Sri Bubu Dowarah vs The State Of Assam & Anr.

(M. Zothankhuma, J)

Heard Mr. C. Goswami, learned counsel for the appellant and Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam, appearing for the State. None has appeared for the respondent no. 2.

This is an appeal against the impugned judgment dated 07/12/2024, passed by the Special Judge (POCSO), Dhemaji, in Special (POCSO) Case No. 68/2022, by which the appellant has been convicted under Section 376(1) IPC and sentenced to undergo rigorous imprisonment for 25 years with a fine of Rs. 30,000/-, in default, rigorous imprisonment for 2 years.

The counsel for the appellant submits that the impugned judgment should be set aside as there is discrepancy in the address of the appellant as per the evidence of PW-4 and PW-1. As such, it appears to be a case of mistaken identity of the appellant, for which punishment may be given to a wrong person. The second ground of challenge is that the mobile phones of the victim and the appellant were not seized by the Police to prove that there had been messages sent between the appellant and the victim, which would have proved conclusively, that the appellant was the person, whom the victim was referring to as the rapist. Further, the place of occurrence as per the evidence of PW-5 is to the effect that the same was in the back of the house of Tipai Gogoi. However, Tipai Gogoi was not examined.

The learned counsel further submits that the appellant did not rape the victim and as the entire prosecution case rests only on the victim's testimony, which does not appear to be truthful, the conviction has to be set aside. He further submits that the false allegation of rape against the appellant has been made only due to the fact that while the victim was expecting to marry the appellant, the appellant had married another girl.

The learned Additional Public Prosecutor, on the other hand, submits that conviction can be based on the sole testimony of the victim, provided the same is truthful and inspires the confidence of the Court. She submits that the evidence of the victim has not been shaken, inasmuch as, the factum of there being sexual intercourse between the parties was not questioned by the appellant during cross-examination of the victim. The only issue raised by the appellant during cross-examination was that sexual intercourse had occurred with the consent of the victim and that it was not rape.

The learned Additional Public Prosecutor further submits that the evidence of the Doctor, which is to the effect that the hymen of the victim was absent, corroborates the fact that rape had occurred. She further submits that when an agreement for marriage had been made in the village meeting between the appellant and the victim's family, after the allegation of rape had been made by the victim and the same not being denied by the appellant, it cannot be said that no rape had occurred. She accordingly submits that the impugned judgement should not be interfered with, as there is no infirmity with the same.

We have heard the learned counsels for the parties.

The brief facts of the case is that an FIR dated 05.05.2022 was submitted by the mother of the victim (PW-6) to the Officer-in-Charge, Silapathar Police Station, to the effect that when her daughter had gone to the local Bihu Mela in the evening of 19.04.2022, the appellant, who was a resident of Rangpuria village had dragged her into a nearby jungle and raped her. Following the incident, the local villagers were informed and a public meeting was held. In the public meeting it was decided that as the victim was only 16 years old, the appellant should provide her maintenance until she reached the marriageable age. An agreement was also executed by the appellant and as a consequence of which, the appellant married her daughter and took her with him. However, only 6 days after the marriage, the appellant married another girl. As the appellant refused to acknowledge the victim as his wife, the informant had brought back the victim to their home. Pursuant to the F.I.R, Silapathar P.S. Case No.86/2022 under Section 366 I.P.C read with Section 4 of the POCSO Act was registered.

The victim was medically examined on 06.05.2022 and her statement was recorded under Section 164 Cr.P.C on the same day. After the Investigating Officer had examined the witnesses and completed the investigation, he submitted the charge-sheet, on having found a prima facie case established against the appellant under Section 366 IPC read with Section 4 of the POCSO Act.

The learned Trial Court framed charge under Section 376(1) I.P.C against the appellant on 05.10.2023 and thereafter under Section 4 of the POCSO Act on 31.10.2022, to which the appellant pleaded not guilty and claimed to be tried.

The learned Trial Court thereafter examined 13 Prosecution Witnesses and after examining the appellant under Section 313 Cr.P.C, it came to a finding that the victim's age was above 18 years at the time of the incident and that the Prosecution had succeeded in proving the guilt of the appellant under Section 376(1) I.P.C beyond reasonable doubt.

The evidence of the victim (PW-1), is to the effect that 5 days prior to the date of occurrence, she had received a call from the appellant, whom she did not know, who identified himself as Dowarah. On breaking off the call, she received messages from the appellant which she did not reply. On the 5 day of Bohag in the year 2022 there was a Bohagi Mela at Dimow Krishnapur. Though the appellant had called her in the morning, asking her to come to the Bohagi Mela, the victim did not give any reply. Even then, she went to the Bohagi Mela at around 6 p.m. When she reached Krishnapur through the village road, the appellant caught her hand. On asking as to who had caught her hand, the appellant told her that he was the one who had been making calls to her. Thereafter, the appellant gagged her mouth and took her to the nearby jungle by force. In the jungle the appellant raped her and fled thereafter, taking her mobile phone with him. After putting on her T-shirt, the victim went to a nearby homestead which was known to her. She fell down in the courtyard of the house and started crying. The owner of the house, whom she called aunt, came out and asked her as to what had happened. The victim then told the aunt that the appellant named Dowarah had raped her and fled. Thereafter, her aunt gave her a skirt and a T-shirt to wear. A message was sent to her house by her aunt, whereupon her mother came. On informing her about the rape and the fact that the said Dowarah had taken her mobile phone, her aunt told her that there was only one Dowarah family in her village. Thereafter, the son of her aunt named Puran showed the victim the WhatsApp profile of the appellant, which was in his phone. The victim recognized the person who had raped her and told them that it was the same boy who had raped her and who used to call her on mobile, besides sending messages.

