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2023 Supreme(Gau) 1007
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Mridul Kumar Kalita, J.
Sri Biru Chetry – Appellant
Versus
The State of Assam - Respondent
CRL.A(J) NO. 58 OF 2019
Decided On : 11-09-2023
Advocate Appeared:
For the Appellant : Ms. B Sarma, Amicus Curiae
For the Respondent: Ms. S. Jahan, Additional Public Prosecutor
Headnote:
Code of Criminal Procedure, 1973 - Section 374(2), 313 - Indian Penal Code, 1860 - Section 376 – Appeal – Offence of Rape - Forcible sexual intercourse by appellant - Whether such an act was with or without consent of victim - Whether testimony of PW-7 (victim) to effect that sexual intercourse was without her consent is reliable or not – Held, evidence on record suggest that victim was subjected to assault by villagers after incident and it is not unnatural under such circumstances for victim to falsely implicate present appellant though otherwise evidence on record suggest that victim may be a consenting party to act of sexual intercourse and her testimony that she was not consenting does not inspire confidence as it is only when her husband noticed appellant and victim together, appellant was implicated - Before that neither any hue and cry was made nor children of victim were alerted by her - There is no evidence to suggest that appellant was carrying any weapon with him which caused victim to get frightened and surrender herself to appellant - Thus, from testimony of victim, it appears that there are inherent infirmities which creates doubt about its veracity and thus same is not safe to be relied upon for arriving at a finding of guilt of appellant solely on basis of her uncorroborated testimony - Appeal disposed of.
JUDGMENT :
1. This criminal appeal (Jail) has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 on the basis of a petition of appeal filed by the appellant, namely, Sri Biru Chetry, which was forwarded to this Court by the Superintendent, District Jail, Diphu, impugning the Judgment dated 19.01.2019, passed by the Court of learned Additional Sessions Judge (FTC), Karbi Anglong, Diphu, whereby the present appellant has been convicted under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.10,000/- only and in default of payment of fine to undergo further simple imprisonment for 60 days. The appellant is presently detained in District Jail, Diphu.
2. The facts relevant for consideration of this jail appeal, in brief, are as follows:-
(i) That on 06.04.2015, one Prem Sunar lodged an FIR before the Officer-in-Charge of Dillai Police Station, interalia, alleging that on 04.04.2015 at about 8.00 p.m., the first informant came to his residence, he saw the present appellant committing sexual intercourse with the wife of the first informant and after seeing the first informant, the appellant fled away from there taking advantage of darkness. Later on, the appellant was apprehended by the villagers and he was handed over to Police. It was also stated in the FIR that when the first informant scolded his wife about the incident, she went away from her residence and did not return back till the lodging of the FIR.
(ii) On receipt of the said FIR, the Dillai P.S. Case No. 13/2015 was registered under Section 376 of the Indian Penal Code and investigation was initiated. Ultimately, after completion of the investigation, charge-sheet was laid against the present appellant under Section 376 of the Indian Penal Code. The appellant was arrested during the course of the investigation and he faced the trial remaining in custody.
(iii) On 25th September, 2017, the learned Additional Sessions Judge (FTC), Karbi Anglong, Diphu, after considering the materials on record and after hearing both sides, framed charge under Section 376 of the Indian Penal Code against the present appellant. When the said charge was read over and explained to the present appellant, he pleaded not guilty to the said charge and claimed to be tried. The prosecution side examined nine prosecution witnesses including the victim woman. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 during which, though, he admitted that he was present at the place of occurrence at the time when the said offence is alleged to have been committed, however, he has pleaded his innocence and has denied that he had committed the offence which is alleged against him by the prosecution witnesses. After completion of the trial, by the Judgment, which is impugned in this appeal, learned Additional Sessions Judge (FTC), Karbi Anglong, Diphu convicted and sentenced the present appellant in the manner as has already been described in paragraph No. 2 herein before.
3. Before considering the rival submissions of learned counsel for both sides, let me go through the evidence which is available on record.
4. PW-1, Sri Nima Tamang, has stated in his deposition that about three years before his deposing in the Court as witness, at night, on hearing shouts, he along with the members of the Village Defence Party went to the house of the victim and there they came to know that the present appellant had raped the victim. PW-1 has stated that they found the appellant in the house of the complainant who was apprehended while he was trying to flee away and thereafter they handed over the appellant to the Police on the advice of Gaonbura.
4.1 During his cross-examination, PW-1 has stated that his house is about one kilometer away from the house of the complainant and the appellant belongs to another village, namely, Sukanjan Village which is about 40 kilometers away from their village and
