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2024 Supreme(Gau) 171
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUSMITA PHUKAN KHAUND, J.
Dipak Ghosh S/o Sri Dilip Ghosh – Appellant
Versus
The State Of Assam And Anr. – Respondents
Crl.A. 101 of 2023
Decided on : 01-03-2024
Advocate Appeared:
For the Appellant : MR G PEGU
For the Respondent: MR. M P GOSWAMI(ADDL.PP, ASSAM)
IMPORTANT POINT
The benefit of doubt, contradictions in evidence, and coercion affecting the admissibility of extra-judicial confession.
Headnote:
Criminal Procedure - Defeasance - Code of Criminal Procedure, 1973 (Cr.PC) - 374(2) - Indian Penal Code (IPC) - 376 - 448/376/506/509 IPC
Fact of the Case:
The victim lodged an FIR alleging sexual harassment and assault by the appellant. The trial court convicted the appellant under IPC 376 based on the victim's evidence and extra-judicial confession.
Finding of the Court:
The court found contradictions and inconsistencies in the victim's evidence, lack of corroboration, and coercion in the appellant's confession. The delay in filing the FIR and unreliable witness testimonies raised doubts about the veracity of the evidence.
Issues: Contradictions in victim's evidence, reliability of extra-judicial confession, delay in filing FIR, and witness testimonies.
Ratio Decidendi: The court held that the evidence was fraught with contradictions, the extra-judicial confession obtained by coercion was not admissible, and the delay in filing the FIR cast doubt on the veracity of the evidence.
Final Decision: The appellant was acquitted of the charges under IPC 376 due to the benefit of doubt. He was directed to furnish a personal bond and a surety bond as per Section 437-A Cr.PC.
JUDGMENT :
1. Heard Mr. B. Kaushik, learned counsel for the appellant. Also heard Mr. M.P. Goswami, the learned Additional Public Prosecutor representing the State respondent No. 1 and Mr. M.H. Laskar, learned counsel for the respondent No. 2.
2. The appellant has filed this application u/s 374(2) of the Code of Criminal Procedure, 1973 (Cr.PC for short) seeking defeasance of the Judgment and Order dated 09.12.2022 passed by the learned Additional Sessions Judge (FTC), Lakhimpur at North Lakhimpur, convicting Sri Dipak Ghosh (hereinafter referred to as appellant) u/s 376 of the Indian Penal Code (IPC for short) to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 10,000/-with default stipulation.
3. The victim/informant, lodged an FIR on 08.04.2017 contending that the appellant was sexually harassing her for the last few days. Taking advantage of the absence of her husband, the appellant gagged her by her mouth and forcefully committed sexual harassment on her. The appellant also threatened her not to divulge about the incident, lest he would eliminate her, along with her husband and her child. When the victim/informant was unable to tolerate the harassment exercised upon her any further, she finally revealed about the act of sexual harassment, to the Gaonbura on 25.03.2017. She disclosed about the incident of sexual harassment to other villagers also. A village meeting was held, and the appellant accepted that he had committed sexual harassment on the victim. Even after the village meeting, the appellant did not hesitate from displaying explicit behaviour. The informant was impelled to lodge the FIR which was registered as Boginodi P.S. Case No. 75/2017 u/s 448/376/506/509 IPC.
4. The Investigating Officer (IO in short) embarked upon the investigation and on conclusion of investigation, charge-sheet was laid by the IO on 30.04.2017, against the appellant u/s 376/506 of IPC. The case was committed for trial and subsequently transferred to the Court of the Assistant Sessions Judge, Lakhimpur, but finally the case was transferred to the Court of the Additional Sessions Judge, (FTC) in view of the notification vide No. ZEJ/93/2018-Estt-JUDI/5-A dated 24.05.2018, issued by the Judicial Department, Govt. of Assam.
5. During trial, 13 witnesses were examined by the prosecution. Thereafter, on the evidence projected by the prosecution, several questions were asked u/s 313 Cr.PC to the appellant, who denied all the incriminating materials against him. The appellant did not tender any evidence in defence. The appellant has taken a stand that, he was present in the village assembly and the people who gathered in the assembly assaulted him physically and as he was petrified, he accepted the allegation out of fear in order to save his life. Further the appellant stated that he went to attend the marriage ceremony of his sister at Barpeta, and he was not aware of any allegation during that time. His wife informed him about the incident over phone and she also informed him that some neighbours pelted stones towards his house. The villagers also threatened his wife that their house would be gutted and they would also not hesitate to assault her. After a few days, the appellant took his wife to attend the marriage ceremony of his sister and then he returned back to his village and on 25.03.2017 he participated in the village meeting. In the said assembly, he was compelled to accept the allegations leveled against him.
Decision by the Trial Court
6. It was held by the learned trial Court that the delay in lodging the FIR was due to the threats exercised by the appellant to the victim. Initially, no case was lodged against the appellant but when the appellant did not mend his ways, the victim was compelled to lodge the FIR against him. It was thereby held by the learned trial Court that the FIR cannot be disputed on the grounds of delay. Relating to the inconsistencies in the contents of the FIR and the evidence adduced by the inform
