution side both the accused persons/ appellants were examined U/S 313 CrPC.
8. At the conclusion of trial the accused persons were held guilty and convicted them U/S 448/376/34 IPC as aforesaid. Being aggrieved with the aforesaid judgment, the present appeal has been preferred.
9. The learned senior counsel Mr. HRA Choudhury in his argument has urged before this Court that the prosecution case is under the shadow of doubt due to variety of reasons such as there was earlier enmity between the parties as the informant has filed theft (of goat)case as against
