Judgment · High Court · 2012

#7. Learned Sessions Judge, Sonitpur, Tezpur on the receipt of case on commi tment, transferred the case to the Additional Sessions Judge, Sonitpur, Tezpur f or disposal. The learned Additional Sessions Judge, on the receipt of the case o n transfer, heard the parties and thereafter framed charge under Section 511 rea d with 376 IPC against the accused/appellant. 8. The charge, so framed, on being read over and explained to the accused , he pleaded not guilty and claimed to be tried. During the course of trial, the prosecution has examined as many as six witnesses in order to make out the char ge brought against the accused person. The statement of accused/appellant under Section 313 CrPC was recorded. He denied the charge brought against him. But he contended that there was a dispute between the father of the victim and his fath er. 9. Such a dispute led to filing of the case against him on false and frivol ous allegations. However, when he was called upon to enter defense, he declined to adduce any evidence of his own. On conclusion of trial, learned Additional Se ssion Judge FTC, Sonitpur, Tezpur convicted the accused of offence under Section 511/376 IPC and sentenced him to punishment as aforesaid. It is that Judgment w hich has been assailed in this appeal. 10. Sri. G. Chodhury, learned counsel for the appellant in his long and det ailed argument has submitted that the Judgment of Trial Court suffers from sever al infirmities of extremely serious nature. According to him, the Judgment of th e trial Court suffers for reasons more than one. They are :- i) the evidence, rendered by the principle prosecution witnesses is found incon sistent with one another on material points. ii) the evidence of the principle witnesses is found contradictory on vital poi nts. iii) the doctor does not support the victim or for that matter other witnesses o n the point of wounds allegedly sustained by victim owing to incident under enqu iry. iv) some very vital witnesses were left out from the arena of the case under con sideration and v) a dispute between the father of the accused and the father of the victim in f act led to filing of the case aforesaid on false acquisitions. 11. The learned trial court ignored all those very vital infirmities in the prosecution case and came to the conclusion that prosecution had proved charge against the accused person beyond all reasonable doubt which is nothing but a tr avesty of truth only. Hr therefore, urges this court to set aside the Judgment o f the trial court on acquitting the accused person of the offence he was charged with.

#12. Alternatively, he argues that in the event of accused/appellant being fo und guilty of the offence, he was charged with, he cannot be sentenced to impris onment in view of decisions rendered by Hon’ble Supreme Court of India in the c ase of Gurpreet Singh V. State of Punjab reported in (2005) 12 SCC 615. So, he u rges this Court to acquit him of the offences aforesaid. 13. Controverting the argument, advanced from the side of the accused appell ant Learned Public Prosecutor appearing for the State supports the Judgment of t he Trial Court. According to him, the Judgment impugned was rendered on material s on record taking into account all the law relevant thereto. However, in view o f decisions of Hon’ble Supreme Court, rendered in the case of Gurpreet Singh(sup ra), the sentence, imposed on the accused/appellant, who is already held to be a juvenile conflict with law, may be set aside.

