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IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Bakul Borah - Appellants
Vs.
State of Assam and Ors. - Respondents
Crl. A. No. 314 of 2018
Decided On : 18-07-2019
Indian Penal Code – Section 493 376 417 506 – Code of Criminal Procedure – Section 41 53-A 173 209 313 357 – Evidence Act – Section 113-A 113-B 114_A – Appeal Against Conviction of Rape – This appeal is preferred against the judgment and order passed by the learned Addl. Sessions Judge, in Sessions Case, whereby the appellant/accused has been convicted u/s. 376(1) of the IPC – Being aggrieved by the aforesaid order of judgment and conviction, the present appeal has been preferred by the accused/appellant, on the ground inter alia that the learned trial Court has totally failed to appreciate different vital aspects of the matter and has come to an erroneous finding – Referring to the entire matters on record, it has been urged before this Court that the prosecution case suffers from various infirmities, which is more than enough to shake the authenticity of the allegation – The victim/PW. 5 in her evidence stated that she came to the house of the accused in November, 2012 and she stayed in their house for around 1½ years and during that period, several time the accused committed rape upon her, without paying any heed to her opposition – But she did not report the matter to any other person, event not to her parents when she went to her house and the wife of the accused person. Only when she became pregnant for seven months, she apprise the matter to the wife of the accused and thereafter she was taken to the Shraddha Shelter Home – In the shelter home also, she did not disclose anything about such matter to the employees of the shelter home i.e PW. 1 to PW. 4 – It is to be noted that the victim complained to nobody that she was raped by the accused person forcefully and as such the pregnancy was unwanted for her – Till the filing of the FIR, there is no whisper that such an offence was committed by the accused person upon the victim – Only a revelation that "the accused is the father of the child born to the victim", cannot itself amount to an offence u/s. 376 IPC, unless the ingredients of the offence is proved beyond all reasonable doubt –In view of the matter, the observation of the learned trial Court that the DNA report bears no consequences, is an erroneous finding and hence not sustainable – Similarly the finding of the trial Court that the statement of the victim was supported by other witnesses i.e. PWs. 1-4, is also unfounded as the victim never disclosed those witnesses that she has been raped by the accused person forcefully against her consent, whereas her only reporting was that the father of the child is the accused – In the present case, the scenario that has been depicted itself reveals that the victim has not boldly come up with the allegation that such conduct was against her consent and from the prevailing affair between the parties for a long long time, is itself indicative of the fact that she was a consenting party to the entire episodes – For the reasons and discussions as above, Court find and hold that the charge u/s. 376 IPC, as against the accused person must fail, being not proved beyond all reasonable doubt – Accordingly the accused person is acquitted from the charge and set him at liberty – However order as regards the compensation payable as per provision of Section 357(A) and the Assam Victim Compensation Scheme, 2012, shall remain the same – Appeal Allowed
JUDGMENT :
Rumi Kumari Phukan, J.
1. Heard Mr. NNB Choudhury, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State/respondent. None is present for and on behalf of respondent No. 2/informant.
2. This appeal is preferred against the judgment and order dated 24.08.2018, passed by the learned Addl. Sessions Judge, Sonitpur at Tezpur, in Sessions Case No. 308/2015, whereby the appellant/accused Bakul Borah has been convicted u/s. 376(1) of the IPC and sentenced him to undergo rigorous imprisonment for 12 (twelve) years and to pay a fine of Rs. 3,00,000/- (Rupees three lakhs), in default simple imprisonment for six months. Out of the fine imposed, fifty percent of the same was directed to be paid to the victim u/s. 357 of the CrPC.
3. Briefly stated, the prosecution case is that on 08.05.2013, the victim was admitted in Shraddha Shelter Home, Baroholia, Tezpur, who was carrying unmarried pregnancy and she gave birth to a male child on 31.07.2013, at Kanaklata Civil Hospital, Tezpur. On 1.8.2013, the victim has given her statement that the father of her child is Mr. Bakul Borah, who is a member of Child Welfare Committee, Tezpur, Sonitpur. With the above facts, an FIR filed on 06.08.2013 by Aklima Begum, the Superintendent of Shraddha Shelter Home, Baroholoia stating that on 02.08.2013, Smti Namita Baruah Borah, the sister-in-law of accused Bakul Borah, threatened to kill the victim and her child at Kanaklata Civil Hospital.
4. On the basis of the FIR, the Tezpur P.S. Case No. 981/13, u/s. 493/376/417/506 of IPC was registered and on completion of the investigation, charge-sheet was filed against accused Bakul Borah and Smti Namita Baruah Borah, u/s. 493/376/417/506 of IPC.
5. On appearance of the accused persons, the copy of the charge sheet and other relevant materials were furnished to them and the case was committed to the court of Sessions as per Section 209 CrPC, by the Chief Judicial Magistrate, Sonitpur, Tezpur and thereafter this case is transferred to the Court of learned Addl. Sessions Judge, Sonitpur for trial.
6. On appearance of the accused persons before the trial Court and after hearing both sides, charge u/s. 376(2)(f) of IPC was framed against accused Bakul Borah and charge u/s. 506 of IPC was framed against accused Smti Namita Baruah Borah. The contents of the charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried.
7. During the trial, the prosecution examined altogether nine witnesses including the informant (PW. 1), the victim (PW. 5), the Medical Officer (PW. 6) and the I.Os. of the case i.e. PW. 7 and PW. 8. The prosecution also exhibited some documents in support of their case in the form of Ext. 1 to Ext. 4. The defence examined none in support of their case and after recording the statement of the accused persons u/s. 313 CrPC and hearing argument of the parties, the learned trial Court sentenced the present appellant/accused, as stated above to undergo rigorous imprisonment for 12 (twelve) years and to pay a fine of Rs. 3,00,000/- (Rupees three lakhs), in default simple imprisonment for six months, by the impugned order dated 24.08.2018, passed in Sessions Case No. 308/2015, along with direction for awarding compensation.
8. Being aggrieved by the aforesaid order of judgment and conviction, the present appeal has been preferred by the accused/appellant, on the ground inter alia that the learned trial Court has totally failed to appreciate different vital aspects of the matter and has come to an erroneous finding. Referring to the entire matters on record, it has been urged before this Court that the prosecution case suffers from various infirmities, which is more than enough to shake the authenticity of the allegation. Following infirmities have been pointed out:
(i) In the FIR there is no allegation of rape on the part of the accused except the fact that the victim was brought to th
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