High Court
Case Details
Crl.A. 11/2007 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI This appeal is directed against the judgment and order, dated 07.12.2006, passed , in Sessions Case No.109 of 2004, by the learned Additional Sessions Judge, Dhu bri, convicting the accused-appellant under Section 376 IPC and sentencing him t o undergo rigorous imprisonment for seven years with fine of rupees five thousan d and, in default of payment of fine, suffer simple imprisonment for three month s. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
Legal Reasoning
(i) On 18.08.2003, at about 12.30 am, when PW6 went out of her house hol ding a lamp in her hand to make water, the accused-appellant grabbed her from be hind, forcibly dragged her to his room and, having told PW6 that he would marry her (PW6), had sexual intercourse with her against her will. On the day of the o ccurrence, the parents of PW6 were not at home and, when her parents returned on the following day, they were reported by PW6 about the occurrence. As the paren ts of the accused-appellant promised that their son (accused-appellant) would ma rry PW6, no action was taken by the parents of PW6; but as repeated attempts by them failed to invoke any response, PW1, father of PW6, lodged an Ejahar, in wri ting, regarding the occurrence. Treating the said Ejahar as First Information Re port (in short, FIR), Mancachar Police Station Case No.139/2003, under Section 3 76 IPC, was registered against the accused-appellant. (ii) During investigation, PW6 was medically examined and, on completion of inve stigation, a charge-sheet was laid, under Section 376 IPC, against the accused-a ppellant. 3. the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 8 witnesses. T he accused was, then, examined under Section 313 Cr.PC and, in his examination a forementioned, the accused denied that he had committed the offence, which was a lleged to have been committed by him, his case being that of denial. No evidence At the trial, when a charge, under Section 376 IPC, was framed against was adduced by the defence. 5. Having, however, found the accused-appellant guilty of the offence, with which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, accused, Lal Chand Miah, h as preferred this appeal. 6. , and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. While considering the present appeal, what needs to be borne in mind is 7. that in his FIR, the informant (PW1) did not mention that his daughter (PW6) was a minor. Neither the informant nor his daughter (PW6) has given evidence to the effect that the informant’s daughter (PW6) was a minor at the time of the alleg
Legal Reasoning
I have heard Mr. D.P. Chaliha, learned Senior counsel, for the appellant ed occurrence. 8. In the light of the above aspect of the present case, I need to consider the evidence of the doctor (PW7), who, I find, has deposed that on 22.09.2003, he had medically examined PW6 and, on examination, he found no injury marks on h er person and he concluded that her age was below 18 years. It is trite that the age, given by a medical expert, can vary by a period of two years. While, there fore, PW6 could have been as young as 16 years, possibility that she could have been 20 years old cannot be ruled out. No wonder, therefore, that the prosecutio n did not present the case, at hand, as a case of rape of a minor. 9. In the backdrop of the above aspects of the case, when I turn to the evi dence of PW6, who is the most material witness inasmuch as hers is the evidence around which revolves the entire case of the prosecution, I notice that accordin g to her evidence, on the day of the occurrence, her father was not at home and when she went out of her house, at about 12.30 am, for making water taking a lam p in her hand, the accused-appellant, suddenly, grabbed her from behind, gagged her, took her to his room telling that he would marry her and, later on, he forc ibly had sexual intercourse with her. It is in the evidence of PW6 that having s ubjected her to rape, the accused-appellant called PW2 by falsely telling him th at PW6 had forcibly entered into his room and, then, send PW2 to call PW6’s pare nts and, on their arrival, they assured her marriage with the accused, whereupon her parents took her back to their house and that on the following day, in the morning, she told her father and one Abu Miah about the occurrence. 10. From the evidence of PW6, what clearly transpires is that according to h er evidence, given in the examination-in-chief, on the very night of the occurre nce, the accused-appellant called up PW2 and told him that PW6 had come to his h ouse and, then, the accused-appellant got PW6’s parents called and, on their arr ival, they were assured that the accused-appellant would marry PW6 and, then, h er parents took her back. Thus, on the very night of the occurrence, according t o the evidence of PW6, her parents were informed about the occurrence and even t he accused did not maintain the secrecy with regard to the fact that PW6 was pre sent in his house. In the light of the evidence, so given by PW6, when the evidence of PW1 11. is considered, what attracts, most prominently, the attention of this Court is t hat according to the evidence of PW1, father of PW6, on