#14. I have given my anxious consideration to the rival contention advanced b y the learned counsel for the parties. However, before we could put such argumen t to test, I find it necessary to have a brief review of evidence of record and evidence of doctor who examined the victim soon after the alleged incident is fi rst taken up for consideration. 15. The Medical Officer who examined the victim girl at Kanaklata Civil Hosp itaL, Tezpur on 06.06.2003 was Dr. Achintya Kumar Baruah and was examined as PW 1. What he found having subjected the victim girl to medical examination are as follows:- (cid:28)Breast was not developed. Axillary and pubic hair absent. Vulva and vagina healthy. Hymen intact. No tear or injury seen on her private part. X-ray of the waist, elbow and iliac crest was advised and reports not available. In his opinion no evidence of rape found on her body. No injury found on her body and private part. Clinically her age is around 5/6 y ears. (cid:29) So situated, let me consider the evidence rendered by victim girl who w 16. as examined as PW 3. According to her, on the relevant time, she was a girl of a bout 5 years of age. On 05.06.2003, in the afternoon, she was playing with her y ounger brother and elder sister in their courtyard. Precisely at the time, accus ed Riazul came there and promised her that he would give her mango if she accomp anied him to the nearby field with him. He thereafter took her into his lap and carried her over to the nearby jute fiel d. Once she was inside the jute field, the accused put off his lungi and al 17. so removed her panty and lied her down on the ground and pressed her against him . Being frightened at such conduct of the accused, she started crying for help. Her paternal uncle heard hue and cry, raised by her and came there running. One Md. Ismat Ali, PW 5, also came there in the mean time. They took her home. 18. When her father came home, she also reported him about the alleged incid ent. It is also in her evidence that when she started crying, the accused slapp ed her too. Her father later took her to the doctor. Sometime thereafter, she to ld the Magistrate about the incident aforesaid. The Magistrate also recorded her statement which she proved as Ext-2. In her cross-examination, she had stated t hat on being subjected to sexual assault, she sustained bleeding injuries on her private parts.

#19. PW 4,Md. Hafizuddin, is a boy of about 24 years of age. He deposes that on the fateful day, at about 2:45 P.M. he was on the back side of his house eat ing mango. At that time, he heard cry coming from the side of field nearby. He i mmediately rushed to such place and arriving there, he saw his niece, the victim , lying on the field with accused on her top. The accused did not have any clothes on his body at that time. He also found the victim wit hout any under wear. 20. Seeing these, he gave the accused a slap. In the mean time, her grand- father who was in a nearby paddy field came there and took the victim to her hou se. On the other hand, PW 4 caught hold of the accused person and took him to th eir house. Sometime later, the father of the victim girl came home and he took h is daughter to hospital. 21. Father of the prosecutrix, subsequently lodged an ejahar with the police. In his cross-examination he has admitted that the accused was his cousin. Howeve r, the suggestion that there was a quarrel between the parties over the property was denied by PW 4. It is also in is evidence that victim sustained bleeding wo unds for which her wearing apparels got stained with blood. 22. PW 5, Md. Ismat Ali, the grand father of victim, deposes that on the fat eful day at about 3:00 P.M, he was coming home from his paddy field. When he rea ched the vicinity of place of occurrence, he saw the accused and victim coming o ut from the jute field nearby with accused still trying to put on his clothes. 23. One Hafizuddin, PW 4, apprehended the accused at such place and he took measures to bring the accused and the victim to their house of victim. In his cr oss-examination, he has stated that when he came out of his paddy field, he saw the accused Riazuddin and witness Hafizuddin coming towards their house. 24. Other most important prosecution witness is Md. Altaf Hussain. He is th e father of the victim. He is heard saying that one day, when he came home after closing his pharmaceutical shop, he found his daughter being treated by his wif e, his brother and his uncle as well. His uncle told him that on hearing hue and cry raised by his daughter from inside the jute cultivation nearby, his brother and his uncle rushed to such place. On arriving at the place aforesaid, they saw a naked Riazuddin on the t 25. op of his daughter. They also saw the underwear of the victim girl being removed . Seeing such unholy act on the part of the accused person, they apprehended him . Thereafter, his uncle took the victim home while his brother took the accused to their house where he was confined till his arrival at his house. He also repo rted the matter to the village people, such as, Rustam Ali. 26. The villagers assured them that the accused would be taken to task. Ther eafter, he took the victim to hospital. Next day, he lodged an ejahar with the P olice which he proved as Ext1. In his cross-examination, he denied the allegatio ns that there was a quarrel between the father