High Court
Case Details
Crl.A. 224/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
This appeal is presented to challenge the judgment and order dated 6.7.2006 in t he Sessions Case No.21/2006 (G. R. Case No.955/2005) rendered by the learned Ses sions Judge, Morigaon, whereby the accused/ appellant has been convicted under S ection 376 of the IPC and sentenced to suffer R.I. for 5 years and fine of Rs.5, 000/- and in default of fine to suffer R.I. for further 3 months. I have heard Mr. M H Choudhury, learned counsel appearing for the accuse 2. d/appellant. Mr. B S Sinha, learned Addl. Public Prosecutor represents the State . 3. The Complaint Case No.2035C/2005 was filed on 29.11.2005 before the Cour t of the learned Chief Judicial Magistrate, Morigaon with the allegation that on 27.11.2005 at about 9:30 P.M., while the prosecutrix was returning home from th e house of one Babur Ali, the accused accosted her on the road and after taking her to his home, subjected her to sexual assault during the night. On the next m orning, the father and brother of the accused assaulted the victim and drove her out from their house. After the complaint was forwarded, the Moirabari P.S. Cas e No.177/2005 was registered and eventually charge sheet under Section 366/376 o f the IPC was filed against the appellant. Since the accused denied the charge, the trial commenced where prosecution presented 8 witnesses whereas no evidence was cited from the side of the defence. 4. While the trial was on, social marriage took place between the victim an d the accused and subsequently their marriage was registered and currently both of them are living as a happy family with two minor children born of their wedlo ck. 5. The counsel for the appellant submits that the victim and the accused ag reed to marry each other as the victim was a consenting major and only because o f objection from the accused family to their marriagethe complaint case was regi stered, which led to registration of the Criminal Case. 6. In cases of sexual assault the testimony of the victim has a major beari ng and in this case, the victim in her evidence stated that at about 9:30 P.M. o n 27.11.2005, while she was returning home with PW.1 after watching television i n the house of Babur Ali (a neighbour), the accused accosted her on the road and took her away to the nearby jungle/field, where she was sexually assaulted. The reafter the accused took the victim to his house. In her cross-examination, the victim stated that her brother Isop saw the occurrence in the field. However in the FIR and in her statement under Section 164 of the CrPC, t he victim never mentioned about returning home along with PW.2 Musstt. Hajera Kh atun and in the FIR, the informant stated that she was sexually assaulted in the house of the accused and there is no mention of such assault either in the jung le or the field. The victim was examined by PW.4, Dr. ATM Eusuf, Medical Officer of the C 7. ivil Hospital, Morigaon. According to the report of the radiologist Dr. T C Sarm a, the victim was aged about 18 to 19 years. No sign of recent sexual intercours e was noticed on her although she was found to be habituated to sexual intercour se. But the medical examination tool place 7 days after the occurrence. 8. Although the brother of the victim Isop was reportedly an eye witness to the assault on the night of 27.11.2005, he was not produced as a witness. More importantly no explanation is available as to why the brother having witnessed t he sexual assault, did not make any attempt to rescue his sister or informed the others who could have taken steps in the matter. 9. PW.1 Musstt. Hajera Khatun is the sister-in-law of the victim and she wa s present with the victim when she was dragged away by the accused from the road . But this witness also failed to make any effort to either rescue her sister-in -law or to inform other family members to aid the victim. 10. The sketch map (Ext.3) shows that the house of the accused, the jungle/f ield (place of occurrence), the house of Babur Ali, where the victim watched tel evision and the road from where the victim was dragged away are all located in t he same village and it is inconceivable and unnatural for either the brother of the victim or her sister-in-law, who were eye witnesses to the abduction and ass ault, not to raise any hue and cry or seek help of their co-villagers to rescue the victim. 11. In her statement recorded under Section 164 of the CrPC, the victim stat ed that after she was sexually assaulted in the jungle, she was taken by the acc used to his house where she was allowed to sleep with the sister of the accused but on the next day, the sister, brother and father of the accused did not allow the accused to marry the victim and threw her out of the house where after, the Complaint Case was lodged. Thus the testimony of the prosecutrix given in the C ourt about being subjected to sexual assault in the house of the accused through out the night is contradicted by her own statement given before the Magistrate u nder Section 164 of the CrPC. 12. In his statement under Section 313 of the CrPC, the accused in response of question 13 gave the following reply and question as well as the answer is qu oted herein for ready reference:- (cid:28)Q.13: Do you like to say anything or adduce any evidence in defence? Ans.: Hasnara has been married by me and she is now living as my wife. I do not like to adduce any evidence in this case. I am innocent (cid:29). 13. Mr. B S Sinha, learned Addl. Public Prosecutor has fairly submitted that the consent of the victim can’t entirely be ruled out and the medical report sh ows the victim to be above 18 years. 14. Having noted all the material evidence and taking into account that the victim and the accused are now married and parents of two minor children and not icing the contradiction in the statement(s) of the victim herself, I am of the c onsidered opinion that sustaining of conviction under Section 376 of the IPC may n’t be justified. Having noted the evidence of the prosecutrix, her statem ent under Section 164 and under Section 161 of the CrPC, the FIR, the medical ev idence, the evidence of the sister-in-law PW.1 and the statement of the accused under Section 313 of the CrPC and taking into account that the eye witness Isop (victim’s brother) not being produced by the prosecution, it is held that this A ppeal has merit and deserves to be allowed. 15. Accordingly the impugned judgment and order dated 6.7.2006 in the Sessio ns Case No.21/2006 (G. R. Case No.955/2005) is set aside and consequentially the bail bond stands discharged. 16. The L.C.R. be returned immediately.