the day of the occurrenc e, he had gone to Satimari with his wife to attend the marriage ceremony of his sister-in-law and came back on the following day morning and it was, in the morn ing, he came to know from the people of the locality that his daughter (PW6) had been subjected to rape by the accused-appellant, while she (PW6) came out of he r house for making water and by taking her to his room and, then, he (PW1) went to the house of the accused-appellant and there he found PW6, who told him (PW1) that she was grabbed from behind by the accused-appellant, while she came out f or making water holding a lamp in her hand and, gagging her, the accused took he r to his room and forcibly had sexual intercourse with her. Thus, while PW6 claims that on the night of the occurrence itself, her p 12. arents were informed about the occurrence, PW1 claims that it was only on the fo llowing day morning, when he returned home, that he came to know about the occur rence. Similarly, while the evidence of PW6 is that she was carried to her par 13. ents’ house by persons other than PW1, PW1 claims that on the following day, he went to the house of the accused and brought his daughter home. In fact, the inv estigating officer has confirmed that PW1 has stated before him that he went bac k home on the very night of the occurrence. Though PW1 has denied that he has st ated before the police that the accused himself had called up Raju Miah and his parents and informed about PW6 coming to his house, the investigating officer ha s confirmed that such a statement was, indeed, made. 14. Moreover, in his further cross-examination, PW1 claims that it was from Abu Miah that he learnt about the occurrence and lodged the FIR; whereas, his ex amination-in-chief reveals that on being informed by Abu Miah, he went to the ho use of the accused and met his daughter (PW6) and learned from her about the occ urrence. Thus, the evidence of PW1, on the one hand, and PW6, on the other, are not only self-contradictory, but also irreconcilable on every material aspects o f their evidence. 15. Coupled with above, the undisputed evidence of PW2 is that on the night of the occurrence, the accused called him and told him that PW6 had come to his house and that her parents need to be informed and, on the request of the accuse d, he called the parents of PW6. In fact, it is also in the evidence of PW2 that on the request of the accused, he (PW2) went to the room of the accused and fou nd PW6 present there and that in his presence, the parents of the accused assure d PW6 of her marriage with the accused after due discussion with her parents in the morning. 16. What is extremely important to note, while considering the evidence of P W2, is that he has deposed that PW6 told him that if she was not given in marria ge on that very night to the accused, she would not go home. 17. The above undisputed evidence of PW2 further destroys the credibility of the evidence given by PW1 and PW6. In fact, in this regard, the evidence of PW4 is also relevant inasmuch as PW4, too, has deposed that PW6 wanted to marry the accused, but the accused did not want to marry her and this phenomenon had been going on for a long time. 18. In the light of the evidence, which I have discussed above, the evidence of PW6 can, in no way, be relied upon and even if her evidence is not rejected as wholly unreliable, her evidence will fall, at best, in the category of those witnesses, who are neither wholly reliable nor wholly unreliable. The witnesses, generally, fall in three categories, namely, those who are wholly reliable, and those, who are wholly unreliable. Coupled with this, the third category is of t hose witnesses, who are neither wholly reliable nor wholly unreliable. While the re is no impediment in relying upon the testimony of a witness, who is wholly re liable, it is also quite easy to reject the evidence of a witness, who is wholly unreliable. In the case of a witness, who is neither wholly reliable nor wholly unreliable, the evidence of such a witness has to be corroborated, in order to rely upon, by credible evidence, direct or circumstantial. 19. In the case at hand, the evidence of PW1, as has been discussed above, i s also not credible and, in such circumstances, depending upon the evidence of P W6, conviction of the accused-appellant could not have been founded. At any rate , the facts of the present case demanded that the accused-appellant be given, at least, the benefit of doubt. Because of what have been discussed and pointed out above, this Court do 20. es not find that the evidence on record was sufficiently credible and safe to ho ld the accused-appellant guilty of the offence, which he stood charged with, and he ought to have been acquitted by giving him, at least, benefit of doubt. 21.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction and the sentence passed against the accused-appellant b y the judgment and order under appeal are hereby set aside. The accused-appellan t is held not guilty of the offence of which he stands convicted and he is acqui tted of the same under benefit of doubt. 22. uired to be detained in connection with any other case. 23. Let the accused-appellant be set at liberty, forthwith, unless he is req Send back the LCR.