High Court
Case Details
Crl.A. 188/2008 BEFORE THE HON’BLE DR.(MRS.) JUSTICE INDIRA SHAH
Legal Reasoning
(Indira Shah,J.) 1. This appeal has been preferred against the judgment and order dated 30.0 9.2008 passed by the learned Assistant Sessions Judge, Dhubri in Sessions Case N o. 12 of 2008 whereby the accused appellant, namely, Md. Akherajamal has been co nvicted under Sections 448/ 376 IPC and sentenced to undergo imprisonment for th ree months for his conviction under Section 448 IPC and to suffer simple impriso nment for seven years and to pay a fine of Rs. 1,000/- in default to suffer simp le imprisonment for another six months for his conviction under Section 376 IPC. Heard Mr. S.C. Biswas, learned counsel for the appellant. Also heard Ms. 2. A. Begum, learned Addl. Public Prosecutor appearing on behalf of the State of A ssam. 3. The prosecution story in brief is that on 20.08.2007 at about 1. 30 a.m. the accused appellant wrongfully entered into the house of the victim by breaki ng upon the door of the house and taking advantage of the absence of her husband , the accused committed rape on her. The victim raised alarm, her in-laws from n eighbourhood arrived there and they saw the accused running away from the house of the victim. The matter was to be decided in the village meeting. However, no such meeting could be held and therefore the victim lodged a complaint before th e Superintendent of Police who referred the matter to the Officer-in-Charge of S outh Salmara police station. On receipt of the aforesaid complaint, treating the same as first information report, South Salmara P.S. Case No. 214 of 2007 was r egistered under Sections 448/ 376 IPC. The victim was medically examined and her statement under Section 164 Cr.P.C. was recorded. On completion of investigatio n police submitted the charge sheet against the accused under Section 448/ 376 I PC. 4. ainst him under Section 448/ 376 IPC and claimed to be tried. Altogether nine witnesses were examined by the prosecution to establish 5. the charges against the accused. The accused in his statement recorded under Sec tion 313 Cr.P.C denied that he entered into the house of the victim and committe d rape on her. He did not, however, adduced any defence evidence. The prosecutrix in this case adduced her evidence as P.W.4. She deposed that in the night of occurrence she was alone in the house. The accused somehow opened t he door and entered into the house and committed rape of her. When she raised hu e and cry her in laws came and then the accused fled away. She reported the inci dent to her in-laws. In her cross-examination, she stated that the house of the accused is adjacent to her own house. She admitted that door of the house was no t broken by the accused. She denied that in her earlier statement recorded under Section 164 Cr. P. C. She had stated that the accused attempted to commit rape During the trial the accused pleaded not guilty to the charges framed ag on her but he could not succeed In The statement of the victim, recorded under Section 164 Cr.P.C., she had stat ed that although the accused attempted to commit rape on her, she kicked and pus hed him away and therefore he could not commit rape on her. 6. Doctor Arup Kumar Choudhury (P.W.5) examined the victim on 14.09.2007 an d he did not find any mark of violence on her person. He could not come to defin ite opinion as to whether any rape was committed on the victim. The victim was e xamined after twenty days of the occurrence by the doctor. Therefore, it was qui te natural that the doctor did not find any mark of violence on her person. 7. The evidence of victim to the effect that the accused wrongfully entered into the house has been corroborated by the evidence of P.W.1 who is father - i n- law of the victim. P.W.2 is the mother-in-law of the victim. P.W.3 is her husband who arriv ed at the place after half an hour of the occurrence, P.W.1 and P.W.2 came to th e place of occurrence, hearing hue and cry raised by the victim. They saw the ac cused running away from the house of the victim. 8. Hasen-uddin (P.W. 6) brother-in-law of the victim, also came to the plac e of occurrence, hearing commotion and saw the accused running away. The inciden t was reported to him on the next day. From the evidence of Rostom Ali (P.W. 7), it appears that he came to know about the incident on arrival of police. Ahabud din Sheikh (P.W.8) had deposed nothing in favour of the prosecution. P.W. 9 is t he Investigating Officer. 9. It is submitted by the learned counsel for the appellant that the delay of 9 days in lodging the FIR casts doubt against the prosecution story. The lear ned Trial Court had considered the delay and come to the finding that the delay was satisfactorily explained. After the incident, the victim reported the incide nt to her in-laws. Villagers were supposed to hold a meeting (bichar) but no suc h meeting was held. The victim ultimately had to lodge the FIR. It is further submitted by the learned counsel for the appellant that th e victim in her statement recorded under Section 164 Cr.P.C. stated that the acc used only attempted to commit rape on her and actually no rape was committed by the accused. Therefore, the conviction of the accused under Section 376 IPC is b ad in law. The accused ought to had beenconvicted under Section 354 IPC. The con viction of the accused under Section 376 IPC may be set aside. It appears from the statement of the victim recorded under Section 164 Cr.P.C as well as from medical evidence that although the accused attempted to commit rap e, he could not succeed. In view of above discussion, conviction of accused under Section 376 IPC is set aside. However, he is convicted under Section 511 read with Section 376 IPC. His conviction and sentence under Section 448 IPC is maintained. 10. It is submitted by the learned counsel for the appellant that the accused a ppellant has suffered imprisonment since 30.09.2008 that is more than four years . Therefore, for his conviction under Section 511 read with Section 376 IPC, he is sentenced to imprisonment for the period already undergone by him. However, h e will pay a fine of Rs. 1,000/- and in default of payment of fine further impri sonment for three months. 11. Issue release order directing the Suprintendent of police, Dhubri Jail to re lease the accused if the accused is not wanted in any other case. 12. Before parting with the judgment of this Court with a view to give relie f to the victim in terms of Section 357 A Cr.P.C., this Court directs the State Government to deposit an amount of Rs. 50,000/- (Rupees fifty thousand) only, wi th District Legal Services Authority, Dhubri and the District Legal Services Aut hority on receipt of same shall release the amount in favour of the victim. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, to the Principal Secretary of State Legal Services Authori ty, Assam and to the District Legal Services Authority, Dhubri for doing the nee dful. 13. This Criminal Appeal is dismissed. Send down the LCR.