PW-1 further stated that on the following day, a village meeting was held in the house of Shri Chenai Phukan of Napam Kuligaon, who was her paternal uncle. The victim went to the village meeting with her father and mother. The appellant was also there with his father. The victim then came to know the name of the rapist. In the village meeting, an agreement was made that the appellant would marry the victim when the victim became a major. Two days after the village meeting, the appellant found the victim on a village road and took her to his house, where the victim stayed for five days. The appellant lived with his parents and one sister and during the five days period, the appellant did not rape the victim. On the 5 day of her stay in the house of the appellant, the appellant brought another girl into the house after going through a marriage and fled along with the said girl from the house. The victim then informed the matter to her parents, due to which her mother came and took her back home. Thereafter, the victim's mother PW-6 lodged an FIR. The victim was then examined by a doctor and she was produced in Court, where she gave her statement under Section 164 Cr.PC.

In the cross-examination of PW-1, she denied the suggestion that the appellant had sexual intercourse with the victim's consent.

The evidence of PW-2 is that he heard from PW-6 that the appellant had raped the victim.

The evidence of PW-3 and PW-5 is to the effect that they had heard from villagers that the appellant had raped the victim.

The evidence of PW-4, is to the effect that in the month of Bohag, 2022 at about 7 p.m, she heard the sound of a girl in the back of her house, while she was cooking. On going out of the house, she saw the victim had fallen down. On enquiry, the victim told her that a boy from Rongpuria village had raped her. Thereafter, the victim was brought inside the house, whereupon PW- 4 saw her whole body covered with mud. PW-4 then said that she informed the members of the victim's family and they came and took her away.

The evidence of PW-6, who is the mother of the victim, is to the effect that PW-4 had informed her that her daughter was found lying at the back of PW-4's house. PW-6 stated that he saw her daughter sitting inside the house of PW-4. On enquiry, the victim told her that at about 8 p.m, while she was going to the Bihu function at Krishnapur village, the appellant took her to a jungle and raped her. On the next day, a village meeting was called, wherein the appellant assured the gathering that he would marry the victim when she reached marriageable age. On the next day, the appellant took the victim to his house. However, after one week, he married another girl. Thereafter, an FIR was lodged by her.

The evidence of PW-7, who is the husband of PW-4, is to the effect that his wife PW-4 told him about the incident involving the victim, who had come to their house, calling for help.

The evidence of PW-8, is to the effect that the informant was her sister-in-law and that she did not know the appellant. About two years back, when she was going to see the Bihu function at Krishnapur village, PW-4 called her to her house, whereupon she saw the victim shivering. On enquiry, the victim stated that a boy had raped her.

The evidence of PW-9, PW-10 and PW-12 is only hearsay evidence.

The evidence of PW-11, who is the doctor, who examined the victim on 6 February, is to the effect that she was told by the victim that the appellant had raped her in a jungle. Further, her mental status was stable and there was no abnormal finding with regard to her general physical examination. The victim's hymen was not intact and there was white discharge seen, for which, she was referred to a gynecologist. The radiological examination by x-ray of the victim's right wrist joint (AP view), gave the impression that the age of the victim was between 16 to 17 years.

The evidence of PW-13, who is the Investigating Officer, is to the effect that he sent the victim for medical examination and to the Court for getting a statement recorded under Section 164 Cr.P.C. He also seized a School Certificate of the victim and a Marriage Agreement dated 21.04.2022. As he found a prima facie case under Section 366 and Section 4 of the POCSO Act, he filed the charge-sheet.

The examination of the appellant under Section 313 Cr.P.C shows that the appellant has given a blanket denial to all the incriminating evidence that has been recorded against him. He has not given any explanation with regard to the testimony of the victim, that she had stayed in the house of the appellant for around 5 days after the incident.

The statement of the victim under Section 164 Cr.P.C is to the following effect :

"My name and address are as stated above. I have known Bubu Dowarah since before the last Bohag Bihu. On 19/04/22, I went to Demow Krishnapur alone to watch Bihu (Bihu function). Around 7 p.m., while I was returning home from the Bohagi Mela, Bubu Dowarah dragged me to the jungle by gagging my mouth and had physical intercourse with me by applying force. I sustained injuries in my hands, legs, back, chest and eyes. Although I screamed, there was no one in the vicinity. He also took my mobile phone. I somehow ran away from there and reached my dodai's (uncle) house. That's all I have to say."