of accused person and him over so me landed properties and that he prevented the accused from catching fish in his own pond. He, however, admitted that he did not notice any blood on the wearing apparel of the victim. The only witness whose evidence is yet to be reproduced is Md. Jallalud 27. din (PW 6) who is a Police Officer. According to him, on 06.06.03, he was posted as IC, Bokaghat Police Station. On that day one Altaf Hussain lodged an F.I.R. with OC at Tezpur Police station. On the receipt of the F.I.R. the OC registered the case and entrusted him to investigate the case. During the course of invest igation, he came to the place of occurrence and examined the victim girl. 28. As investigation progress, he got the statement of the victim girl recor ded by Magistrate and on completion of the investigation, he filed the charge sh eet U/s 511/376 IPC against the accused person. In his cross- examination, he ha s stated that there was no residence in the vicinity of the place of occurrence. In his evidence, he has stated that witness Altaf Hussain did not state before him that when he returned home from his pharmacy, he found his daughter being tr eated by his family members. 29. Above evidence on record, let us see how far such evidence make out the allegations brought against the accused person. But before we could find an answ er to the query above, we need to find how far the charges against the impugned Judgment stand to reason. Coming to first two allegations aforesaid , I have fou nd that there are some inconsistencies/contradictions in the testimonies rendere d by the witnesses before the court. 30. But by no stretched of imaginations, it can be said those contradiction s/inconsistencies are serious enough to shake the basis of the prosecution case. On very careful perusal of evidence on record, I have found that PW 3 who is a girl of about six years of age very clearly stated that she was taken to field n earby having jute cultivation on the promise of giving her mango at such place. But at the place aforesaid, the accused tried to commit rape on her. He also rem oved her underwear besides after putting off his own clothes. 31. Such evidence finds unqualified support from testimonies of other PWs, particularly PW3 for, this witness is found saying that on the afternoon in ques tion, he having arrived at the P.O. found a naked accused on the top of victim g irl. On the other hand, PW 5 arriving at the P.O. moments after the alleged inci dent found victim, accused as well as PW 3 coming out of jute cultivation with a ccused still trying to put on his clothes. 32. Thus, the principal prosecution witnesses supported the claims of victi m on the main and the contradictions/inconsistencies, which the appellant had po inted out in the testimonies of PWs aforesaid, being minor in nature which occ ur only on the peripheral aspects of the prosecution case could cause no harm to the prosecution case. Being so, I have no hesitation in rejecting those alleg ations 33. It has also been pointed out that victim claims that she sustained woun ds on her private parts and it was caused by sexual assault which she was subjec ted to on the afternoon aforesaid . It is true that doctor did not find any wou nd on the victim when he examined her on 06.06.2003 at hospital. But such eviden ce does not rule out that the victim had never been subjected to an assault of s exual nature at the P.O. on the afternoon aforesaid. 33A. More so when the accused is facing a trial only on the charge of offence U/s 511 read with 376 IPC. 34. It is true that the victim have exaggerated her case in her cross-examination. But this may be for variety of reasons, principal of them being that the victim, a young girl of about six years, is totally str anger to the court procedures, court environment and the paraphernalia, attached with the court. Viewed from that angle, one cannot take serious offence to vict im making some improvement to her case while rendering evidence in her cross-ex amination. The accused appellant also took exception for not examining some vital 35. witness, such as, brother and sister of victim and some villagers such as Rusta m. We have found that on the date when the victim rendered her evidence in the c ourt she was a girl of only six years of age meaning thereby that on the date of incident she must be a girl of about 4/5 years of age. Her younger sister must be a girl of about 2/3 years of age. 36. On the other hand, her brother must be a boy who was yet to overcome his childhood on the date when incident in question had occurred. That being so, no n examination of those persons, in my considered opinion, does not adversely aff ect the prosecution case, more so, when they never claimed to have seen the inci dent aforesaid. I have also found that the non examination of one Rustam Ali is of no consequences since there is no evidence on record to show that Md. Ali w as also a eye witness to the incident under consideration. 37. Coming to the last allegation that the case under scrutiny is a outcome of dispute between the fathers of the accused and the victim, it is to be state d that there is absolutely no evidence of record to show that the father of the victim girl had launched the case against the accused only to satisfy his grudge for his having a dispute with the father of the accused over some property.

