Point of law: Imposition of maximum punishment – Rape case - victim, a deaf and dumb girl was subjected to sexual assault by way of outraging her modesty by the accused taking advantage of her disability

JUDGMENT :

M.A. Ali, J.

Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Mr. Azad Ahmed appearing for the appellant and the learned Additional P.P., Mr. M. Phukan for the respondent State.

2. This appeal is directed against the judgment and order dated 09.10.2018 rendered by the learned Additional Sessions Judge, Bilasipara in Sessions Case No. 46/2016, whereby, the appellant was convicted under Section 376 (2)(1) IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 25000/- with default stipulation.

3. The prosecution case as unfolded at the trial, may, briefly, be stated thus -The victim in the instant case is a deaf and dumb girl of 22 years of age and she is the daughter of the informant. On 16.07.2013, at about 10.30 AM, the accused took the daughter of the informant to an isolated place on the back side of Moinamati building and committed rape on her. The incident was witnessed by Hemen Singha (PW-8) and Liton Das (PW-6). The father of the victim lodged an FIR on the same day at the Bilasipara Police Station, on the basis of which, police registered Bilasipara P.S. Case No. 650/2013 under Section 376 IPC and upon completion of the investigation submitted charge sheet against the appellant under Section 376 IPC.

4. During the course of trial, learned Addl. Sessions Judge framed charge against the appellant under Section 376 IPC, which was abjured by him. Prosecution examined 10 witnesses in order to bring home the charge. Upon completion of the prosecution evidence, the appellant was examined under Section 313 CrPC, wherein, the appellant took the plea of innocence. The appellant, however, did not adduce any defence evidence.

5. The victim was examined as PW-1 with the aid of a trained interpreter, who was also administered oath by the learned trial court. The PW-1 stated in her evidence that the appellant undressed her. When she was asked as to what had the appellant done, the victim had shown her abdomen and stated by sign that her clothes was removed. Evidence of the victim could not be completed on that day as she was not responding to the interpreter and as such, further examination-in-chief was deferred. Thereafter, again the victim was examined with the aid of her mother. On that day, the victim stated that after removing her dress, the accused committed rape on her in the temple campus. The victim had also showed by sign that the accused ran away after committing rape. During cross examination it was elicited that the interpreter was her mother. A suggestion was also put to her to the effect that she was not telling the truth, which was denied by her.

6. The PW-2 is the first informant and father of the victim. He stated that hearing cry, he went to the place of occurrence and found his daughter in naked position. He also stated to have seen the accused in naked condition. He further stated that having seen him, the accused put on his ‘lungi’ and had fled the scene. According to him, his wife (PW-3) came later and had taken the victim home. During cross examination it was elicited that the place of occurrence was about 200 cubit away from the house of the victim. He also stated that at the time of occurrence, he was present in his house. He also stated in his cross examination that initially he went to the place of occurrence and his wife (PW-3) followed him. It was also elicited in his cross examination that there was a tea stall at a distance of about 10/20 cubits from the temple and the victim on the day of occurrence came to the said tea stall for taking tea. When she was coming back from the tea stall, the occurrence took place. He, however, pleaded ignorance as to who had taken the victim to the place of occurrence from the tea stall.

7. The PW-3, mother of the victim stated that at the time of occurrence she was at her home and having heard hue and cry, she rushed to the place of occurrence and had found the victim in naked condition. She also stated to have found the accused