High Court
Case Details
Crl.A. 42/2006 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH The appellants, charged for the offence Under Section 376 read with Section 34 I .P.C. have been convicted by the Sessions Judge, Kamrup under the aforesaid Prov isions of law, sentenced to undergo rigorous imprisonment for (ten) 10 years and also to pay a fine of Rs. 1000/- each in default further rigorous imprisonment for 3 (three) months.
Legal Reasoning
2. The Judgment dated 18.01.2006, passed by the learned Trial Court convict ing and sentencing the accused appellants has been impugned in this appeal. Hear d Mr. R. Ali, the learned counsel appearing on behalf of the appellant and Mrs. A. Begum, learned Addl. Public Prosecutor, on behalf of the state of Assam. 3. The prosecution case, in brief is that on 27.12.1999 at about 9:30 p.m. the prosecutrix alongwith her husband was proceeding towards her house situated at village Dekapara, after visiting her elder sister’s house at Mirzapur. When t hey reached near the hotel Urvasi, the accused persons armed with dagger restrai ned them and assaulted her husband driving him away. Thereafter, they forcefully dragged the victim to a paddy field situated at the back side of the hotel. The accused persons then raped the victim one after another. 4. In the mean time the husband of the prosecutrix, who could not resist th e accused person rushed straight to Azara Police Station, where he lodged verbal information. On the basis of his information a GD Entry was made and the Office r in Charge of the Police Station alongwith other Police Officers went to the Pl ace of Occurrence. The husband of the woman also accompanied them. On the way th ey saw the accused Selim Ali, whom the victim of the husband identified and imme diately Selim Ali was apprehended by the police and arrested. At a little distan ce they found the victim standing by the side of the road. She was crying and sh e also identified the accused. As per the information received from the accused Selim Ali, Police went 5. in search of another accused i.e., Sadek Ali, who was arrested from his own hous e. The prosecutrix identified Sadek Ali also on his arrest. Thereafter, the vict im lodged a formal written ejahar on 28.12.1999. On the basis of written ejahar Police registered a case on Azara Police Station as Case No. 148/99 Under Sectio n 376/34 I.P.C. The victim was examined by a doctor thereafter and her statement Under Section 164 CrPC was recorded by a Judicial Magistrate Guwahati. On compl etion of investigation Police submitted the charge sheet Under Section 376 read with Section 34 I.P.C. against the accused persons. 6. During the trial the accused person pleaded not guilty to the charge fra med against them under Section 376 read with Section 34 I.P.C. and claimed to be trial. 7. The prosecution examined altogether five witnesses in support of their c ase. The victim who was examined as PW1, who deposed that while, she, alongwith her husband, was proceeding towards her house and when they reached near Urvasi Hotel the accused persons threatened her husband with a dagger and assaulted him . They drove him away and dragged her to a nearby paddy field where one after an other they committed rape on her. The accused Sadik Ali was the first to commit rape on her. Thereafter, she was ravished by the accused Salem Ali. 8. After the commission of rape the accused person left the place. Soon the reafter, a Police vehicle arrived alongwith accused Salem Ali and subsequently a ccused Sadek Ali was also arrested. The victim and the accused persons were take n to the Police Station. She further deposed that at the time of commission of o ffence she cried for help but nobody came in her rescue. She also requested the accused persons not to do anything, but she was raped by them. She even tried to stop a cyclist whom she found on the road but the said cyclist pushed her away and left the place. In her cross examination she stated that her husband was driven away by 9. the accused person and thereafter she was raped by the accused persons. She coul d identify both the accused persons immediately after they were apprehended by t he Police. No material contradiction was detected in her evidence as well as in her statement recorded Under Section 164 Cr.P.C., which was proved and Exhibited as Ext. 3. 10. ation at the relevant point of time. PW.2 Hatim Ali Ahmed, was an attached Officer serving at Azara Police St 11. he wrote the F.I.R. as per direction of the prosecutrix. PW 3 scribe of the F.I.R. stated that he did not see the occurrence and PW 4, A.S.I., Guna Kanta Nath, deposeed that on 27.12.1999, at about 9:0 12. 0 p.m. the husband of the victim came to the Police Station and lodged verbal in formation that while he alongwith his wife was proceeding towards their house, t wo persons assaulted him and dragged his wife towards a paddy field. The oral in formation so received was entered in General Diary being GD Entry No. 856. There after, PW 4 alongwith other Police Officers and the husband of the victim procee ded towards the Place of Occurrence. Thereafter, both the accused persons were arrested. The victim was rescued from the Place of Occurrence and she lodged a f ormal ejahar on the next day. 13. The victim was examined by the Doctor on 28.12.1999, wherein also she ga ve the history of the incident to the Doctor which was reduced into writing by t he Doctor. The Doctor on examination of the victim found two abrasions at 0.5 cm intervals size 0.3 cm X 0.2 cm and 0.3 cm X 0.2 cm on left side of left lip on lower part. Both the injuries were fresh. The Doctor did not find any evidence o f recent sexual intercourse but opined that she was used to sex. Since the victi m was a married lady the evidence of recent sexual intercourse might not have be en detected by the Doctor. The injuries on her lips, however, indicate that she had been subjected to sexual assault. The husband of the prosecutrix who was supposed to be material witness c 14. ould not be examined by the prosecution. The learned Trial Court has observed th at the husband of the victim left the house of the prosecutrix out of shame and humiliation. Although he was summoned by the Court but his whereabouts could not be traced out. 15. It is a settled law that a person can be convicted only the solitary evi dence of a victim of sexual assault, while her testimony inspires confidence and when she is found to be reliable. In this case the testimony of prosecutrix has been corroborated by the evidence of PW 4 as well as the GD Entry Exhibited in the case. A conviction Under Section 376 I.P.C. based on the sole uncorroborated testimony of prosecutrix would be valid and legal and therefore, can be sustain ed. In this case the accused were not known to the prosecutrix. There is nothing on record that shows that the prosecutrix lodged the F.I.R. against the accused persons due to some personal grudge. In the circumstances this Court finds no r eason to interfere with the conviction of the appellants. Learned counsel for the appellants has submitted that the sentence of im 16. prisonment for a term of 10 (ten) years is too harsh and which may be reduced to the period already undergo by the appellants. Though this Court may for adequat e and special reasons reduce a sentence this Court finds no special reasons for reduction of the sentence imposed. 17. Before parting with the Judgment this Court feels that the victim should get relief as per provision of Section 357 (A) Cr.P.C. As per provision of 357 (A), aforesaid State Govt. in consultation with the Central Govt. should prepare a scheme for providing fund for the purpose of compensation to the victim or to the dependents who has suffered loss or injury as a result of crime and who mus t be rewarded rehabilitation and on recommendation by the Court for compensation , the District Legal Services Authority (DLSA) or State legal Services Authority (SLSA) as the case may be decide the quantum of compensation to be awarded Unde r the scheme. 18. So long as any scheme is formulated by the State Govt. as per provision of 357 (A) CrPC, this Court directs an interim relief without prejudice of the r ight of the victim to claim higher amount, an amount of Rs. 50,000/- be deposite d by the State Govt. with the District Legal Services Authority (DLSA), Kamrup w ithin a period of 2 (two) months w.e.f. the receipt of copy this Judgment & Ord er. The District Legal Services Authority (DLSA) on receipt of the said amount s hall release the amount to the victim without any delay. 19. Let the copy of this Judgment and Order be furnished to the Chief Secret ary to the Govt. of Assam, also to the Member Secretary of State Legal Services Authority (SLSA) and District legal Services Authority (DLSA), Kamrup for doing the needful. 20. Return the LCR.