The evidence of the victim is to the effect that she had been raped by the appellant. The appellant had however not confronted the victim during cross-examination, by giving any suggestion that he had not raped her. Instead a suggestion was made that the sexual intercourse between the two was consensual, which was denied by the victim. Further, the doctor's evidence shows that the victim's hymen was absent. On considering the above two facts, we do not have any reason to come to any other conclusion, other than the fact that the appellant had sexual intercourse with the victim. The only issue left to be decided is as to whether, the sexual intercourse was without consent or with consent.

On a reading of the evidence that there had apparently been a village meeting concerning the appellant and the victim, whereupon the appellant had apparently agreed to marry the victim in the village meeting, we find that the appellant has not denied the evidence of the victim that there was a village meeting involving the appellant and the victim.

PW-6 in her evidence has also stated that a village meeting was called, wherein the appellant had given an assurance that he would marry the victim when she reached the marriageable age. PW-6 further stated in her examination-in-chief that the appellant took the victim to his house and after one week, the appellant had married another girl. In the cross-examination of PW-6, the appellant had not given any suggestion that there had been no village meeting or that any agreement had been made where it was agreed that he would marry the victim, when she reached marriageable age. There is also no suggestion made by the appellant to PW-6 that the victim did not stay with the appellant or that no public/village meeting was held. The only suggestion that has been put to PW-6 by the appellant in the cross-examination is that PW-6 had lodged the FIR, as the appellant had married another girl and not the victim.

There is a discrepancy in the F.I.R. and the testimony made by PW-6, inasmuch as, the F.I.R speaks of there being a marriage between the appellant and the victim after an agreement had been made in the village meeting. However, the same is not reflected in the testimony of PW-6, wherein PW-6 had stated that the appellant had promised to marry the victim when she attained marriageable age. The fact that there was no marriage between the appellant and the victim is also clarified by the evidence of the victim/PW-1 herself, wherein her testimony was to the effect that soon after the agreement had been made after the village meeting, she stayed in the house of the appellant for five days and it was only due to the appellant bringing another girl whom he had married, did she go home to her parental house. The above discrepancy in our view does not vitiate the case of the Prosecution, as the same does not go to the root of the matter.

With regard to the stand taken by the appellant that there could be a mistaken identity of the appellant as the rapist, we do not find any reason to come to such a finding, inasmuch as, the victim had identified the appellant in the Court as the rapist and also on being shown a photograph of the appellant by one Puran, who is the son of PW-4. We also find that non-production of the messages sent by the appellant to the victim cannot have any relevance to the charge of the appellant having raped the victim, when the victim has identified the appellant as the rapist.

The evidence of PW-4 is to the effect that the victim was covered with mud and she was told by the victim that she had been raped. The above facts in our view point out to the fact that the victim had been raped and no consent had been given by the victim to have sexual intercourse with the appellant. There was also a very short time period between the act of rape and the meeting of the victim and PW-4, which gives rise to an inference that the victim’s testimony was truthful.

The blanket denial given by the appellant to the adverse evidence adduced against him during his examination under Section 313 Cr.P.C also gives rise to an inference that the case of the Prosecution is true. In a case based on circumstantial evidence, where no eyewitness is available and where an incriminating circumstance is put to the accused, who offers no explanation, then the same becomes an additional link in the chain of circumstances, to make the chain complete. This is the law laid down by the Supreme Court in the case of Wazir Khan v. State of Uttarakhand, reported in (2023) 11 SCR 39.

In the present case, the case of the Prosecution is not based on circumstantial evidence, but on the evidence of a victim of sexual assault, who stands in the same footing as an injured witness, if not higher. The evidence of the victim has also been corroborated by the evidence of the doctor and PW-4.

Though the facts of the case can also bring about another view, that the case had been initiated, only because the appellant had married somebody else other than the victim, the fact of the matter is that the initial charge/allegation of rape is never wiped out or made clean, only because of the alleged agreement made in the village meeting, where the appellant agreed to marry the victim when she reached marriageable age. The fact of the appellant raping the victim is clearly proved by the Prosecution and as such, we do not find any ground to interfere with the impugned judgment passed by the learned Trial Court.

We are accordingly of the view that the conviction of the appellant under Section 376(1) needs no interference. However, on considering the sentence imposed upon the appellant, which is rigorous imprisonment for 25 years with a fine of Rs.30,000/-, in default rigorous imprisonment for 2 years, we are of the view that the ends of justice would be served if the sentence to be undergone by the appellant is reduced. Accordingly, we sentence the appellant under Section 376(1) IPC to undergo rigorous imprisonment for 10 years with a fine of Rs.30,000/-, in default of fine to undergo rigorous imprisonment for another 6 months. Consequently, the sentence passed upon the appellant by the learned Trial Court is modified to the extent indicated above.

For all the reasons stated above, the appeal is dismissed and modified, only to the extent of the sentence to be undergone by the appellant. The conviction under Section 376(1) IPC is however not interfered with.

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