#38. It is in those backdrops, it is to be seen if on the fateful afternoon, the accused did attempt to commit rape on the victim, a girl of five years of a ge at that point of time. Our foregoing discussion now very clearly shows that o n the afternoon in question, the accused did take the victim to the field, took her inside the jute cultivation, removed her underwear and put of his own clothe s as well. 38A. the evidence on record also shows that the accused laid the victim on the g round and put himself on the top of the victim without having any clothes on him and made attempt to insert his private organ into the private part of the victi m. But before he could proceed further, the victim raised hue and cry which brou ght the witnesses nearby to such place and it saved the victim from being actual ly raped. 38B. I have found that the accused is a very close relative of victim. No family members of the victim have any axe to grind against the accused person. These n ot only show that PWs are truthful but they also show that allegation, made agai nst the accused has a huge ring of truth as well. 39. In view of above I am of the opinion that prosecution has very successfu lly made out charge brought against the accused person U/s 511/376 IPC and as su ch, the order of conviction so recorded by Trial Court against the accused/ appe llant cannot be faulted with. In the result conviction of the accused person U/ s 511/376 IPC is affirmed. Our attention has been drawn to the decision of Hon’ble Supreme Court o 40. f India in the case of Gurpreet Singh (supra) wherein it was held as follows:- Shri Prabha Shankar Misra, learned Senior Counsel appearing in support of Crimin al Appeal No. 710 of 1995 apart from challenging the conviction of the appellant Mohinder Pal Singh on merits, which we have already dealt with, submitted that on the date of the alleged occurrence, he was a juvenile within the meaning of S ection 2(h) of the Juvenile Justice Act, 1986 (hereinafter referred to as (cid:28)the A ct (cid:29)) as on that date he had not attained the age of 16 years. It appears that th is point was not raised either before the trial court or the High Court. But it is well settled that in such an eventuality, this Court should first consider th e legality or otherwise of conviction of the accused and in case the conviction is upheld, a report should be called for from the trial Court on the point as to whether the accused was juvenile on the date of occurrence and upon receipt of the report, if it is found that the accused was juvenile on such date and contin ues to be so, he shall be sent to juvenile home. But in case it finds that on th e date of the occurrence, he was juvenile but on the date this Court is passing final order upon the report received from the trial court, he no longer continue s to be juvenile, the sentence imposed against him would be liable to be set asi de. Reference in this connection may be made to a decision of this Court in Bhoo p Ram v. State of U.P. in which at the time of grant of special leave to appeal , report was called for from the trial court as to whether the accused was juven ile or not which reported that the accused was not a juvenile on the date of the occurrence but this Court, differing with the report of the trial court, came t o the conclusion that the accused was juvenile on the date of offence was commit ted and as he was no longer a juvenile on the day of Judgment of this Court, sen tence awarded against him was set aside, though the conviction was upheld. In th e present case, we have already upheld the conviction of the appellant Mohinder Pal Singh as well but it would be just and expedient to call for a report from the trial court in relation to his age on the date of the occurrence. (Emphasis supplied by me.) (cid:29) 41. In our instant case, evidently and admittedly too, the accused/appellant was a boy of about thirteen years of age on the day of incident but his present age about twenty three years. Therefore, though the accused was a juvenile in c onflict with law on the date aforesaid, he no longer enjoys such a status today. Being so, in view of decision rendered in the case of Gurpreet Singh (supra) I have no other alternative but to set aside this sentence’s imposed upon the accu sed appellant by the Trial Court. 42. rial Court stands set aside. In the result, the sentence, imposed upon the accused appellant by the T

#43. 44. The Judgment of the trial court accordingly stand modified. Return the LCR.